CHAPTER 5

EN BANC

[ G.R. No. 158466, June 15, 2004 ]

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.

On June 18, 2001, private respondent filed his answer with counter-protest[5] vehemently denying that he
engaged in massive vote buying. He also opposed petitioner's 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 petitioner's 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:

xxx xxx

2) DENY protestant's (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.

[1] Sunga vs. COMELEC, G.R. No. 125629, March 25, 1998, 288 SCRA 76.

[2] Petition, Annex "A", Rollo at 24-42.

[3] Petition, Annex "B", id. at 43-44.

[4] Petition, Annex "D," id. at 53-59.

[5] Petition, Annex "E," id. at 60-69.

[6] Petition, Annex "F," id. at 70-74.

[7] Petition, id. at 27.

[8] Petition, id. at 28.

[9] The Electoral reform Law of 1987, January 5, 1988.

[10] G.R. No. 150605, December 10, 2002, 393 SCRA 639.

[11] Reyes vs. Comelec, G.R. No. 120905, March 7, 1996, 254 SCRA 514; Nolasco vs. Comelec, G.R. Nos.
122250 & 122258, July 21, 1997, 275 SCRA 762.

[12] Sunga vs. COMELEC, supra.

[13] G.R. No. 86564, August 1, 1989, 176 SCRA 1.

[14] G.R. No. 100710, September 3, 1991, 201 SCRA 253.

[15] G.R. No. 106053, August 17, 1994, 235 SCRA 436.

[16] G.R. No. 134015, July 19, 1999, 310 SCRA 546.

[17] Topacio vs. Paredes, 23 Phil. 238 (1912).

[18] G.R. Nos. L-60504, L-60591, 60732-39, May 14, 1985, 136 SCRA 435.

[19] Aquino vs. COMELEC, G.R. No. 120265, September 18, 1995, 248 SCRA 400.

[20] G.R. No. 132986, May 19, 2004.

[21] G.R. No. 108033, April 14, 1997, 271 SCRA 204, 207-208.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-14639 March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.

City Fiscal Diaz for respondents.

MALCOLM, J.:

The annals of juridical history fail to reveal a case quite as remarkable as the one which this application
for habeas corpus submits for decision. While hardly to be expected to be met with in this modern epoch of
triumphant democracy, yet, after all, the cause presents no great difficulty if there is kept in the forefront of
our minds the basic principles of popular government, and if we give expression to the paramount purpose
for which the courts, as an independent power of such a government, were constituted. The primary
question is — Shall the judiciary permit a government of the men instead of a government of laws to be set
up in the Philippine Islands?

Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable
reading for other departments of the government, the facts are these: The Mayor of the city of Manila, Justo
Lukban, for the best of all reasons, to exterminate vice, ordered the segregated district for women of ill
repute, which had been permitted for a number of years in the city of Manila, closed. Between October 16
and October 25, 1918, the women were kept confined to their houses in the district by the police.
Presumably, during this period, the city authorities quietly perfected arrangements with the Bureau of Labor
for sending the women to Davao, Mindanao, as laborers; with some government office for the use of the
coastguard cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers. At any rate,
about midnight of October 25, the police, acting pursuant to orders from the chief of police, Anton Hohmann
and the Mayor of the city of Manila, Justo Lukban, descended upon the houses, hustled some 170 inmates
into patrol wagons, and placed them aboard the steamers that awaited their arrival. The women were given
no opportunity to collect their belongings, and apparently were under the impression that they were being
taken to a police station for an investigation. They had no knowledge that they were destined for a life in
Mindanao. They had not been asked if they wished to depart from that region and had neither directly nor
indirectly given their consent to the deportation. The involuntary guests were received on board the
steamers by a representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two
steamers with their unwilling passengers sailed for Davao during the night of October 25.

The vessels reached their destination at Davao on October 29. The women were landed and receipted for
as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yñigo and Rafael Castillo.
The governor and the hacendero Yñigo, who appear as parties in the case, had no previous notification
that the women were prostitutes who had been expelled from the city of Manila. The further happenings to
these women and the serious charges growing out of alleged ill-treatment are of public interest, but are not
essential to the disposition of this case. Suffice it to say, generally, that some of the women married, others
assumed more or less clandestine relations with men, others went to work in different capacities, others
assumed a life unknown and disappeared, and a goodly portion found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao,
the attorney for the relatives and friends of a considerable number of the deportees presented an
application for habeas corpus to a member of the Supreme Court. Subsequently, the application, through
stipulation of the parties, was made to include all of the women who were sent away from Manila to Davao
and, as the same questions concerned them all, the application will be considered as including them. The
application set forth the salient facts, which need not be repeated, and alleged that the women were
illegally restrained of their liberty by Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of
police of the city of Manila, and by certain unknown parties. The writ was made returnable before the full
court. The city fiscal appeared for the respondents, Lukban and Hohmann, admitted certain facts relative to
sequestration and deportation, and prayed that the writ should not be granted because the petitioners were
not proper parties, because the action should have been begun in the Court of First Instance for Davao,
Department of Mindanao and Sulu, because the respondents did not have any of the women under their
custody or control, and because their jurisdiction did not extend beyond the boundaries of the city of
Manila. According to an exhibit attached to the answer of the fiscal, the 170 women were destined to be
laborers, at good salaries, on the haciendas of Yñigo and Governor Sales. In open court, the fiscal
admitted, in answer to question of a member of the court, that these women had been sent out of Manila
without their consent. The court awarded the writ, in an order of November 4, that directed Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Francisco Sales, governor
of the province of Davao, and Feliciano Yñigo, an hacendero of Davao, to bring 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 Yñigo answered
alleging that he did not have any of the women under his control and that therefore it was impossible for
him to obey the mandate. The court, after due deliberation, on December 10, 1918, promulgated a second
order, which related that the respondents had not complied with the original order to the satisfaction of the
court nor explained their failure to do so, and therefore directed that those of the women not in Manila be
brought before the court by respondents Lukban, Hohmann, Sales, and Yñigo on January 13, 1919, unless
the women should, in written statements voluntarily made before the judge of first instance of Davao or the
clerk of that court, renounce the right, or unless the respondents should demonstrate some other legal
motives that made compliance impossible. It was further stated that the question of whether the
respondents were in contempt of court would later be decided and the reasons for the order announced in
the final decision.

Before January 13, 1919, 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 Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor,
and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that the 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
Yñigo to present the persons named in the writ before the court on December 2, 1918. The order was dated
November 4, 1918. The respondents were thus given ample time, practically one month, to comply with the
writ. As far as the record discloses, the Mayor of the city of Manila waited until the 21st of November before
sending a telegram to the provincial governor of Davao. According to the response of the attorney for the
Bureau of Labor to the telegram of his chief, there were then in Davao women who desired to return to
Manila, but who should not be permitted to do so because of having contracted debts. The half-hearted
effort naturally resulted in none of the parties in question being brought before the court on the day named.

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 Yñigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of Manila.

The power to punish for contempt of court should be exercised on the preservative and not on the vindictive
principle. Only occasionally should the court invoke its inherent power in order to retain that respect without
which the administration of justice must falter or fail. 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 Yñigo 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, Yñigo, 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., Avanceña 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
corpus proceeding 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
Yñigo to present the persons named in the writ before the court on December 2, 1918. The order was dated
November 4, 1918. The respondents were thus given ample time, practically one month, to comply with the
writ. As far as the record 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 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.

#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).

38 Ibid, 412.

EN BANC August 15, 1961

IN RE: PETITION OF ARTURO EFREN GARCIA for admission to the Philippine Bar without taking
the examination. ARTURO EFREN GARCIA, petitioner.

RESOLUTION

BARRERA, J.:

Arturo E. Garcia has applied for admission to the practice of law in the Philippines without submitting to the
required bar examinations. In his verified petition, he avers, among others, that he is a Filipino citizen born
in Bacolor City, Province of Negros Occidental, of Filipino parentage; that he had taken and finished in
Spain, the course of "Bachillerato Superior"; that he was approved, selected and qualified by the "Instituto
de Cervantes" for admission to the Central University of Madrid where he studied and finished the law
course graduating there as "Licenciado En Derecho"; that thereafter he was allowed to practice the law
profession in Spain; and that under the provision of the Treaty of Academic Degrees and the Exercise of
Professions between the Republic of the Philippines and the Spanish state, he is entitled to practice the law
profession in the Philippines without submitting to the required bar examinations.

After due consideration, the Court resolved to deny the petition on the following grounds:

(1) the provisions of the Treaty on Academic Degrees and the Exercise of Professions between the
Republic of the Philippines and the Spanish State can not be invoked by applicant. Under Article 11 thereof;
The Nationals of each of the two countries who shall have obtained recognition of the validity of their
academic degrees by virtue of the stipulations of this Treaty, can practice their professions within the
territory of the Other, . . .. (Emphasis supplied).

from which it could clearly be discerned that said Treaty was intended to govern Filipino citizens desiring to
practice their profession in Spain, and the citizens of Spain desiring to practice their professions in the
Philippines. Applicant is a Filipino citizen desiring to practice the legal profession in the Philippines. He is
therefore subject to the laws of his own country and is not entitled to the privileges extended to Spanish
nationals desiring to practice in the Philippines.

(2) Article I of the Treaty, in its pertinent part, provides .

The nationals of both countries who shall have obtained degree or diplomas to practice the liberal
professions in either of the Contracting States, issued by competent national authorities, shall be deemed
competent to exercise said professions in the territory of the Other, subject to the laws and regulations of
the latter. . . ..

It is clear, therefore, that the privileges provided in the Treaty invoked by the applicant are made expressly
subject to the laws and regulations of the contracting State in whose territory it is desired to exercise the
legal profession; and Section 1 of Rule 127, in connection with Sections 2,9, and 16 thereof, which have
the force of law, require that before anyone can practice the legal profession in the Philippine he must first
successfully pass the required bar examinations; and

(3) The aforementioned Treaty, concluded between the Republic of the Philippines and the Spanish State
could not have been intended to modify the laws and regulations governing admission to the practice of law
in the Philippines, for the reason that the Executive Department may not encroach upon the constitutional
prerogative of the Supreme Court to promulgate rules for admission to the practice of law in the Philippines,
the lower to repeal, alter or supplement such rules being reserved only to the Congress of the Philippines.
(See Sec. 13, Art VIII, Phil. Constitution).

Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Paredes, Dizon, De Leon and Natividad, JJ., concur.
Bautista Angelo, J., on leave, took no part.
Concepcion, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

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.
AVANCEÑA, 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 has a mother and a brother eight years old to
support, and Tranquilino Lagman also has a father to support, has no military learnings, and does not wish
to kill or be killed.

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

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

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

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

In the United States the courts have held in a series of decisions that the compulsory military service
adopted by reason of the civil war and the world war does not violate the Constitution, because the power
to establish it is derived from that granted to Congress to declare war and to organize and maintain an
army. This is so 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.

A.M. No. P-02-1651 June 22, 2006
(Formerly OCA I.P.I. No. 00-1021-P)

ALEJANDRO ESTRADA, Complainant,

vs.
SOLEDAD S. ESCRITOR, Respondent.

RESOLUTION

PUNO, J.:

While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor once again
stands before the Court invoking her religious freedom and her Jehovah God in a bid to save her family –
united without the benefit of legal marriage - and livelihood. The State, on the other hand, seeks to wield its
power to regulate her behavior and protect its interest in marriage and family and the integrity of the courts
where respondent is an employee. How the Court will tilt the scales of justice in the case at bar will decide
not only the fate of respondent Escritor but of other believers coming to Court bearing grievances on their
free exercise of religion. This case comes to us from our remand to the Office of the Court Administrator on
August 4, 2003.1

I. THE PAST PROCEEDINGS

In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested Judge Jose F.
Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Piñas City, for an investigation of
respondent Soledad Escritor, court interpreter in said court, for living with a man not her husband, and
having borne a child within this live-in arrangement. Estrada believes that Escritor is committing an immoral
act that tarnishes the image of the court, thus she should not be allowed to remain employed therein as it
might appear that the court condones her act.2 Consequently, respondent was charged with committing
"disgraceful and immoral conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code. 3

Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow, her
husband having died in 1998.4 She admitted that she started living with Luciano Quilapio, Jr. without the
benefit of marriage more than twenty years ago when her husband was still alive but living with another
woman. She also admitted that she and Quilapio have a son.5 But as a member of the religious sect known
as the Jehovah’s Witnesses and the Watch Tower and Bible Tract Society, respondent asserted that their
conjugal arrangement is in conformity with their religious beliefs and has the approval of her
congregation.6 In fact, after ten years of living together, she executed on July 28, 1991, a "Declaration of
Pledging Faithfulness."7

For Jehovah’s Witnesses, the Declaration allows members of the congregation who have been abandoned
by their spouses to enter into marital relations. The Declaration thus makes the resulting union moral and
binding within the congregation all over the world except in countries where divorce is allowed. As laid out
by the tenets of their faith, the Jehovah’s congregation requires that at the time the declarations are
executed, the couple cannot secure the civil authorities’ approval of the marital relationship because of
legal impediments. Only couples who have been baptized and in good standing may execute the
Declaration, which requires the approval of the elders of the congregation. As a matter of practice, the
marital status of the declarants and their respective spouses’ commission of adultery are investigated
before the declarations are executed.8 Escritor and Quilapio’s declarations were executed in the usual and
approved form prescribed by the Jehovah’s Witnesses, 9 approved by elders of the congregation where the
declarations were executed,10 and recorded in the Watch Tower Central Office.11

Moreover, the Jehovah’s congregation believes that once all legal impediments for the couple are lifted, the
validity of the declarations ceases, and the couple should legalize their union. In Escritor’s case, although
she was widowed in 1998, thereby lifting the legal impediment to marry on her part, her mate was still not
capacitated to remarry. Thus, their declarations remained valid. 12 In sum, therefore, insofar as the
congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor and
Quilapio and they remain members in good standing in the congregation.

By invoking the religious beliefs, practices and moral standards of her congregation, in asserting that her
conjugal arrangement does not constitute disgraceful and immoral conduct for which she should be held
administratively liable,13 the Court had to determine the contours of religious freedom under Article III,
Section 5 of the Constitution, which provides, viz:

Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political
rights.

A. Ruling

In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins and development of
the religion clauses in the United States (U.S.) and the Philippines, we held that in resolving claims
involving religious freedom (1) benevolent neutrality or accommodation, whether mandatory or permissive,
is the spirit, intent and framework underlying the religion clauses in our Constitution; and (2) in deciding
respondent’s plea of exemption based on the Free Exercise Clause (from the law with which she is
administratively charged), it is the compelling state interest test, the strictest test, which must be applied. 14

Notwithstanding the above rulings, the Court could not, at that time, rule definitively on the ultimate issue of
whether respondent was to be held administratively liable for there was need to give the State the
opportunity to adduce evidence that it has a more "compelling interest" to defeat the claim of the
respondent to religious freedom. Thus, in the decision dated August 4, 2003, we remanded the complaint to
the Office of the Court Administrator (OCA), and ordered the Office of the Solicitor General (OSG) to
intervene in the case so it can:

(a) examine the sincerity and centrality of respondent’s claimed religious belief and practice;

(b) present evidence on the state’s "compelling interest" to override respondent’s religious belief and
practice; and

(c) show that the means the state adopts in pursuing its interest is the least restrictive to respondent’s
religious freedom. 15

It bears stressing, therefore, that the residual issues of the case pertained NOT TO WHAT APPROACH
THIS COURT SHOULD TAKE IN CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER
TEST APPLICABLE IN DETERMINING CLAIMS OF EXEMPTION BASED ON FREEDOM OF RELIGION.
These issues have already been ruled upon prior to the remand, and constitute "the law of the case" insofar
as they resolved the issues of which framework and test are to be applied in this case, and no motion for its
reconsideration having been filed.16 The only task that the Court is left to do is to determine whether the
evidence adduced by the State proves its more compelling interest. This issue involves a pure question of
fact.

B. Law of the case

Mr. Justice Carpio’s insistence, in his dissent, in attacking the ruling of this case interpreting the religious
clauses of the Constitution, made more than two years ago, is misplaced to say the least. Since neither the
complainant, respondent nor the government has filed a motion for reconsideration assailing this ruling, the
same has attained finality and constitutes the law of the case. Any attempt to reopen this final ruling
constitutes a crass contravention of elementary rules of procedure. Worse, insofar as it would overturn the
parties’ right to rely upon our interpretation which has long attained finality, it also runs counter to
substantive due process.

Be that as it may, even assuming that there were no procedural and substantive infirmities in Mr. Justice
Carpio’s belated attempts to disturb settled issues, and that he had timely presented his arguments, the
results would still be the same.

We review the highlights of our decision dated August 4, 2003.

1. Old World Antecedents

In our August 4, 2003 decision, we made a painstaking review of Old World antecedents of the religion
clauses, because "one cannot understand, much less intelligently criticize the approaches of the courts and
the political branches to religious freedom in the recent past in the United States without a deep
appreciation of the roots of these controversies in the ancient and medieval world and in the American
experience."17 We delved into the conception of religion from primitive times, when it started out as the state

itself, when the authority and power of the state were ascribed to God. 18 Then, religion developed on its
own and became superior to the state,19 its subordinate,20 and even becoming an engine of state policy.21

We ascertained two salient features in the review of religious history: First, with minor exceptions, the
history of church-state relationships was characterized by persecution, oppression, hatred, bloodshed, and
war, all in the name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions,
this history witnessed the unscrupulous use of religion by secular powers to promote secular purposes and
policies, and the willing acceptance of that role by the vanguards of religion in exchange for the favors and
mundane benefits conferred by ambitious princes and emperors in exchange for religion’s invaluable
service. This was the context in which the unique experiment of the principle of religious freedom and
separation of church and state saw its birth in American constitutional democracy and in human history. 22

Strictly speaking, the American experiment of freedom and separation was not translated in the First
Amendment. That experiment had been launched four years earlier, when the founders of the republic
carefully withheld from the new national government any power to deal with religion. As James Madison
said, the national government had no "jurisdiction" over religion or any "shadow of right to intermeddle" with
it. 23

The omission of an express guaranty of religious freedom and other natural rights, however, nearly
prevented the ratification of the Constitution. The restriction had to be made explicit with the adoption of the
religion clauses in the First Amendment as they are worded to this day. Thus, the First Amendment did not
take away or abridge any power of the national government; its intent was to make express the absence of
power.24 It commands, in two parts (with the first part usually referred to as the Establishment Clause and
the second part, the Free Exercise Clause), viz:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise
thereof. 25

The Establishment and Free Exercise Clauses, it should be noted, were not designed to serve
contradictory purposes. They have a single goal—to promote freedom of individual religious beliefs and
practices. In simplest terms, the Free Exercise Clause prohibits government from inhibiting religious beliefs
with penalties for religious beliefs and practice, while the Establishment Clause prohibits government from
inhibiting religious belief with rewards for religious beliefs and practices. In other words, the two religion
clauses were intended to deny government the power to use either the carrot or the stick to influence
individual religious beliefs and practices.26

In sum, a review of the Old World antecedents of religion shows the movement of establishment of religion
as an engine to promote state interests, to the principle of non-establishment to allow the free exercise of
religion.

2. Religion Clauses in the U.S. Context

The Court then turned to the religion clauses’ interpretation and construction in the United States, not
because we are bound by their interpretation, but because the U.S. religion clauses are the precursors to
the Philippine religion clauses, although we have significantly departed from the U.S. interpretation as will
be discussed later on.

At the outset, it is worth noting that American jurisprudence in this area has been volatile and fraught with
inconsistencies whether within a Court decision or across decisions. For while there is widespread
agreement regarding the value of the First Amendment religion clauses, there is an equally broad
disagreement as to what these clauses specifically require, permit and forbid. No agreement has been
reached by those who have studied the religion clauses as regards its exact meaning and the paucity of
records in the U.S. Congress renders it difficult to ascertain its meaning.27

U.S. history has produced two identifiably different, even opposing, strains of jurisprudence on the religion
clauses. First is the standard of separation, which may take the form of either (a) strict separation or (b) the
tamer version of strict neutrality or separation, or what Mr. Justice Carpio refers to as the second theory of
governmental neutrality. Although the latter form is not as hostile to religion as the former, both are
anchored on the Jeffersonian premise that a "wall of separation" must exist between the state and the
Church to protect the state from the church.28 Both protect the principle of church-state separation with a
rigid reading of the principle. On the other hand, the second standard, the benevolent neutrality or
accommodation, is buttressed by the view that the wall of separation is meant to protect the church from
the state. A brief review of each theory is in order.

a. Strict Separation and Strict Neutrality/Separation

The Strict Separationist believes that the Establishment Clause was meant to protect the state from the
church, and the state’s hostility towards religion allows no interaction between the two. According to this
Jeffersonian view, an absolute barrier to formal interdependence of religion and state needs to be erected.
Religious institutions could not receive aid, whether direct or indirect, from the state. Nor could the state
adjust its secular programs to alleviate burdens the programs placed on believers. 29 Only the complete
separation of religion from politics would eliminate the formal influence of religious institutions and provide
for a free choice among political views, thus a strict "wall of separation" is necessary. 30
Strict separation faces difficulties, however, as it is deeply embedded in American history and contemporary
practice that enormous amounts of aid, both direct and indirect, flow to religion from government in return
for huge amounts of mostly indirect aid from religion. 31 For example, less than twenty-four hours after
Congress adopted the First Amendment’s prohibition on laws respecting an establishment of religion,
Congress decided to express its thanks to God Almighty for the many blessings enjoyed by the nation with
a resolution in favor of a presidential proclamation declaring a national day of Thanksgiving and
Prayer.32 Thus, strict separationists are caught in an awkward position of claiming a constitutional principle
that has never existed and is never likely to.33

The tamer version of the strict separationist view, the strict neutrality or separationist view, (or, the
governmental neutrality theory) finds basis in Everson v. Board of Education, 34 where the Court declared
that Jefferson’s "wall of separation" encapsulated the meaning of the First Amendment. However, unlike the
strict separationists, the strict neutrality view believes that the "wall of separation" does not require the state
to be their adversary. Rather, the state must be neutral in its relations with groups of religious believers and
non-believers. "State power is no more to be used so as to handicap religions than it is to favor
them."35 The strict neutrality approach is not hostile to religion, but it is strict in holding that religion may not
be used as a basis for classification for purposes of governmental action, whether the action confers rights
or privileges or imposes duties or obligations. Only secular criteria may be the basis of government action.
It does not permit, much less require, accommodation of secular programs to religious belief.36

The problem with the strict neutrality approach, however, is if applied in interpreting the Establishment
Clause, it could lead to a de facto voiding of religious expression in the Free Exercise Clause. As pointed
out by Justice Goldberg in his concurring opinion in Abington School District v. Schempp, 37 strict neutrality
could lead to "a brooding and pervasive devotion to the secular and a passive, or even active, hostility to
the religious" which is prohibited by the Constitution. 38 Professor Laurence Tribe commented in his
authoritative treatise, viz:

To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise clause.
The Framers, whatever specific applications they may have intended, clearly envisioned religion as
something special; they enacted that vision into law by guaranteeing the free exercise of religion but not,
say, of philosophy or science. The strict neutrality approach all but erases this distinction. Thus it is not
surprising that the [U.S.] Supreme Court has rejected strict neutrality, permitting and sometimes mandating
religious classifications.39

Thus, the dilemma of the separationist approach, whether in the form of strict separation or strict neutrality,
is that while the Jeffersonian wall of separation "captures the spirit of the American ideal of church-state
separation," in real life, church and state are not and cannot be totally separate. This is all the more true in
contemporary times when both the government and religion are growing and expanding their spheres of
involvement and activity, resulting in the intersection of government and religion at many points.40

b. Benevolent Neutrality/Accommodation

The theory of benevolent neutrality or accommodation is premised on a different view of the "wall of
separation," associated with Williams, founder of the Rhode Island colony. Unlike the Jeffersonian wall that
is meant to protect the state from the church, the wall is meant to protect the church from the state. 41 This
doctrine was expressed in Zorach v. Clauson,42 which held, viz:

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

We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to
worship as one chooses. . . When the state encourages religious instruction or cooperates with religious
authorities by adjusting the schedule of public events, it follows the best of our traditions. For it then
respects the religious nature of our people and accommodates the public service to their spiritual needs. To
hold that it may not would be to find in the Constitution a requirement that the government show a callous
indifference to religious groups. . . But we find no constitutional requirement which makes it necessary for
government to be hostile to religion and to throw its weight against efforts to widen their effective scope of
religious influence. 43

Benevolent neutrality recognizes that religion plays an important role in the public life of the United States
as shown by many traditional government practices which, to strict neutrality, pose Establishment Clause
questions. Among these are the inscription of "In God We Trust" on American currency; the recognition of
America as "one nation under God" in the official pledge of allegiance to the flag; the Supreme Court’s time-
honored practice of opening oral argument with the invocation "God save the United States and this
Honorable Court"; and the practice of Congress and every state legislature of paying a chaplain, usually of
a particular Protestant denomination, to lead representatives in prayer. These practices clearly show the
preference for one theological viewpoint—the existence of and potential for intervention by a god—over the
contrary theological viewpoint of atheism. Church and government agencies also cooperate in the building
of low-cost housing and in other forms of poor relief, in the treatment of alcoholism and drug addiction, in
foreign aid and other government activities with strong moral dimension. 44

Examples of accommodations in American jurisprudence also abound, including, but not limited to the U.S.
Court declaring the following acts as constitutional: a state hiring a Presbyterian minister to lead the
legislature in daily prayers,45 or requiring employers to pay workers compensation when the resulting
inconsistency between work and Sabbath leads to discharge;46 for government to give money to religiously-
affiliated organizations to teach adolescents about proper sexual behavior;47 or to provide religious school
pupils with books;48 or bus rides to religious schools; 49 or with cash to pay for state-mandated standardized
tests.50

(1) Legislative Acts and the Free Exercise Clause

As with the other rights under the Constitution, the rights embodied in the Religion clauses are invoked in
relation to governmental action, almost invariably in the form of legislative acts.

