G.R. No.
27484 September 1, 1927 of Health and his authorized agents "to cause to be apprehended, and detained,
ANGEL LORENZO, petitioner-appellant,
vs.
THE DIRECTOR OF HEALTH, respondent-appelle.
Gregorio for appellant.
Attorney-General Jaranilla for appellee.
MALCOLM, J.:
The purpose of this appeal is to induce the court to set aside the judgme nt of the
Court of First Instance of Manila sustaining the law authorizing the segregation of
lepers, and denying the petition for habeas corpus, by requiring the trial court to
receive evidence to determine if leprosy is or is not a contagious disease.
The petition for the writ of habeas corpus was in the usual form. Therein it was
admitted that the applicant was a leper. It was, however, alleged that his
confinement in the San Lazaro Hospital in the City of Manila was in violation of his
constitutional rights. The further allegation was made that leprosy is not an
infectious disease. The return of the writ stated that the leper was confined in the
San Lazaro Hospital in conformity with the provisions of section 1058 of the
Administrative Code. But to this was appended, for some unknown reason, the
averment that each and every fact of the petition not otherwise admitted by the
return was denied. Although counsel for the appellant makes mention of the form
which the return of the writ of habeas corpus took, so as not to complicate
matters unnecessarily, we prefer to give attention only to so much of the return
as is contemplated by law and to disregard the rest as surplusage. The petitioner
not having traversed the return, the only issue is whether the facts stated in the
return as a matter of law authorized the restraint (Code of Civil Procedure, chap.
XXVI; Code of Criminal Procedure, secs. 77 et seq.).
The Philippine law pertaining to the segregation of lepers is found in article XV of
chapter 37 of the Administrative Code. Codal section 1058 empowers the Director
isolated, or confined, all leprous persons in the Philippine Islands. "In amplification
of this portion of the law are found provisions relating to arrest of suspected
lepers, medical inspection and diagnostic procedure, confirmation of diagnosis by
bacteriological methods, establishment of hospitals, detention camps, and a leper
colony, etc.
In its simplest aspects, therefore, we have this situation presented: A leper
confined in the San Lazaro Hospital by the health authorities in conformity with
law, but with counsel for the leper contending that the said law is
unconstitutional, and advancing as the basis for that contention the theory to be
substantiated by proof that human beings are not incurable with leprosy, and that
the disease may not be communicated by contact.
Section 1058 of the Administrative Code was enacted by the legislative body in
the legitimate exercise of the police power which extends to the preservation of
the public health. It was place on the statute books in recognition of leprosy as a
grave health problem. The methods provided for the control of leprosy plainly
constitute due process of law. The assumption must be that if evidence was
required to establish the necessity for the law, that it was before the legislature
when the act was passed. In the case of a statute purporting the have been
enacted in the interest of the public health, all questions relating to the
determination of matters of fact are for the legislature. If there is probable basis
for sustaining the conclusion reached, its findings are not subject to judicial
review. Debatable questions are for the Legislature to decide. The courts do not
sit to resolve the merits of conflicting theories. (1 Cooley's Constitutional
Limitations, 8th ed., pp. 379, 380; R. C. L., pp. 111 et seq.; Jacobson vs.
Massachusetts [1904], 197 U. S., 11 Segregation of Lepers [1884], V Hawaiian,
162; People vs. Durston [N. Y.] [1890], 7 L. R. A., 715; Blue vs. Beach [Ind.] [1900],
50 L. R. A., 64; Nelson vs. Minneapolis [Minn.] [1910], 29 L. R. A., N. S., 260.)
Judicial notice will be taken of the fact that leprosy is commonly believed to be an
infectious disease tending to cause one afflicted with it to be shunned and
excluded from society, and that compulsory segregation of lepers as a means of
preventing the spread of the disease of supported by high scientific authority (See
Osler and McCrea, The Principles and Practice of Medicine, 9th ed., p. 153.) Upon
this view, laws for the segregation of lepers have been provided the world over.
Similarly, the local legislature has regarded leprosy as a contagious disease and
has authorized measures to control the dread scourge. To that forum must the
petitioner go to reopen the question. We are frank to say that it would require a
much stronger case than the one at bar for us to sanction admitting the testimony
of expert or other witnesses to show that a law of this character may possibly
violate some constitutional provision.

For more reasons than one, we think that Judge Concepcion took exactly the
correct stand in deciding this test case, and that consequently his decision should
be upheld.

Judgment affirmed, with costs.

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.
G.R. No. L-14078 March 7, 1919
RUBI, ET AL. (manguianes), plaintiffs,
vs.
THE PROVINCIAL BOARD OF MINDORO, defendant.
D. R. Williams & Filemon Sotto for plaintiff.
Office of the Solicitor-General Paredes for defendant.
MALCOLM, J.:
In one of the cases which denote a landmark in American Constitutional History
(Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first
luminary of American jurisprudence, began his opinion (relating to the status of
an Indian) with words which, with a slight change in phraseology, can be made to
introduce the present opinion — This cause, in every point of view in which it can
be placed, is of the deepest interest. The legislative power of state, the controlling
power of the constitution and laws, the rights if they have any, the political
existence of a people, the personal liberty of a citizen, are all involved in the
subject now to be considered.
To imitate still further the opinion of the Chief Justice, we adopt his outline and
proceed first, to introduce the facts and the issues, next to give a history of the so
called "non-Christians," next to compare the status of the "non-Christians" with
that of the American Indians, and, lastly, to resolve the constitutional questions
presented.
I. INTRODUCTION.
This is an application for habeas corpus in favor of Rubi and other Manguianes of
the Province of Mindoro. It is alleged that the Maguianes are being illegally
deprived of their liberty by the provincial officials of that province. Rubi and his
companions are said to be held on the reservation established at Tigbao,
Mindoro, against their will, and one Dabalos is said to be held under the custody
of the provincial sheriff in the prison at Calapan for having run away form the
reservation.
The return of the Solicitor-General alleges:
1. That on February 1, 1917, the provincial board of Mindoro adopted resolution
No. 25 which is as follows:
The provincial governor, Hon. Juan Morente, Jr., presented the following
resolution:
"Whereas several attempts and schemes have been made for the advancement of
the non-Christian people of Mindoro, which were all a failure,
"Whereas it has been found out and proved that unless some other measure is
taken for the Mangyan work of this province, no successful result will be obtained
toward educating these people.
"Whereas it is deemed necessary to obliged them to live in one place in order to
make a permanent settlement,
"Whereas the provincial governor of any province in which non-Christian
inhabitants are found is authorized, when such a course is deemed necessary in
the interest of law and order, to direct such inhabitants to take up their habitation
on sites on unoccupied public lands to be selected by him and approved by the
provincial board.
"Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake
Naujan is a place most convenient for the Mangyanes to live on, Now, therefore
be it
"Resolved, that under section 2077 of the Administrative Code, 800 hectares of
public land in the sitio of Tigbao on Naujan Lake be selected as a site for the
permanent settlement of Mangyanes in Mindoro subject to the approval of the
Honorable Secretary of the Interior, and
"Resolved further, That Mangyans may only solicit homesteads on this reservation
providing that said homestead applications are previously recommended by the
provincial governor."
2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro was
approved by the Secretary of the Interior of February 21, 1917.
3. That on December 4, 1917, the provincial governor of Mindoro issued executive
order No. 2 which says:
"Whereas the provincial board, by Resolution No. 25, current series, has selected
a site in the sitio of Tigbao on Naujan Lake for the permanent settlement of
Mangyanes in Mindoro.
"Whereas said resolution has been duly approve by the Honorable, the Secretary
of the Interior, on February 21, 1917.
"Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to
the provisions of section 2145 of the revised Administrative Code, do hereby
direct that all the Mangyans in the townships of Naujan and Pola and the
Mangyans east of the Baco River including those in the districts of Dulangan and
Rubi's place in Calapan, to take up their habitation on the site of Tigbao, Naujan
Lake, not later than December 31, 1917.
"Any Mangyan who shall refuse to comply with this order shall upon conviction be
imprisoned not exceed in sixty days, in accordance with section 2759 of the
revised Administrative Code."
4. That the resolution of the provincial board of Mindoro copied in paragraph 1
and the executive order of the governor of the same province copied in paragraph
3, were necessary measures for the protection of the Mangyanes of Mindoro as
well as the protection of public forests in which they roam, and to introduce
civilized customs among them.
5. That Rubi and those living in his rancheria have not fixed their dwelling within
the reservation of Tigbao and are liable to be punished in accordance with section
2759 of Act No. 2711.
6. That the undersigned has not information that Doroteo Dabalos is being
detained by the sheriff of Mindoro but if he is so detained it must be by virtue of
the provisions of articles Nos. 2145 and 2759 of Act No. 2711.
It thus appears that the provincial governor of Mindoro and the provincial board
thereof directed the Manguianes in question to take up their habitation in Tigbao,
a site on the shore of Lake Naujan, selected by the provincial governor and
approved by the provincial board. The action was taken in accordance with
section 2145 of the Administrative Code of 1917, and was duly approved by the
Secretary of the Interior as required by said action. Petitioners, however,
challenge the validity of this section of the Administrative Code. This, therefore,
becomes the paramount question which the court is called upon the decide.
Section 2145 of the Administrative Code of 1917 reads as follows:
SEC. 2145. Establishment of non-Christina upon sites selected by provincial
governor. — With the prior approval of the Department Head, the provincial
governor of any province in which non-Christian inhabitants are found is
authorized, when such a course is deemed necessary in the interest of law and
order, to direct such inhabitants to take up their habitation on sites on
unoccupied public lands to be selected by him an approved by the provincial
board.
In connection with the above-quoted provisions, there should be noted section
2759 of the same Code, which read as follows:
SEC. 2759. Refusal of a non-Christian to take up appointed habitation. — Any non-
Christian who shall refuse to comply with the directions lawfully given by a
provincial governor, pursuant to section two thousand one hundred and forty-five
of this Code, to take up habitation upon a site designated by said governor shall
upon conviction be imprisonment for a period not exceeding sixty days.
The substance of what is now found in said section 2145 is not new to Philippine
law. The genealogical tree of this section, if we may be permitted to use such
terminology, would read: Section 2077, Administrative Code of 1916; section 62,
Act No. 1397; section 2 of various special provincial laws, notably of Act No. 547,
specifically relating to the Manguianes; section 69, Act No. 387.
Section 2145 and its antecedent laws make use of the term "non-Christians." This
word, as will later be disclosed, is also found in varying forms in other laws of the
Philippine Islands. In order to put the phrase in its proper category, and in order
to understand the policy of the Government of the Philippine Islands with
reference to the uncivilized elements of the Islands, it is well first of all to set
down a skeleton history of the attitude assumed by the authorities towards these
"non-Christians," with particular regard for the legislation on the subject.
II. HISTORY.
A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.
The most important of the laws of the Indies having reference to the subject at
hand are compiled in Book VI, Title III, in the following language.
LAW I.
The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551.
Philip II at Toledo, on February 19, 1560. In the forest of Segovia on September
13, 1565. In the Escorial on November 10, 1568. Ordinance 149 of the poblaciones
of 1573. In San Lorenzo, on May 20, 1578,
THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES).
In order that the indios may be instructed in the Sacred Catholic Faith and the
evangelical law, and in order that they may forget the blunders of their ancient
rites and ceremonies to the end that they may live in harmony and in a civilized
manner, it has always been endeavored, with great care and special attention, to
use all the means most convenient to the attainment of these purposes. To carry
out this work with success, our Council of the Indies and other religious persons
met at various times; the prelates of new Spain assembled by order of Emperor
Charles V of glorious memory in the year one thousand five hundred and forty-six
— all of which meetings were actuated with a desire to serve God an our
Kingdom. At these meetings it was resolved that indios be made to live in
communities, and not to live in places divided and separated from one another by
sierras and mountains, wherein they are deprived of all spiritual and temporal
benefits and wherein they cannot profit from the aid of our ministers and from
that which gives rise to those human necessities which men are obliged to give
one another. Having realized that convenience of this resolution, our kings, our
predecessors, by different orders, have entrusted and ordered the viceroys,
presidents, and governors to execute with great care and moderation the
concentration of the indios into reducciones; and to deal with their doctrine with
such forbearance and gentleness, without causing inconveniences, so that those
who would not presently settle and who would see the good treatment and the
protection of those already in settlements would, of their own accord, present
themselves, and it is ordained that they be not required to pay taxes more than
what is ordered. Because the above has been executed in the greater part of our
Indies, we hereby order and decree that the same be complied with in all the
remaining parts of the Indies, and the encomederos shall entreat compliance
thereof in the manner and form prescribed by the laws of this title.
xxx xxx xxx
LAW VIII.
Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618.
THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF THIS
LAW.
The places wherein the pueblos and reducciones shall be formed should have the
facilities of waters. lands, and mountains, ingress and egress, husbandry and
passageway of one league long, wherein the indios can have their live stock that
they may not be mixed with those of the Spaniards.
LAW IX.
Philip II at Toledo, on February 19, 1956.
THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS
PREVIOUSLY HELD BY THEM.
With more good-will and promptness, the indios shall be concentrated in
reducciones. Provided they shall not be deprived of the lands and granaries which
they may have in the places left by them. We hereby order that no change shall
be made in this respect, and that they be allowed to retain the lands held by them
previously so that they may cultivate them and profit therefrom.
xxx xxx xxx
LAW XIII.
THE SAME AS ABOVE.
THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING,
VICEROY, OR COURT.
No governor, or magistrate, or alcalde mayor, or any other court, has the right to
alter or to remove the pueblos or the reducciones once constituted and founded,
without our express order or that of the viceroy, president, or the royal district
court, provided, however, that the encomenderos, priests, or indios request such
a change or consent to it by offering or giving information to that en. And,
because these claims are often made for private interests and not for those of the
indios, we hereby order that this law be always complied with, otherwise the
change will be considered fraudulently obtained. The penalty of one thousand
pesos shall be imposed upon the judge or encomendero who should violate this
law.
LAW XV.
Philip III at Madrid, on October 10, 1618.
THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO SHALL BE
"INDIOS."
We order that in each town and reduccion there be a mayor, who should be an
indio of the same reduccion; if there be more than eighty houses, there should be
two mayors and two aldermen, also indios; and, even if the town be a big one,
there should, nevertheless, be more than two mayors and four aldermen, If there
be less than eighty indios but not less than forty, there should be not more than
one mayor and one alderman, who should annually elect nine others, in the
presence of the priests , as is the practice in town inhabited by Spaniards and
indios.
LAW XXI.
Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on
May 8, 1581. At Madrid, on January 10, 1589. Philip III, at Todesillas, on July 12,
1600. Philip IV, at Madrid, on October 1 and December 17, 1646. For this law and
the one following, see Law I, Tit. 4, Book 7.
THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS,
NEGROES, "MESTIZOS," AND MULATTOES.

We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live
to live in the reducciones and towns and towns of the indios, because it has been
found that some Spaniards who deal, trade, live, and associate with the indios are
men of troublesome nature, of dirty ways of living; robbers, gamblers, and vicious
and useless men; and, to avoid the wrongs done them, the indios would leave
their towns and provinces; and the negroes, mestizos, and mulattoes, besides
maltreating them and utilizing their services, contaminate them with their bad
customs, idleness, and also some of their blunders and vices which may corrupt
and pervert the goal which we desire to reach with regard to their salvation,
increase, and tranquillity. We hereby order the imposition of grave penalties upon
the commission of the acts above-mentioned which should not be tolerated in the
towns, and that the viceroys, presidents, governors, and courts take great care in
executing the law within their powers and avail themselves of the cooperation of
the ministers who are truly honest. As regards the mestizos and Indian and
Chinese half-breeds (zambaigos), who are children of indias and born among
them, and who are to inherit their houses and haciendas, they all not be affected
by this law, it appearing to be a harsh thing to separate them from their parents.
(Law of the Indies, vol. 2, pp. 228, 229, 230, 231.)
A clear exposition of the purposes of the Spanish government, in its efforts to
improve the condition of the less advanced inhabitants of the Islands by
concentrating them in "reducciones," is found in the Decree of the Governor-
General of the Philippine Islands of January 14, 1881, reading as follows:
It is a legal principle as well as a national right that every inhabitant of a territory
recognized as an integral part of a nation should respect and obey the laws in
force therein; while, on other hand, it is the duty to conscience and to humanity
for all governments to civilize those backward races that might exist in the nation,
and which living in the obscurity of ignorance, lack of all the nations which enable
them to grasp the moral and material advantages that may be acquired in those
towns under the protection and vigilance afforded them by the same laws.
It is equally highly depressive to our national honor to tolerate any longer the
separation and isolation of the non-Christian races from the social life of the
civilized and Christian towns; to allow any longer the commission of depredations,
precisely in the Island of Luzon wherein is located the seat of the representative
of the Government of the, metropolis.
It is but just to admit the fact that all the governments have occupied themselves
with this most important question, and that much has been heretofore
accomplished with the help and self-denial of the missionary fathers who have
even sacrificed their lives to the end that those degenerate races might be
brought to the principles of Christianity, but the means and the preaching
employed to allure them have been insufficient to complete the work undertaken.
Neither have the punishments imposed been sufficient in certain cases and in
those which have not been guarded against, thus giving and customs of isolation.
As it is impossible to consent to the continuation of such a lamentable state of
things, taking into account the prestige which the country demands and the
inevitable duty which every government has in enforcing respect and obedience
to the national laws on the part of all who reside within the territory under its
control, I have proceeded in the premises by giving the most careful study of this
serious question which involves important interests for civilization, from the
moral and material as well as the political standpoints. After hearing the illustrious
opinions of all the local authorities, ecclesiastics, and missionaries of the
provinces of Northern Luzon, and also after finding the unanimous conformity of
the meeting held with the Archbishop of Manila, the Bishops of Jaro and Cebu,
and the provincial prelates of the orders of the Dominicans, Agustinians,
Recoletos, Franciscans, and Jesuits as also of the meeting of the Council of
Authorities, held for the object so indicated, I have arrived at an intimate
conviction of the inevitable necessity of proceeding in a practical manner for the
submission of the said pagan and isolated races, as well as of the manner and the
only form of accomplishing such a task.
For the reasons above stated and for the purpose of carrying out these objects, I
hereby promulgate the following:
DECREE.
1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date, to
be governed by the common law, save those exceptions prescribed in this decree
which are bases upon the differences of instructions, of the customs, and of the
necessities of the different pagan races which occupy a part of its territory.
2. The diverse rules which should be promulgated for each of these races — which
may be divided into three classes; one, which comprises those which live isolated
and roaming about without forming a town nor a home; another, made up of
those subdued pagans who have not as yet entered completely the social life; and
the third, of those mountain and rebellious pagans — shall be published in their
respective dialects, and the officials, priests, and missionaries of the provinces
wherein they are found are hereby entrusted in the work of having these races
learn these rules. These rules shall have executive character, beginning with the
first day of next April, and, as to their compliance, they must be observed in the
manner prescribed below.
3. The provincial authorities in conjunction with the priests shall proceed, from
now on, with all the means which their zeal may suggest to them, to the taking of
the census of the inhabitants of the towns or settlement already subdued, and
shall adopt the necessary regulations for the appointment of local authorities, if
there be none as yet; for the construction of courts and schools, and for the
opening or fixing up of means of communication, endeavoring, as regards the
administrative organization of the said towns or settlements, that this be finished
before the first day of next July, so that at the beginning of the fiscal year they
shall have the same rights and obligations which affect the remaining towns of the
archipelago, with the only exception that in the first two years they shall not be
obliged to render personal services other than those previously indicated.
4. So long as these subdued towns or settlements are located infertile lands
appropriate for cultivation, the inhabitants thereof shall not be obliged to move
their dwelling-houses; and only in case of absolute necessity shall a new residence
be fixed for them, choosing for this purpose the place most convenient for them
and which prejudices the least their interest; and, in either of these cases, an
effort must be made to establish their homes with the reach of the sound of the
bell.
5. For the protection and defense of these new towns, there shall be established
an armed force composed precisely of native Christian, the organization and
service of which shall be determined in a regulations based upon that of the
abolished Tercios de Policia (division of the Guardia Civil).
6. The authorities shall see to it that the inhabitants of the new towns understand
all the rights and duties affecting them and the liberty which they have as to
where and now they shall till their lands and sell the products thereof, with the
only exception of the tobacco which shall be bought by the Hacienda at the same
price and conditions allowed other producers, and with the prohibition against
these new towns as well as the others from engaging in commerce of any other
transaction with the rebellious indios, the violation of which shall be punished
with deportation.
7. In order to properly carry out this express prohibition, the limits of the territory
of the rebellious indios shall be fixed; and whoever should go beyond the said
limits shall be detained and assigned governmentally wherever convenient.
8. For the purpose of assisting in the conversion of the pagans into the fraternity
of the Catholic Church, all by this fact along be exempt for eight years from
rendering personal labor.
9. The authorities shall offer in the name of the State to the races not subdued
(aetas and mountains igorrots the following advantages in returns for their
voluntary submission: to live in towns; unity among their families; concession of
good lands and the right to cultivate them in the manner they wish and in the way
them deem most productive; support during a year, and clothes upon effecting
submission; respect for their habits and customs in so far as the same are not
opposed to natural law; freedom to decide of their own accord as to whether they
want to be Christians or not; the establishment of missions and families of
recognized honesty who shall teach, direct, protect, and give them security and
trust them; the purchase or facility of the sale of their harvests; the exemption
from contributions and tributes for ten years and from the quintas (a kind of tax)
for twenty years; and lastly, that those who are governed by the local authorities
as the ones who elect such officials under the direct charge of the authorities of
the province or district.