Generally speaking, a legislative act that purposely aids or inhibits religion will be challenged as
unconstitutional, either because it violates the Free Exercise Clause or the Establishment Clause or both.
This is true whether one subscribes to the separationist approach or the benevolent neutrality or
accommodationist approach.

But the more difficult religion cases involve legislative acts which have a secular purpose and general
applicability, but may incidentally or inadvertently aid or burden religious exercise. Though the government
action is not religiously motivated, these laws have a "burdensome effect" on religious exercise.

The benevolent neutrality theory believes that with respect to these governmental actions, accommodation
of religion may be allowed, not to promote the government’s favored form of religion, but to allow individuals
and groups to exercise their religion without hindrance. The purpose of accommodations is to remove a
burden on, or facilitate the exercise of, a person’s or institution’s religion. As Justice Brennan explained, the
"government [may] take religion into account…to exempt, when possible, from generally applicable
governmental regulation individuals whose religious beliefs and practices would otherwise thereby be
infringed, or to create without state involvement an atmosphere in which voluntary religious exercise may
flourish."51 In the ideal world, the legislature would recognize the religions and their practices and would
consider them, when practical, in enacting laws of general application. But when the legislature fails to do
so, religions that are threatened and burdened may turn to the courts for protection.52

Thus, what is sought under the theory of accommodation is not a declaration of unconstitutionality of a
facially neutral law, but an exemption from its application or its "burdensome effect," whether by the
legislature or the courts.53 Most of the free exercise claims brought to the U.S. Court are for exemption, not
invalidation of the facially neutral law that has a "burdensome" effect.54

(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith

The pinnacle of free exercise protection and the theory of accommodation in the U.S. blossomed in the
case of Sherbert v. Verner,55 which ruled that state regulation that indirectly restrains or punishes religious
belief or conduct must be subjected to strict scrutiny under the Free Exercise Clause. 56 According to
Sherbert, when a law of general application infringes religious exercise, albeit incidentally, the state interest
sought to be promoted must be so paramount and compelling as to override the free exercise claim.
Otherwise, the Court itself will carve out the exemption.

In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as
her employment was terminated for refusal to work on Saturdays on religious grounds. Her claim was
denied. She sought recourse in the Supreme Court. In laying down the standard for determining whether
the denial of benefits could withstand constitutional scrutiny, the Court ruled, viz:

Plainly enough, appellee’s conscientious objection to Saturday work constitutes no conduct prompted by
religious principles of a kind within the reach of state legislation. If, therefore, the decision of the South
Carolina Supreme Court is to withstand appellant’s constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the State of her constitutional right of free
exercise, or because any incidental burden on the free exercise of appellant’s religion may be justified by a
"compelling state interest in the regulation of a subject within the State’s constitutional power to
regulate. . . ."57 (emphasis supplied)

The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a
rational relationship of the substantial infringement to the religious right and a colorable state interest. "(I)n
this highly sensitive constitutional area, ‘[o]nly the gravest abuses, endangering paramount interests, give
occasion for permissible limitation.’"58 The Court found that there was no such compelling state interest to
override Sherbert’s religious liberty. It added that even if the state could show that Sherbert’s exemption
would pose serious detrimental effects to the unemployment compensation fund and scheduling of work, it
was incumbent upon the state to show that no alternative means of regulations would address such
detrimental effects without infringing religious liberty. The state, however, did not discharge this burden. The
Court thus carved out for Sherbert an exemption from the Saturday work requirement that caused her
disqualification from claiming the unemployment benefits. The Court reasoned that upholding the denial of
Sherbert’s benefits would force her to choose between receiving benefits and following her religion. This
choice placed "the same kind of burden upon the free exercise of religion as would a fine imposed against
(her) for her Saturday worship." This germinal case of Sherbert firmly established the exemption
doctrine, 59 viz:

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

Thus, Sherbert and subsequent cases held that when government action burdens, even inadvertently, a
sincerely held religious belief or practice, the state must justify the burden by demonstrating that the law
embodies a compelling interest, that no less restrictive alternative exists, and that a religious exemption
would impair the state’s ability to effectuate its compelling interest. As in other instances of state action
affecting fundamental rights, negative impacts on those rights demand the highest level of judicial scrutiny.
After Sherbert, this strict scrutiny balancing test resulted in court-mandated religious exemptions from
facially-neutral laws of general application whenever unjustified burdens were found. 60

Then, in the 1972 case of Wisconsin v. Yoder, 61 the U.S. Court again ruled that religious exemption was in
order, notwithstanding that the law of general application had a criminal penalty. Using heightened scrutiny,
the Court overturned the conviction of Amish parents for violating Wisconsin compulsory school-attendance
laws. The Court, in effect, granted exemption from a neutral, criminal statute that punished religiously
motivated conduct. Chief Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim
that such attendance interferes with the practice of a legitimate religious belief, it must appear either that
the State does not deny the free exercise of religious belief by its requirement, or that there is a state
interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.
Long before there was general acknowledgement of the need for universal education, the Religion Clauses
had specially and firmly fixed the right of free exercise of religious beliefs, and buttressing this fundamental
right was an equally firm, even if less explicit, prohibition against the establishment of any religion. The
values underlying these two provisions relating to religion have been zealously protected, sometimes even
at the expense of other interests of admittedly high social importance. . .

The essence of all that has been said and written on the subject is that only those interests of the highest
order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. . .

. . . our decisions have rejected the idea that religiously grounded conduct is always outside the protection
of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often
subject to regulation by the States in the exercise of their undoubted power to promote the health, safety,
and general welfare, or the Federal government in the exercise of its delegated powers . . . But to agree
that religiously grounded conduct must often be subject to the broad police power of the State is not to
deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and
thus beyond the power of the State to control, even under regulations of general applicability. . . .This case,
therefore, does not become easier because respondents were convicted for their "actions" in refusing to
send their children to the public high school; in this context belief and action cannot be neatly confined in
logic-tight compartments. . . 62

The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise clause claims were
subject to heightened scrutiny or compelling interest test if government substantially burdened the exercise
of religion; (b) heightened scrutiny or compelling interest test governed cases where the burden was direct,
i.e., the exercise of religion triggered a criminal or civil penalty, as well as cases where the burden was
indirect, i.e., the exercise of religion resulted in the forfeiture of a government benefit; 63 and (c) the Court
could carve out accommodations or exemptions from a facially neutral law of general application, whether
general or criminal.

The Sherbert-Yoder doctrine had five main components. First, action was protected—conduct beyond
speech, press, or worship was included in the shelter of freedom of religion. Neither Sherbert’s refusal to
work on the Sabbath nor the Amish parents’ refusal to let their children attend ninth and tenth grades can
be classified as conduct protected by the other clauses of the First Amendment. Second, indirect
impositions on religious conduct, such as the denial of twenty-six weeks of unemployment insurance
benefits to Adel Sherbert, as well as direct restraints, such as the criminal prohibition at issue in Yoder,
were prohibited. Third, as the language in the two cases indicate, the protection granted was extensive.
Only extremely strong governmental interests justified impingement on religious conduct, as the absolute
language of the test of the Free Exercise Clause suggests. 64

Fourth, the strong language was backed by a requirement that the government provide proof of the
important interest at stake and of the dangers to that interest presented by the religious conduct at issue.
Fifth, in determining the injury to the government’s interest, a court was required to focus on the effect that
exempting religious claimants from the regulation would have, rather than on the value of the regulation in
general. Thus, injury to governmental interest had to be measured at the margin: assuming the law still
applied to all others, what would be the effect of exempting the religious claimant in this case and other
similarly situated religious claimants in the future? Together, the fourth and fifth elements required that
facts, rather than speculation, had to be presented concerning how the government’s interest would be
harmed by excepting religious conduct from the law being challenged. 65

Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which would impose a
discipline to prevent manipulation in the balancing of interests. The fourth and the fifth elements prevented
the likelihood of exaggeration of the weight on the governmental interest side of the balance, by not
allowing speculation about the effects of a decision adverse to those interests nor accepting that those
interests would be defined at a higher level of generality than the constitutional interests on the other side
of the balance. 66
Thus, the strict scrutiny and compelling state interest test significantly increased the degree of protection
afforded to religiously motivated conduct. While not affording absolute immunity to religious activity, a
compelling secular justification was necessary to uphold public policies that collided with religious practices.
Although the members of the U.S. Court often disagreed over which governmental interests should be
considered compelling, thereby producing dissenting and separate opinions in religious conduct cases, this
general test established a strong presumption in favor of the free exercise of religion. 67 Most scholars and
courts agreed that under Sherbert and Yoder, the Free Exercise Clause provided individuals some form of
heightened scrutiny protection, if not always a compelling interest one. 68 The 1990 case of Employment
Division, Oregon Department of Human Resources v. Smith,69 drastically changed all that.

Smith involved a challenge by Native Americans to an Oregon law prohibiting use of peyote, a
hallucinogenic substance. Specifically, individuals challenged the state’s determination that their religious
use of peyote, which resulted in their dismissal from employment, was misconduct disqualifying them from
receipt of unemployment compensation benefits. 70

Justice Scalia, writing for the majority, rejected the claim that free exercise of religion required an exemption
from an otherwise valid law. Scalia said that "[w]e have never held that an individual’s religious beliefs
excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to
regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts
that proposition." 71 Scalia thus declared "that the right of free exercise does not relieve an individual of the
obligation to comply with a ‘valid and neutral law of general applicability of the ground that the law
proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’" 72

Justice Scalia’s opinion then reviewed the cases where free exercise challenges had been upheld—such
as Cantwell, Murdock, Follet, Pierce, and Yoder—and said that none involved the free exercise clause
claims alone. All involved "the Free Exercise Clause in conjunction with other constitutional protections,
such as freedom of speech and of the press, or the right of parents to direct the education of their
children." 73 The Court said that Smith was distinguishable because it did not involve such a "hybrid
situation," but was a free exercise claim "unconnected with any communicative activity or parental right." 74

Moreover, the Court said that the Sherbert line of cases applied only in the context of the denial of
unemployment benefits; it did not create a basis for an exemption from criminal laws. Scalia wrote that
"[e]ven if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field,
we would not apply it to require exemptions from a generally applicable criminal law." 75

The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of general applicability
that burden religion. Justice Scalia said that "[p]recisely because ‘we are a cosmopolitan nation made up of
people of almost conceivable religious preference,’ and precisely because we value and protect that
religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the
religious objector, every regulation of conduct that does not protect an interest of the highest order." The
Court said that those seeking religious exemptions from laws should look to the democratic process for
protection, not the courts. 76

Smith thus changed the test for the free exercise clause. Strict or heightened scrutiny and the compelling
justification approach were abandoned for evaluating laws burdening religion; neutral laws of general
applicability only have to meet the rational basis test, no matter how much they burden religion. 77

Justice O’Connor wrote a concurring opinion sharply criticizing the rejection of the compelling state interest
test, asserting that "(t)he compelling state interest test effectuates the First Amendment’s command that
religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not
permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling
government interest ‘of the highest order.’"78 She said that strict scrutiny is appropriate for free exercise
challenges because "[t]he compelling interest test reflects the First Amendment’s mandate of preserving
religious liberty to the fullest extent possible in a pluralistic society." 79

Justice O’Connor also disagreed with the majority’s description of prior cases and especially its leaving the
protection of minority religions to the political process. She said that, "First Amendment was enacted
precisely to protect the rights of those whose religious practice are not shared by the majority and may be
viewed with hostility." 80
Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and Marshall. The
dissenting Justices agreed with Justice O’Connor that the majority had mischaracterized precedents, such
as in describing Yoder as a "hybrid" case rather than as one under the free exercise clause. The dissent
also argued that strict scrutiny should be used in evaluating government laws burdening religion. 81

Criticism of Smith was intense and widespread. 82 Academics, Justices, and a bipartisan majority of
Congress noisily denounced the decision.83 Smith has the rather unusual distinction of being one case that
is almost universally despised (and this is not too strong a word) by both the liberals and
conservatives.84 Liberals chasten the Court for its hostility to minority faiths which, in light of Smith’s general
applicability rule, will allegedly suffer at the hands of the majority faith whether through outright hostility or
neglect. Conservatives bemoan the decision as an assault on religious belief leaving religion, more than
ever, subject to the caprice of an ever more secular nation that is increasingly hostile to religious belief as
an oppressive and archaic anachronism. 85

The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a
shallow understanding of free exercise jurisprudence. 86 First, the First amendment was intended to protect
minority religions from the tyranny of the religious and political majority. 87 Critics of Smith have worried
about religious minorities, who can suffer disproportionately from laws that enact majoritarian
mores.88 Smith, in effect would allow discriminating in favor of mainstream religious groups against smaller,
more peripheral groups who lack legislative clout,89 contrary to the original theory of the First
Amendment.90 Undeniably, claims for judicial exemption emanate almost invariably from relatively politically
powerless minority religions and Smith virtually wiped out their judicial recourse for exemption. 91 Second,
Smith leaves too much leeway for pervasive welfare-state regulation to burden religion while satisfying
neutrality. After all, laws not aimed at religion can hinder observance just as effectively as those that target
religion.92 Government impairment of religious liberty would most often be of the inadvertent kind as in
Smith considering the political culture where direct and deliberate regulatory imposition of religious
orthodoxy is nearly inconceivable. If the Free Exercise Clause could not afford protection to inadvertent
interference, it would be left almost meaningless. 93 Third, the Reynolds-Gobitis-Smith94 doctrine simply
defies common sense. The state should not be allowed to interfere with the most deeply held fundamental
religious convictions of an individual in order to pursue some trivial state economic or bureaucratic
objective. This is especially true when there are alternative approaches for the state to effectively pursue its
objective without serious inadvertent impact on religion.95

At bottom, the Court’s ultimate concern in Smith appeared to be two-fold: (1) the difficulty in defining and
limiting the term "religion" in today’s pluralistic society, and (2) the belief that courts have no business
determining the significance of an individual’s religious beliefs. For the Smith Court, these two concerns
appear to lead to the conclusion that the Free Exercise Clause must protect everything or it must protect
virtually nothing. As a result, the Court perceives its only viable options are to leave free exercise protection
to the political process or to allow a "system in which each conscience is a law unto itself." 96 The Court’s
characterization of its choices have been soundly rejected as false, viz:

If one accepts the Court’s assumption that these are the only two viable options, then admittedly, the Court
has a stronger argument. But the Free Exercise Clause cannot be summarily dismissed as too difficult to
apply and this should not be applied at all. The Constitution does not give the judiciary the option of simply
refusing to interpret its provisions. The First Amendment dictates that free exercise of "religion" must be
protected. Accordingly, the Constitution compels the Court to struggle with the contours of what constitutes
"religion." There is no constitutional opt-out provision for constitutional words that are difficult to apply.

Nor does the Constitution give the Court the option of simply ignoring constitutional mandates. A large area
of middle ground exists between the Court’s two opposing alternatives for free exercise jurisprudence.
Unfortunately, this middle ground requires the Court to tackle difficult issues such as defining religion and
possibly evaluating the significance of a religious belief against the importance of a specific law. The Court
describes the results of this middle ground where "federal judges will regularly balance against the
importance of general laws the significance of religious practice," and then dismisses it as a "parade of
horribles" that is too "horrible to contemplate."

It is not clear whom the Court feels would be most hurt by this "parade of horribles." Surely not religious
individuals; they would undoubtedly prefer their religious beliefs to be probed for sincerity and significance
rather than acquiesce to the Court’s approach of simply refusing to grant any constitutional significance to
their beliefs at all. If the Court is concerned about requiring lawmakers at times constitutionally to exempt
religious individuals from statutory provisions, its concern is misplaced. It is the lawmakers who have
sought to prevent the Court from dismantling the Free Exercise Clause through such legislation as the
[Religious Freedom Restoration Act of 1993], and in any case, the Court should not be overly concerned
about hurting legislature’s feelings by requiring their laws to conform to constitutional dictates. Perhaps the
Court is concerned about putting such burden on judges. If so, it would truly be odd to say that

requiring the judiciary to perform its appointed role as constitutional interpreters is a burden no judge
should be expected to fulfill.97

Parenthetically, Smith’s characterization that the U.S. Court has "never held that an individual’s religious
beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to
regulate"—an assertion which Mr. Justice Carpio adopted unequivocally in his dissent—has been sharply
criticized even implicitly by its supporters, as blatantly untrue. Scholars who supported Smith frequently did
not do so by opposing the arguments that the Court was wrong as a matter of original meaning [of the
religion clauses] or that the decision conflicted with precedent [i.e. the Smith decision made shocking use of
precedent]—those points were often conceded. 98

To justify its perversion of precedent, the Smith Court attempted to distinguish the exemption made in
Yoder, by asserting that these were premised on two constitutional rights combined—the right of parents to
direct the education of their children and the right of free exercise of religion. Under the Court’s opinion in
Smith, the right of free exercise of religion standing alone would not allow Amish parents to disregard the
compulsory school attendance law, and under the Court’s opinion in Yoder, parents whose objection to the
law was not religious would also have to obey it. The fatal flaw in this argument, however, is that if two
constitutional claims will fail on its own, how would it prevail if combined? 99 As for Sherbert, the Smith Court
attempted to limit its doctrine as applicable only to denials of unemployment compensation benefits where
the religiously-compelled conduct that leads to job loss is not a violation of criminal law. And yet, this is
precisely why the rejection of Sherbert was so damaging in its effect: the religious person was more likely to
be entitled to constitutional protection when forced to choose between religious conscience and going to jail
than when forced to choose between religious conscience and financial loss. 100

Thus, the Smith decision elicited much negative public reaction especially from the religious community,
and commentaries insisted that the Court was allowing the Free Exercise Clause to disappear. 101 So much
was the uproar that a majority in Congress was convinced to enact the Religious Freedom Restoration Act
(RFRA) of 1993.102 The RFRA was adopted to negate the Smith test and require strict scrutiny for free
exercise claims. Indeed, the findings section of the Act notes that Smith "virtually eliminated the
requirement that the government justify burdens on religious exercise imposed by laws neutral toward
religion."103 The Act declares that its purpose is to restore the compelling interest test as set forth in
Sherbert v. Verner and Wisconsin v. Yoder, and to guarantee its application in all cases where free exercise
of religion is substantially burdened; and to provide a claim of defense to a person whose religious exercise
is substantially burdened by government.104 The RFRA thus sought to overrule Smith and make strict
scrutiny the test for all free exercise clause claims. 105

In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared the RFRA unconstitutional, ruling that
Congress had exceeded its power under the Fourteenth Amendment in enacting the law. The Court ruled
that Congress is empowered to enact laws "to enforce the amendment," but Congress is not "enforcing"
when it creates new constitutional rights or expands the scope of rights. 107

City of Boerne also drew public backlash as the U.S. Supreme Court was accused of lack of judicial respect
for the constitutional decision-making by a coordinate branch of government. In Smith, Justice Scalia wrote:

"Values that are protected against governmental interference through enshrinement in the Bill of Rights are
not thereby banished from the political process. Just as society believes in the negative protection
accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the
dissemination of the printed word, so also a society that believes in the negative protection accorded to
religious belief can be expected to be solicitous of that value in its legislation as well."

By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a nearly unanimous
Congress. Contrary to the Court’s characterization of the RFRA as a kind of usurpation of the judicial power
to say what the Constitution means, the law offered no definition of Free Exercise, and on its face appeared
to be a procedural measure establishing a standard of proof and allocating the duty of meeting it. In effect,
the Court ruled that Congress had no power in the area of religion. And yet, Free Exercise exists in the First
Amendment as a negative on Congress. The power of Congress to act towards the states in matters of
religion arises from the Fourteenth Amendment. 108

From the foregoing, it can be seen that Smith, while expressly recognizing the power of legislature to give
accommodations, is in effect contrary to the benevolent neutrality or accommodation approach. Moreover, if
we consider the history of the incorporation of the religion clauses in the U.S., the decision in Smith is
grossly inconsistent with the importance placed by the framers on religious faith. Smith is dangerous
precedent because it subordinates fundamental rights of religious belief and practice to all neutral, general
legislation. Sherbert recognized the need to protect religious exercise in light of the massive increase in the
size of government, the concerns within its reach, and the number of laws administered by it. However,
Smith abandons the protection of religious exercise at a time when the scope and reach of government has
never been greater. It has been pointed out that Smith creates the legal framework for persecution: through
general, neutral laws, legislatures are now able to force conformity on religious minorities whose practice
irritate or frighten an intolerant majority.109

The effect of Smith is to erase entirely the concept of mandatory accommodations, thereby emasculating
the Free Exercise Clause. Smith left religious freedom for many in the hands of the political process,
exactly where it would be if the religion clauses did not exist in the Bill of Rights. Like most protections
found in the Bill of Rights, the religion clauses of the First Amendment are most important to those who
cannot prevail in the political process. The Court in Smith ignores the fact that the protections found in the
Bill of Rights were deemed too important to leave to the political process. Because mainstream religions
generally have been successful in protecting their interests through the political process, it is the non-
mainstream religions that are adversely affected by Smith. In short, the U.S. Supreme Court has made it
clear to such religions that they should not look to the First Amendment for religious freedom. 110

(3) Accommodation under the Religion Clauses

A free exercise claim could result to three kinds of accommodation: (a) those which are found to be
constitutionally compelled, i.e., required by the Free Exercise Clause; (b) those which are discretionary or
legislative, i.e., not required by the Free Exercise Clause but nonetheless permitted by the Establishment
Clause; and (c) those which the religion clauses prohibit.111

Mandatory accommodation results when the Court finds that accommodation is required by the Free
Exercise Clause, i.e, when the Court itself carves out an exemption. This accommodation occurs when all
three conditions of the compelling interest test are met, i.e, a statute or government action has burdened
claimant’s free exercise of religion, and there is no doubt as to the sincerity of the religious belief; the state
has failed to demonstrate a particularly important or compelling governmental goal in preventing an
exemption; and that the state has failed to demonstrate that it used the least restrictive means. In these
cases, the Court finds that the injury to religious conscience is so great and the advancement of public
purposes is incomparable that only indifference or hostility could explain a refusal to make exemptions.
Thus, if the state’s objective could be served as well or almost as well by granting an exemption to those
whose religious beliefs are burdened by the regulation, the Court must grant the exemption. The Yoder
case is an example where the Court held that the state must accommodate the religious beliefs of the
Amish who objected to enrolling their children in high school as required by law. The Sherbert case is
another example where the Court held that the state unemployment compensation plan must
accommodate the religious convictions of Sherbert.112

In permissive accommodation, the Court finds that the State may, but is not required to, accommodate
religious interests. The U.S. Walz case illustrates this situation where the U.S. Supreme Court upheld the
constitutionality of tax exemption given by New York to church properties, but did not rule that the state was
required to provide tax exemptions. The Court declared that "(t)he limits of permissible state
accommodation to religion are by no means co-extensive with the noninterference mandated by the Free
Exercise Clause."113 Other examples are Zorach v. Clauson, 114 allowing released time in public schools and
Marsh v. Chambers,115 allowing payment of legislative chaplains from public funds. Parenthetically, the
Court in Smith has ruled that this is the only accommodation allowed by the Religion Clauses.