10. The races indicated in the preceding article, who voluntarily admit the
advantages offered, shall, in return, have the obligation of constituting their new
towns, of constructing their town hall, schools, and country roads which place
them in communication with one another and with the Christians; provided, the
location of these towns be distant from their actual residences, when the latter do
not have the good conditions of location and cultivations, and provided further
the putting of families in a place so selected by them be authorized in the towns
already constituted.
11. The armed force shall proceed to the prosecution and punishment of the
tribes, that, disregarding the peace, protection, and advantages offered them,
continue in their rebellious attitude on the first of next April, committing from
now on the crimes and vexations against the Christian towns; and for the this
purposes, the Captain General's Office shall proceed with the organization of the
divisions of the Army which, in conjunction with the rural guards (cuadrilleros),
shall have to enter the territory of such tribes. On the expiration of the term, they
shall destroy their dwelling-houses, labors, and implements, and confiscate their
products and cattle. Such a punishment shall necessarily be repeated twice a year,
and for this purpose the military headquarters shall immediately order a
detachment of the military staff to study the zones where such operations shall
take place and everything conducive to the successful accomplishment of the
same.
12. The chiefs of provinces, priests, and missioners, local authorities, and other
subordinates to my authorities, local authorities, and other subordinates to may
authority, civil as well as military authorities, shall give the most effective aid and
cooperation to the said forces in all that is within the attributes and the scope of
the authority of each.
13. With respect to the reduccion of the pagan races found in some of the
provinces in the southern part of the Archipelago, which I intend to visit, the
preceding provisions shall conveniently be applied to them.
14. There shall be created, under my presidency as Governor-General, Vice-Royal
Patron, a council or permanent commission which shall attend to and decide all
the questions relative to the application of the foregoing regulations that may be
brought to it for consultations by the chiefs of provinces and priests and
missionaries.
15. The secondary provisions which may be necessary, as a complement to the
foregoing, in brining about due compliance with this decree, shall be promulgated
by the respective official centers within their respective jurisdictions. (Gaceta de
Manila, No. 15) (Diccionario de la Administracion, vol. 7, pp. 128-134.)
B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.
Ever since the acquisition of the Philippine Islands by the United States, the
question as to the best method for dealing with the primitive inhabitants has been
a perplexing one.
1. Organic law.
The first order of an organic character after the inauguration of the American
Government in the Philippines was President McKinley's Instructions to the
Commission of April 7, 1900, later expressly approved and ratified by section 1 of
the Philippine Bill, the Act of Congress of July 1, 1902. Portions of these
instructions have remained undisturbed by subsequent congressional legislation.
One paragraph of particular interest should here be quoted, namely:
In dealing with the uncivilized tribes of the Islands, the Commission should adopt
the same course followed by Congress in permitting the tribes of our North
American Indians to maintain their tribal organization and government and under
which many of these tribes are now living in peace and contentment, surrounded
by civilization to which they are unable or unwilling to conform. Such tribal
governments should, however, be subjected to wise and firm regulation; and,
without undue or petty interference, constant and active effort should be
exercised to prevent barbarous practices and introduce civilized customs.
Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of
an Organic Act for the Philippines. The purpose of section 7 of the Philippine Bill
was to provide for a legislative body and, with this end in view, to name the
prerequisites for the organization of the Philippine Assembly. The Philippine
Legislature, composed of the Philippine Commission and the Philippine Assembly,
was to have jurisdiction over the Christian portion of the Islands. The Philippine
Commission was to retain exclusive jurisdiction of that part of said Islands
inhabited by Moros or other non-Christian tribes.
The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act
of Congress of August 29, 1916, commonly known as the Jones Law. This
transferred the exclusive legislative jurisdiction and authority theretofore
exercised by the Philippine Commission, to the Philippine Legislature (sec. 12). It
divided the Philippine Islands into twelve senatorial districts, the twelfth district to
be composed of the Mountain Province, Baguio, Nueva Vizcaya, and the
Department of Mindanao and Sulu. The Governor-General of the Philippine
Islands was authorized to appoint senators and representatives for the territory
which, at the time of the passage of the Jones Law, was not represented in the
Philippine Assembly, that is, for the twelfth district (sec. 16). The law establish a
bureau to be known as the "Bureau of non-Christian Tribes" which shall have
general supervision over the public affairs of the inhabitants which are
represented in the Legislature by appointed senators and representatives( sec.
22).
Philippine organic law may, therefore, be said to recognized a dividing line
between the territory not inhabited by Moros or other non-Christian tribes, and
the territory which Moros or other non-Christian tribes, and the territory which is
inhabited by Moros or other non-Christian tribes.
2. Statute law.
Local governments in the Philippines have been provided for by various acts of the
Philippine Commission and Legislature. The most notable are Acts Nos. 48 and 49
concerning the Province of Benguet and the Igorots; Act NO. 82, the Municipal
Code; ;Act no. 83, the Provincial Government Act; Act No. 183, the Character of
the city of Manila; Act No. 7887, providing for the organization and government of
the Moro Province; Act No. 1396, the Special Provincial Government Act; Act No.
1397, the Township Government Act; Act No. 1667, relating to the organization of
settlements; Act No. 1963, the Baguio charger; and Act No. 2408, the Organic Act
of the Department of Mindanao and Sulu. The major portion of these laws have
been carried forward into the Administrative Codes of 1916 an d1917.
Of more particular interest are certain special laws concerning the government of
the primitive peoples. Beginning with Act No. 387, sections 68-71, enacted on
April 9, 1902, by the United States Philippine Commission, having reference to the
Province of Nueva Vizcaya, Acts Nos. 4111, 422, 445, 500, 547, 548, 549, 550, 579,
753, 855, 1113, 1145, 4568, 1306 were enacted for the provinces of Abra,
Antique, Bataan, Ilocos Norte, Ilocos Sur, Isabela. Lepanto-Bontoc, Mindoro,
Misamis, Nueva Vizcaya, Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and
Zambales. As an example of these laws, because referring to the Manguianes, we
insert Act No. 547:
No. 547. — AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL
GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF MINDORO.
By authority of the United States, be it enacted by the Philippine Commission,
that:
SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not
progressed sufficiently in civilization to make it practicable to bring them under
any form of municipal government, the provincial governor is authorized, subject
to the approval of the Secretary of the Interior, in dealing with these Manguianes
to appoint officers from among them, to fix their designations and badges of
office, and to prescribe their powers and duties: Provided, That the powers and
duties thus prescribed shall not be in excess of those conferred upon township
officers by Act Numbered Three hundred and eighty-seven entitled "An Act
providing for the establishment of local civil Governments in the townships and
settlements of Nueva Vizcaya."
SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial
governor is further authorized, when he deems such a course necessary in the
interest of law and order, to direct such Manguianes to take up their habitation
on sites on unoccupied public lands to be selected by him and approved by the
provincial board. Manguianes who refuse to comply with such directions shall
upon conviction be imprisonment for a period not exceeding sixty days.
SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his
province to acquire the knowledge and experience necessary for successful local
popular government, and his supervision and control over them shall be exercised
to this end, an to the end that law and order and individual freedom shall be
maintained.
SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of
Manguianes has advanced sufficiently to make such a course practicable, it may
be organized under the provisions of sections one to sixty-seven, inclusive, of Act
Numbered three hundred and eighty-seven, as a township, and the geographical
limits of such township shall be fixed by the provincial board.
SEC. 5. The public good requiring the speedy enactment of this bill, the passage of
the same is hereby expedited in accordance with section two of 'An Act
prescribing the order of procedure by the Commission in the enactment of laws,'
passed September twenty-sixth, nineteen hundred.
SEC. 6. This Act shall take effect on its passage.
Enacted, December 4, 1902.
All of these special laws, with the exception of Act No. 1306, were repealed by Act
No. 1396 and 1397. The last named Act incorporated and embodied the
provisions in general language. In turn, Act No. 1397 was repealed by the
Administrative Code of 1916. The two Administrative Codes retained the
provisions in questions.
These different laws, if they of the non-Christian inhabitants of the Philippines and
a settled and consistent practice with reference to the methods to be followed for
their advancement.
C. TERMINOLOGY.
The terms made use of by these laws, organic and statutory, are found in varying
forms.
"Uncivilized tribes" is the denomination in President McKinley's instruction to the
Commission.
The most commonly accepted usage has sanctioned the term "non-Christian
tribes." These words are to be found in section 7 of the Philippine Bill and in
section 22 of the Jones Law. They are also to be found in Act No. 253 of the
Philippines Commission, establishing a Bureau of non-Christian Tribes and in Act
No. 2674 of the Philippine Legislature, carried forward into sections 701-705 of
the Administrative Code of 1917, reestablishing this Bureau. Among other laws
which contain the phrase, there can be mentioned Acts Nos. 127, 128, 387, 547,
548, 549, 550, 1397, 1639, and 2551.
"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos"
have been the favorite nomenclature, in lieu of the unpopular word "tribes," since
the coming into being of a Filipinized legislature. These terms can be found in
sections 2076, 2077, 2390, 2394, Administrative Code of 1916; sections 701-705,
2145, 2422, 2426, Administrative Code of 1917; and in Acts Nos. 2404, 2435,
2444, 2674 of the Philippine Legislatures, as well as in Act No. 1667 of the
Philippine Commission.
The Administrative Code specifically provides that the term "non-Christian" shall
include Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec.
2561, Administrative Code of 1916, taken from Act No. 2408, sec. 3.)
D. MEANING OF TERM "NON-CHRISTIAN."
If we were to follow the literal meaning of the word "non-Christian," it would of
course result in giving to it a religious signification. Obviously, Christian would be
those who profess the Christian religion, and non-Christians, would be those who
do not profess the Christian religion. In partial corroboration of this view, there
could also be cited section 2576 of the last Administrative Code and certain well-
known authorities, as Zuñiga, "Estadismo de las Islas Filipinas," Professor
Ferdinand Blumentritt, "Philippine Tribes and Languages," and Dr. N. M. Saleeby,
"The Origin of Malayan Filipinos." (See Blair & Robertson, "The Philippine Islands,"
1493-1898, vol. III, p. 300, note; Craig-Benitez, "Philippine Progress prior to 1898,"
vol. I. p. 107.)
Not content with the apparent definition of the word, we shall investigate further
to ascertain what is its true meaning.
In one sense, the word can have a geographical signification. This is plainly to be
seen by the provisions of many laws. Thus, according to the Philippine Bill, the
authority of the Philippine Assembly was recognized in the "territory" of the
Islands not inhabited by Moros or other non-Christian tribes. Again, the Jones Law
confers similar recognition in the authorization of the twelfth senatorial district
for the "territory not now represented in the Philippine Assembly." The
Philippines Legislature has, time and again, adopted acts making certain other acts
applicable to that "part" of the Philippine Islands inhabited by Moros or other
non-Christian tribes.