Finally, when the Court finds no basis for a mandatory accommodation, or it determines that the legislative
accommodation runs afoul of the establishment or the free exercise clause, it results to a prohibited
accommodation. In this case, the Court finds that establishment concerns prevail over potential
accommodation interests. To say that there are valid exemptions buttressed by the Free Exercise Clause
does not mean that all claims for free exercise exemptions are valid. 116 An example where accommodation
was prohibited is McCollum v. Board of Education,117 where the Court ruled against optional religious
instruction in the public school premises.118

Given that a free exercise claim could lead to three different results, the question now remains as to how
the Court should determine which action to take. In this regard, it is the strict scrutiny-compelling state
interest test which is most in line with the benevolent neutrality-accommodation approach.

Under the benevolent-neutrality theory, the principle underlying the First Amendment is that freedom to
carry out one’s duties to a Supreme Being is an inalienable right, not one dependent on the grace of
legislature. Religious freedom is seen as a substantive right and not merely a privilege against
discriminatory legislation. With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.

Considering that laws nowadays are rarely enacted specifically to disable religious belief or practice, free
exercise disputes arise commonly when a law that is religiously neutral and generally applicable on its face
is argued to prevent or burden what someone’s religious faith requires, or alternatively, requires someone
to undertake an act that faith would preclude. In essence, then, free exercise arguments contemplate
religious exemptions from otherwise general laws.119

Strict scrutiny is appropriate for free exercise challenges because "[t]he compelling interest test reflects the
First Amendment’s mandate of preserving religious liberty to the fullest extent possible in a pluralistic
society.120 Underlying the compelling state interest test is the notion that free exercise is a fundamental right
and that laws burdening it should be subject to strict scrutiny.121

In its application, the compelling state interest test follows a three-step process, summarized as follows:

If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs,
the burden shifts to the government to demonstrate that the law or practice is necessary to the
accomplishment of some important (or ‘compelling’) secular objective and that it is the least restrictive
means of achieving that objective. If the plaintiff meets this burden and the government does not, the
plaintiff is entitled to exemption from the law or practice at issue. In order to be protected, the claimant’s
beliefs must be ‘sincere’, but they need not necessarily be consistent, coherent, clearly articulated, or
congruent with those of the claimant’s religious denomination. ‘Only beliefs rooted in religion are protected
by the Free Exercise Clause’; secular beliefs, however sincere and conscientious, do not suffice.122

In sum, the U.S. Court has invariably decided claims based on the religion clauses using either the
separationist approach, or the benevolent neutrality approach. The benevolent neutrality approach has also
further been split by the view that the First Amendment requires accommodation, or that it only allows
permissible legislative accommodations. The current prevailing view as pronounced in Smith, however, is
that that there are no required accommodation under the First Amendment, although it permits of legislative
accommodations.

3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and Practice

a. US Constitution and jurisprudence vis-à-vis Philippine Constitution

By juxtaposing the American Constitution and jurisprudence against that of the Philippines, it is immediately
clear that one cannot simply conclude that we have adopted—lock, stock and barrel—the religion clauses
as embodied in the First Amendment, and therefore, the U.S. Court’s interpretation of the same. Unlike in
the U.S. where legislative exemptions of religion had to be upheld by the U.S. Supreme Court as
constituting permissive accommodations, similar exemptions for religion are mandatory accommodations
under our own constitutions. Thus, our 1935, 1973 and 1987 Constitutions contain provisions on tax
exemption of church property,123 salary of religious officers in government institutions,124 and optional
religious instruction.125 Our own preamble also invokes the aid of a divine being.126 These constitutional
provisions are wholly ours and have no counterpart in the U.S. Constitution or its amendments. They all
reveal without doubt that the Filipino people, in adopting these constitutions, manifested their adherence to
the benevolent neutrality approach that requires accommodations in interpreting the religion clauses.127
The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar as it asserted
that the 1935 Constitution incorporates the Walz ruling as this case was decided subsequent to the 1935
Constitution is a misreading of the ponencia. What the ponencia pointed out was that even as early as
1935, or more than three decades before the U.S. Court could validate the exemption in Walz as a form or
permissible accommodation, we have already incorporated the same in our Constitution, as a mandatory
accommodation.

There is no ambiguity with regard to the Philippine Constitution’s departure from the U.S. Constitution,
insofar as religious accommodations are concerned. It is indubitable that benevolent neutrality-
accommodation, whether mandatory or permissive, is the spirit, intent and framework underlying the
Philippine Constitution.128 As stated in our Decision, dated August 4, 2003:

The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted
from the First Amendment of the U.S. Constitution xxxx Philippine jurisprudence and commentaries on the
religious clauses also continued to borrow authorities from U.S. jurisprudence without articulating the stark
distinction between the two streams of U.S. jurisprudence [i.e., separation and benevolent neutrality]. One
might simply conclude that the Philippine Constitutions and jurisprudence also inherited the disarray of U.S.
religion clause jurisprudence and the two identifiable streams; thus, when a religion clause case comes
before the Court, a separationist approach or a benevolent neutrality approach might be adopted and each
will have U.S. authorities to support it. Or, one might conclude that as the history of the First Amendment as
narrated by the Court in Everson supports the separationist approach, Philippine jurisprudence should also
follow this approach in light of the Philippine religion clauses’ history. As a result, in a case where the party
claims religious liberty in the face of a general law that inadvertently burdens his religious exercise, he
faces an almost insurmountable wall in convincing the Court that the wall of separation would not be
breached if the Court grants him an exemption. These conclusions, however, are not and were never
warranted by the 1987, 1973 and 1935 Constitutions as shown by other provisions on religion in all three
constitutions. It is a cardinal rule in constitutional construction that the constitution must be interpreted as a
whole and apparently conflicting provisions should be reconciled and harmonized in a manner that will give
to all of them full force and effect. From this construction, it will be ascertained that the intent of the framers
was to adopt a benevolent neutrality approach in interpreting the religious clauses in the Philippine
constitutions, and the enforcement of this intent is the goal of construing the constitution. 129 [citations
omitted]

We therefore reject Mr. Justice Carpio’s total adherence to the U.S. Court’s interpretation of the religion
clauses to effectively deny accommodations on the sole basis that the law in question is neutral and of
general application. For even if it were true that "an unbroken line of U.S. Supreme Court decisions" has
never held that "an individual’s religious beliefs [do not] excuse him from compliance with an otherwise
valid law prohibiting conduct that the State is free to regulate," our own Constitutions have made significant
changes to accommodate and exempt religion. Philippine jurisprudence shows that the Court has allowed
exemptions from a law of general application, in effect, interpreting our religion clauses to cover both
mandatory and permissive accommodations.130

To illustrate, in American Bible Society v. City of Manila, 131 the Court granted to plaintiff exemption from a
law of general application based on the Free Exercise Clause. In this case, plaintiff was required by an
ordinance to secure a mayor’s permit and a municipal license as ordinarily required of those engaged in the
business of general merchandise under the city’s ordinances. Plaintiff argued that this amounted to
"religious censorship and restrained the free exercise and enjoyment of religious profession, to wit: the
distribution and sale of bibles and other religious literature to the people of the Philippines." Although the
Court categorically held that the questioned ordinances were not applicable to plaintiff as it was not
engaged in the business or occupation of selling said "merchandise" for profit, it also ruled that applying the
ordinance to plaintiff and requiring it to secure a license and pay a license fee or tax would impair its free
exercise of religious profession and worship and its right of dissemination of religious beliefs "as the power
to tax the exercise of a privilege is the power to control or suppress its enjoyment." The decision states in
part, viz:

The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries
with it the right to disseminate religious information. Any restraint of such right can only be justified like
other restraints of freedom of expression on the grounds that there is a clear and present danger of any
substantive evil which the State has the right to prevent. (citations omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The Division Superintendent of
Schools.132 The case involved several Jehovah’s Witnesses who were expelled from school for refusing to
salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the Administrative
Code of 1987. In resolving the religious freedom issue, a unanimous Court overturned an earlier ruling
denying such exemption,133 using the "grave and imminent danger" test, viz:

The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the
late Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514,
517) is the existence of a grave and present danger of a character both grave and imminent, of a serious
evil to public safety, public morals, public health or any other legitimate public interest, that the State has a
right (and duty) to prevent. Absent such a threat to public safety, the expulsion of the petitioners from the
schools is not justified.134 (emphases supplied)

In these two cases, the Court itself carved out an exemption from a law of general application, on the
strength directly of the Free Exercise Clause.

We also have jurisprudence that supports permissive accommodation. The case of Victoriano v. Elizalde
Rope Workers Union135 is an example of the application of Mr. Justice Carpio’s theory of permissive
accommodation, where religious exemption is granted by a legislative act. In Victoriano, the constitutionality
of Republic Act No. 3350 was questioned. The said R.A. exempt employees from the application and
coverage of a closed shop agreement—mandated in another law—based on religious objections. A
unanimous Court upheld the constitutionality of the law, holding that "government is not precluded from
pursuing valid objectives secular in character even if the incidental result would be favorable to a religion or
sect." Interestingly, the secular purpose of the challenged law which the Court upheld was the
advancement of "the constitutional right to the free exercise of religion."136

Having established that benevolent neutrality-accommodation is the framework by which free exercise
cases must be decided, the next question then turned to the test that should be used in ascertaining the
limits of the exercise of religious freedom. In our Decision dated August 4, 2003, we reviewed our
jurisprudence, and ruled that in cases involving purely conduct based on religious belief, as in the case at
bar, the compelling state interest test, is proper, viz:

Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on
the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger" test
but did not employ it. Nevertheless, this test continued to be cited in subsequent cases on religious liberty.
The Gerona case then pronounced that the test of permissibility of religious freedom is whether it violates
the established institutions of society and law. The Victoriano case mentioned the "immediate and grave
danger" test as well as the doctrine that a law of general applicability may burden religious exercise
provided the law is the least restrictive means to accomplish the goal of the law. The case also used, albeit
inappropriately, the "compelling state interest" test. After Victoriano, German went back to the Gerona rule.
Ebralinag then employed the "grave and immediate danger" test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the "clear and present danger" test in the maiden case of
American Bible Society. Not surprisingly, all the cases which employed the "clear and present danger" or
"grave and immediate danger" test involved, in one form or another, religious speech as this test is often
used in cases on freedom of expression. On the other hand, the Gerona and German cases set the rule
that religious freedom will not prevail over established institutions of society and law. Gerona, however,
which was the authority cited by German has been overruled by Ebralinag which employed the "grave and
immediate danger" test. Victoriano was the only case that employed the "compelling state interest" test, but
as explained previously, the use of the test was inappropriate to the facts of the case.

The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo
where the "clear and present danger" and "grave and immediate danger" tests were appropriate as speech
has easily discernible or immediate effects. The Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent neutrality approach, thus not appropriate in this jurisdiction.
Similar to Victoriano, the present case involves purely conduct arising from religious belief. The "compelling
state interest" test is proper where conduct is involved for the whole gamut of human conduct has different
effects on the state’s interests: some effects may be immediate and short-term while others delayed and
far-reaching. A test that would protect the interests of the state in preventing a substantive evil, whether
immediate or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental right that enjoys a preferred position in the
hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of Jefferson. This
right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an acknowledgment of such higher sovereignty,
thus the Filipinos implore the "aid of Almighty God in order to build a just and humane society and establish
a government." As held in Sherbert, only the gravest abuses, endangering paramount interests can limit
this fundamental right. A mere balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the
fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one,
for to do otherwise would allow the state to batter religion, especially the less powerful ones until they are
destroyed. In determining which shall prevail between the state’s interest and religious liberty,
reasonableness shall be the guide. The "compelling state interest" serves the purpose of revering religious
liberty while at the same time affording protection to the paramount interests of the state. This was the test
used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state
interest" test, by upholding the paramount interests of the state, seeks to protect the very state, without
which, religious liberty will not be preserved. 137 (citations omitted)

At this point, we take note of Mr. Justice Carpio’s dissent, which, while loosely disputing the applicability of
the benevolent neutrality framework and compelling state interest test, states that "[i]t is true that a test
needs to be applied by the Court in determining the validity of a free exercise claim of exemption as made
here by Escritor." This assertion is inconsistent with the position negating the benevolent neutrality or
accommodation approach. If it were true, indeed, that the religion clauses do not require accommodations
based on the free exercise of religion, then there would be no need for a test to determine the validity of a
free exercise claim, as any and all claims for religious exemptions from a law of general application would
fail.

Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive accommodation and
mandatory accommodation is more critically important in analyzing free exercise exemption claims because
it forces the Court to confront how far it can validly set the limits of religious liberty under the Free Exercise
Clause, rather than presenting the separation theory and accommodation theory as opposite concepts, and
then rejecting relevant and instructive American jurisprudence (such as the Smith case) just because it
does not espouse the theory selected." He then asserts that the Smith doctrine cannot be dismissed
because it does not really espouse the strict neutrality approach, but more of permissive accommodation.

Mr. Justice Carpio’s assertion misses the point. Precisely because the doctrine in Smith is that only
legislative accommodations are allowed under the Free Exercise Clause, it cannot be used in determining a
claim of religion exemption directly anchored on the Free Exercise Clause. Thus, even assuming that the
Smith doctrine actually espouses the theory of accommodation or benevolent neutrality, the
accommodation is limited to the permissive, or legislative exemptions. It, therefore, cannot be used as a
test in determining the claims of religious exemptions directly under the Free Exercise Clause because
Smith does not recognize such exemption. Moreover, Mr. Justice Carpio’s advocacy of the Smith doctrine
would effectively render the Free Exercise protection—a fundamental right under our Constitution—
nugatory because he would deny its status as an independent source of right.

b. The Compelling State Interest Test

As previously stated, the compelling state interest test involves a three-step process. We explained this
process in detail, by showing the questions which must be answered in each step, viz:

…First, "[H]as the statute or government action created a burden on the free exercise of religion?" The
courts often look into the sincerity of the religious belief, but without inquiring into the truth of the belief
because the Free Exercise Clause prohibits inquiring about its truth as held in Ballard and Cantwell. The
sincerity of the claimant’s belief is ascertained to avoid the mere claim of religious beliefs to escape a
mandatory regulation. xxx

xxx xxx xxx

Second, the court asks: "[I]s there a sufficiently compelling state interest to justify this infringement of
religious liberty?" In this step, the government has to establish that its purposes are legitimate for the state
and that they are compelling. Government must do more than assert the objectives at risk if exemption is
given; it must precisely show how and to what extent those objectives will be undermined if exemptions are
granted. xxx

xxx xxx xxx

Third, the court asks: "[H]as the state in achieving its legitimate purposes used the least intrusive means
possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of
the state?" The analysis requires the state to show that the means in which it is achieving its legitimate
state objective is the least intrusive means, i.e., it has chosen a way to achieve its legitimate state end that
imposes as little as possible on religious liberties xxx.138 [citations omitted]

Again, the application of the compelling state interest test could result to three situations of
accommodation: First, mandatory accommodation would result if the Court finds that accommodation is
required by the Free Exercise Clause. Second, if the Court finds that the State may, but is not required to,
accommodate religious interests, permissive accommodation results. Finally, if the Court finds that that
establishment concerns prevail over potential accommodation interests, then it must rule that the
accommodation is prohibited.

One of the central arguments in Mr. Justice Carpio’s dissent is that only permissive accommodation can
carve out an exemption from a law of general application. He posits the view that the law should prevail in
the absence of a legislative exemption, and the Court cannot make the accommodation or exemption.

Mr. Justice Carpio’s position is clearly not supported by Philippine jurisprudence. The cases of American
Bible Society, Ebralinag, and Victoriano demonstrate that our application of the doctrine of benevolent
neutrality-accommodation covers not only the grant of permissive, or legislative accommodations, but also
mandatory accommodations. Thus, an exemption from a law of general application is possible, even if
anchored directly on an invocation of the Free Exercise Clause alone, rather than a legislative exemption.

Moreover, it should be noted that while there is no Philippine case as yet wherein the Court granted an
accommodation/exemption to a religious act from the application of general penal laws, permissive
accommodation based on religious freedom has been granted with respect to one of the crimes penalized
under the Revised Penal Code, that of bigamy.

In the U.S. case of Reynolds v. United States,139 the U.S. Court expressly denied to Mormons an exemption
from a general federal law criminalizing polygamy, even if it was proven that the practice constituted a
religious duty under their faith.140 In contradistinction, Philippine law accommodates the same practice
among Moslems, through a legislative act. For while the act of marrying more than one still constitutes
bigamy under the Revised Penal Code, Article 180 of P.D. No. 1083, otherwise known as the Code of
Muslim Personal Laws of the Philippines, provides that the penal laws relative to the crime of bigamy "shall
not apply to a person married…under Muslim law." Thus, by legislative action, accommodation is granted of
a Muslim practice which would otherwise violate a valid and general criminal law. Mr. Justice Carpio
recognized this accommodation when, in his dissent in our Decision dated August 4, 2003 and citing Sulu
Islamic Association of Masjid Lambayong v. Malik, 141 he stated that a Muslim Judge "is not criminally liable
for bigamy because Shari’a law allows a Muslim to have more than one wife."

From the foregoing, the weakness of Mr. Justice Carpio’s "permissive-accommodation only" advocacy in
this jurisdiction becomes manifest. Having anchored his argument on the Smith doctrine that "the guaranty
of religious liberty as embodied in the Free Exercise Clause does not require the grant of exemptions from
generally applicable laws to individuals whose religious practice conflict with those laws," his theory is
infirmed by the showing that the benevolent neutrality approach which allows for both mandatory and
permissive accommodations was unequivocally adopted by our framers in the Philippine Constitution, our
legislature, and our jurisprudence.

Parenthetically, it should be pointed out that a "permissive accommodation-only" stance is the antithesis to
the notion that religion clauses, like the other fundamental liberties found in the Bill or Rights, is a preferred
right and an independent source of right.

What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in Sherbert is not
applicable when the law in question is a generally applicable criminal law. Stated differently, even if Mr.
Justice Carpio conceded that there is no question that in the Philippine context, accommodations are
made, the question remains as to how far the exemptions will be made and who would make these
exemptions.

On this point, two things must be clarified: first, in relation to criminal statutes, only the question of
mandatory accommodation is uncertain, for Philippine law and jurisprudence have, in fact, allowed
legislative accommodation. Second, the power of the Courts to grant exemptions in general (i.e., finding
that the Free Exercise Clause required the accommodation, or mandatory accommodations) has already
been decided, not just once, but twice by the Court. Thus, the crux of the matter is whether this Court can
make exemptions as in Ebralinag and the American Bible Society, in cases involving criminal laws of
general application.

We hold that the Constitution itself mandates the Court to do so for the following reasons.

First, as previously discussed, while the U.S. religion clauses are the precursors to the Philippine religion
clauses, the benevolent neutrality-accommodation approach in Philippine jurisdiction is more pronounced
and given leeway than in the U.S.

Second, the whole purpose of the accommodation theory, including the notion of mandatory
accommodations, was to address the "inadvertent burdensome effect" that an otherwise facially neutral law
would have on religious exercise. Just because the law is criminal in nature, therefore, should not bring it
out of the ambit of the Free Exercise Clause. As stated by Justice O’Connor in her concurring opinion in
Smith, "[t]here is nothing talismanic about neutral laws of general applicability or general criminal
prohibitions, for laws neutral towards religion can coerce a person to violate his religious conscience or
intrude upon his religious duties just as effectively as laws aimed at religion."142

Third, there is wisdom in accommodation made by the Court as this is the recourse of minority religions
who are likewise protected by the Free Exercise Clause. Mandatory accommodations are particularly
necessary to protect adherents of minority religions from the inevitable effects of majoritarianism, which
include ignorance and indifference and overt hostility to the minority. As stated in our Decision, dated
August 4, 2003:

....In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus not
infrequently, they come into conflict with the religious scruples of those holding different world views, even
in the absence of a deliberate intent to interfere with religious practice. At times, this effect is unavoidable
as a practical matter because some laws are so necessary to the common good that exceptions are
intolerable. But in other instances, the injury to religious conscience is so great and the advancement of
public purposes so small or incomparable that only indifference or hostility could explain a refusal to make
exemptions. Because of plural traditions, legislators and executive officials are frequently willing to make
such exemptions when the need is brought to their attention, but this may not always be the case when the
religious practice is either unknown at the time of enactment or is for some reason unpopular. In these
cases, a constitutional interpretation that allows accommodations prevents needless injury to the religious
consciences of those who can have an influence in the legislature; while a constitutional interpretation that
requires accommodations extends this treatment to religious faiths that are less able to protect themselves
in the political arena.

Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor will it be
applied for the first time, as an exemption of such nature, albeit by legislative act, has already been granted
to Moslem polygamy and the criminal law of bigamy.

Finally, we must consider the language of the Religion Clauses vis-à-vis the other fundamental rights in the
Bill of Rights. It has been noted that unlike other fundamental rights like the right to life, liberty or property,
the Religion Clauses are stated in absolute terms, unqualified by the requirement of "due process,"
"unreasonableness," or "lawful order." Only the right to free speech is comparable in its absolute grant.
Given the unequivocal and unqualified grant couched in the language, the Court cannot simply dismiss a
claim of exemption based on the Free Exercise Clause, solely on the premise that the law in question is a
general criminal law. 143 If the burden is great and the sincerity of the religious belief is not in question,
adherence to the benevolent neutrality-accommodation approach require that the Court make an individual
determination and not dismiss the claim outright.
At this point, we must emphasize that the adoption of the benevolent neutrality-accommodation approach
does not mean that the Court ought to grant exemptions every time a free exercise claim comes before it.
This is an erroneous reading of the framework which the dissent of Mr. Justice Carpio seems to entertain.
Although benevolent neutrality is the lens with which the Court ought to view religion clause cases, the
interest of the state should also be afforded utmost protection. This is precisely the purpose of the test—to
draw the line between mandatory, permissible and forbidden religious exercise. Thus, under the framework,
the Court cannot simply dismiss a claim under the Free Exercise Clause because the conduct in question
offends a law or the orthodox view, as proposed by Mr. Justice Carpio, for this precisely is the protection
afforded by the religion clauses of the Constitution.144 As stated in the Decision:

xxx While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of
judgment in determining the degree of burden on religious practice or importance of the state interest or the
sufficiency of the means adopted by the state to pursue its interest, the Court can set a doctrine on the
ideal towards which religious clause jurisprudence should be directed. We here lay down the doctrine that
in Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of its merits as
discussed above, but more importantly, because our constitutional history and interpretation indubitably
show that benevolent neutrality is the launching pad from which the Court should take off in interpreting
religion clause cases. The ideal towards which this approach is directed is the protection of religious liberty
"not only for a minority, however small- not only for a majority, however large but for each of us" to the
greatest extent possible within flexible constitutional limits.145

II. THE CURRENT PROCEEDINGS

We now resume from where we ended in our August 4, 2003 Decision. As mentioned, what remained to be
resolved, upon which remand was necessary, pertained to the final task of subjecting this case to the
careful application of the compelling state interest test, i.e., determining whether respondent is entitled to
exemption, an issue which is essentially factual or evidentiary in nature.