Section 2145, is found in article XII of the Provincial Law of the Administrative
Code. The first section of this article, preceding section 2145, makes the
provisions of the article applicable only in specially organized provinces. The
specially organized provinces are the Mountain Province, Nueva Vizcaya,
Mindoro, Batanes, and Palawan. These are the provinces to which the Philippine
Legislature has never seen fit to give all the powers of local self-government. They
do not, however, exactly coincide with the portion of the Philippines which is not
granted popular representation. Nevertheless, it is still a geographical description.
It is well-known that within the specially organized provinces, there live persons
some of who are Christians and some of whom are not Christians. In fact, the law
specifically recognizes this. ( Sec. 2422, Administrative Code of 1917, etc.)
If the religious conception is not satisfactory, so against the geographical
conception is likewise inadquate. The reason it that the motive of the law relates
not to a particular people, because of their religion, or to a particular province
because of its location, but the whole intent of the law is predicated n the
civilization or lack of civilization of the inhabitants.
At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic
words usually introduce the term. "The so-called non-Christian" is a favorite
expression. The Secretary of the Interior who for so many years had these people
under his jurisdiction, recognizing the difficulty of selecting an exact designation,
speaks of the "backward Philippine peoples, commonly known as the 'non-
Christian tribes."' (See Hearings before the Committee on the Philippines, United
States Senate, Sixty-third Congress, third session on H.R. 18459, An Act to declare
the purpose of the People of the United States as to the future political status of
the Philippine Islands and to provide a more autonomous government for the
Islands, pp. 346, 351; letter of the Secretary of the Interior of June 30, 1906,
circulated by the Executive Secretary.)
The idea that the term "non-Christian" is intended to relate to degree of
civilization, is substantiated by reference to legislative, judicial, and executive
authority.
The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and
sections 701 et seq, and sections 2422 et seq, of the Administrative Code of 1917.
For instance, Act No. 253 charged the Bureau of non-Christian tribes to conduct
"systematic investigations with reference to non-Christian tribes . . . with special
view to determining the most practicable means for bringing about their
advancement in civilization and material property prosperity."
As authority of a judicial nature is the decision of the Supreme Court in the case of
United States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose
as to the effect of a tribal marriage in connection with article 423 of the Penal
code concerning the husband who surprises his wife in the act of adultery. In
discussing the point, the court makes use of the following language:
. . . we are not advised of any provision of law which recognizes as legal a tribal
marriage of so-called non-Christians or members of uncivilized tribes, celebrated
within that province without compliance with the requisites prescribed by
General Orders no. 68. . . . We hold also that the fact that the accused is shown to
be a member of an uncivilized tribe, of a low order of intelligence, uncultured and
uneducated, should be taken into consideration as a second marked extenuating
circumstance.
Of much more moment is the uniform construction of execution officials who
have been called upon to interpret and enforce the law. The official who, as a
member of the Philippine Commission, drafted much of the legislation relating to
the so-called Christians and who had these people under his authority, was the
former Secretary of the Interior. Under date of June 30, 1906, this official
addressed a letter to all governor of provinces, organized under the Special
Provincial Government Act, a letter which later received recognition by the
Governor-General and was circulated by the Executive Secretary, reading as
follows:
Sir: Within the past few months, the question has arisen as to whether people
who were originally non-Christian but have recently been baptized or who are
children of persons who have been recently baptized are, for the purposes of Act
1396 and 1397, to be considered Christian or non-Christians.
It has been extremely difficult, in framing legislation for the tribes in these islands
which are not advanced far in civilization, to hit upon any suitable designation
which will fit all cases. The number of individual tribes is so great that it is almost
out of the question to enumerate all of them in an Act. It was finally decided to
adopt the designation 'non-Christians' as the one most satisfactory, but the real
purpose of the Commission was not so much to legislate for people having any
particular religious belief as for those lacking sufficient advancement so that they
could, to their own advantage, be brought under the Provincial Government Act
and the Municipal Code.
The mere act of baptism does not, of course, in itself change the degree of
civilization to which the person baptized has attained at the time the act of
baptism is performed. For practical purposes, therefore, you will give the member
of so-called "wild tribes" of your province the benefit of the doubt even though
they may recently have embraced Christianity.
The determining factor in deciding whether they are to be allowed to remain
under the jurisdiction of regularly organized municipalities or what form of
government shall be afforded to them should be the degree of civilization to
which they have attained and you are requested to govern yourself accordingly.
I have discussed this matter with the Honorable, the Governor-General, who
concurs in the opinion above expressed and who will have the necessary
instructions given to the governors of the provinces organized under the
Provincial Government Act. (Internal Revenue Manual, p. 214.)
The present Secretary of the Interior, in a memorandum furnished a member of
this court, has the following to say on the subject:
As far as names are concerned the classification is indeed unfortunate, but while
no other better classification has as yet been made the present classification
should be allowed to stand . . . I believe the term carries the same meaning as the
expressed in the letter of the Secretary of the Interior (of June 30, 1906, herein
quoted). It is indicative of the degree of civilization rather than of religious
denomination, for the hold that it is indicative of religious denomination will make
the law invalid as against that Constitutional guaranty of religious freedom.
Another official who was concerned with the status of the non-Christians, was the
Collector of Internal Revenue. The question arose for ruling relatives to the cedula
taxation of the Manobos and the Aetas. Thereupon, the view of the Secretary of
the Interior was requested on the point, who, by return indorsement, agreed with
the interpretation of the Collector of Internal Revenue. This Construction of the
Collector of Internal Revenue can be found in circular letter No. 188 of the Bureau
of Internal Revenue, dated June 11, 1907, reading as follows (Internal Revenue
Manual, p. 214):
The internal revenue law exempts "members of non-Christian tribes" from the
payment of cedula taxes. The Collector of Internal Revenue has interpreted this
provision of law to mean not that persons who profess some form of Christian
worship are alone subject to the cedula tax, and that all other person are exempt;
he has interpreted it to mean that all persons preserving tribal relations with the
so-called non-Christian tribes are exempt from the cedula tax, and that all others,
including Jews, Mohammedans, Confucians, Buddists, etc., are subject to said tax
so long as they live in cities or towns, or in the country in a civilized condition. In
other words, it is not so much a matter of a man's form of religious worship or
profession that decides whether or not he is subject to the cedula tax; it is more
dependent on whether he is living in a civilized manner or is associated with the
mountain tribes, either as a member thereof or as a recruit. So far, this question
has not come up as to whether a Christian, maintaining his religious belief, but
throwing his lot and living with a non-Christian tribe, would or would not be
subject to the cedula tax. On one occasion a prominent Hebrew of Manila claimed
to this office that he was exempt from the cedula tax, inasmuch as he was not a
Christian. This Office, however, continued to collect cedula taxes from all the
Jews, East Indians, Arabs, Chinamen, etc., residing in Manila. Quite a large
proportion of the cedula taxes paid in this city are paid by men belonging to the
nationalities mentioned. Chinamen, Arabs and other s are quite widely scattered
throughout the Islands, and a condition similar to that which exist in Manila also
exists in most of the large provincial towns. Cedula taxes are therefore being
collected by this Office in all parts of these Islands on the broad ground that
civilized people are subject to such taxes, and non-civilized people preserving
their tribal relations are not subject thereto.
(Sgd.) JNO. S. HORD,
Collector of Internal Revenue.
On September 17, 1910, the Collector of Internal Revenue addressed circular
letter No. 327, approved by the Secretary of Finance and Justice, to all provincial
treasurers. This letter in part reads:
In view of the many questions that have been raised by provincial treasurers
regarding cedula taxes due from members of non-Christian tribes when they
come in from the hills for the purposes of settling down and becoming members
of the body politic of the Philippine Islands, the following clarification of the laws
governing such questions and digest of rulings thereunder is hereby published for
the information of all concerned:
Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of
the fact that they do not profess Christianity, but because of their uncivilized
mode of life and low state of development. All inhabitants of the Philippine
Islands classed as members of non-Christian tribes may be divided into three
classes in so far as the cedula tax law is concerned . . .
Whenever any member of an non-Christian tribe leaves his wild and uncivilized
mode of life, severs whatever tribal relations he may have had and attaches
himself civilized community, belonging a member of the body politic, he thereby
makes himself subject to precisely the same law that governs the other members
of that community and from and after the date when he so attaches himself to
the community the same cedula and other taxes are due from him as from other
members thereof. If he comes in after the expiration of the delinquency period
the same rule should apply to him as to persons arriving from foreign countries or
reaching the age of eighteen subsequent to the expiration of such period, and a
regular class A, D, F, or H cedula, as the case may be, should be furnished him
without penalty and without requiring him to pay the tax for former years.
In conclusion, it should be borne in mind that the prime factors in determining
whether or not a man is subject to the regular cedula tax is not the circumstance
that he does or does not profess Christianity, nor even his maintenance of or
failure to maintain tribal relations with some of the well known wild tribes, but his
mode of life, degree of advancement in civilization and connection or lack of
connection with some civilized community. For this reason so called
"Remontados" and "Montescos" will be classed by this office as members of non-
Christian tribes in so far as the application of the Internal Revenue Law is
concerned, since, even though they belong to no well recognized tribe, their
mode of life, degree of advancement and so forth are practically the same as
those of the Igorrots and members of other recognized non-Christina tribes.
Very respectfully,
(Sgd.) ELLIS CROMWELL,
Collector of Internal Revenue,
Approved:
(Sgd.) GREGORIO ARANETA,
Secretary of Finance and Justice.
The two circular above quoted have since been repealed by Bureau of Internal
Revenue Regulations No. 1, promulgated by Venancio Concepcion, Acting
Collector of Internal Revenue, and approved on April 16, 1915, by Honorable
Victorino Mapa, Secretary of Finance and Justice. Section 30 of the regulations is
practically a transcript of Circular Letter No. 327.
The subject has come before the Attorney-General for consideration. The Chief of
Constabulary request the opinion of the Attorney-General as to the status of a
non-Christian who has been baptized by a minister of the Gospel. The precise
questions were these: "Does he remain non-Christian or is he entitled to the
privileges of a Christian? By purchasing intoxicating liquors, does he commit an
infraction of the law and does the person selling same lay himself liable under the
provision of Act No. 1639?" The opinion of Attorney-General Avanceña, after
quoting the same authorities hereinbefore set out, concludes:
In conformity with the above quoted constructions, it is probable that is probable
that the person in question remains a non-Christian, so that, in purchasing
intoxicating liquors both he and the person selling the same make themselves
liable to prosecution under the provisions of Act No. 1639. At least, I advise you
that these should be the constructions place upon the law until a court shall hold
otherwise.
Solicitor-General Paredes in his brief in this case says:
With respect to the meaning which the phrase non-Christian inhabitants has in
the provisions of the Administrative code which we are studying, we submit that
said phrase does not have its natural meaning which would include all non-
Christian inhabitants of the Islands, whether Filipino or strangers, civilized or
uncivilized, but simply refers to those uncivilized members of the non-Christian
tribes of the Philippines who, living without home or fixed residence, roam in the
mountains, beyond the reach of law and order . . .