After the termination of further proceedings with the OCA, and with the transmittal of the Hearing Officer’s
report,146 along with the evidence submitted by the OSG, this case is once again with us, to resolve the
penultimate question of whether respondent should be found guilty of the administrative charge of
"disgraceful and immoral conduct." It is at this point then that we examine the report and documents
submitted by the hearing officer of this case, and apply the three-step process of the compelling state
interest test based on the evidence presented by the parties, especially the government.

On the sincerity of religious belief, the Solicitor General categorically concedes that the sincerity and
centrality of respondent’s claimed religious belief and practice are beyond serious doubt. 147 Thus, having
previously established the preliminary conditions required by the compelling state interest test, i.e., that a
law or government practice inhibits the free exercise of respondent’s religious beliefs, and there being no
doubt as to the sincerity and centrality of her faith to claim the exemption based on the free exercise
clause, the burden shifted to the government to demonstrate that the law or practice justifies a compelling
secular objective and that it is the least restrictive means of achieving that objective.

A look at the evidence that the OSG has presented fails to demonstrate "the gravest abuses, endangering
paramount interests" which could limit or override respondent’s fundamental right to religious freedom.
Neither did the government exert any effort to show that the means it seeks to achieve its legitimate state
objective is the least intrusive means.

The OSG merely offered the following as exhibits and their purposes:

1. Exhibit "A-OSG" and submarking — The September 30, 2003 Letter to the OSG of Bro. Raymond B.
Leach, Legal Representative of the Watch Tower Bible and Tract Society of the Philippines, Inc.

Purpose: To show that the OSG exerted efforts to examine the sincerity and centrality of respondent’s
claimed religious belief and practice.

2. Exhibit "B-OSG" and submarking — The duly notarized certification dated September 30, 2003 issued
and signed by Bro. Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of respondent’s claimed religious belief and
practice; and (2) to prove that the Declaration of Pledging Faithfulness, being a purely internal arrangement
within the congregation of the Jehovah’s Witnesses, cannot be a source of any legal protection for
respondent.

In its Memorandum-In-Intervention, the OSG contends that the State has a compelling interest to override
respondent’s claimed religious belief and practice, in order to protect marriage and the family as basic
social institutions. The Solicitor General, quoting the 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 respondent’s criminal conduct, the majority is in fact
recognizing a practice, custom or agreement that subverts marriage. He argues in a similar fashion as
regards the state’s interest in the sound administration of justice.

There has never been any question that the state has an interest in protecting the institutions of marriage
and the family, or even in the sound administration of justice. Indeed, the provisions by which respondent’s
relationship is said to have impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code, Articles 334 and 349 of the Revised Penal Code, and even the provisions on marriage
and family in the Civil Code and Family Code, all clearly demonstrate the State’s need to protect these
secular interests.

Be that as it may, the free exercise of religion is specifically articulated as one of the fundamental rights in
our Constitution. It is a fundamental right that enjoys a preferred position in the hierarchy of rights — "the
most inalienable and sacred of human rights," in the words of Jefferson. Hence, it is not enough to contend
that the state’s interest is important, because our Constitution itself holds the right to religious freedom
sacred. The State must articulate in specific terms the state interest involved in preventing the exemption,
which must be compelling, for only the gravest abuses, endangering paramount interests can limit the
fundamental right to religious freedom. To rule otherwise would be to emasculate the Free Exercise Clause
as a source of right by itself.

Thus, it is not the State’s broad interest in "protecting the institutions of marriage and the family," or even "in
the sound administration of justice" that must be weighed against respondent’s claim, but the State’s
narrow interest in refusing to make an exception for the cohabitation which respondent’s faith finds moral.
In other words, the government must do more than assert the objectives at risk if exemption is given; it
must precisely show how and to what extent those objectives will be undermined if exemptions are
granted.151 This, the Solicitor General failed to do.

To paraphrase Justice Blackmun’s application of the compelling interest test, the State’s interest in
enforcing its prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, cannot be
merely abstract or symbolic. The State cannot plausibly assert that unbending application of a criminal
prohibition is essential to fulfill any compelling interest, if it does not, in fact, attempt to enforce that
prohibition. In the case at bar, the State has not evinced any concrete interest in enforcing the concubinage
or bigamy charges against respondent or her partner. The State has never sought to prosecute respondent
nor her partner. The State’s asserted interest thus amounts only to the symbolic preservation of an
unenforced prohibition. Incidentally, as echoes of the words of Messrs. J. Bellosillo and Vitug, in their
concurring opinions in our Decision, dated August 4, 2003, to deny the exemption would effectively break
up "an otherwise ideal union of two individuals who have managed to stay together as husband and wife
[approximately twenty-five years]" and have the effect of defeating the very substance of marriage and the
family.
The Solicitor General also argued against respondent’s religious freedom on the basis of morality, i.e., that
"the conjugal arrangement of respondent and her live-in partner should not be condoned because
adulterous relationships are constantly frowned upon by society"; 152 and "that State laws on marriage,
which are moral in nature, take clear precedence over the religious beliefs and practices of any church,
religious sect or denomination on marriage. Verily, religious beliefs and practices should not be permitted to
override laws relating to public policy such as those of marriage."153

The above arguments are mere reiterations of the arguments raised by Mme. Justice Ynares-Santiago in
her dissenting opinion to our Decision dated August 4, 2003, which she offers again in toto. These
arguments have already been addressed in our decision dated August 4, 2003. 154 In said Decision, we
noted that Mme. Justice Ynares-Santiago’s dissenting opinion dwelt more on the standards of morality,
without categorically holding that religious freedom is not in issue. 155 We, therefore, went into a discussion
on morality, in order to show that:

(a) The public morality expressed in the law is necessarily secular for in our constitutional order, the religion
clauses prohibit the state from establishing a religion, including the morality it sanctions. 156 Thus, when the
law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of Professional Responsibility
for lawyers,157 or "public morals" in the Revised Penal Code,158 or "morals" in the New Civil Code,159 or
"moral character" in the Constitution,160 the distinction between public and secular morality on the one hand,
and religious morality, on the other, should be kept in mind;161

(b) Although the morality contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend compelling state interests;162

(c) The jurisdiction of the Court extends only to public and secular morality. Whatever pronouncement the
Court makes in the case at bar should be understood only in this realm where it has authority.163

(d) Having distinguished between public and secular morality and religious morality, the more difficult task is
determining which immoral acts under this public and secular morality fall under the phrase "disgraceful
and immoral conduct" for which a government employee may be held administratively liable. 164 Only one
conduct is in question before this Court, i.e., the conjugal arrangement of a government employee whose
partner is legally married to another which Philippine law and jurisprudence consider both immoral and
illegal.165

(e) While there is no dispute that under settled jurisprudence, respondent’s conduct constitutes "disgraceful
and immoral conduct," the case at bar involves the defense of religious freedom, therefore none of the
cases cited by Mme. Justice Ynares-Santiago apply. 166 There is no jurisprudence in Philippine jurisdiction
holding that the defense of religious freedom of a member of the Jehovah’s Witnesses under the same
circumstances as respondent will not prevail over the laws on adultery, concubinage or some other law. We
cannot summarily conclude therefore

that her conduct is likewise so "odious" and "barbaric" as to be immoral and punishable by law.167

Again, we note the arguments raised by Mr. Justice Carpio with respect to charging respondent with
conduct prejudicial to the best interest of the service, and we reiterate that the dissent offends due process
as respondent was not given an opportunity to defend herself against the charge of "conduct prejudicial to
the best interest of the service." Indeed, there is no evidence of the alleged prejudice to the best interest of
the service.168

Mr. Justice Carpio’s slippery slope argument, on the other hand, is non-sequitur. If the Court grants
respondent exemption from the laws which respondent Escritor has been charged to have violated, the
exemption would not apply to Catholics who have secured church annulment of their marriage even without
a final annulment from a civil court. First, unlike Jehovah’s Witnesses, the Catholic faith considers
cohabitation without marriage as immoral. Second, but more important, the Jehovah’s Witnesses have
standards and procedures which must be followed before cohabitation without marriage is given the
blessing of the congregation. This includes an investigative process whereby the elders of the congregation
verify the circumstances of the declarants. Also, the Declaration is not a blanket authority to cohabit without
marriage because once all legal impediments for the couple are lifted, the validity of the Declaration
ceases, and the congregation requires that the couple legalize their union.
At bottom, the slippery slope argument of Mr. Justice Carpio is speculative. Nevertheless, insofar as he
raises the issue of equality among religions, we look to the words of the Religion Clauses, which clearly
single out religion for both a benefit and a burden: "No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof…" On its face, the language grants a unique advantage to
religious conduct, protecting it from governmental imposition; and imposes a unique disadvantage,
preventing the government from supporting it. To understand this as a provision which puts religion on an
equal footing with other bases for action seems to be a curious reading. There are no "free exercise" of
"establishment" provisions for science, sports, philosophy, or family relations. The language itself thus
seems to answer whether we have a paradigm of equality or liberty; the language of the Clause is clearly in
the form of a grant of liberty. 169

In this case, the government’s conduct may appear innocent and nondiscriminatory but in effect, it is
oppressive to the minority. In the interpretation of a document, such as the Bill of Rights, designed to
protect the minority from the majority, the question of which perspective is appropriate would seem easy to
answer. Moreover, the text, history, structure and values implicated in the interpretation of the clauses, all
point toward this perspective. Thus, substantive equality—a reading of the religion clauses which leaves
both politically dominant and the politically weak religious groups equal in their inability to use the
government (law) to assist their own religion or burden others—makes the most sense in the interpretation
of the Bill of Rights, a document designed to protect minorities and individuals from mobocracy in a
democracy (the majority or a coalition of minorities). 170

As previously discussed, our Constitution adheres to the benevolent neutrality approach that gives room for
accommodation of religious exercises as required by the Free Exercise Clause. 171 Thus, in arguing that
respondent should be held administratively liable as the arrangement she had was "illegal per se because,
by universally recognized standards, it is inherently or by its very nature bad, improper, immoral and
contrary to good conscience,"172 the Solicitor General failed to appreciate that benevolent neutrality could
allow for accommodation of morality based on religion, provided it does not offend compelling state
interests.173

Finally, even assuming that the OSG has proved a compelling state interest, it has to further demonstrate
that the state has used the least intrusive means possible so that the free exercise is not infringed any
more than necessary to achieve the legitimate goal of the state, i.e., it has chosen a way to achieve its
legitimate state end that imposes as little as possible on religious liberties. 174 Again, the Solicitor General
utterly failed to prove this element of the test. Other than the two documents offered as cited above which
established the sincerity of respondent’s religious belief and the fact that the agreement was an internal
arrangement within respondent’s congregation, no iota of evidence was offered. In fact, the records are
bereft of even a feeble attempt to procure any such evidence to show that the means the state adopted in
pursuing this compelling interest is the least restrictive to respondent’s religious freedom.

Thus, we find that in this particular case and under these distinct circumstances, respondent Escritor’s
conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based
on her fundamental right to freedom of religion. The Court recognizes that state interests must be upheld in
order that freedoms - including religious freedom - may be enjoyed. In the area of religious exercise as a
preferred freedom, however, man stands accountable to an authority higher than the state, and so the state
interest sought to be upheld must be so compelling that its violation will erode the very fabric of the state
that will also protect the freedom. In the absence of a showing that such state interest exists, man must be
allowed to subscribe to the Infinite.

IN VIEW WHEREOF, the instant administrative complaint is dismissed.

SO ORDERED.

REYNATO S. PUNO
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice
 LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO
Associate Justice Asscociate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Asscociate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Asscociate Justice

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.

Associate Justice Asscociate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

Footnotes

1
Estrada v. Escritor, 455 Phil. 411 (2003).

2
Id. at 444. Incidentally, Escritor moved for the inhibition of Judge Caoibes from hearing her case to avoid
suspicion and bias as she previously filed an administrative case against him. Escritor’s motion was denied.

3
Id. The Code provides:

Sec. 46. Discipline: General Provisions. –

(a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as
provided by law and after due process.

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

xxx xxx xxx

(5) Disgraceful and immoral conduct; xxx.

4
Id. at 445.

5
Id. at 445, 447.

6
Id. at 445, 453, and 457.
7
Id. at 445-456. The Declaration provides:

DECLARATION OF PLEDGING FAITHFULNESS

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

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

Signed this 28th day of July 1991.

Parenthetically, Escritor’s partner, Quilapio, executed a similar pledge on the same day. Both pledges were
executed in Atimonan, Quezon and signed by three witnesses. At the time Escritor executed her pledge,
her husband was still alive but living with another woman. Quilapio was likewise married at that time, but
had been separated in fact from his wife. Id. at 446.

8
Id. at 447-448, 452-453. Based on the testimony of Gregorio Salazar, a member of the Jehovah’s
Witnesses since 1985. As presiding minister since 1991, he is aware of the rules and regulations of the
Congregation. An authenticated copy of the magazine article entitled, "Maintaining Marriage Before God
and Men," which explains the rationale behind the Declaration, was also presented.

9
Id. at 449.

10
Id. at 452.

11
Id. at 449.

12
See id. at 447-452.

13
Id. at 445, 453, and 457.

14
Id. at 596.

15
Id. at 599-600.

16
Agustin v. C.A., G.R. No. 107846, April 18, 1997, 271 SCRA 457; Gokongwei v. SEC, G.R. No. 52129,
April 21, 1980, 97 SCRA 78; Commissioner of Public Highways v. Burgos, G.R. No. L-36706, March 31,
1980, 96 SCRA 831; Municipality of Daet v. C.A., G.R. No. L-35861, October 18, 1979, 93 SCRA 503; and
People’s Homesite and Housing Corp. v. Mencias, G.R. No. L-24114, August 16, 1967, 20 SCRA 1031.

17
See discussion under Estrada v. Escritor, 455 Phil. 411, 458-468 (2003).

18
During primitive times, when there was no distinction between the religious and secular, and the same
authority that promulgated laws regulating relations between man and man promulgated laws concerning
man’s obligations to the supernatural. See id. at 458-459.

19
This was the time of theocracy, during the rise of the Hebrew state and the Mosaic religion. See id. at
459-461.

20
Following the rise of Saul, and the pre-Christian Rome which engaged in emperor-worship. See id. at
461-462.

21
Id. at 462-463.
22
Id. at 468.

23
Cohen, William & Danelski, David J., Constitutional Law: Civil Liberty and Individual Rights 565(4th ed.
1997).

24
Id.

25
See Estrada v. Escritor, 455 Phil. 411, 479-480 (2003).

26
Cohen, William & Danelski, David J., Constitutional Law: Civil Liberty and Individual Rights 575(4th ed.
1997).

27
Estrada v. Escritor, 455 Phil. 411, 480 (2003), citing Beth, L., American Theory of Church and State 71
(1958).

28
See id. at 487, 512-516.

29
Id. at 515, citing Buzzard, L., Ericsson, S., The Battle for Religious Liberty 46 (1980); Beth, L., American
Theory of Church and State 71 & 72 (1958); and Grossman, J.B. and Wells, R.S., Constitutional Law &
Judicial Policy Making 1276 (2nd ed. 1980).

30
Id. at 515, citing The Constitution and Religion 1541.

31
See Drakeman, D., Church-State Constitutional Issues 55 (1991), citing Cord, R., Separation of Church
and State: Historical Fact and Current Fiction 50. Thus:

The [separationist] school of thought argues that the First Congress intended to allow government support
of religion, at least as long as that support did not discriminate in favor of one particular religion. . . the
Supreme Court has overlooked many important pieces of history. Madison, for example, was on the
congressional committee that appointed a chaplain, he declared several national days of prayer and fasting
during his presidency, and he sponsored Jefferson’s bill for punishing Sabbath breakers; moreover, while
president, Jefferson allowed federal support of religious missions to the Indians. . . And so, concludes one
recent book, "there is no support in the Congressional records that either the First Congress, which framed
the First Amendment, or its principal author and sponsor, James Madison, intended that Amendment to
create a state of complete independence between religion and government. In fact, the evidence in the
public documents goes the other way." Id. at 513-514.

32
Id. at 514, citing Drakeman, D., Church-State Constitutional Issues 55 (1991), Cord, R., Separation of
Church and State: Historical Fact and Current Fiction 50; and 1 The Debates and Proceedings in the
Congress of the United States, Compiled from Authentic Materials 949-950 (Annala, Gales, J. and Seaton,
W., eds.). Only two members of U.S. Congress opposed the resolution, one on the ground that the move
was a "mimicking of European customs, where they made a mere mockery of thanksgivings," the other on
establishment clause concerns. Nevertheless, the salutary effect of thanksgivings throughout Western
history was acknowledged and the motion was passed without further recorded discussion.

33
Id. at 515, citing Weber, P., Neutrality and First Amendment Interpretation in Equal Separation 3 (1990).

34
330 U.S. 1 (1946). It was in this case that the U.S. Supreme Court adopted Jefferson’s metaphor of "a
wall of separation between church and state" as encapsulating the meaning of the Establishment Clause.
Said the U.S. Court: "The First Amendment has erected a wall between church and state. That wall must be
kept high and impregnable. We could not approve the slightest breach…." Id. at 18.

35
Everson v. Board of Education, 330 U.S. 1, 18 (1947).

36
See Estrada v. Escritor, 455 Phil. 411, 516 (2003), citing The Constitution and Religion 1541; and
Kurland, Of Church and State and the Supreme Court, 29 U.Chi.L.Rev. 1, 5 (1961). Parenthetically, the
U.S. Court in Employment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872
(1990), echoed the rationale of the separationists, when it held that if government acts in pursuit of a
generally applicable law with a secular purpose that merely incidentally burdens religious exercise, the First
Amendment has not been offended.

37
374 U.S. 203 (1963).

38
Estrada v. Escritor, 455 Phil. 411, 517 (2003), citing Buzzard, L., Ericsson, S., The Battle for Religious
Liberty 60 (1980).

39
Id. at 517-518, citing Kelley, D. Strict Neutrality and the Free Exercise of Religion in Weber, P., Equal
Separation 1189 (1990).

40
Id. at 518, citing 75. Monsma, S. The Neutrality Principle and a Pluralist Concept of Accommodation, in
Weber, P., Equal Separation 74-75 (1990).

41
I.e., the "garden" of the church must be walled in for its own protection from the "wilderness" of the world
with its potential for corrupting those values so necessary to religious commitment. According to Williams,
this wall is breached, for the church is in the state, and so the remaining purpose of the wall is to safeguard
religious liberty. Williams’ wall, therefore, would allow for interaction between church and state, but is strict
with regard to state action which would threaten the integrity of religious commitment. His conception of
separation is not total such that it provides basis for certain interactions between church and state dictated
by apparent necessity or practicality.

See discussion of the birth of the theory in Estrada v. Escritor, 455 Phil. 411, 518-519 (2003).

42
343 U.S. 306 (1951).

43
Zorach v. Clauson, 343 U.S. 306, 312-314 (1951).

44
Estrada v. Escritor, 455 Phil. 411, 521-522 (2003).

45
Marsh v. Chambers, 463 US 783, 792-93 (1983).

46
Sherbert v. Verner, 374 US 398, 403-04 (1963).

47
Bowen v. Kendrick, 487 US 589, 611 (1988).

48
Board of Education v. Allen, 392 US 236, 238 (1968).

49
Everson v. Board of Education, 330 US 1, 17 (1947).

50
Committee for Public Education and Religious Liberty v. Regan, 444 US 646, 653-54 (1980).

51
Cited in McConnel, M., Accommodation of Religion: An Update and a Response to the Critics, 60 The
George Washington Law Review 685, 688. See Estrada v. Escritor, 455 Phil. 411, 522-523 (2003).

52
Estrada v. Escritor, 455 Phil. 411, 482 (2003), citing Carter, S., The Resurrection of Religious Freedom,
107 Harvard Law Review 118, 1280129 (1993).

53
Id. at 482, citing Sullivan, K., Religion and Liberal Democracy, 59 The University of Chicago Law Review
195, 214-215 (1992).

54
Id.

55
374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970 (1963). See Johnson, Bradley C., By its Fruits Shall Ye
Know; Axson-Flynn v. Johnson: More Rotted Fruit From Employment Division v. Smith, 80 Chi.-Kent L. Rev.
1287, 1302 (2005).
56
Carmella, Angela C., State Constitutional Protection of Religious Exercise: An Emerging Post-Smith
Jurisprudence, 1993 B.Y.U.L.Rev. 275, 277 (1993).

57
Sherbert v. Verner, 374 U.S. 398, 403 (1963).

58
Id. at 406.

59
Estrada v. Escritor, 455 Phil. 411, 495 (2003), citing Lupu, I., The Religion Clauses and Justice Brennan
in Full, 87 California Law Review 1105, 1114, 1105 and 1110 (1999).

60
Carmella, Angela C., State Constitutional Protection of Religious Exercise: An Emerging Post-Smith
Jurisprudence, 1993 B.Y.U.L.Rev. 275, 277 (1993).

61
406 U.S. 205 (1972).

62
Id. at 214-215, 219-220.

63
Ivan E. Bodensteiner, The Demise of the First Amendment as a Guarantor of Religious Freedom, 27
Whittier L. Rev. 415,417-418 (2005). (citations omitted)

64
See Pepper, Stephen, Conflicting Paradigms of Religious Freedom: Liberty Versus Equality, 1993 B. Y. U.
L. Rev. 7, 30-32 (1993).

65
Id. at 30-32.

66
Id.

67
Estrada v. Escritor, 455 Phil. 411, 498 (2003), citing Stephens, Jr., O.H. and Scheb, II J.M., American
Constitutional Law 522-523 and 526 (2nd ed. 1999).

68
Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson: More Rotted Fruit From
Employment Division v. Smith, 80 Chi.-Kent L. Rev. 1287, 1304 (2005).

69
494 U.S. 872 (1990).

70
Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1211 (2nd ed. 2002).

71
494 U.S. 872, 878-889 (1990), cited in Chemerinsky, Erwin, Constitutional Law: Principles and Policies
1211 (2nd ed. 2002).

72
494 U.S. 872, 879 (1990), cited in Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1212
(2nd ed. 2002).

73
494 U.S. 872, 881 (1990), cited in Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1212
(2nd ed. 2002).

74
494 U.S. 872, 882 (1990), cited in Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1212
(2nd ed. 2002).

75
494 U.S. 872, 884 (1990), cited in Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1212
(2nd ed. 2002).

76
494 U.S. 872, 888 (1990), cited in Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1212
(2nd ed. 2002).

77
See Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1213 (2nd ed. 2002).
78
Employment Division v. Smith, 494 U.S. 872, 906 (1990). (O’Connor, J. concurring in the judgment) This
portion of her concurring opinion was supported by Justices Brennan, Marshall and Blackmun who
dissented from the Court’s decision; cited in Chemerinsky, Erwin, Constitutional Law: Principles and
Policies 1212 (2nd ed. 2002).

79
Id at 903. (O’Connor, J. concurring in the judgment), cited in Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1212 (2nd ed. 2002).

80
Id. at 902. (O’Connor, J. concurring in the judgment) cited in Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1212 (2nd ed. 2002).

81
Id. at 908-909. (Blackmun, J. dissenting), cited in Chemerinsky, Erwin, Constitutional Law: Principles and
Policies 1213 (2nd ed. 2002).

82
Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56 Hastings L.J. 699 (2005).

83
Id.

84
Aden, Steven H & Strang, Lee J., When a "Rule" Doesn’t Rule: The Failure of the Oregon Employment
Division v. Smith "Hybrid Rights Exception," 108 Penn. St. L. Rev. 573, 581 (2003).

85
Id.

86
Estrada v. Escritor, 455 Phil. 411, 501 (2003), citing McConnell, M., Accommodation of Religion: An
Update and a Response to the Critics, 60 The George Washington Law Review 685, 726 (1992).