The Philippine Commission in denominating in its laws that portion of the
inhabitants of the Philippines which live in tribes as non-Christian tribes, as
distinguished from the common Filipinos which carry on a social and civilized life,
did not intended to establish a distinction based on the religious beliefs of the
individual, but, without dwelling on the difficulties which later would be
occasioned by the phrase, adopted the expression which the Spanish legislation
employed to designate the uncivilized portion of the inhabitants of the
Philippines.
The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and
2741 of Act No. 2657 (articles 2145 and 2759) should be understood as equivalent
to members of uncivilized tribes of the Philippines, not only because this is the
evident intention of the law, but because to give it its lateral meaning would make
the law null and unconstitutional as making distinctions base the religion of the
individual.
The Official Census of 1903, in the portion written by no less an authority than De.
David P. Barrows, then "Chief of the Bureau of non-Christian Tribes," divides the
population in the Christian or Civilized Tribes, and non-Christian or Wild Tribes.
(Census of the Philippine Islands [1903], vol. 1, pp. 411 et seq). The present
Director of the Census, Hon. Ignacio Villamor, writes that the classification likely
to be used in the Census now being taken is: "Filipinos and Primitive Filipinos." In
a Pronouncing Gazetteer and Geographical Dictionary of the Philippine Islands,
prepared in the Bureau of Insular Affairs, War Department, a sub-division under
the title non-Christian tribes is, "Physical and Political Characteristics of the non-
Christian Tribes," which sufficiently shows that the terms refers to culture and not
to religion.
In resume, therefore, the Legislature and the Judiciary, inferentially, and different
executive officials, specifically, join in the proposition that the term "non-
Christian" refers, not to religious belief, but, in a way , to geographical area, and,
more directly, to natives of the Philippine Islands of a law grade of civilization,
usually living in tribal relationship apart from settled communities.
E. THE MANGUIANES.
The so-called non-Christians are in various state approaching civilization. The
Philippine Census of 1903 divided them into four classes. Of the third class, are
the Manguianes (or Mangyans) of Mindoro.
Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his
Etimilogia de los nombres de Rozas de Filipinas, says:
In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan,"
"negro." It may be that the use of this word is applicable to a great number of
Filipinos, but nevertheless it has been applied only to certain inhabitants of
Mindoro. Even in primitive times without doubt this name was given to those of
that island who bear it to-day, but its employed in three Filipino languages shows
that the radical ngian had in all these languages a sense to-day forgotten. In
Pampango this ending still exists and signifies "ancient," from which we can
deduce that the name was applied to men considered to be the ancient
inhabitants, and that these men were pushed back into the interior by the
modern invaders, in whose language they were called the "ancients."
The Manguianes are very low in culture. They have considerable Negrito blood
and have not advanced beyond the Negritos in civilization. They are a peaceful,
timid, primitive, semi-nomadic people. They number approximately 15,000. The
manguianes have shown no desire for community life, and, as indicated in the
preamble to Act No. 547, have not progressed sufficiently in civilization to make it
practicable to bring them under any form of municipal government. (See Census
of the Philippine (Islands [1903], vol. I, pp. 22, 23, 460.)
III. COMPARATIVE — THE AMERICAN INDIANS.
Reference was made in the Presidents' instructions to the Commission to the
policy adopted by the United States for the Indian Tribes. The methods followed
by the Government of the Philippines Islands in its dealings with the so-called
non-Christian people is said, on argument, to be practically identical with that
followed by the United States Government in its dealings with the Indian tribes.
Valuable lessons, it is insisted, can be derived by an investigation of the American-
Indian policy.
From the beginning of the United States, and even before, the Indians have been
treated as "in a state of pupilage." The recognized relation between the
Government of the United States and the Indians may be described as that of
guardian and ward. It is for the Congress to determine when and how the
guardianship shall be terminated. The Indians are always subject to the plenary
authority of the United States.
Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore
mentioned, tells how the Congress passed an Act in 1819 "for promoting those
humane designs of civilizing the neighboring Indians." After quoting the Act, the
opinion goes on — "This act avowedly contemplates the preservation of the
Indian nations as an object sought by the United States, and proposes to effect
this object by civilizing and converting them from hunters into agriculturists."
A leading case which discusses the status of the Indians is that of the United
States vs. Kagama ([1886], 118 U.S., 375). Reference is herein made to the clause
of the United States Constitution which gives Congress "power to regulate
commerce with foreign nations, and among the several States, and with the
Indian tribes." The court then proceeds to indicate a brief history of the position
of the Indians in the United States (a more extended account of which can be
found in Marshall's opinion in Worcester vs. Georgia, supra), as follows:
The relation of the Indian tribes living within the borders of the United States,
both before and since the Revolution, to the people of the United States, has
always been an anomalous one and of a complex character.
Following the policy of the European Governments in the discovery of American
towards the Indians who were found here, the colonies before the Revolution and
the States and the United States since, have recognized in the Indians a
possessory right to the soil over which they roamed and hunted and established
occasional villages. But they asserted an ultimate title in the land itself, by which
the Indian tribes were forbidden to sell or transfer it to other nations or peoples
without the consent of this paramount authority. When a tribe wished to dispose
of its lands, or any part of it, or the State or the United States wished to purchase
it, a treaty with the tribe was the only mode in which this could be done. The
United States recognized no right in private persons, or in other nations, to make
such a purchase by treaty or otherwise. With the Indians themselves these
relation are equally difficult to define. They were, and always have been, regarded
as having a semi-independent position when they preserved their tribal relations;
not as States, not as nation not a possessed of the fall attributes of sovereignty,
but as a separate people, with the power of regulating their internal and social
relations, and thus far not brought under the laws of the Union or of the State
within whose limits they resided.
The opinion then continues:
It seems to us that this (effect of the law) is within the competency of Congress.
These Indian tribes are the wards of the nation. The are communities dependent
on the United States. dependent largely for their daily food. Dependent for their
political rights. They owe no allegiance to the States, and receive from the no
protection. Because of the local ill feeling, the people of the States where they are
found are often their deadliest enemies. From their very weakness and
helplessness, so largely due to the course of dealing of the Federal Government
with them and the treaties in which it has been promised, there arise the duty of
protection, and with it the power. This has always been recognized by the
Executive and by Congress, and by this court, whenever the question has
arisen . . . The power of the General Government over these remnants of race
once powerful, now weak and diminished in numbers, is necessary to their
protection, as well as to the safety of those among whom they dwell. it must exist
in that government, because it never has existed anywhere else, because the
theater of its exercise is within the geographical limits of the United States,
because it has never been denied, and because it alone can enforce its laws on all
the tribes.
In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question
to be considered was whether the status of the Pueblo Indians and their lands
was such that Congress could prohibit the introduction of intoxicating liquor into
those lands notwithstanding the admission of New Mexico to statehood. The
court looked to the reports of the different superintendent charged with guarding
their interests and founds that these Indians are dependent upon the fostering
care and protection of the government "like reservation Indians in general."
Continuing, the court said "that during the Spanish dominion, the Indians of the
pueblos were treated as wards requiring special protection, where subjected to
restraints and official supervisions in the alienation of their property." And finally,
we not the following: "Not only does the Constitution expressly authorize
Congress to regulate commerce with the Indians tribes, but long-continued
legislative and executive usage and an unbroken current of judicial decisions have
attributed to the United States as a superior and civilized nation the power and
the duty of exercising a fostering care and protection over all dependent Indian
communities within its borders, whether within its original territory or territory
subsequently acquired, and whether within or without the limits of a state."
With reference to laws affecting the Indians, it has been held that it is not within
the power of the courts to overrule the judgment of Congress. For very good
reason, the subject has always been deemed political in nature, not subject to the
jurisdiction of the judicial department of the government. (Matter of Heff [1905],
197 U.S., 488; U.S. vs. Celestine [1909], 215 U.S., 278; U.S. vs. Sandoval, supra;
Worcester vs. Georgia, supra; U.S. vs. Rogers [1846], 4 How., 567; the Cherokee
Tobacco [1871], 11 Wall, 616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs.
Gay [1898], 169 U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace
vs. Adams [1907], 204 U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs.
Western Invest. Co. [1911], 221 U.S., 286; U.S. vs. Lane [1913], 232 U.S.., 598; Cyr
vs. Walker (1911], 29 Okla, 281; 35 L.R.A. [N. S.], 795.) Whenever, therefore, the
United States sets apart any public land as an Indian reservation, it has full
authority to pass such laws and authorize such measures as may be necessary to
give to the Indians thereon full protection in their persons and property. (U.S. vs.
Thomas [1894], 151 U.S., 577.)
All this borne out by long-continued legislative and executive usage, and an
unbroken line of judicial decisions.
The only case which is even remotely in point and which, if followed literally,
might result in the issuance of habeas corpus, is that of United States vs. Crook
([1879], Fed. Cas. No. 14891). This was a hearing upon return to a writ of habeas
corpus issued against Brigadier General George Crook at the relation of Standing
Bear and other Indians, formerly belonging to the Ponca Tribe of Indians. The
petition alleged in substance that the relators are Indians who have formerly
belonged to the Ponca tribe of Indians, now located in the Indian Territory; that
they had some time previously withdrawn from the tribe, and completely severed
their tribal relations therewith, and had adopted the general habits of the whites,
and were then endeavoring to maintain themselves by their own exertions, and
without aid or assistance from the general government; that whilst they were
thus engaged, and without being guilty of violating any of the laws of the United
States, they were arrested and restrained of their liberty by order of the
respondent, George Crook. The substance of the return to the writ was that the
relators are individual members of, and connected with, the Ponca tribe of
Indians; that they had fled or escaped form a reservation situated some place
within the limits of the Indian Territory — had departed therefrom without
permission from the Government; and, at the request of the Secretary of the
Interior, the General of the Army had issued an order which required the
respondent to arrest and return the relators to their tribe in the Indian Territory,
and that, pursuant to the said order, he had caused the relators to be arrested on
the Omaha Indian Territory.
The first question was whether an Indian can test the validity of an illegal
imprisonment by habeas corpus. The second question, of much greater
importance, related to the right of the Government to arrest and hold the relators
for a time, for the purpose of being returned to the Indian Territory from which it
was alleged the Indian escaped. In discussing this question, the court reviewed
the policy the Government had adopted in its dealing with the friendly tribe of
Poncase. Then, continuing, the court said: "Laws passed for the government of the
Indian country, and for the purpose of regulating trade and intercourse with the
Indian tribes, confer upon certain officers of the Government almost unlimited
power over the persons who go upon the reservations without lawful
authority . . . Whether such an extensive discretionary power is wisely vested in
the commissioner of Indian affairs or not , need not be questioned. It is enough to
know that the power rightfully exists, and, where existing, the exercise of the
power must be upheld." The decision concluded as follows:
The reasoning advanced in support of my views, leads me to conclude:
1. that an Indian is a 'person' within the meaning of the laws of the United States,
and has, therefore, the right to sue out a writ of habeas corpus in a federal court,
or before a federal judge, in all cases where he may be confined or in custody
under color of authority of the United States or where he is restrained of liberty in
violation of the constitution or laws of the United States.