87
Id. at 482, citing McCoy, T., A Coherent Methodology for First Amendment Speech and Religion Clause
Cases, 48 Vanderbilt Law Review, 1335, 1350-1352 (1995).

88
Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56 Hastings L.J. 699 (2005).

89
Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing II Ducat, C., Constitutional Interpretation 1180 & 1191
(2000). See also Sullivan, K., Religion and Liberal Democracy, 59 The University of Chicago Law Review
195, 216 (1992).

90
Id. at 502, citing McConnell, M., Religious Freedom at a Crossroads, 59 The University of Chicago Law
Review 115, 139 (1992).

91
Id., citing Sullivan, K., Religion and Liberal Democracy, 59 The University of Chicago Law Review 195,
216 (1992).

92
Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56 Hastings L.J. 699 (2005).

93
Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing McCoy, T., A Coherent Methodology for First
Amendment Speech and Religion Clause Cases, 48 Vanderbilt Law Review, 1335, 1350-1351 (1995).

94
Reynolds v. U.S., 98 U.S. 145 (1878); Minersville School District v. Gobitis, 310 U.S. 586 (1940); and
Employment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872 (1990).

95
Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing McCoy, T., A Coherent Methodology for First
Amendment Speech and Religion Clause Cases, 48 Vanderbilt Law Review, 1335, 1350-1351 (1995).

96
Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson: More Rotted Fruit From
Employment Division v. Smith, 80 Chi.-Kent L. Rev. 1287, 1327 (2005).

97
Bodensteiner, Ivan E., The Demise of the First Amendment As a Guarantor of Religious Freedom, 27
Whittier L. Rev. 415, 419 (2005).
98
Aden, Steven H & Strang, Lee J., When a "Rule" Doesn’t Rule: The Failure of the Oregon Employment
Division v. Smith "Hybrid Rights Exception", 108 Penn. St. L. Rev. 573, 584 (2003).

99
See Cohen, William & Danelski, David J., Constitutional Law: Civil Liberty and Individual Rights 620-621
(4th ed. 1997).

100
Id.

101
Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing Carter, S., The Resurrection of Religious Freedom,
107 Harvard Law Review 118 (1993).

102
42 U.S.C. §2000bb.

103
42 U.S.C. §2000bb, Sec. (a) (4), cited in Chemerinsky, Erwin, Constitutional Law: Principles and Policies
1216 (2nd ed. 2002).

104
Id.

105
Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).

106
City of Boerne v. Flores, 521 U.S. 507 (1997), cited in Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1216 (2nd ed. 2002).

107
City of Boerne clearly invalidated the RFRA as applied to state and local governments, but did not
resolve the constitutionality of the law as applied to the federal government. Some federal courts have
expressly ruled that the RFRA is constitutional as applied to the federal government. See Chemerinsky,
Erwin, Constitutional Law: Principles and Policies 1216 (2nd ed. 2002).

108
See Noonan, John T., Jr. & Gaffney, Edward McGlynn, Jr., Religious Freedom: History, Cases, and Other
Materials on the Interaction of Religion and Government 531 (2001).

109
Carmella, Angela C., State Constitutional Protection of Religious Exercise: An Emerging Post-Smith
Jurisprudence, 1993 B.Y.U.L.Rev. 275, 278 (1993).

110
Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson: More Rotted Fruit From
Employment Division v. Smith, 80 Chi.-Kent L. Rev. 1287, 1327 (2005).

111
Estrada v. Escritor, 455 Phil. 411, 526 (2003).

112
Id. at 527, citing Buzzard, L., Ericsson, S., The Battle for Religious Liberty 61-62 (1980).

113
Walz v. Tax Commission, 397 U.S. 664, 673 (1969).

114
343 U.S. 306 (1952).

115
463 U.S. 783 (1983).

116
McConnell, M., Accommodation of Religion: An Update and a Response to the Critics, 60 The George
Washington Law Review 685, 715 (1992).

117
333 U.S. 203 (1948).

118
Estrada v. Escritor, 455 Phil. 411, 527 (2003), citing Buzzard, L., Ericsson, S., The Battle for Religious
Liberty 61-63 (1980).

119
Kmiec, Douglas W. & Presser, Stephen B., Individual Rights and the American Constitution 105 (1998).
120
Employment Division v. Smith, 494 U.S. 872, 903 (1990), cited in Chemerinsky, Erwin, Constitutional
Law: Principles and Policies 1212 (2nd ed. 2002).

121
See, e.g. Michael McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev.
1109 (1990); Jesse H. Choper, The Rise and Decline of the Constitutional Protection of Religious Liberty,
70 Neb. L. Rev. 651 (1991) (criticizing Smith). Cited in Chemerinsky, Erwin, Constitutional Law: Principles
and Policies 1213 (2nd ed. 2002).

122
McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harvard Law
Review 1410, 1416-1417 (1990).

123
Constitution, (1935), Art. VI, Sec. 22, par 3(b); Constitution, (1973), Art. VI, Sec. 22(3); and Constitution,
(1987), Art.VI, Sec. 28(3).

124
Constitution, (1935), Art. VI, Sec. 23(3); Constitution, (1973), Art. VIII, Sec. 18(2); and Constitution,
(1987), Art. VI, Sec. 29(2).

125
Constitution, (1935) Art. XIII, Sec. 5; Constitution, (1973), Art. XV, Sec. 8(8); and Constitution, (1987),
Art. XIV, Sec. 3(3).

126
"Divine Providence" in the 1935 and 1973 Constitutions; and "Almighty God" in the 1987 Constitution.

127
Estrada v. Escritor, 455 Phil. 411, 573-574 (2003).

128
Id. at 564 and 575.

129
Id. at 563-564.

130
Id. at 574. As stated in the Decision dated August 4, 2003:

Considering the American origin of the Philippine religion clauses and the intent to adopt the historical
background, nature, extent and limitations of the First Amendment of the U.S. Constitution when it was
included in the 1935 Bill of Rights, it is not surprising that nearly all the major Philippine cases involving the
religion clauses turn to U.S. jurisprudence in explaining the nature, extent and limitations of these clauses.
However, a close scrutiny of these cases would also reveal that while U.S. jurisprudence on religion
clauses flows into two main streams of interpretation - separation and benevolent neutrality - the well-spring
of Philippine jurisprudence on this subject is for the most part, benevolent neutrality which gives room for
accommodation. Id. at 536.

131
101 Phil. 386 (1957).

132
G.R. No. 95770, March 1, 1993, 219 SCRA 256.

133
Gerona v. Secretary of Education, 106 Phil. 2 (1959). In this prior case, petitioners were also members
of the Jehovah’s Witnesses. They challenged a Department Order issued by the Secretary of Education
implementing Republic Act No. 1265 which prescribed compulsory flag ceremonies in all public schools. In
violation of the Order, petitioner’s children refused to salute the Philippine flag, sing the national anthem, or
recite the patriotic pledge, hence they were expelled from school. Seeking protection under the Free
Exercise Clause, petitioners claimed that their refusal was on account of their religious belief that the
Philippine flag is an image and saluting the same is contrary to their religious belief. The Court denied
exemption, and sustained the expulsion of petitioners’ children, on the ground that "If the exercise of
religious belief clashes with the established institutions of society and with the law, then the former must
yield to the latter."

134
Id. at 270-271.

135
G.R. No. L-25246, September 12, 1974, 59 SCRA 54. See also Basa v. Federacion Obrera, G.R. No. L-
27113, November 19, 1974, 61 SCRA 93; Gonzalez v. Central Azucarera de Tarlac Labor Union, G.R. No.
L-38178, October 3, 1985, 139 SCRA 30.
136
Victoriano v. Elizalde Rope Workers Union, G.R. No. L-25246, September 12, 1974, 59 SCRA 54, 74-75.
The Court stressed that "(a)lthough the exemption may benefit those who are members of religious sects
that prohibit their members from joining labor unions, the benefit upon the religious sects is merely
incidental and indirect." In enacting Republic Act No. 3350, Congress merely relieved the exercise of
religion by certain persons of a burden imposed by union security agreements which Congress itself also
imposed through the Industrial Peace Act. The Court concluded the issue of exemption by citing Sherbert
which laid down the rule that when general laws conflict with scruples of conscience, exemptions ought to
be granted unless some "compelling state interest" intervenes. The Court then abruptly added that "(i)n the
instant case, We see no compelling state interest to withhold exemption." Id.

137
Estrada v. Escritor, 455 Phil. 411, 576-578 (2003).

138
Id. at 529-531.

139
98 U.S. 145 (1878).

140
See Kmiec, Douglas, W, & Presser, Stephen B, Individual Rights and the American Constitution 105
(1998). In this case, the issue was whether a general federal law criminalizing polygamy can be applied to
a Mormon whose religion included that practice. The U.S. Court, in affirming Reynold’s conviction, ruled
that the prohibition of polygamy was justified by the importance of monogamous, heterosexual marriage, a
practice upon which society may be said to be built, and perhaps even upon which democratic traditions
depend. Thus, according to the U.S. Court, this important societal interest prevails over the countervailing
religious practice of the Mormons.

141
A.M. No. MTJ-92-691, September 10, 1993, 226 SCRA 193.

142
494 U.S. 872 (1990). (O’Connor, J. concurring) According to Justice O’Connor:

…Even if, as an empirical matter, a government’s criminal laws might usually serve a compelling interest in
health, safety, or public order, the First Amendment at least requires a case-by-case determination of the
question, sensitive to the facts of each particular claim… Given the range of conduct that a State might
legitimately make criminal, we cannot assume, merely because a law carries criminal sanctions and is
generally applicable, that the First Amendment never requires the State to grant a limited exemption for
religiously motivated conduct.

Parenthetically, J. Brennan, J. Marshall, and J. Blackmun joined Parts I and II of Justice O’Connor’s
opinion, including the above-cited portions, but did not concur in the judgment.

143
See Pepper, Stephen, Conflicting Paradigms of Religious Freedom: Liberty Versus Equality, 1993 B. Y.
U. L. Rev. 7, 12-13 (1993).

144
Estrada v. Escritor, 455 Phil. 411, 574-575 (2003).

145
Id., citing McConnell, M., Religious Freedom at a Crossroads, 59(1) Univ. of Chicago Law Review 115,
169 (1992).

146
Dated May 6, 2005, by retired Associate Justice Romulo S. Quimbo, rollo, p. 714.

147
Rollo, pp. 687-689.

148
OSG Memorandum-In-Intervention, rollo, pp. 20-21, citing Constitution, Art. II, Sec. 12, which provides:
"The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution."

149
Id. at 21, citing the Family Code, Art. 149, which provides: "The family, being the foundation of the
nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations
are governed by law and no custom, practice or agreement destructive of the family shall be recognized or
given effect."
150
Id. at 21-22.

151
See Estrada v. Escritor, 455 Phil. 411, 529-531 (2003).

152
OSG Memorandum-In-Intervention, rollo, p. 23.

153
Id. at 26.

154
Estrada v. Escritor, 455 Phil. 411, 580-595 (2003). This part of the decision addressed the issue of
morality raised by Mme. Justice Ynares-Santiago and Mr. Justice Vitug, who also had a separate opinion,
albeit differing in conclusion.

155
Id. at 580.

156
Id. at 586-588.

157
Rule 1.01 of the Code of Professional Responsibility provides that, "(a) lawyer shall not engage in
unlawful, dishonest, immoral or deceitful conduct. (emphasis supplied)

158
Title Six of the Revised Penal Codeis entitled Crimes against Public Morals and includes therein
provisions on gambling and betting. (emphasis supplied)

159
The New Civil Code provides, viz:

"Article 6. Rights may be waived, unless the waiver is contrary to law, public order, public
policy, morals, or good ustoms or prejudicial to a third person with a right recognized by law.

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

Article 1306. The contran/a>blish such stipulations, clauses, terms and conditions as they
may deem convenient, provided that are not contrary to law, morals, good customs, public
order, or public policy.

Article 1409. The following contracts are inexistent and void from the beginning:

(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public
order or public policy; x x x" (emphases supplied)

160
Article XIV, Section 3 provides in relevant part, viz:

(1)All educational institutions shall include the study of the Constitution as part of the curricula.

(2)They shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights,
appreciation of the role of national heroes in the historical development of the country, teach the rights and
duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal
discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and
promote vocational efficiency. (emphasis supplied)

161
Estrada v. Escritor, 455 Phil. 411, 586 (2003).

162
Id. at 589-590.

163
Id. at 591.

164
Id. at 592.

165
Id. at 593.
166
Id. at 593-595.

167
Id. at 594-595.

168
Id. at 595-596.

169
Pepper, Stephen, Conflicting Paradigms of Religious Freedom: Liberty Versus Equality, 1993 B. Y. U. L.
Rev. 7, 12 (1993).

170
Id. at 51.

171
Estrada v. Escritor, 455 Phil. 411, 574 (2003).

172
OSG Memorandum-In-Intervention, rollo, p. 708.

173
See Estrada v. Escritor, 455 Phil. 411, 536-554 (2003).

174
Id. at 529-531.

DISSENTING OPINION

YNARES-SANTIAGO, J.:

With due respect, I am unable to agree with the finding of the majority that "in this particular case and under
these particular circumstances, respondent Escritor’s conjugal arrangement does not constitute disgraceful
and immoral conduct" and its decision to dismiss the administrative complaint filed by petitioner against
respondent Soledad S. Escritor.

The issue in this case is simple. What is the meaning or standard of "disgraceful and immoral conduct" to
be applied by the Supreme Court in disciplinary cases involving court personnel?

The degree of morality required of every employee or official in the public service has been consistently
high. The rules are particularly strict when the respondent is a Judge or a court employee. 1 Even where the
Court has viewed certain cases with human understanding and compassion, it has insisted that no
untoward conduct involving public officers should be left without proper and commensurate sanction. 2 The
compassion is shown through relatively light penalties. Never, however, has this Court justified, condoned,
or blessed the continuation of an adulterous or illicit relationship such as the one in this case, after the
same has been brought to its attention.

Is it time to adopt a more liberal approach, a more "modern" view and a more permissive pragmatism which
allow adulterous or illicit relations to continue provided the job performance of the court employee
concerned is not affected and the place and order in the workplace are not compromised? When does
private morality involving a court employee become a matter of public concern?

The Civil Service Law punishes public officers and employees for disgraceful and immoral
conduct.3 Whether an act is immoral within the meaning of the statute is not to be determined by
respondent’s concept of morality. The law provides the standard; the offense is complete if respondent
intended to perform, and did in fact perform, the act which it condemns.4

The ascertainment of what is moral or immoral calls for the discovery of contemporary community
standards. For those in the service of the Government, provisions of law and court precedents also have to
be considered. The task is elusive.
The layman’s definition of what is "moral" pertains to excellence of character or disposition. It relates to the
distinction between right and wrong; virtue and vice; ethical praise or blame. Moral law refers to the body of
requirements in conformity to which virtuous action consists. Applied to persons, it is conformity to the rules
of morality, being virtuous with regards to moral conduct.5

That which is not consistent with or not conforming to moral law, opposed to or violating morality, and now,
more often, morally evil or impure, is immoral. Immoral is the state of not being virtuous with regard to
sexual conduct.6

The term begs the definition. Hence, anything contrary to the standards of moral conduct is immoral. A
grossly immoral act must be so corrupt and false as to constitute a criminal act or so unprincipled as to be
reprehensible to a high degree.7

Anything plainly evil or dissolute is, of course, unchangingly immoral. However, at the fringes or boundary
limits of what is morally acceptable and what is unacceptably wrong, the concept of immorality tends to shift
according to circumstances of time, person, and place. When a case involving the concept of immorality
comes to court, the applicable provisions of law and jurisprudence take center stage.

Those who choose to tolerate the situation where a man and a woman separated from their legitimate
spouses decide to live together in an "ideal" and yet unlawful union state – or more specifically, those who
argue that respondent’s cohabiting with a man married to another woman is not something which is willful,
flagrant, or shameless – show a moral indifference to the opinion of the good and respectable members of
the community in a manner prejudicial to the public service.

Insofar as concepts of morality are concerned, various individuals or cultures may indeed differ. In certain
countries, a woman who does not cover herself with a burka from head to foot may be arrested for immoral
behavior. In other countries, near nudity in beaches passes by unnoticed. In the present case, the
perceived fixation of our society over sex is criticized. The lesser degree of condemnation on the sins of
laziness, gluttony, vanity, selfishness, avarice and cowardice is decried as discriminatory.

The issue in this case is legal and not philosophical. It is a limited one. Is respondent Soledad S. Escritor
guilty of "disgraceful and immoral" conduct in the context of the Civil Service Law? Are there any sanctions
that must be imposed?

We cannot overlook the fact that respondent Escritor would have been convicted for a criminal offense if
the offended party had been inclined and justified to prosecute her prior to his death in 1998. Even now,
she is a co-principal in the crime of concubinage. A married woman who has sexual intercourse with a man
not her husband, and the man who has carnal knowledge of her knowing her to be married, commit the
crime of adultery.8 Abandonment by the legal husband without justification does not exculpate the offender;
it merely mitigates the penalty.

The concubine with whom a married man cohabits suffers the penalty of destierro.9 It is true that criminal
proceedings cannot be instituted against persons charged with adultery or concubinage except upon
complaint of the offended party.10 This does not mean that no actionable offense has been committed if the
offended party does not press charges. It simply cannot be prosecuted. The conduct is not thereby
approved, endorsed or commended. It is merely tolerated.

The inescapable fact in this case is that acts defined as criminal under penal law have been committed.

There are experts in Criminal Law who believe that the codal provisions on adultery and concubinage are
terribly outmoded and should be drastically revised. However, the task of amendment or revision belongs to
Congress, and not to the Supreme Court.

Our existing rule is that an act so corrupt or false as to constitute a criminal act is "grossly immoral."11 It is
not merely "immoral." Respondent now asks the Court to go all the way to the opposite extreme and
condone her illicit relations with not even an admonition or a slight tap on the wrist.

I do not think the Court is ready to render a precedent-setting decision to the effect that, under exceptional
circumstances, employees of the judiciary may live in a relationship of adultery or concubinage with no fear
of any penalty or sanction and that after being discovered and charged, they may continue the adulterous
relationship until death ends it. Indeed, the decision in this case is not limited to court interpreter Soledad
Escritor. It is not a pro hac vice ruling. It applies to court employees all over the country and to everybody in
the civil service. It is not a private ruling but one which is public and far-reaching in its consequences.

In the 1975 case of De Dios v. Alejo,12 the Court applied compassion and empathy but nonetheless
recognized as most important a mending of ways through a total breaking of relationships. The facts in that
case are strikingly similar to those in this case. Yet, the Court required a high degree of morality even in the
presence of apparently exculpating circumstances. It was stated:

While it is permissible to view with human understanding and compassion a situation like that in which
respondents find themselves, the good of the service and the degree of morality which every official and
employee in the public service must observe, if respect and confidence are to be maintained by the
government in the enforcement of the law, demand that no untoward conduct on his part, affecting morality,
integrity and efficiency, while holding office should be left without proper and commensurate sanction, all
attendant circumstances taken into account. In the instant case, We cannot close our eyes to the important
considerations that respondents have rendered government service for more than thirty-three and twenty-
five years, respectively, and that there is no showing that they have ever been found guilty of any
administrative misconduct during all those periods. In the case of respondent Alejo, it seems rather sadistic
to make her suffer the extreme penalty of dismissal from the service after she had taken care of her co-
respondent’s four children, giving them the needed love and attention of a foster mother after they were
completely abandoned by their errant and unfaithful natural mother. Even respondent Marfil, if to a lesser
degree, is deserving of compassion. Most importantly, respondents have amply demonstrated that
they recognize their mistake and have, therefore, actually mended their ways by totally breaking
their relationship complained of, in order to conform with the imperatives of public interest .
(Emphasis supplied)

The standards for those in the judicial service are quite exacting.

The Court has ruled that in the case of public servants who are in the judiciary, their conduct and
behavior, from the presiding judge to the lowliest clerk, must not only be characterized by propriety and
decorum, but above all else, must be above suspicion.13

In Burgos v. Aquino,14 it was ruled:

The Code of Judicial Ethics mandates that the conduct of court personnel must be free from any whiff of
impropriety, not only with respect to his duties in the judicial branch but also to his behavior outside the
court as a private individual. There is no dichotomy of morality; a court employee is also judged by his
private morals. These exacting standards of morality and decency have been strictly adhered to and laid
down by the Court to those in the service of the judiciary. Respondent, as a court stenographer, did not live
up to her commitment to lead a moral life. Her act of maintaining relations with Atty. Burgos speaks for
itself.

Respondent Aquino was a court stenographer who was suspended for six months for maintaining illicit
relations with the husband of complainant Virginia E. Burgos. The Court therein stated that a second
offense shall result in dismissal.

We should not lose sight of the fact that the judicial system over which it presides is essentially composed
of human beings who, as such, are naturally prey to weakness and prone to errors. Nonetheless, in Ecube-
Badel v. Badel,15 we imposed on respondent a suspension for six months and one day to one year with
warning of dismissal should the illicit relations be repeated or continued.

In Nalupta v. Tapec,16 a deputy sheriff was suspended, also for six months, for having illicit relations with a
certain Cristian Dalida who begot a son by him. His wife complained and neighbors confirmed that Tapec
was frequently seen leaving the house of Consolacion Inocencio in the morning and returning to it in the
afternoon. Tapec and Inocencio begot two children. Consistently with the other cases, we imposed the
penalty of suspension for the first offense with the graver penalty of dismissal for a second offense.
The earlier case of Aquino v. Navarro17 involved an officer in the Ministry of Education, Culture and Sports
who was abandoned by her husband a year after their marriage and who lived alone for eighteen years
with their child. Pretending that she sincerely believed her husband to have died, she entered into a marital
relationship with Gonzalo Aquino and had children by him in 1968 and 1969. Eighteen days before their
third child was born on May 25, 1975, the two decided to get married. Notwithstanding the illicit relationship
which blossomed into a bigamous marriage, the full force of the law was not applied on her, "considering
the exceptional circumstances that befell her in her quest for a better life." Still, a penalty of six months
suspension was imposed with a warning that "any moral relapse on her part will be severely dealt with."

Times are changing. Illicit sex is now looked upon more kindly. However, we should not completely
disregard or overlook a relationship of adultery or concubinage involving a court employee and not order it
to be terminated. It should not ignore what people will say about our moral standards and how a permissive
approach will be used by other court employees to freely engage in similarly illicit relationship with no fear
of disciplinary punishment.

As earlier mentioned, respondent Escritor and Luciano Quilapio, Jr. had existing marriages with their
respective legitimate spouses when they decided to live together. To give an aura of regularity and
respectability to what was undeniably an adulterous and, therefore, immoral relationship, the two decided to
acquire through a religious ceremony what they could not accomplish legally. They executed on July 28,
1991 the "Declaration of Pledging Faithfulness" to make their relationship what they alleged it would be – a
binding tie before Jehovah God.

In this case, respondent is charged not as a Jehovah’s Witness but in her capacity as a court employee. It
is contended that respected elders of the Jehovah’s Witnesses sanction "an informal conjugal relationship"
between respondent and her marital partner for more than two decades, provided it is characterized by
faithfulness and devotion to one another. However, the "informal conjugal relationship" is not between two
single and otherwise eligible persons where all that is missing is a valid wedding ceremony. The two
persons who started to live together in an ostensible marital relationship are married to other persons.

We must be concerned not with the dogmas or rules of any church or religious sect but with the legal
effects under the Civil Service Law of an illicit or adulterous relationship characterized by the facts of this
case.

There is no conflict in this case between the dogmas or doctrines of the Roman Catholic Church and those
of the Jehovah’s Witnesses or any other church or denomination. The perceived conflict is non-existing and
irrelevant.

The issue is legal and not religious. The terms "disgraceful" and "immoral" may be religious concepts, but
we are concerned with conduct which under the law and jurisprudence is proscribed and, if perpetrated,
how it should be punished.

Respondent cannot legally justify her conduct by showing that it was morally right by the standards of the
congregation to which she belongs. Her defense of freedom of religion is unavailing. Her relationship with
Mr. Quilapio is illicit and immoral, both under the Revised Administrative Code 18 and the Revised Penal
Code,19 notwithstanding the supposed imprimatur given to them by their religion.

The peculiar religious standards alleged to be those of the sect to which respondent belongs can not shield
her from the effects of the law. Neither can her illicit relationship be condoned on the basis of a written
agreement approved by their religious community. To condone what is inherently wrong in the face of the
standards set by law is to render nugatory the safeguards set to protect the civil service and, in this case,
the judiciary.

The Court cannot be the instrument by which one group of people is exempted from the effects of these
laws just because they belong to a particular religion. Moreover, it is the sworn mandate of the Court to
supervise the conduct of an employee of the judiciary, and it must do so with an even hand regardless of
her religious affiliation.

I find that respondent’s "Declaration of Pledging Faithfulness" does nothing for her insofar as this
administrative matter is concerned, for written therein are admissions regarding the legal impediments to
her marrying Quilapio. In the said document, she even pledged to seek all avenues to obtain legal
recognition by civil authorities of her union with Quilapio.20 However, the record is silent as to any effort on
respondent’s part to effect this covenant.

The evidence shows that respondent repeatedly admitted the existence of the legal infirmities that plague
her relationship with Quilapio.21 As a court interpreter, she is an integral member of the judiciary and her
service as such is crucial to the administration of justice. Her acts and omissions constitute a possible
violation of the law – the very same law that she is sworn to uphold as an employee of the judiciary. How
can she work under the pretense of being a contributing force to the judicial system if she herself is
committing acts that may constitute breaking the law?

Respondent invokes her constitutional right to religious freedom. The separation of church and state has
been inviolable in this jurisdiction for a century. However, the doctrine is not involved in this
case.22 Furthermore, the legislature made cohabitation with a woman who is not one’s wife a crime through
the enactment of the Revised Penal Code.23 The legislative power has also seen fit to enact the Civil
Service Law and has given said law general application.

The argument that a marital relationship is the concern of religious authorities and not the State has no
basis.

In Reynolds v. United States,24 the U.S. Supreme Court stated:

It is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit
legislation in respect to this most important feature of social life. Marriage, while from its very nature a
sacred obligation, is, nevertheless, in most civilized nations, a civil contract, and usually regulated by law.
Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and
duties, with which government is necessarily required to deal.

The strengthening of marriage ties and the concomitant hostility to adulterous or illicit marital relations is a
primary governmental concern. It has nothing to do with the particular religious affiliations of those affected
by legislation in this field.

The relations, duties, obligations and consequences of marriage are important to the morals and civilization
of a people and to the peace and welfare of society.25 Any attempt to inject freedom of religion in an effort to
exempt oneself from the Civil Service rules relating to the sanctity of the marriage tie must fail.

The U.S. Supreme Court in the above-cited case of Reynolds v. United States 26 upheld federal legislation
prohibiting bigamy and polygamy in territories of the United States, more specifically Utah. Members of the
Mormon Church asserted that the duty to practice polygamy was an accepted doctrine of their church. In
fact, Mormons had trekked from the regular States of the Union to what was then a mere Territory in order
to practice their religious beliefs, among them polygamy. The Court declared that while it protected religious
belief and opinion, it did not deprive Congress of the power to reach actions violative of social duties or
subversive of good order. Polygamy was outlawed even for Mormons who considered it a religious
obligation.

We must not exempt illegal conduct or adulterous relations from governmental regulation simply because
their practitioners claim it is part of their free exercise of religious profession and worship.

Indeed, the Court distinguishes between religious practices, including the seemingly bizarre, which may not
be regulated, and unacceptable religious conduct which should be prevented despite claims that it forms
part of religious freedom.

In Ebralinag v. Division Superintendent of Schools, 27 we validated the exemption of Jehovah’s Witnesses

from coerced participation in flag ceremonies of public schools. Following the ruling in West Virginia v.
Barnette,28 we declared that unity and loyalty, the avowed objectives of flag ceremonies, cannot be attained
through coercion. Enforced unity and loyalty is not a good that is constitutionally obtainable at the expense
of religious liberty. A desirable end cannot be promoted by prohibited means.
The exemption from participation in flag ceremonies cannot be applied to the tolerance of adulterous
relationships by court personnel in the name of religious freedom.

A clear and present danger of a substantive evil, destructive to public morals, is a ground for the
reasonable regulation of the free exercise and enjoyment of religious profession. 29 In addition to the
destruction of public morals, the substantive evil in this case is the tearing down of morality, good order, and
discipline in the judiciary.

Jurisprudence on immoral conduct of employees in the civil service has been consistent. There is nothing in
this case that warrants a departure from precedents. We must not sanction or encourage illicit or adulterous
relations among government employees.

Soledad S. Escritor and Luciano D. Quilapio are devoted members of Jehovah’s Witness. Exemptions
granted under our Muslim Laws to legitimate followers of Islam do not apply to them. 30 The Court has no
legislative power to place Jehovah’s Witness in the same legal category as Muslims.

In Bucatcat v. Bucatcat,31 it was held that conduct such as that demonstrated by the respondent is immoral
and deserving of punishment. For such conduct, the respondent, another court interpreter, was dismissed
from the service. It was held:

Every employee of the judiciary should be an example of integrity, uprightness and honesty. Like any public
servant, he must exhibit the highest sense of honesty and integrity not only in the performance of his official
duties but in his personal and private dealings with other people, to preserve the court’s good name and
standing. It cannot be overstressed that the image of a court of justice is mirrored in the conduct, official
and otherwise, of the personnel who work thereat, from the judge to the lowest of its personnel. Court
employees have been enjoined to adhere to the exacting standards of morality and decency in their
professional and private conduct in order to preserve the good name and integrity of courts of justice.

All those who work in the judiciary are bound by the most exacting standards of ethics and morality to
maintain the people’s faith in the courts as dispensers of justice. In Liguid v. Camano,32 it was ruled:

Surely, respondent’s behavior of living openly and scandalously for over two (2) decades with a woman not
his wife and siring a child by her is representative of the gross and serious misconduct penalized by the
ultimate penalty of dismissal under Section 22 (c), Rule XIV of the Omnibus Rules Implementing Book IV of
Executive Order No. 292 otherwise known as the Revised Administrative Code of 1987. As defined,
misconduct is a transgression of some established or definite rule of action, more particularly, unlawful
behavior or gross negligence by the public officer. Respondent’s conduct is an example of the kind of gross
and flaunting misconduct that so quickly and surely corrodes the respect for the courts without which
government cannot continue and that tears apart the bonds of our polity.

Earlier, in Navarro v. Navarro,33 the penalty of suspension was imposed on a court employee for
maintaining illicit relations with a woman not his wife, thus:

Time and again we have stressed adherence to the principle that public office is a public trust. All
government officials and employees must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives. This
constitutional mandate should always be in the minds of all public servants to guide them in their actions
during their entire tenure in the government service. The good of the service and the degree of morality
which every official and employee in the public service must observe, if respect and confidence are to be
maintained by the Government in the enforcement of the law, demand that no untoward conduct on his
part, affecting morality, integrity and efficiency while holding office should be left without proper and
commensurate sanction, all attendant circumstances taken into account.

The exacting standards of ethics and morality imposed upon court judges and court employees are
required to maintain the people’s faith in the courts as dispensers of justice, and whose image is mirrored
by their actuations. As the Court eloquently stated through Madame Justice Cecilia Muñoz-Palma:

[T]he image of the court of justice is necessarily mirrored in the conduct, official or otherwise, of the men
and woman who work thereat, from the judge to the least and lowest of its personnel – hence, it becomes
the imperative sacred duty of each and everyone in the court to maintain its good name and standing as a
true temple of justice.34

The high degree of moral uprightness that is demanded of employees of the government entails many
sacrifices that are peculiar to the civil service. By aspiring to these positions, government employees are
deemed to have submitted themselves to greater scrutiny of their conduct, all in the pursuit of a
professional civil service. The Court has repeatedly applied these principles in analogous cases.35

Immorality is punishable by suspension of six (6) months and one day to one (1) year for the first offense
and dismissal for the second offense.36 Considering that respondent’s misconduct is in the nature of a
continuing offense, it must be treated as a first offense, and her continued cohabitation with Luciano E.
Quilapio, Jr. must be deemed a second offense, which will warrant the penalty of dismissal.

ACCORDINGLY, I vote that respondent Soledad S. Escritor is GUILTY of immorality and disgraceful
conduct and should be SUSPENDED for a period of Six (6) months and One day without pay, with a
warning that the continuance of her illicit cohabitation with Luciano D. Quilapio, Jr. shall be deemed a
second offense which shall warrant the penalty of dismissal.

CONSUELO YNARES-SANTIAGO
Associate Justice

Footnotes

1
Lacuata v. Bautista, A.M. No. P-94-1005, 12 August 1994, 235 SCRA 290.

2
De Dios v. Alejo, A.M. No. P-137, 15 December 1975, 68 SCRA 354.

3
Revised Administrative Code, Book V, Title I, Subtitle A, Section 46 (b) (5).

4
Cleveland v. United States, 329 U.S. 14, 67 Sup. Ct. 13 (1946).

5
Oxford Universal Dictionary, Vol. 2, p. 1280.

6
Id., p. 961.

7
Sibal, Philippine Legal Encyclopedia, p. 406; Soberano v. Villanueva, 116 Phil. 1208 (1962); Reyes v.
Wong, A.M. No. 547, 29 January 1975, 63 SCRA 668.

8
Revised Penal Code, Art. 333.

9
Revised Penal Code, Art. 334.

10
Quilatan v. Caruncho, 21 Phil. 399, 403 (1912), Rules of Court, Rule 110, Section 5.

11
Reyes v. Wong, supra.

12
Supra.

13
Lacuata v. Bautista, supra.

14
Supra.

15
339 Phil. 510 (1997).

16
A.M. No. P-88-263, 30 March 1993, 220 SCRA 505.
17
220 Phil. 49 (1985).

18
E.O. 292, Sec. 46 (5).

19
Art. 334.

20
Rollo, Exhibits "1" and "2", pp. 14-15.

21
TSN, October 12, 2000, pp. 11-15.

22
Constitution, Art. II, Sec. 6; 1973 Constitution, Art. XV, Sec. 15.

23
Art. 334.

24
98 U.S. 145; 25 L.Ed. 244 (1879).

25
Maynard v. Hill, 125 U.S. 190; 31 L. Ed. 654.

26
Supra.

27
G.R. No. 95770, 1 March 1993, 219 SCRA 256.

28
319 U.S. 624 (1943).

29
American Bible Society v. City of Manila, 101 Phil. 386 (1957).

30
Sulu Islamic Association of Masjid Lambayong v. Malik, A.M. No. MTJ-92-691, 10 September 1993, 226
SCRA 193.

31
380 Phil. 555 (2000).

32
A.M. No. RTJ-99-1509, 8 August 2002.

33
A.M. No. OCA-00-61, 6 September 2000, 339 SCRA 709.

34
Id., at 716-717; citing Lim-Arce v. Arce, A.M. No. P-89-312, 9 January 1992, 205 SCRA 21 and Sy v.
Cruz, 321 Phil. 231 [1995].

35
Benavidez v. Vega, A.M. No. P-01-1530, 13 December 2001; Alday v. Cruz, A.M. No. RTJ-00-1530, 14
March 2001, 354 SCRA 322.

36
Civil Service Rules, Rule XIV, Section 23 (o).

DISSENTING OPINION

CARPIO, J.:

I maintain my dissent from the majority opinion as it now orders the dismissal of the administrative
complaint filed by petitioner Alejandro Estrada against respondent Soledad S. Escritor.

The majority opinion relies heavily on Sherbert v. Verner 1 in upholding Escritor’s claim of exemption from
administrative liability grounded on her religious belief as a member of the Jehovah’s Witnesses. This
religious sect allows Escritor’s cohabitation with Luciano D. Quilapio, Jr., who has a subsisting marriage
with another woman.

The compelling state interest test espoused in Sherbert has been abandoned more than 15 years ago by
the U.S. Supreme Court in the Employment Division v. Smith2 cases. In the Smith cases, the U.S.
Supreme Court set aside the balancing test for religious minorities laid down in Sherbert. Instead, the U.S.
Supreme Court ruled categorically in the Smith cases that the guarantee of religious liberty as embodied in
the Free Exercise Clause does not require the grant of exemptions from generally applicable laws to
individuals whose religious practice conflict with those laws.

In the first Employment Division v. Smith (Smith I),3 petitioner denied respondents’ application for
unemployment compensation benefits under an Oregon statute declaring ineligible for benefits employees
discharged for work-related misconduct. The misconduct for which respondents were discharged from their
jobs consisted of their ingesting peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of
their Native American Church. The Oregon Supreme Court ruled that although the denials of benefits were
proper under Oregon law, Sherbert required the Oregon Supreme Court to hold that the denials significantly
burdened respondents’ religious freedom in violation of the Free Exercise Clause. The Oregon Supreme
Court did not attach significance to the fact that peyote possession is a felony in Oregon.

The U.S. Supreme Court vacated the Oregon Supreme Court’s judgment and ordered the remand of the
case for a definitive ruling on whether the religious use of peyote is legal in Oregon. The U.S. Supreme
Court deemed the legality or illegality of the questioned conduct critical in its analysis of respondents’ claim
for protection under the Free Exercise Clause.

In Smith I, the U.S. Supreme Court distinguished respondents’ conduct with that involved in Sherbert, thus:

x x x In Sherbert, as in Thomas and Hobbie v. Unemployment Appeals Comm’n of Fla., 4 the conduct that
gave rise to the termination of employment was perfectly legal; indeed, the Court assumed that it was
immune from state regulation.5 The results we reached in Sherbert, Thomas and Hobbie might well have
been different if the employees had been discharged for engaging in criminal conduct. x x x The protection
that the First Amendment provides to "legitimate claims to the free exercise of religion" does not extend to
conduct that a State has validly proscribed.6 (Emphasis supplied)

In the second Employment Division v. Smith (Smith II),7 the Oregon Supreme Court held on remand that
respondents’ religiously inspired use of peyote fell within the prohibition of the Oregon statute classifying
peyote as a "controlled substance" and punishing its possession as a felony. Although the Oregon Supreme
Court noted that the statute makes no exception for the sacramental use of peyote, it still concluded that
the prohibition was not valid under the Free Exercise Clause.

The U.S. Supreme Court reversed the Oregon Supreme Court. The U.S. Supreme Court ruled that a claim
of exemption from a generally applicable law grounded on the right of free exercise could not be evaluated
under the compelling state interest test of Sherbert, particularly where such law does not violate other
constitutional protections. The U.S. Supreme Court expressly declared:

x x x We have never held that an individual’s religious beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the State is free to regulate. x x x8

xxxx

The only decisions in which we have held that the First Amendment bars application of a neutral, generally
applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the
Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of
the press. x x x9

Respondents argue that even though exemption from generally applicable criminal laws need not
automatically be extended to religiously motivated conduct, at least the claim for a religious exemption must
be evaluated under the balancing test set forth in Sherbert v. Verner. x x x In recent years we have
abstained from applying the Sherbert test (outside the unemployment compensation field) at all. x x x10
Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field,
we would not apply it to require exemptions from a generally applicable criminal law. x x x 11 (Emphasis
supplied)

What the Smith cases teach us is that the compelling state interest test in Sherbert is not the correct test in
determining the legitimacy of a claim of exemption from generally applicable, religion-neutral laws that have
the incidental effect of burdening particular religious practice. Any such claim for exemption should be
analyzed by considering whether the conduct in question is one that "the State has validly proscribed,"
irrespective of the sincerity or centrality of an individual’s religious beliefs.

Here, Escritor is indisputably engaged in criminal conduct. Escritor’s continued cohabitation with Quilapio is
patently in violation of Article 334 of the Revised Penal Code on concubinage. Article 334 makes no
exception for religiously sanctioned cohabitation such as that existing between Escritor and Quilapio. The
majority opinion in fact concedes that the present case involves a claim of exemption "from a law of general
applicability that inadvertently burdens religious exercise."12 The majority opinion even concedes further
that the conduct in question is one "which Philippine law and jurisprudence consider both immoral and
illegal."13 And yet, the majority opinion expediently brushes aside the illegality of Escritor’s questioned
conduct using the obsolete compelling state interest test in Sherbert.

The majority opinion mentions two "opposing strains of jurisprudence on the religion clauses" in U.S.
history, namely, separation or strict neutrality and benevolent neutrality or accommodation. The majority
opinion asserts that the framers of our 1935, 1973, and 1987 Constitutions intended to adopt a benevolent
neutrality approach in interpreting the religion clauses, i.e., the Establishment and Free Exercise Clauses.
The majority opinion then reasons that in determining claims of exemption based on freedom of religion,
this Court must adopt the compelling state interest test laid down by the U.S. Supreme Court in Sherbert,
which according to the majority, best exemplifies the benevolent neutrality approach. Hence, even as the
majority opinion acknowledges that the U.S. Supreme Court in the Smith cases has abandoned the
compelling state interest test espoused in Sherbert, the majority opinion dismisses this abandonment in its
analysis of Escritor’s free exercise exemption claim by simply labeling the Smith cases as exemplifying the
strict neutrality approach.

The majority opinion blatantly ignores that whatever theory may be current in the United States — whether
strict neutrality, benevolent neutrality or some other theory — the undeniable fact is what is clearly stated in
Smith II:

x x x We have never held that an individual’s religious beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the State is free to regulate. x x x14

Thus, from the 1879 case of Reynolds v. U.S.15 on the practice of polygamy by Mormons to the 1988 and
1990 Smith cases on the use of prohibited drugs by native American Indians, the U.S. Supreme Court has
consistently held that religious beliefs do not excuse any person from liability for violation of a valid criminal
law of general application. The majority opinion simply refuses to face and accept this reality.

The present case involves conduct that violates Article 334 of the Revised Penal Code, a provision of law
that no one challenges as unconstitutional. Clearly, the theories invoked in the majority opinion have no
application to the present case based on an unbroken line of U.S. Supreme Court decisions. In any event,
we shall discuss for academic purposes the merits of the theories advanced in the majority opinion.

While the majority opinion only mentions separation and benevolent neutrality, a close reading of the major
U.S. Supreme Court opinions specifically relating to the religion clauses presents three principal theories at
play, namely, (a) the strict separation or "no aid" theory, (b) the governmental neutrality theory, and (c) the
accommodation or benevolent neutrality theory.16

The strict separation or "no aid" theory holds that the establishment clause viewed in conjunction with the
free exercise clause requires a strict separation of church and state and that government can do nothing
which involves governmental support of religion or which is favorable to the cultivation of religious
interests.17 This theory found its first expression in the case of Everson v. Board of Education, 18 which
espoused the "no aid" principle. Thus, the government cannot by its programs, policies, or laws do anything
to aid or support religion or religious activities.19
Everson upheld the validity of a New Jersey statute authorizing bus fare reimbursement to parents of
parochial, as well as public school children. Apparently, the strict interpretation or "no aid" theory prohibits
state benefits to a particular sect or sects only, but does not prohibit benefits that accrue to all, including
one or more sects. Everson did not involve religiously motivated conduct that constituted a violation of a
criminal statute.

Under the governmental neutrality theory, the establishment clause requires government to be neutral on
religious matters.20 This theory was articulated by Mr. Justice Clark in the case of Abington School District v.
Schempp,21 where he stated that what the Constitution requires is "wholesome neutrality," i.e., laws and
governmental programs must be directed to secular ends and must have a primary effect that neither
advances nor inhibits religion.22 This test as stated by Mr. Justice Clark embodies a theory of strict
neutrality23 — thus, the government may not use the religious factor as a basis for classification with the
purpose of advancing or inhibiting religion:

The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the
home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize
through bitter experience that it is not within the power of government to invade that citadel, whether its
purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion,
the state is firmly committed to a position of neutrality.24 (Italics supplied)

However, the concept of governmental neutrality can be interpreted in various ways — to some, anything
but total neutrality is anathema; to others, "neutrality can only mean that government policy must place
religion at neither a special advantage nor a special disadvantage."25

Schempp struck down a Pennsylvania law allowing the recitation of the Lord’s Prayer and the reading of the
Bible without comment in public schools, although the recitation and reading were voluntary and did not
favor any sect. Schempp did not involve religiously motivated conduct that constituted a violation of a
criminal statute.

The accommodation theory provides that any limitation derived from the establishment clause on cannot
be rigidly applied so as to preclude all aid to religion and that in some situations government must, and in
other situations may, accommodate its policies and laws in the furtherance of religious freedom. 26 The
accommodation theory found its first expression in Zorach v. Clauson. 27 The U.S. Supreme Court held
in Zorach that a state could authorize an arrangement whereby public school children could be released
one hour a week for religious instruction off the school premises. Zorach did not involve religiously
motivated conduct that constituted a violation of a criminal statute.

In his book Religion and the Constitution published in 1964, Professor Paul G. Kauper used the term
"benevolent neutrality" in the following context:

It would be a mistake, however, to suggest that the theory of accommodation x x x is unrelated to other
ideas and theories that have been developed, notably the no-aid and neutrality concepts. Rather,
accommodation, instead of being viewed as a wholly independent theory of interpretation, should be seen
as a modification of the no-aid or neutrality concepts. x x x

These ideas cannot be pressed to their absolute limit. Not only must the no-aid or neutrality concept be
subordinated to the necessities of free exercise, but an area of legislative discretion must be allowed where
a state may choose to advance the cause of religious freedom even at the expense of not being completely
neutral. Indeed, this may be described as the larger or benevolent neutrality. 28 (Emphasis and italics
supplied)

Six years later, the U.S. Supreme Court used the term "benevolent neutrality" for the first time in Walz v.
Tax Commission.29 In Walz, the U.S. Supreme Court sustained the constitutionality of tax exemption of
property used exclusively for religious purposes on the basis of "benevolent neutrality," as follows:

The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast
in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.
xxx
 xxxx

The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well
defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored,
none commanded, and none inhibited. The general principle deducible from the First Amendment and all
that has been said by the Court is this: that we will not tolerate either governmentally established religion or
governmental interference with religion. Short of those expressly proscribed governmental acts there is
room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist
without sponsorship and without interference.30 (Emphasis and italics supplied)

At issue in Walz was a provision in New York’s Constitution authorizing property tax exemptions to religious
organizations for religious properties used solely for religious worship. Walz did not involve religiously
motivated conduct that constituted a violation of a criminal statute.

The majority opinion cited the case of Walz in support of its assertion that the framers of the 1935
Constitution intended to adopt the benevolent neutrality approach in the interpretation of the religion
clauses, viz.:

x x x With the inclusion of the church property tax exemption in the body of the 1935 Constitution and not
merely as an ordinance appended to the Constitution, the benevolent neutrality referred to in the Walz
case was given constitutional imprimatur under the regime of the 1935 Constitution. x x x

The U.S. Supreme Court decided Walz only in 1970, more than three decades after the adoption of our
1935 Constitution. It is certainly doubtful whether the framers of our 1935 Constitution intended to give
"constitutional imprimatur" to a theory of interpretation espoused in a case that was yet to be formulated.
Moreover, when the U.S. Supreme Court upheld the constitutionality of church property tax exemption on
the basis of "benevolent neutrality," it did so on grounds that no particular religion is singled out for
favorable treatment, and partly on historical grounds that church tax exemptions have been accepted
without challenge in all states for most of the nation’s history.31

The majority opinion vigorously argues the merits of adopting the theory of accommodation in the
interpretation of our Constitution's religion clauses. However, the majority opinion fails to mention that a
distinction is often drawn by courts and commentators between mandatory accommodation and
permissive accommodation. Mandatory accommodation is exemplified by the key idea in Sherbert that
exemptions from generally applicable laws are required by force of the Free Exercise Clause, 32 which the
majority opinion adheres to in granting Escritor’s claim of free exercise exemption.