2. That General George Crook, the respondent, being commander of the military
department of the Platte, has the custody of the relators, under color of authority
of the United States, and in violation of the laws therefore.
3. That n rightful authority exists for removing by force any of the relators to the
Indian Territory, as the respondent has been directed to do.
4. that the Indians possess the inherent right of expatriation, as well as the more
fortunate white race, and have the inalienable right to "life, liberty, and the
pursuit of happiness," so long as they obey the laws and do not trespass on
forbidden ground. And,
5. Being restrained of liberty under color of authority of the United States, and in
violation of the laws thereof, the relators must be discharged from custody, and it
is so ordered.
As far as the first point is concerned, the decision just quoted could be used as
authority to determine that Rubi, the Manguian petitioner, a Filipino, and a citizen
of the Philippine Islands, is a "person" within the meaning of the Habeas Corpus
Act, and as such, entitled to sue out a writ in the Philippine courts. (See also In re
Race Horse [1895], 70 Fed., 598.) We so decide.
As to the second point the facts in the Standing Bear case an the Rubi case are not
exactly identical. But even admitting similarity of facts, yet it is known to all that
Indian reservations do exist in the United States, that Indians have been taken
from different parts of the country and placed on these reservation, without any
previous consultation as to their own wishes, and that, when once so located,
they have been made to remain on the reservation for their own good and for the
general good of the country. If any lesson can be drawn form the Indian policy of
the United States, it is that the determination of this policy is for the legislative
and executive branches of the government and that when once so decided upon,
the courts should not interfere to upset a carefully planned governmental system.
Perhaps, just as may forceful reasons exists for the segregation as existed for the
segregation of the different Indian tribes in the United States.
IV. CONSTITUTIONAL QUESTIONS.
A. DELEGATION OF LEGISLATIVE POWER.

The first constitutional objection which confronts us is that the Legislature could
not delegate this power to provincial authorities. In so attempting, it is contended,
the Philippine Legislature has abdicated its authority and avoided its full
responsibility.
That the maxim of Constitutional Law forbidding the delegation of legislative
power should be zealously protected, we agree. An understanding of the rule will,
however, disclose that it has not bee violated in his instance.
The rule has nowhere been better stated than in the early Ohio case decided by
Judge Ranney, and since followed in a multitude of case, namely: "The true
distinction therefore is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and conferring an authority
or discretion as to its execution, to be exercised under and in pursuance of the
law. The first cannot be done; to the later no valid objection can be made."
(Cincinnati, W. & Z. R. Co. vs. Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.)
Discretion, as held by Chief Justice Marshall in Wayman vs. Southard ([1825], 10
Wheat., 1) may be committed by the Legislature to an executive department or
official. The Legislature may make decisions of executive departments of
subordinate official thereof, to whom t has committed the execution of certain
acts, final on questions of fact. (U.S. vs. Kinkead [1918], 248 Fed., 141.) The
growing tendency in the decision is to give prominence to the "necessity" of the
case.
Is not all this exactly what the Legislature has attempted to accomplish by the
enactment of section 21454 of the Administrative Code? Has not the Legislature
merely conferred upon the provincial governor, with the approval of the
provincial board and the Department Head, discretionary authority as to the
execution of the law? Is not this "necessary"?
The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus
to require the Secretary of the Interior to approve the selection and taking of one
hundred and sixty acres by the relator out of the lands ceded to the United States
by the Wichita and affiliated bands of Indians. Section 463 of the United States
Revised Statutes provided: "The Commissioner of Indian Affairs shall, under the
direction of the Secretary of the Interior, and agreeably to such regulations as the
President may prescribe, have the management of all Indian affairs, and of all
matters arising out to the Indian relations." Justice Holmes said: "We should
hesitate a good deal, especially in view of the long established practice of the
Department, before saying that this language was not broad enough to warrant a
regulation obviously made for the welfare of the rather helpless people
concerned. The power of Congress is not doubted. The Indians have been treated
as wards of the nation. Some such supervision was necessary, and has been
exercised. In the absence of special provisions naturally it would be exercised by
the Indian Department." (See also as corroborative authority, it any is needed,
Union Bridge Co. vs. U.S. [1907], 204 U.S.., 364, reviewing the previous decisions
of the United States Supreme Court: U.S. vs. Lane [1914], 232 U.S., 598.)
There is another aspect of the question, which once accepted, is decisive. An
exception to the general rule. sanctioned by immemorial practice, permits the
central legislative body to delegate legislative powers to local authorities. The
Philippine Legislature has here conferred authority upon the Province of Mindoro,
to be exercised by the provincial governor and the provincial board.
Who but the provincial governor and the provincial board, as the official
representatives of the province, are better qualified to judge "when such as
course is deemed necessary in the interest of law and order?" As officials charged
with the administration of the province and the protection of its inhabitants, who
but they are better fitted to select sites which have the conditions most favorable
for improving the people who have the misfortune of being in a backward state?
Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of
legislative power by the Philippine Legislature to provincial official and a
department head.
B. RELIGIOUS DISCRIMINATION
The attorney de officio, for petitioners, in a truly remarkable brief, submitted on
behalf of his unknown clients, says that — "The statute is perfectly clear and
unambiguous. In limpid English, and in words as plain and unequivocal as
language can express, it provides for the segregation of 'non-Christians' and none
other." The inevitable result, them, is that the law "constitutes an attempt by the
Legislature to discriminate between individuals because of their religious beliefs,
and is, consequently, unconstitutional."
Counsel's premise once being conceded, his arguments is answerable — the
Legislature must be understood to mean what it has plainly expressed; judicial
construction is then excluded; religious equality is demanded by the Organic Law;
the statute has violated this constitutional guaranty, and Q. E. D. is invalid. But, as
hereinbefore stated, we do not feel free to discard the long continued meaning
given to a common expression, especially as classification of inhabitants according
to religious belief leads the court to what it should avoid, the nullification of
legislative action. We hold that the term "non-Christian" refers to natives of the
Philippines Islands of a low grade of civilization, and that section 2145 of the
Administrative Code of 1917, does not discriminate between individuals an
account of religious differences.
C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.
The third constitutional argument is grounded on those portions of the
President's instructions of to the Commission, the Philippine Bill, and the Jones
Law, providing "That no law shall be enacted in said Islands which shall deprive
any person of life, liberty, or property without due process of law, or deny to any
person therein the equal protection of the laws." This constitutional limitation is
derived from the Fourteenth Amendment to the United States Constitution — and
these provisions, it has been said "are universal in their application, to all persons
within the territorial jurisdiction, without regard to any differences of race, of
color, or of nationality." (Yick Wo vs. Hopkins [1886], 118 U.S., 356.) The
protection afforded the individual is then as much for the non-Christian as for the
Christian.
The conception of civil liberty has been variously expressed thus:
Every man may claim the fullest liberty to exercise his faculties, compatible with
the possession of like liberty by every other. (Spencer, Social Statistics, p. 94.)
Liberty is the creature of law, essentially different from that authorized
licentiousness that trespasses on right. That authorized licentiousness that
trespasses on right. It is a legal and a refined idea, the offspring of high civilization,
which the savage never understood, and never can understand. Liberty exists in
proportion to wholesome restraint; the more restraint on others to keep off from
us, the more liberty we have . . . that man is free who is protected from injury. (II
Webster's Works, p. 393.)
Liberty consists in the ability to do what one caught to desire and in not being
forced to do what one ought not do desire. (Montesque, spirit of the Laws.)
Even liberty itself, the greatest of all rights, is no unrestricted license to ac
according to one's own will. It is only freedom from restraint under conditions
essential to the equal enjoyment of the same right by others. (Field, J., in Crowley
vs. Christensen [1890], 137 U.S., 86.)
Liberty does not import "an absolute right in each person to be, at all times and in
all circumstances, wholly freed from restraint. There are manifold restraints to
which every person is necessarily subject for the common good. On any other
basis, organized society could not exist with safety to its members. Society based
on the rule that each one is a law unto himself would soon be confronted with
disorder and anarchy. Real liberty for all could not exist under the operation of a
principle which recognizes the right of each individual person to use his own,
whether in respect of his person or his property, regardless of the injury that may
be done to others . . . There is, of course, a sphere with which the individual may
asserts the supremacy of his own will, and rightfully dispute the authority of any
human government — especially of any free government existing under a written
Constitution — to interfere with the exercise of that will. But it is equally true that
in very well-ordered society charged with the duty of conserving the safety of its
members, the rights of the individual in respect of his liberty may at times, under
the pressure of great dangers, be subjected to such restraint to be enforced by
reasonable regulations, as the safety of the general public may demand." (Harlan,
J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.)
Liberty is freedom to do right and never wrong; it is ever guided by reason and the
upright and honorable conscience of the individual. (Apolinario Mabini.)
Civil Liberty may be said to mean that measure of freedom which may be enjoyed
in a civilized community, consistently with the peaceful enjoyment of like freedom
in others. The right to Liberty guaranteed by the Constitution includes the right to
exist and the right to be free from arbitrary personal restraint or servitude. The
term cannot be dwarfed into mere freedom from physical restraint of the person
of the citizen, but is deemed to embrace the right of man to enjoy the faculties
with which he has been endowed by this Creator, subject only to such restraints
as are necessary for the common welfare. As enunciated in a long array of
authorities including epoch-making decisions of the United States Supreme Court,
Liberty includes the right of the citizens to be free to use his faculties in all lawful
ways; to live an work where he will; to earn his livelihood by an lawful calling; to
pursue any avocations, an for that purpose. to enter into all contracts which may
be proper, necessary, and essential to his carrying out these purposes to a
successful conclusion. The chief elements of the guaranty are the right to
contract, the right to choose one's employment, the right to labor, and the right
of locomotion.
In general, it may be said that Liberty means the opportunity to do those things
which are ordinarily done by free men. (There can be noted Cummings vs.
Missouri [1866], 4 Wall, 277; Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs.
Fears [1900], 179 U.S., 274; Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs.
Kreutzberg [1902], 114 Wis., 530. See 6 R.C.L., 258, 261.)
One thought which runs through all these different conceptions of Liberty is
plainly apparent. It is this: "Liberty" as understood in democracies, is not license;
it is "Liberty regulated by law." Implied in the term is restraint by law for the good
of the individual and for the greater good of the peace and order of society and
the general well-being. No man can do exactly as he pleases. Every man must
renounce unbridled license. The right of the individual is necessarily subject to
reasonable restraint by general law for the common good. Whenever and
wherever the natural rights of citizen would, if exercises without restraint, deprive
other citizens of rights which are also and equally natural, such assumed rights
must yield to the regulation of law. The Liberty of the citizens may be restrained in
the interest of the public health, or of the public order and safety, or otherwise
within the proper scope of the police power. (See Hall vs. Geiger-Jones [1916],
242 U.S., 539; Hardie-Tynes Manufacturing Co. vs. Cruz [1914], 189 Al., 66.)
None of the rights of the citizen can be taken away except by due process of law.