Permissive accommodation refers to exercises of political discretion that benefit religion, and that the
Constitution neither requires nor forbids.33 The U.S. Supreme Court recognized in Smith II that although the
Free Exercise Clause did not require permissive accommodation, the political branches could shield
religious exercise through legislative accommodation,34 for example, by making an exception to proscriptive
drug laws for sacramental peyote use.

Professor Michael W. McConnell, whose views on the accommodation theory were frequently quoted by
the majority opinion, defends mandatory accommodation. 35 However, Prof. Kauper, likewise an
accommodationist, favors permissive accommodation, stating that "as a general proposition, no person
should be allowed to claim that because of his religion he is entitled as a matter of constitutional right to
claim an exemption from general regulatory and tax laws." 36 Prof. Kauper further explains his position that
religious liberty furnishes no ground for claiming immunity to laws which place reasonable restrictions on
overt conduct in the furtherance of public interests protected by the state’s police power,37 as follows:

Where the issue is not the use of governmental power to sanction religious belief and practices by some
positive program but the granting of exemption on religious grounds from laws of general operation, what
determines whether the government is required, or permitted, to make the accommodation? While a state
may appropriately grant exemptions from its general police and tax laws, it should not be constitutionally
required to do so unless this immunity can properly be claimed as part of the constitutional guarantee of
religious liberty. Thus, exemptions from property tax and military service, health and labor laws should be at
the discretion of government. Whether Sherbert carried the principle of required accommodation too far is
debatable. It may well be that the court here undertook a determination of questions better left to the
legislature and that in this area, x x x the policy of granting exemptions on religious grounds should
be left to legislative discretion.38 (Emphasis supplied)

It is true that a test needs to be applied by the Court in determining the validity of a free exercise claim of
exemption as made here by Escritor. The compelling state interest test in Sherbert pushes the limits of
religious liberty too far, and so too does the majority opinion insofar as it grants Escritor immunity to a law
of general operation on the ground of religious liberty. Making a distinction between permissive
accommodation and mandatory accommodation is more critically important in analyzing free exercise
exemption claims. Such limitations forces the Court to confront how far it can validly set the limits of
religious liberty under the Free Exercise Clause, rather than presenting the separation theory and
accommodation theory as opposite concepts, and then rejecting relevant and instructive American
jurisprudence (such as the Smith cases) just because it does not espouse the theory selected.

Theories are only guideposts and "there is no magic formula to settle all disputes between religion and the
law, no legal pill to ease the pain of perceived injustice and religious oppression, and certainly no perfect
theory to bind judges or legislators."39 The Smith cases, particularly Smith II, cannot be so easily dismissed
by the majority opinion and labeled as "best exemplifying the strict neutrality approach." The Smith Court
affirmed the power and the discretion of legislatures to enact statutory protection beyond what the Free
Exercise Clause required. The U.S. Supreme Court indicated in Smith II that legislatures could enact
accommodations to protect religion beyond the Free Exercise Clause minimum without "establishing"
religion and thereby running afoul of the Establishment Clause. 40 What the Smith cases espouse, therefore,
is not really the strict neutrality approach, but more of permissive accommodation.41

Even assuming that the theory of benevolent neutrality and the compelling state interest test are applicable,
the State has a compelling interest in exacting from everyone connected with the dispensation of justice,
from the highest magistrate to the lowest of its personnel, the highest standard of conduct. This Court has
repeatedly held that "the image of a court of justice is necessarily mirrored in the conduct, official or
otherwise, of the men and women who work thereat." 42 While arguably not constituting "disgraceful and
immoral conduct,"43 Escritor’s cohabitation with Quilapio is a patent violation of our penal law on
concubinage that vitiates "the integrity of court personnel and the court itself." 44 The public’s faith and
confidence in the administration of justice would certainly be eroded and undermined if tolerated within the
judiciary’s ranks are court employees blatantly violating our criminal laws.

I therefore maintain that Escritor’s admitted cohabitation with Quilapio is sufficient basis to hold her guilty of
conduct prejudicial to the best interest of the service and to impose upon her the appropriate penalty.

Equally compelling is the State’s interest in the preservation of marriage and the family as basic social
institutions,45 which is ultimately the public policy underlying Articles 334 and 349 of the Revised Penal
Code. This Court has recognized in countless cases that marriage and the family are basic social
institutions in which the State is vitally interested 46 and in the protection of which the State has the strongest
interest.47 In Domingo v. Court of Appeals,48 the Court stressed that:

Marriage, a sacrosanct institution, declared by the Constitution as an "inviolable social institution, is the
foundation of the family;" as such, it "shall be protected by the State." x x x So crucial are marriage and the
family to the stability and peace of the nation that their "nature, consequences, and incidents are governed
by law and not subject to stipulation.

The same sentiment has been expressed in Article 149 of the Family Code:

The family, being the foundation of the nation, is a basic social institution which public policy cherishes and
protects. Consequently, family relations are governed by law and no custom, practice or agreement
destructive of the family shall be recognized or given effect. (Emphasis supplied)

And yet, notwithstanding the foregoing compelling state interests at stake, the majority all too willingly and
easily places them in jeopardy by upholding Escritor’s claim of exemption. On this point, Professor William
P. Marshall aptly observes that one of the problems involved in free exercise exemption analysis is that it
requires the Court to weigh the state interest against the interest of the narrower class comprised only of
those seeking exemption. On the other hand, in other doctrinal areas, the Court balances the state interest
in the regulation at issue against the interests of the regulated class taken as a whole. Prof. Marshall
persuasively argues that this leads to both unpredictability in the exemption balancing process and
potential inconsistency in result "as each regulation may be subject to limitless challenges based upon the
peculiar identity of the challenger."49 Moreover, Prof. Marshall notes that the exemption balancing process
necessarily leads to underestimating the strength of the countervailing state interest. 50 Indeed, the state
interest in a challenged regulation will seldom be seriously threatened if only a few persons seek exemption
from it.51

In dismissing the administrative complaint against Escritor, the majority opinion effectively condones and
accords a semblance of legitimacy to her patently unlawful cohabitation with Quilapio, while in the eyes of
the law, Quilapio remains married to his legal wife. This condonation in fact facilitates the circumvention by
Escritor and Quilapio of Articles 334 and 349 of the Revised Penal Code on concubinage and
bigamy.52 Without having his first marriage legally dissolved, Quilapio can now continue to cohabit with
Escritor with impunity. How do we reconcile this scenario with the Constitution’s emphatic declaration that
marriage is "an inviolable social institution"?53

By choosing to turn a blind eye to Escritor’s criminal conduct, the majority is in fact recognizing and
according judicial imprimatur to a practice, custom or agreement that subverts marriage, albeit one that is
sanctioned by a particular religious sect. The majority’s opinion here bestows "a credibility and legitimacy
upon the religious belief in question simply by its being judicially recognized as constitutionally
sacrosanct."54 This is another problem that arises in free exercise exemption analysis — the benevolent
neutrality approach fails to take into account the role that equality plays in free exercise theory. 55 While the
text of the Free Exercise Clause is consistent with protecting religion from discrimination, it does not
compel discrimination in favor of religion.56 However, the benevolent neutrality approach promotes its own
form of inequality when under it, exemptions are granted only to religious claimants like Escritor, whose
religiously-sanctioned but otherwise illegal conjugal arrangement with Quilapio acquires a veneer of
"special judicial reinforcement."57

Catholics may secure a church annulment of their marriage. A church annulment does not exempt
Catholics from criminal or administrative liability if they cohabit with someone other than their legal spouse
before their marriage is finally annulled by a civil court. Catholics cannot legally justify before civil courts
such act of concubinage on the ground that the act conforms to their religious beliefs because they have a
secured a church annulment which freed them from their marital vows. If this Court condones Escritor’s act
of concubinage on religious grounds, then it will have to condone acts of concubinage by Catholics who
have secured church annulment of their marriage even without a final annulment from a civil court. The
majority pushes their opinion on a slippery slope.

It may well be asked how, under a well-meaning but overly solicitous grant of exemption based on the
Freedom of Exercise Clause of our Constitution, an individual can be given the private right to ignore a
generally applicable, religion-neutral law. For this is what the majority opinion has effectually granted
Escritor in dismissing the administrative complaint against her. The accommodation of Escritor’s religious
beliefs under the benevolent neutrality approach is too high a price to pay when weighed against its
prejudicial effect on the sound administration of justice and the protection of marriage and the family as
basic social institutions.

Finally, there is even no claim here that concubinage is central to the religious belief of the Jehovah’s
Witnesses, or even a part of the religious belief of the Jehovah’s Witnesses. Escritor merely claims that her
live-in arrangement with a married man is, in the words of the majority opinion, "in conformity with her and
her partner’s religious belief." This case is not an issue of a statute colliding with centrally or vitally held
beliefs of a religious denomination, as in the case of Sherbert. This case is about a religious cover for an
obviously criminal act.

In Sherbert, the conduct in question was the refusal of a member of the Seventh Day Adventist Church to
work on the Sabbath Day or on Saturdays, which prevented prospective employers from giving petitioner in
Sherbert employment. Petitioner in Sherbert then claimed unemployment benefits, which the State denied
because the law withheld benefits to those who failed without good cause to accept available suitable work.
In Sherbert, the questioned conduct — the refusal to work on Saturdays — was part of the religious tenets
of the Seventh Day Adventists. The questioned conduct in Sherbert was not a criminal conduct, unlike the
questioned conduct of Escritor in this case. Clearly, even assuming for the sake of argument that Sherbert
remains good law in the United States and thus has some persuasive force here, still Sherbert is patently
inapplicable to the present case.
The positive law and the institutions of government are concerned not with correct belief but with overt
conduct related to good order, peace, justice, freedom, and community welfare. 58 Hence, while there are
times when government must adapt to, or acquiesce to meet the needs of religious exercise, there are also
times when the exercises a religion wishes to pursue must be adapted or even prohibited in order to meet
the needs of public policy.59 For indeed, even religious liberty has its limits. And certainly, "there is a price to
be paid, even by religion, for living in a constitutional democracy."60

Certainly, observance of provisions of the Revised Penal Code, whose validity or constitutionality are not
even challenged, is a price that all religions in the Philippines must willingly pay for the sake of good order
and peace in the community. To hold otherwise would, as aptly stated in Reynolds v. U.S., 61 "make the
professed doctrines of religious belief superior to the law of the land," and in effect "permit every citizen to
become a law unto himself." The majority opinion will make every religion a separate republic, making
religion a haven for criminal conduct that otherwise would be punishable under the laws of the land. Today
concubinage, tomorrow bigamy, will enjoy protection from criminal sanction under the new doctrine foisted
by the majority opinion.

Accordingly, I vote to suspend respondent Soledad S. Escritor for six months and one day without pay for
conduct prejudicial to the best interest of the service. However, the suspension shall be lifted immediately
upon Escritor’s manifestation to this Court that she has ceased cohabiting with Luciano D. Quilapio, Jr.
Moreover, respondent Escritor is warned that her continued cohabitation with Quilapio, during or after her
suspension and while Quilapio’s marriage with his legal wife still subsists, shall merit the penalty of
dismissal from the service.

ANTONIO T. CARPIO
Associate Justice

Footnotes

1
374 U.S. 398 (1963).

2
485 U.S. 660 (1988) and 494 U.S. 872 (1990).

3
485 U.S. 660 (1988).

4
Citations omitted.

5
In Sherbert, the appellant was discharged because she would not work on Saturday, the Sabbath Day of
her faith.

6
Employment Division v. Smith, supra note 3 at 670-671.

7
494 U.S. 872 (1990).

8
Id. at 878-879.

9
Id. at 881.

10
Id. at 882-883.

11
Id at 884.

12
Estrada v. Escritor, 455 Phil. 574 (2003).

13
Id. at 593.

14
Employment Division v. Smith, supra note 7 at 878-879.
15
98 U.S. 145 (1878).

16
Kauper, P., Religion and the Constitution 59 (1964). See also Abraham, H. and Perry, B., Freedom and
the Court: Civil Rights and Liberties in the United States 270 (7th ed., 1998).

17
Id.

18
330 U.S. 1 (1947).

19
Kauper, op. cit., at 61.

20
Abraham, H. and Perry, B., Freedom and the Court: Civil Rights and Liberties in the United States 272-73
(7th ed., 1998).

21
374 U.S. 203 (1963).

22
Kauper, op. cit., at 64.

23
Id. at 65.

24
Abington School District v. Schempp, supra note 15 at 226.

25
Abraham, H. and Perry, B., op. cit., at 280.

26
Kauper, op. cit., at 59.

27
343 U.S. 306 (1952).

28
Id. at 75.

29
397 U.S. 664 (1970).

30
Id. at 668-669.

31
Abraham, H. and Perry, B., op. cit., at Table 6.3.

32
Ira C. Lupu, The Trouble with Accommodation, 60(3) Geo. Wash. L. Rev. 743, 751 (1992).

33
Id.

34
Anne Y. Chiu, When Prisoners Are Weary and Their Religious Exercise Burdened, RLUIPA Provides
Some Rest for their Souls, 79 Wash. L. Rev. 999 (2004). In this article, Chiu defines "legislative
accommodation" as a statute enacted by the legislature to lift a neutral, generally applicable burden on
religion imposed by the government.

35
Michael W. McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60(3) Geo.
Wash. L. Rev. 685, 687-688 (1992).

36
Kauper, op. cit., at 17.

37
Id. at 38.

38
Id. at 78-79.

39
Weber, P., Equal Separation: Understanding the Religion Clauses of the First Amendment 154 (1990).

40
Anne Y. Chiu, op. cit.
41
Ira C. Lupu, op. cit., at 751, note 33.

42
Villaraza v. Atienza, 195 Phil. 383, 390 (1981).

43
See Dissenting Opinion, J. Carpio in Escritor v. Estrada, op. cit., see note 12.

44
Ganaden v. Bolasco, 64 SCRA 50, 53 (1975).

45
Section 2, Article XV and Section 12, Article II, 1987 Constitution.

46
Goitia v. Campos-Rueda, 35 Phil. 252 (1919); Brown v. Yambao, 102 Phil. 168, 172 (1957).

47
Arroyo, Jr. v. Court of Appeals, G.R. Nos. 96602 and 96715, 203 SCRA 750,761 (1991).

48
G.R. No. 104818, 226 SCRA 572, 584 (1993).

49
William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev. 308, 311-312
(1991).

50
Id.

51
Id.

52
Bigamy is an illegal marriage by contracting a second or subsequent marriage before the first marriage
has been legally dissolved. It is interesting to note that, while Escritor and Quilapio both executed a
"Declaration of Pledging Faithfulness," such execution was unaccompanied by any religious ceremony
officiated by a presiding minister of the Jehovah’s Witnesses. Precisely, such ceremony would have
constituted a violation of Article 352 of the Revised Penal Code prohibiting the performance of an illegal
marriage ceremony by priests or ministers of any religious denomination or sect.

53
Section 2, Article XV, 1987 Constitution.

54
William P. Marshall, op. cit., at 322-23.

55
Id. at 319.

56
Id. at 325.

57
Id.

58
Kauper, op. cit., at 83.

59
Weber, P., op. cit., at 150.

60
Id. at 47.

61
98 U.S. 145, 167 (1878).
CHAPTER 6

EN BANC

G.R. No. 71977 February 27, 1987

DEMETRIO G. DEMETRIA, M.P., AUGUSTO S. SANCHEZ, M.P., ORLANDO S. MERCADO, M.P.,

HONORATO Y. AQUINO, M.P., ZAFIRO L. RESPICIO, M.P., DOUGLAS R. CAGAS, M.P., OSCAR F.
SANTOS, M.P., ALBERTO G. ROMULO, M.P., CIRIACO R. ALFELOR, M.P., ISIDORO E. REAL, M.P.,
EMIGDIO L. LINGAD, M.P., ROLANDO C. MARCIAL, M.P., PEDRO M. MARCELLANA, M.P., VICTOR S.
ZIGA, M.P., and ROGELIO V. GARCIA. M.P., petitioners,
vs.
HON. MANUEL ALBA in his capacity as the MINISTER OF THE BUDGET and VICTOR
MACALINGCAG in his capacity as the TREASURER OF THE PHILIPPINES, respondents.

FERNAN, J.:

Assailed in this petition for prohibition with prayer for a writ of preliminary injunction is the constitutionality of
the first paragraph of Section 44 of Presidential Decree No. 1177, otherwise known as the "Budget Reform
Decree of 1977."

Petitioners, who filed the instant petition as concerned citizens of this country, as members of the National
Assembly/Batasan Pambansa representing their millions of constituents, as parties with general interest
common to all the people of the Philippines, and as taxpayers whose vital interests may be affected by the
outcome of the reliefs prayed for" 1 listed the grounds relied upon in this petition as follows:

A. SECTION 44 OF THE 'BUDGET REFORM DECREE OF 1977' INFRINGES UPON THE

FUNDAMENTAL LAW BY AUTHORIZING THE ILLEGAL TRANSFER OF PUBLIC MONEYS.

B. SECTION 44 OF PRESIDENTIAL DECREE NO. 1177 IS REPUGNANT TO THE CONSTITUTION AS IT

FAILS TO SPECIFY THE OBJECTIVES AND PURPOSES FOR WHICH THE PROPOSED TRANSFER OF
FUNDS ARE TO BE MADE.

C. SECTION 44 OF PRESIDENTIAL DECREE NO. 1177 ALLOWS THE PRESIDENT TO OVERRIDE THE
SAFEGUARDS, FORM AND PROCEDURE PRESCRIBED BY THE CONSTITUTION IN APPROVING
APPROPRIATIONS.

D. SECTION 44 OF THE SAME DECREE AMOUNTS TO AN UNDUE DELEGATION OF LEGISLATIVE

POWERS TO THE EXECUTIVE.

E. THE THREATENED AND CONTINUING TRANSFER OF FUNDS BY THE PRESIDENT AND THE
IMPLEMENTATION THEREOF BY THE BUDGET MINISTER AND THE TREASURER OF THE
PHILIPPINES ARE WITHOUT OR IN EXCESS OF THEIR AUTHORITY AND JURISDICTION. 2

Commenting on the petition in compliance with the Court resolution dated September 19, 1985, the
Solicitor General, for the public respondents, questioned the legal standing of petitioners, who were
allegedly merely begging an advisory opinion from the Court, there being no justiciable controversy fit for
resolution or determination. He further contended that the provision under consideration was enacted
pursuant to Section 16[5], Article VIII of the 1973 Constitution; and that at any rate, prohibition will not lie
from one branch of the government to a coordinate branch to enjoin the performance of duties within the
latter's sphere of responsibility.

On February 27, 1986, the Court required the petitioners to file a Reply to the Comment. This, they did,
stating, among others, that as a result of the change in the administration, there is a need to hold the
resolution of the present case in abeyance "until developments arise to enable the parties to concretize
their respective stands." 3

Thereafter, We required public respondents to file a rejoinder. The Solicitor General filed a rejoinder with a
motion to dismiss, setting forth as grounds therefor the abrogation of Section 16[5], Article VIII of the 1973
Constitution by the Freedom Constitution of March 25, 1986, which has allegedly rendered the instant
petition moot and academic. He likewise cited the "seven pillars" enunciated by Justice Brandeis
in Ashwander v. TVA, 297 U.S. 288 (1936) 4 as basis for the petition's dismissal.

In the case of Evelio B. Javier v. The Commission on Elections and Arturo F. Pacificador, G.R. Nos. 68379-
81, September 22, 1986, We stated that:

The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the
petitioner and the private respondents — both of whom have gone their separate ways — could be a
convenient justification for dismissing the case. But there are larger issues involved that must be resolved
now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to
manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the
simplistic and tolerant pretext that the case has become moot and academic.

The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the
government. The citizen comes to us in quest of law but we must also give him justice. The two are not
always the same. There are times when we cannot grant the latter because the issue has been settled and
decision is no longer possible according to the law. But there are also times when although the dispute has
disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not
only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint
upon the future.

It is in the discharge of our role in society, as above-quoted, as well as to avoid great disservice to national
interest that We take cognizance of this petition and thus deny public respondents' motion to dismiss.
Likewise noteworthy is the fact that the new Constitution, ratified by the Filipino people in the plebiscite held
on February 2, 1987, carries verbatim section 16[5], Article VIII of the 1973 Constitution under Section
24[5], Article VI. And while Congress has not officially reconvened, We see no cogent reason for further
delaying the resolution of the case at bar.

The exception taken to petitioners' legal standing deserves scant consideration. The case of Pascual v.
Secretary of Public Works, et al., 110 Phil. 331, is authority in support of petitioners' locus standi. Thus:

Again, it is well-settled that the validity of a statute may be contested only by one who will sustain a direct
injury in consequence of its enforcement. Yet, there are many decisions nullifying at the instance of
taxpayers, laws providing for the disbursement of public funds, upon the theory that the expenditure of
public funds by an officer of the state for the purpose of administering an unconstitutional act constitutes
a misapplication of such funds which may be enjoined at the request of a taxpayer. Although there are
some decisions to the contrary, the prevailing view in the United States is stated in the American
Jurisprudence as follows:

In the determination of the degree of interest essential to give the requisite standing to attack the
constitutionality of a statute, the general rule is that not only persons individually affected, but
also taxpayers have sufficient interest in preventing the illegal expenditures of moneys raised by taxation
and may therefore question the constitutionality of statutes requiring expenditure of public moneys. [ 11 Am.
Jur. 761, Emphasis supplied. ]

Moreover, in Tan v. Macapagal, 43 SCRA 677 and Sanidad v. Comelec, 73 SCRA 333, We said that as
regards taxpayers' suits, this Court enjoys that open discretion to entertain the same or not.

The conflict between paragraph 1 of Section 44 of Presidential Decree No. 1177 and Section 16[5], Article
VIII of the 1973 Constitution is readily perceivable from a mere cursory reading thereof. Said paragraph 1 of
Section 44 provides:
The President shall have the authority to transfer any fund, appropriated for the different departments,
bureaus, offices and agencies of the Executive Department, which are included in the General
Appropriations Act, to any program, project or activity of any department, bureau, or office included in the
General Appropriations Act or approved after its enactment.

On the other hand, the constitutional provision under consideration reads as follows:

Sec. 16[5]. No law shall be passed authorizing any transfer of appropriations, however, the President, the
Prime Minister, the Speaker, the Chief Justice of the Supreme Court, and the heads of constitutional
commis ions may by law be authorized to augment any item in the general appropriations law for their
respective offices from savings in other items of their respective appropriations.

The prohibition to transfer an appropriation for one item to another was explicit and categorical under the
1973 Constitution. However, to afford the heads of the different branches of the government and those of
the constitutional commissions considerable flexibility in the use of public funds and resources, the
constitution allowed the enactment of a law authorizing the transfer of funds for the purpose of augmenting
an item from savings in another item in the appropriation of the government branch or constitutional body
concerned. The leeway granted was thus limited. The purpose and conditions for which funds may be
transferred were specified, i.e. transfer may be allowed for the purpose of augmenting an item and such
transfer may be made only if there are savings from another item in the appropriation of the government
branch or constitutional body.

Paragraph 1 of Section 44 of P.D. No. 1177 unduly over extends the privilege granted under said Section
16[5]. It empowers the President to indiscriminately transfer funds from one department, bureau, office or
agency of the Executive Department to any program, project or activity of any department, bureau or office
included in the General Appropriations Act or approved after its enactment, without regard as to whether or
not the funds to be transferred are actually savings in the item from which the same are to be taken, or
whether or not the transfer is for the purpose of augmenting the item to which said transfer is to be made. It
does not only completely disregard the standards set in the fundamental law, thereby amounting to an
undue delegation of legislative powers, but likewise goes beyond the tenor thereof. Indeed, such
constitutional infirmities render the provision in question null and void.