Daniel Webster, in the course of the argument in the Dartmouth College Case
before the United States Supreme Court, since a classic in forensic literature, said
that the meaning of "due process of law" is, that "every citizen shall hold his life,
liberty, property, an immunities under the protection of the general rules which
govern society." To constitute "due process of law," as has been often held, a
judicial proceeding is not always necessary. In some instances, even a hearing and
notice are not requisite a rule which is especially true where much must be left to
the discretion of the administrative officers in applying a law to particular cases.
(See McGehee, Due Process of Law, p. 371.) Neither is due process a stationary
and blind sentinel of liberty. "Any legal proceeding enforced by public authority,
whether sanctioned by age and customs, or newly devised in the discretion of the
legislative power, in furtherance of the public good, which regards and preserves
these principles of liberty and justice, must be held to be due process of law."
(Hurtado vs. California [1883], 110, U.S., 516.) "Due process of law" means
simply . . . "first, that there shall be a law prescribed in harmony with the general
powers of the legislative department of the Government; second, that this law
shall be reasonable in its operation; third, that it shall be enforced according to
the regular methods of procedure prescribed; and fourth, that it shall be
applicable alike to all the citizens of the state or to all of a class." (U.S. vs. Ling Su
Fan [1908], 10 Phil., 104, affirmed on appeal to the United States Supreme Court.
1) "What is due process of law depends on circumstances. It varies with the
subject-matter and necessities of the situation." (Moyer vs. Peablody [1909], 212
U. S., 82.)
The pledge that no person shall be denied the equal protection of the laws is not
infringed by a statute which is applicable to all of a class. The classification must
have a reasonable basis and cannot be purely arbitrary in nature.
We break off with the foregoing statement, leaving the logical deductions to be
made later on.
D. SLAVERY AND INVOLUNTARY SERVITUDE.
The fourth constitutional contention of petitioner relates to the Thirteen
Amendment to the United States Constitution particularly as found in those
portions of Philippine Organic Law providing "That slavery shall not exist in said
Islands; nor shall involuntary servitude exist except as a punishment for crime
whereof the party shall have been duly convicted." It is quite possible that the
Thirteenth Amendment, since reaching to "any place subject to" the "jurisdiction"
of the United States, has force in the Philippine. However this may be, the
Philippine Legislature has, by adoption, with necessary modifications, of sections
268 to 271 inclusive of the United States Criminal Code, prescribed the
punishment for these crimes. Slavery and involuntary servitude, together wit their
corollary, peonage, all denote "a condition of enforced, compulsory service of one
to another." (Hodges vs. U.S. [1906], 203 U.S., 1.) The term of broadest scope is
possibly involuntary servitude. It has been applied to any servitude in fact
involuntary, no matter under what form such servitude may have been disguised.
(Bailey vs. Alabama [1910], 219 U.S., 219.)
So much for an analysis of those constitutional provisions on which petitioners
rely for their freedom. Next must come a description of the police power under
which the State must act if section 2145 is to be held valid.
E. THE POLICE POWER.
Not attempting to phrase a definition of police power, all that it is necessary to
note at this moment is the farreaching scope of the power, that it has become
almost possible to limit its weep, and that among its purposes is the power to
prescribe regulations to promote the health, peace, morals, education, and good
order of the people, and to legislate so as to increase the industries of the State,
develop its resources and add to is wealth and prosperity. (See Barbier vs.
Connolly [1884], 113 U.S., 27.) What we are not interested in is the right of the
government to restrain liberty by the exercise of the police power.
"The police power of the State," one court has said, . . . "is a power coextensive
with self-protection, and is not inaptly termed the 'law of overruling necessity.' It
may be said to be that inherent and plenary power in the State which enables it to
prohibit all things hurtful to the comfort, safety and welfare of society." (Lake
View vs. Rose Hill Cemetery Co. [1873], 70 Ill., 191.) Carried onward by the current
of legislation, the judiciary rarely attempt to dam the on rushing power of
legislative discretion, provided the purposes of the law do not go beyond the
great principles that mean security for the public welfare or do not arbitrarily
interfere with the right of the individual.
The Government of the Philippine Islands has both on reason and authority the
right to exercise the sovereign police power in the promotion of the general
welfare and the public interest. "There can be not doubt that the exercise of the
police power of the Philippine Government belongs to the Legislature and that
this power is limited only by the Acts of Congress and those fundamental
principles which lie at the foundation of all republican forms of government."
(Churchill and Tait vs. Rafferty [1915], 32 Phil., 580; U.S. vs. Pompeya [1915], 31
Phil., 245.)

With the foregoing approximation of the applicable basic principles before us,
before finally deciding whether any constitutional provision has indeed been
violated by section 2145 of the Administrative Code, we should endeavor to
ascertain the intention of the Legislature in enacting this section. If legally
possible, such legislative intention should be effectuated.
F. LEGISLATIVE INTENT.
The preamble of the resolution of the provincial board of Mindoro which set apart
the Tigbao reservation, it will be remembered, assigned as reasons fort the action,
the following: (1) The failure of former attempts for the advancement of the non-
Christian people of the province; and (2) the only successfully method for
educating the Manguianes was to oblige them to live in a permanent settlement.
The Solicitor-General adds the following; (3) The protection of the Manguianes;
(4) the protection of the public forests in which they roam; (5) the necessity of
introducing civilized customs among the Manguianes.
The present Secretary of the Interior says of the Tigbao reservation and of the
motives for its selection, the following:
To inform himself of the conditions of those Manguianes who were taken
together to Tigbao, the Secretary of the Interior on June 10 to 13, 1918, made a
trip to the place. There he found that the site selected is a good one; that
creditable progress has been made in the clearing of forests, construction of
buildings, etc., that there appears to be encouraging reaction by the boys to the
work of the school the requirements of which they appear to meet with
enthusiastic interest after the first weeks which are necessarily a somewhat trying
period for children wholly unaccustomed to orderly behaviour and habit of life.
He also gathered the impression that the results obtained during the period of
less than one year since the beginning of the institution definitely justify its
continuance and development.
Of course, there were many who were protesting against that segregation. Such
was naturally to be expected. But the Secretary of the Interior, upon his return to
Manila, made the following statement to the press:
"It is not deemed wise to abandon the present policy over those who prefer to
live a nomadic life and evade the influence of civilization. The Government will
follow its policy to organize them into political communities and to educate their
children with the object of making them useful citizens of this country. To permit
them to live a wayfaring life will ultimately result in a burden to the state and on
account of their ignorance, they will commit crimes and make depredation, or if
not they will be subject to involuntary servitude by those who may want to abuse
them."
The Secretary of the Interior, who is the official charged with the supervision of all
the non-Christian people, has adopted as the polaris of his administration — "the
advancement of the non-Christian elements of our population to equality and
unification with the highly civilized Christian inhabitants." This is carried on by the
adoption of the following measures:
(a) Pursuance of the closer settlement policy whereby people of seminomadic
race are induced to leave their wild habitat and settle in organized communities.
(b) The extension of the public school system and the system of public health
throughout the regions inhabited by the non-Christian people.
(c) The extention of public works throughout the Mohammedan regions to
facilitate their development and the extention of government control.
(d) Construction of roads and trials between one place and another among non-
Christians, to promote social and commercial intercourse and maintain amicable
relations among them and with the Christian people.
(e) Pursuance of the development of natural economic resources, especially
agriculture.
( f ) The encouragement of immigration into, and of the investment of private
capital in, the fertile regions of Mindanao and Sulu.
The Secretary adds:
To attain the end desired, work of a civilizing influence have been continued
among the non-Christian people. These people are being taught and guided to
improve their living conditions in order that they may fully appreciate the benefits
of civilization. Those of them who are still given to nomadic habits are being
persuaded to abandon their wild habitat and settle in organized settlements. They
are being made to understand that it is the purpose of the Government to
organize them politically into fixed and per manent communities, thus bringing
them under the control of the Government, to aid them to live and work, protect
them from involuntary servitude and abuse, educate their children, and show
them the advantages of leading a civilized life with their civilized brothers. In
short, they are being impressed with the purposes and objectives of the
Government of leading them to economic, social, and political equality, and
unification with the more highly civilized inhabitants of the country. (See Report
of the Department for 1917.)
The fundamental objective of governmental policy is to establish friendly relations
with the so-called non-Christians, and to promote their educational, agricultural,
industrial, and economic development and advancement in civilization. (Note Acts
Nos. 2208, 2404, 2444.) Act No. 2674 in reestablishing the Bureau of non-Christian
Tribes, defines the aim of the Government towards the non-Christian people in
the following unequivocal terms:
It shall be the duty of the Bureau of non-Christian Tribes to continue the work for
advancement and liberty in favor of the region inhabited by non-Christian Filipinos
and foster by all adequate means and in a systematical, rapid, and complete
manner the moral, material, economic, social, and political development of those
regions, always having in view the aim of rendering permanent the mutual
intelligence between, and complete fusion of, all the Christian and non-Christian
elements populating the provinces of the Archipelago. (Sec. 3.)
May the Manguianes not be considered, as are the Indians in the United States,
proper wards of the Filipino people? By the fostering care of a wise Government,
may not these unfortunates advance in the "habits and arts of civilization?"
Would it be advisable for the courts to intrude upon a plan, carefully formulated,
and apparently working out for the ultimate good of these people?
In so far as the Manguianes themselves are concerned, the purpose of the
Government is evident. Here, we have on the Island of Mindoro, the Manguianes,
leading a nomadic life, making depredations on their more fortunate neighbors,
uneducated in the ways of civilization, and doing nothing for the advancement of
the Philippine Islands. What the Government wished to do by bringing than into a
reservation was to gather together the children for educational purposes, and to
improve the health and morals — was in fine, to begin the process of civilization.
this method was termed in Spanish times, "bringing under the bells." The same
idea adapted to the existing situation, has been followed with reference to the
Manguianes and other peoples of the same class, because it required, if they are
to be improved, that they be gathered together. On these few reservations there
live under restraint in some cases, and in other instances voluntarily, a few
thousands of the uncivilized people. Segregation really constitutes protection for
the manguianes.
Theoretically, one may assert that all men are created free and equal. Practically,
we know that the axiom is not precisely accurate. The Manguianes, for instance,
are not free, as civilized men are free, and they are not the equals of their more
fortunate brothers. True, indeed, they are citizens, with many but not all the
rights which citizenship implies. And true, indeed, they are Filipinos. But just as
surely, the Manguianes are citizens of a low degree of intelligence, and Filipinos
who are a drag upon the progress of the State.