"For the love of money is the root of all evil: ..." and money belonging to no one in particular, i.e. public
funds, provide an even greater temptation for misappropriation and embezzlement. This, evidently, was
foremost in the minds of the framers of the constitution in meticulously prescribing the rules regarding the
appropriation and disposition of public funds as embodied in Sections 16 and 18 of Article VIII of the 1973
Constitution. Hence, the conditions on the release of money from the treasury [Sec. 18(1)]; the restrictions
on the use of public funds for public purpose [Sec. 18(2)]; the prohibition to transfer an appropriation for an
item to another [See. 16(5) and the requirement of specifications [Sec. 16(2)], among others, were all
safeguards designed to forestall abuses in the expenditure of public funds. Paragraph 1 of Section 44 puts
all these safeguards to naught. For, as correctly observed by petitioners, in view of the unlimited authority
bestowed upon the President, "... Pres. Decree No. 1177 opens the floodgates for the enactment of
unfunded appropriations, results in uncontrolled executive expenditures, diffuses accountability for
budgetary performance and entrenches the pork barrel system as the ruling party may well expand [sic]
public money not on the basis of development priorities but on political and personal expediency." 5 The
contention of public respondents that paragraph 1 of Section 44 of P.D. 1177 was enacted pursuant to
Section 16(5) of Article VIII of the 1973 Constitution must perforce fall flat on its face.

Another theory advanced by public respondents is that prohibition will not lie from one branch of the
government against a coordinate branch to enjoin the performance of duties within the latter's sphere of
responsibility.

Thomas M. Cooley in his "A Treatise on the Constitutional Limitations," Vol. 1, Eight Edition, Little, Brown
and Company, Boston, explained:

... The legislative and judicial are coordinate departments of the government, of equal dignity; each is alike
supreme in the exercise of its proper functions, and cannot directly or indirectly, while acting within the limits
of its authority, be subjected to the control or supervision of the other, without an unwarrantable assumption
by that other of power which, by the Constitution, is not conferred upon it. The Constitution apportions the
powers of government, but it does not make any one of the three departments subordinate to another,
when exercising the trust committed to it. The courts may declare legislative enactments unconstitutional
and void in some cases, but not because the judicial power is superior in degree or dignity to the legislative.
Being required to declare what the law is in the cases which come before them, they must enforce the
Constitution, as the paramount law, whenever a legislative enactment comes in conflict with it. But the
courts sit, not to review or revise the legislative action, but to enforce the legislative will, and it is only where
they find that the legislature has failed to keep within its constitutional limits, that they are at liberty to
disregard its action; and in doing so, they only do what every private citizen may do in respect to the
mandates of the courts when the judges assumed to act and to render judgments or decrees without
jurisdiction. "In exercising this high authority, the judges claim no judicial supremacy; they are only the
administrators of the public will. If an act of the legislature is held void, it is not because the judges have
any control over the legislative power, but because the act is forbidden by the Constitution, and because
the will of the people, which is therein declared, is paramount to that of their representatives expressed in
any law." [Lindsay v. Commissioners, & c., 2 Bay, 38, 61; People v. Rucker, 5 Col. 5; Russ v. Com., 210 Pa.
St. 544; 60 Atl. 169, 1 L.R.A. [N.S.] 409, 105 Am. St. Rep. 825] (pp. 332-334).

Indeed, where the legislature or the executive branch is acting within the limits of its authority, the judiciary
cannot and ought not to interfere with the former. But where the legislature or the executive acts beyond the
scope of its constitutional powers, it becomes the duty of the judiciary to declare what the other branches of
the government had assumed to do as void. This is the essence of judicial power conferred by the
Constitution "in one Supreme Court and in such lower courts as may be established by law" [Art. VIII,
Section 1 of the 1935 Constitution; Art. X, Section 1 of the 1973 Constitution and which was adopted as
part of the Freedom Constitution, and Art. VIII, Section 1 of the 1987 Constitution] and which power this
Court has exercised in many instances. *

Public respondents are being enjoined from acting under a provision of law which We have earlier
mentioned to be constitutionally infirm. The general principle relied upon cannot therefore accord them the
protection sought as they are not acting within their "sphere of responsibility" but without it.

The nation has not recovered from the shock, and worst, the economic destitution brought about by the
plundering of the Treasury by the deposed dictator and his cohorts. A provision which allows even the
slightest possibility of a repetition of this sad experience cannot remain written in our statute books.

WHEREFORE, the instant petition is granted. Paragraph 1 of Section 44 of Presidential Decree No. 1177 is
hereby declared null and void for being unconstitutional.

SO ORDER RED.

Teehankee, C.J., Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

Footnotes

1 Petition, p. 3, Rollo.

2 pp. 6-7, Rollo

3 p. 169, Rollo.

4 The relevant portions read as follows:

The Court developed, for its own governance in the case confessedly within its jurisdiction, a series of rules
under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for
decision. They are:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding,
declining because to decide such questions "is legitimate only in the last resort, and as a necessity in the
determination of real, earnest and vital controversy between individuals. It never was the thought tht, by
means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act." Chicago & Grand Trunk Ry. v. Wellman, 143 U.S. 339, 345.

2. The Court will not "anticipate question of constitutional law in advance of the necessity of deciding it."
Liverpool. N.Y. & P.S.S. Co. v. Emigration Commissioners, 113 U.S. 33, 39 ... "It is not the habit of the Court
to decide questions of a constitutional nature unless absolutely necessary to a decision of the case. 'Burton
v. United States. 196 U.S. 283, 295.

3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to
which it is to be applied." Liverpool, N.Y. & P.S.S. Co. v. Emigration Commissioners, supra.

4. The Court will not pass upon a constitutional question although properly presented by the record, if there
is also present some other ground upon which the case may be disposed of. This rule has found most
varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional
question, the other a question of statutory construction or general law, the Court will decide only the latter.
Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 191; Light v. United States, 220 U.S. 523, 538. Appeals
from the highest court of a state challenging its decision of a question under the Federal Constitution are
frequently dismissed because the judgment can be sustained on an independent state ground. Berea
College v. Kentucky, 211 U.S. 45, 53.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is
injured by its operation. Tyler v. The Judges, 179 U.S. 405; Hendrick v. Maryland, 235 U.S. 610, 621.
Among the many applications of this rule, none is more striking than the denial of the right of challenge to
one who lacks a personal or property right. Thus, the challenge by a public official interested only in the
performance of his official duty will not be entertained..... In Fairchild v. Hughes, 258 U.S. 126, the Court
affirmed the dismissal of a suit brought by a citizenwho sought to have the Nineteenth Amendment declared
unconstitutional. In Massachusetts v. Mellon, 262 U.S. 447, the challenge of the federal Maternity Act was
not entertained although made by the Commonwealth on behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed
himself of its benefits. Great Falls Mfg. Co. v. Attorney General, 124, U.S. 581 . . .

7. "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of
constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of
the statute is fairly possible by which the question may be avoided.' Cromwell v. Benson, 285 U.S. 22, 62."
[pp. 176-177, Rollo].

5 p. 14, Rollo.

* Casanovas vs. Hord 8 Phil. 125; McGirr vs. Hamilton, 30 Phil. 563; Compania General de Tabacos vs.
Board of Public Utility, 34 Phil. 136; Central Capiz vs. Ramirez, 40 Phil. 883; Concepcion vs. Paredes, 42
Phil. 599; US vs. Ang Tang Ho 43 Phil. 6; McDaniel vs. Apacible, 44 Phil. 248; People vs. Pomar, 46 Phil.
440; Agcaoili vs. Suguitan, 48 Phil. 676; Government of P.I. vs. Springer, 50 Phil. 259; Manila Electric Co.
vs. Pasay Transp. Co., 57 Phil. 600: People vs. Linsangan; 62 Phil. 464; People and Hongkong & Shanghai
Banking Corp. vs. Jose O. Vera, 65 Phil. 56; People vs. Carlos, 78 Phil. 535; City of Baguio vs. Nawasa,
106 Phil. 144; City of Cebu vs. Nawasa, 107 Phil, 1112; Rutter vs. Esteban 93 Phil. 68.
 EN BANC

G.R. Nos. 86540-41 November 6, 1989

MANTRUSTE SYSTEMS, INC., petitioner,

vs.
THE HON. COURT OF APPEALS, ASSET PRIVATIZATION TRUST, MAKATI AGRO-TRADING, INC.,
and LA FILIPINA UY GONGCO. CORP., respondents.

Antonio F. Navarrette and Francisco A. Lava, Jr. for petitioner.

J.N. Borrillo, Jr. Law Offices Co-counsel for petitioner.

Alejandro Z. Barin and Balgos & Perez for Makati Agro-Trading, Inc. and La Filipina Uy Gongco Corp.

Ramon T. Garcia and Fiorello E. Azura for respondent Asset Privatization Trust.

GRIÑO-AQUINO, J.:

In this petition for review, Mantruste Systems, Inc. (or MSI seeks the annulment of the decision dated
September 29, 1988 and the resolution dated January 4, 1989 of the Court of Appeals in the consolidated
cases of "Makati Agro-Trading, Inc., et al. vs. Judge Job Madayag, et al." (CA-G.R. SP No. 13929)
and "Asset Privatization Trust vs. Judge Job Madayag, et al." (CA-G.R. SP No. 14535) which set aside the
writ of preliminary injunction that was issued on December 19, 1987 by Judge Madayag in Civil Case No.
18319 of the Regional Trial Court of Manila ("Mantruste Systems, Inc. vs. Development Bank of the
Philippines, Asset Privatization Trust, Makati Agro-Trading, Inc. and La Filipina Uy Gongco Corporation").
Judge Madayag enjoined the defendants in. that case from doing the acts stated in its temporary
restraining order of November 13, 1987, namely:

... from approving the winning bid and awarding the BAYVIEW property, subject matter of this case, in favor
of the winning bidders, the herein defendants, Makati Agro-Trading, Inc. and La Filipina Uy-Gongco
Corporation;

enjoining the Defendants DBP and APT from taking physical possession of the BAYVIEW property, or
ejecting the plaintiff and its concessionaires, representatives and agents, from the leased premises;

from terminating the Contract of Lease (Annex N); and

from disturbing and obstructing the plaintiff, through the defendants' designated security guards, in the
pursuit of its business in the leased premises, until further orders from this Court. (p. 18, Rollo.)

The facts are stated in the decision of the Court of Appeals as follows:

... Herein private respondent Mantruste System, Inc. (MSI) entered into an 4 "interim lease agreement"
dated August 26, 1986 with Page 139 the Development Bank of the Philippines — owner of the Bayview
Plaza Hotel — wherein the former would operate the hotel for "a minimum of three months or until such
time that the said properties are sold to MSI or other third parties by DBP."

On December 8, 1986 the President issued Proclamation No. 50 entitled "Launching a Program for the
Expeditious Disposition or Privatization of Certain Government Corporations and/or the (acquired) Assets
thereof, and creating a Committee on Privatization and the Asset Privatization Trust." The Bayview Hotel
properties were among the government assets Identified for privatization and were consequently
transferred from DBP to APT for disposition.

To effect the disposition of the property, the DBP notified MSI that it was terminating the "interim lease
agreement." In a certificate dated September 18, 1987 signed by Ernesto S. Salgado, President and
Chairman of the Board of herein private respondent (Annex D; Exh. 2-APT) the latter agreed to the
termination with the following terms:

1. Thirty days from today as of the signing of this Certification, I will consider the Lease Contract between
MANTRUSTE SYSTEM, INC. and DEVELOPMENT BANK OF THE PHILIPPINES terminated.

2. The Bayview Prince Hotel will be made available for inspection at all times by other bidders.

3. The Bayview Prince Hotel will be ready for delivery to any new owners thirty (30) days from signing of
this Certification.

On October 7, 1987 the APT sent a letter to MSI through Mr. Salgado granting the latter an extension of
thirty days from October 18 "within which to effect the delivery of the Bayview Prince Hotel to APT." The
extension was given to "allow (MSI) to wind up (its) affairs and to facilitate a smooth turn-over of the
facilities to its new owners without necessarily interrupting the hotel's regular operation." The signature of
Mr. Salgado appears on the lower left hand of the letter under the word "CONFORME."

However, fifteen days later, or on October 22, 1987, MSI — through its Executive Vice-President Rolando
C. Cipriano — informed APT of the following points:

xxx xxx xxx

MSI is of the opinion . . . since its lease on the hotel properties has been for more than one year now, its
lease status has taken the character of a long term one. As such MSI as the lessee has acquired certain
rights and privileges under law and equity.

xxx xxx xxx

. . . it is the company's firm contention that it has acquired a priority right to the purchase of Bayview Hotel
properties over and above other interested parties . . . (Annex F, petition, SP-14535).

APT's response to this demand was equally firm. It informed MSI that APT has ". . . not found any
stipulation tending to support your claim that Mantruste System, Inc., as lessee, has acquired ... priority
right to the purchase of Bayview Hotel . . ." The Trust also pointed out that the "Pre-Bidding Conference" for
the sale of the hotel has already been conducted such that for APT to favorably consider your (MSI's)
request would not be in consonance with law, equity and fair play (Annex G, Idem)

On October 28, Salgado, speaking for MSI, wrote APT informing the latter of the alleged "legal lien" over
the hotel to the amount of P10,000,000 (should be P12,000,000). Moreover, he demanded that the Trust
consider MSI a "very preferred" bidder. Nevertheless, on November 4, 1987 herein private respondent
allegedly prepared to submit its bid to the APT for P95,000,000.00 in cash or P120,000,000 in installment
terms.

On the same occasion, however, MSI asked the Trust for clarification on the following points: (1) whether
APT had a clean title over the property; (2) whether the Trust knew the hotel had back taxes; (3) who
should pay the tax arrears; and (4) whether MSI'S advances made in behalf of DBP would be treated as
part of the bid offer.

From there, the versions of the MSI and the Trust differed. According to herein private respondent, because
of the questions it posed to the Trust, it was "immediately disqualified from the public bidding." The trust
alleged on the other hand that MSI voluntarily desisted from participating in the bidding. The property
eventually was awarded to herein petitioners Makati-Agro Trading and La Filipina Uy Gongco Corporation
which submitted a bid for P83,000,000 (should be P85,000,000).
On November 13, 1981, herein private respondent filed a complaint with respondent lower court —
docketed as Civil Case No. 18319 — praying among others for: (1) the issuance of a restraining order
enjoining APT from approving the winning bid and awarding the Bayview property to private petitioners, and
from ejecting MSI from the property or from terminating the contract of lease; (2) the award of the Bayview
property in favor of MSI as the highest bidder. On December 15, 1937, the lower court, as already said,
granted the writ of preliminary injunction. (pp. 247- 250, Rollo.)

The Court of Appeals nullified the lower court's writ of preliminary injunction for being violative of Section 31
of Proclamation No. 50-A dated December 15,1986, which provides:

No court or administrative agency shall issue any restraining order or injunction against the Trust in
connection with the acquisition, sale or disposition of assets transferred to it . . . Nor shall such order or
injunction be issued against any purchaser of assets sold by the Trust to prevent such purchaser from
taking possession of any assets purchased by him.

The Court of Appeals rejected Judge Madayag's opinion that the above provision of Proclamation No. 50-A
is unconstitutional because: (1) it ceased to be operative in view of the 1987 Constitution; (2) it constitutes
a deprivation of property without due process of law; and (3) it impinges upon the judicial power as defined
in Section 1, Article VIII of the 1987 Constitution. The Court of Appeals held that:

(1) Proclamation No. 50-A continued to be operative after the effectivity of the 1987 Constitution, by virtue
of Section 3, Article XVIII (Transitory Provisions) providing that:

Sec. 3. All existing laws, decrees, executive orders, proclamations, letters of instructions and other
executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed,
or revoked.

(2) Section 31 of Proclamation No. 50-A does not deprive MSI of its property existent, and its belief that
DBP had declared it to be the preferred buyer of the hotel is "illusory." Its only "property right" was its
reimbursable advances allegedly amounting to P12 million (but denied by DBP in its answer to the
complaint) which, it may sue to collect in a separate action.

(3) In view of Section 31 of Proclamation No. 50-A, the issuance of a writ of preliminary injunction by the
lower court against the APT may not be justified as a valid exercise of power, i.e., the power to settle actual
controversies involving rights which are legally demandable and enforceable, for does not have a legally
demandable and enforceable right of retention over the hotel. In any case, judicial power is "not
unqualified." It may be regulated and defined by the Constitution (Sec. 2, Art. VIII, 1987 Constitution) and
by law, and the law in this particular case (Sec. 31, Procl. No. 50-A) provides that judicial power may not be
exercised in the form of an injunction against the acts of the APT in pursuance of its mandate.

The seven grounds of this petition for certiorari may be compressed into the following propositions:

(1) that the Court of Appeals gravely abused its discretion in substituting its own discretion for that of the
trial court on the propriety of issuing the writ of preliminary injunction to preserve the status quo and to
protect Mantruste's contractual right to retain possession of the Bayview Hotel until all its advances are
paid; and

(2) that the Court of Appeals erred: (a) in holding that Mantruste's property rights are non-existent except its
right to the refund of its alleged advances; (b) in not declaring unconstitutional Section 31 of Proclamation
50-A prohibiting the issuance of an injunction against the APT and (c) in finding that Mantruste is to blame
for its failure to participate in the bidding for the Bayview Hotel

We find no merit in the petition.

While the well-known and basic purpose of a preliminary injunction is to preserve the status quo of the
property subject of the action to protect the rights of the plaintiff respecting the same during the pendency
of the suit (Calo vs. Roldan, 76 Phil. 445, 452; Lasala vs. Fernandez, 5 SCRA 79; Rivera vs. Florendo, 144
SCRA 643), and that generally, the exercise of sound judicial discretion by the lower court will not be
interfered with (Rodulfa vs. Alfonso, 76 Phil. 225, 232), the Court of Appeals however correctly found that,
under the lease agreement between the DBP and Mantruste, the latter's claim to a "patent contractual right
to retain possession of the Bayview Hotel until all its advances are paid" is non-existent. As the right of
retention does not exist, neither does the right to the relief (injunction) demanded (Sec. 3, Rule 58, Rules of
Court).

Furthermore, there is Section 31 of Proclamation No. 50-A to be reckoned with which explicitly prohibits
courts and administrative agencies from issuing "any restraining order or injunction against the Trust APT in
connection with the acquisition, sale or disposition of assets transferred to it, nor against any purchaser of
assets sold by the Trust to prevent such purchaser from taking possession of any assets purchased by
him." While the petitioner decries the "probable injustice" that it will suffer if it is ousted from the hotel and
possession of the property is delivered to the private respondents as the winning bidders/purchasers at the
public auction sale, the greater prejudice and injustice to the latter who, after paying P85 million to
purchase the hotel have been deprived of its possession by the illegal issuance of the writ of injunction,
may not be glossed over. On the other hand, as indicated by the Appellate Court, the petitioner is not
without adequate remedy to recover its alleged P12 million advances on behalf of the DBP to make the
hotel operational. It may sue either the DBP, or its successor-in-interest, the APT for payment of the claim.

Mantruste's right to reimbursement for those advances (the exact amount of which remains to be
determined) may not be denied. However, its claim to a right of retention over the hotel pending such
reimbursement, is, as was correctly found by the Court of Appeals, "illusory" and "non-existent." A mere
lessee, like Mantruste, is not a builder in good faith, hence, the right of retention given to a possessor in
good faith under Article 546 of the Civil Code, pending reimbursement of his advances for necessary
repairs and useful improvements on another's property is not available to a lessee whose possession is not
that of an owner.

A lessee is not entitled to retain possession of the premises leased until he is reimbursed for alleged
improvements thereon, for a lessee cannot pretend to act in good faith in making improvements.

A lessee, in order to be entitled to one half the value of the improvements introduced by him in the leased
premises, or to remove them should lessor refuse to reimburse the half value thereof, must show that the
same were introduced in good faith; are useful; suitable to the use for which the lease is intended without
altering the form and substance of the premises. (Imperial Insurance, Inc. vs. Simon, 14 SCRA 855.)

Petitioner's contention that he is a builder in good faith for which reason he may not he evicted unless he is
indemnified for the cost of his improvements on the leased premises, has no merit. Knowing that his right to
occupy the premises was temporary, he is deemed to have built his house at his own risk. (Lopez, Inc. vs.
Phil. & Eastern Trading Co., Inc., 98 Phil. 348.)

It is a settled rule that lessees are not possessors in good faith, because they know that their occupancy of
the premises continues only during the life of the lease, hence they cannot, as a matter of right, recover the
value of their improvements from the lessor, much less retain the premises until they are reimbursed
therefor. (Bacaling vs. Laguna, et al., 54 SCRA 243.)

Section 31 of Proclamation No. 50-A does not infringe any provision of the Constitution. It does not impair
the inherent power of courts "to settle actual controversies which are legally demandable and enforceable
and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government" (Sec. 1, Art. VIII, 1987
Constitution). The power to define, prescribe and apportion the jurisdiction of the various courts belongs to
the legislature, except that it may not deprive the Supreme Court of its jurisdiction over cases enumerated
in Section 5, Article VIII of the Constitution (Sec. 2, Art. VIII, 1987 Constitution).

The President, in the exercise of her legislative power under the Freedom Constitution, issued
Proclamation No. 50-A prohibiting the courts from issuing restraining orders and writs of injunction against
the APT and the purchasers of any assets sold by it, to prevent courts from interfering in the discharge, by
this instrumentality of the executive branch of the Government, of its task of carrying out "the expeditious
disposition and privatization of certain government corporations and/or the assets thereof' (Proc. No. 50),
absent any grave abuse of discretion amounting to excess or lack of jurisdiction on its part. This
proclamation, not being inconsistent with the Constitution and not having been repealed or revoked by
Congress, has remained operative (Sec. 3, Art. XVIII, 1987 Constitution).
While the judicial power may appear to be pervasive, the truth is that under the system of separation of
powers set up in the Constitution, the power of the courts over the other branches and instrumentalities of
the Government is limited only to the determination of "whether or not there has been a grave abuse of
discretion (by them) amounting to lack or excess of jurisdiction" in the exercise of their authority and in the
performance of Page 145 their assigned tasks (Sec. 1, Art. VIII, 1987 Constitution). Courts may not
substitute their judgment for that of the APT, nor block, by an injunction, the discharge of its functions and
the implementation of its decisions in connection with the acquisition, sale or disposition of assets
transferred to it.

There can be no justification for judicial interference in the business of an administrative agency, except
when it violates a citizen's constitutional rights, or commits a grave abuse of discretion, or acts in excess of,
or without jurisdiction.

The Court of Appeals correctly ruled that paragraph 2 of the Contract of Lease which provides:

2. The term of the lease is a minimum of three (3) months or until such time that said properties are sold to
MSI or other third parties by DBP (p. 1, Annex N of Annex A hereof; Exh. I.)

does not give Mantruste preferred standing or "a right of first refusal" as a prospective buyer of the Bayview
Hotel. That provision of the lease contract gives it only the right, equally with others, to bid for the property.

In any event, assuming that Mantruste did have that preferred status (for it was assured by Estela Ladrido,
DBP's officer-in-charge of the Bayview Hotel, that "all things equal (sic) DBP would be more inclined to sell
the Bayview property to MSI Mantruste lost that preferential right by failing to participate in the bidding for
the property. Its allegation that it would have submitted a higher bid than the winning bidders, is futile, for
the fact is that it did not submit a bid. Its excuses for failing to do so are unconvincing. The real reason is
difficult to fathom but the following statement in its petition —

Considering that Mantruste has made capital expenditures of more than P12 million, then this would mean
an uninterrupted, peaceful and continued possession by Mantruste of Bayview for more than twenty (20)
years in order to complete the offsetting process. (p. 44, Petition.)

may provide a clue. Mantruste may have banked on its alleged advance of P12 million to keep it in
possession of the hotel for 20 years, without having to buy it at the APT's auction.

WHEREFORE, finding no reversible error in the decision of the Court of Appeals, the petition for review is
dismissed for lack of merit. Costs against the petitioner.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Medialdea and Regalado, JJ., concur.

Gutierrez, Jr., J., concurs in the result.