In so far as the relation of the Manguianes to the State is concerned, the purposes
of the Legislature in enacting the law, and of the executive branch in enforcing it,
are again plain. Settlers in Mindoro must have their crops and persons protected
from predatory men, or they will leave the country. It is no argument to say that
such crimes are punished by the Penal Code, because these penalties are imposed
after commission of the offense and not before. If immigrants are to be
encouraged to develop the resources of the great Islands of Mindoro, and its, as
yet, unproductive regions, the Government must be in a position to guarantee
peace and order.
Waste lands do not produce wealth. Waste people do not advance the interest of
the State. Illiteracy and thriftlessness are not conducive to homogeneity. The
State to protect itself from destruction must prod on the laggard and the sluggard.
The great law of overwhelming necessity is all convincing.
To quote again from the instructive memorandum of the Secretary of the Interior:
Living a nomadic and a wayfaring life and evading the influence of civilization,
they (the manguianes) are engaged in the works of destruction — burning and
destroying the forests and making illegal caiñgins thereon. Not bringing any
benefit to the State but instead injuring and damaging its interests, what will
ultimately become of these people with the sort of liberty they wish to preserve
and for which they are now fighting in court? They will ultimately become a heavy
burden to the State and on account of their ignorance they will commit crimes
and make depredations, or if not they will be subjected to involuntary servitude
by those who may want to abuse them.
There is no doubt in my mind that this people a right conception of liberty and
does not practice liberty in a rightful way. They understand liberty as the right to
do anything they will — going from one place to another in the mountains,
burning and destroying forests and making illegal caiñgins thereon.
Not knowing what true liberty is and not practising the same rightfully, how can
they allege that they are being deprived thereof without due process of law?
xxx xxx xxx
But does the Constitutional guaranty that 'no person shall be deprived of his
liberty without due process of law' apply to a class of persons who do not have a
correct idea of what liberty is and do not practise liberty in a rightful way?
To say that it does will mean to sanction and defend an erroneous idea of such
class of persons as to what liberty is. It will mean, in the case at bar, that the
Government should not adopt any measures looking to the welfare and
advancement of the class of persons in question. It will mean that this people
should be let along in the mountains and in a permanent state of savagery
without even the remotest hope of coming to understand liberty in its true and
noble sense.
In dealing with the backward population, like the Manguianes, the Government
has been placed in the alternative of either letting them alone or guiding them in
the path of civilization. The latter measure was adopted as the one more in accord
with humanity and with national conscience.
xxx xxx xxx
The national legislation on the subject of non-Christian people has tended more
and more towards the education and civilization of such people and fitting them
to be citizens. The progress of those people under the tutelage of the Government
is indeed encouraging and the signs of the times point to a day which is not far
distant when they will become useful citizens. In the light of what has already
been accomplished which has been winning the gratitude of most of the
backward people, shall we give up the noble work simply because a certain
element, believing that their personal interests would be injured by such a
measure has come forward and challenged the authority of the Government to
lead this people in the pat of civilization? Shall we, after expending sweat,
treasure, and even blood only to redeem this people from the claws of ignorance
and superstition, now willingly retire because there has been erroneously invoked
in their favor that Constitutional guaranty that no person shall be deprived of his
liberty without due process of law? To allow them to successfully invoke that
Constitutional guaranty at this time will leave the Government without recourse
to pursue the works of civilizing them and making them useful citizens. They will
thus left in a permanent state of savagery and become a vulnerable point to
attack by those who doubt, nay challenge, the ability of the nation to deal with
our backward brothers.
The manguianes in question have been directed to live together at Tigbao. There
they are being taught and guided to improve their living conditions. They are
being made to understand that they object of the government is to organize them
politically into fixed and permanent communities. They are being aided to live and
work. Their children are being educated in a school especially established for
them. In short, everything is being done from them in order that their
advancement in civilization and material prosperity may be assured. Certainly
their living together in Tigbao does not make them slaves or put them in a
condition compelled to do services for another. They do not work for anybody but
for themselves. There is, therefore, no involuntary servitude.
But they are compelled to live there and prohibited from emigrating to some
other places under penalty of imprisonment. Attention in this connection is
invited to the fact that this people, living a nomadic and wayfaring life, do not
have permanent individual property. They move from one place to another as the
conditions of living warrants, and the entire space where they are roving about is
the property of the nation, the greater part being lands of public domain.
Wandering from one place to another on the public lands, why can not the
government adopt a measure to concentrate them in a certain fixed place on the
public lands, instead of permitting them to roam all over the entire territory? This
measure is necessary both in the interest of the public as owner of the lands
about which they are roving and for the proper accomplishment of the purposes
and objectives of the government. For as people accustomed to nomadic habit,
they will always long to return to the mountains and follow a wayfaring life, and
unless a penalty is provinced for, you can not make them live together and the
noble intention of the Government of organizing them politically will come to
naught.
G. APPLICATION AND CONCLUSION.
Our exhaustive study should have left us in a position to answer specific
objections and to reach a general conclusion.
In the first place, it is argued that the citizen has the right, generally speaking, to
go where he pleases. Could be not, however, be kept away from certain
localities ? To furnish an example from the Indian legislation. The early Act of
Congress of 1802 (2 U.S. Stat. at L., p. 141) Indian reservation. Those citizens
certainly did not possess absolute freedom of locomotion. Again the same law
provided for the apprehension of marauding Indians. Without any doubt, this law
and other similar were accepted and followed time and again without question.
It is said that, if we hold this section to be constitutional, we leave this weak and
defenseless people confined as in a prison at the mercy of unscrupulous official.
What, it is asked, would be the remedy of any oppressed Manguian? The answer
would naturally be that the official into whose hands are given the enforcement of
the law would have little or not motive to oppress these people; on the contrary,
the presumption would all be that they would endeavor to carry out the purposes
of the law intelligently and patriotically. If, indeed, they did ill-treat any person
thus confined, there always exists the power of removal in the hands of superior
officers, and the courts are always open for a redress of grievances. When,
however, only the validity of the law is generally challenged and no particular case
of oppression is called to the attention of the courts, it would seems that the
Judiciary should not unnecessarily hamper the Government in the
accomplishment of its laudable purpose.
The question is above all one of sociology. How far, consistently with freedom,
may the right and liberties of the individual members of society be subordinated
to the will of the Government? It is a question which has assailed the very
existence of government from the beginning of time. Now purely an ethical or
philosophical subject, nor now to be decided by force, it has been transferred to
the peaceful forum of the Judiciary. In resolving such an issue, the Judiciary must
realize that the very existence of government renders imperatives a power to
restrain the individual to some extent, dependent, of course, on the necessities of
the class attempted to be benefited. As to the particular degree to which the
Legislature and the Executive can go in interfering with the rights of the citizen,
this is, and for a along time to come will be, impossible for the courts to
determine.
The doctrines of laissez faire and of unrestricted freedom of the individual, as
axioms of economics and political theory, are of the past. The modern period has
shown as widespread belief in the amplest possible demonstration of
governmental activity. The courts unfortunately have sometimes seemed to trial
after the other two branches of the government in this progressive march.
Considered, therefore, purely as an exercise of the police power, the courts
cannot fairly say that the Legislature has exceeded its rightful authority. it is,
indeed, an unusual exercise of that power. But a great malady requires an equally
drastic remedy.
Further, one cannot hold that the liberty of the citizen is unduly interfered
without when the degree of civilization of the Manguianes is considered. They are
restrained for their own good and the general good of the Philippines. Nor can
one say that due process of law has not been followed. To go back to our
definition of due process of law and equal protection of the law, there exists a law
; the law seems to be reasonable; it is enforced according to the regular methods
of procedure prescribed; and it applies alike to all of a class.
As a point which has been left for the end of this decision and which, in case of
doubt, would lead to the determination that section 2145 is valid. it the attitude
which the courts should assume towards the settled policy of the Government. In
a late decision with which we are in full accord, Gambles vs. Vanderbilt University
(200 Southwestern Reporter, 510) the Chief Justice of the Supreme Court of
Tennessee writes:
We can seen objection to the application of public policy as a ratio decidendi.
Every really new question that comes before the courts is, in the last analysis,
determined on that theory, when not determined by differentiation of the
principle of a prior case or line of cases, or by the aid of analogies furnished by
such prior case. In balancing conflicting solutions, that one is perceived to tip the
scales which the court believes will best promote the public welfare in its
probable operation as a general rule or principle. But public policy is not a thing
inflexible. No court is wise enough to forecast its influence in all possible
contingencies. Distinctions must be made from time to time as sound reason and
a true sense of justice may dictate."
Our attempt at giving a brief history of the Philippines with reference to the so-
called non-Christians has been in vain, if we fail to realize that a consistent
governmental policy has been effective in the Philippines from early days to the
present. The idea to unify the people of the Philippines so that they may approach
the highest conception of nationality. If all are to be equal before the law, all must
be approximately equal in intelligence. If the Philippines is to be a rich and
powerful country, Mindoro must be populated, and its fertile regions must be
developed. The public policy of the Government of the Philippine Islands is
shaped with a view to benefit the Filipino people as a whole. The Manguianes, in
order to fulfill this governmental policy, must be confined for a time, as we have
said, for their own good and the good of the country.
Most cautiously should the power of this court to overrule the judgment of the
Philippine Legislature, a coordinate branch, be exercised. The whole tendency of
the best considered case is toward non-interference on the part of the courts
whenever political ideas are the moving consideration. Justice Holmes, in one of
the aphorisms for which he is justly famous, said that "constitutional law, like
other mortal contrivances, has to take some chances." (Blinn vs. Nelson [1911],
222 U.S., 1.) If in the final decision of the many grave questions which this case
presents, the courts must take "a chance," it should be with a view to upholding
the law, with a view to the effectuation of the general governmental policy, and
with a view to the court's performing its duty in no narrow and bigoted sense, but
with that broad conception which will make the courts as progressive and
effective a force as are the other departments of the Government.
We are of the opinion that action pursuant to section 2145 of the Administrative
Code does not deprive a person of his liberty without due process of law and does
not deny to him the equal protection of the laws, and that confinement in
reservations in accordance with said section does not constitute slavery and
involuntary servitude. We are further of the opinion that section 2145 of the
Administrative Code is a legitimate exertion of the police power, somewhat
analogous to the Indian policy of the United States. Section 2145 of the
Administrative Code of 1917 is constitutional.
Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas
corpus can, therefore, not issue. This is the true ruling of the court. Costs shall be
taxes against petitioners. So ordered.
Arellano, C.J., Torres and Avanceña, JJ., concur.
Separate Opinions
CARSON, J., concurring:
I fully concur in the reasoning and the conclusions of Justice Malcolm as set forth
in the prevailing, opinion.
The words "non-Christian' have a clear, definite and well settled signification
when used in the Philippine statute-book as a descriptive adjective, applied to
"tribes," "people," or "inhabitants," dwelling in more or less remote districts and
provinces throughout the Islands.
Justice Malcolm, as I think, correctly finds that these words, as used in this
connection in our statute-book, denote the 'low grace of civilization" of the
individuals included in the class to which they are applied. To this I would add that
the tests for the determination of the fact that an individual or tribes is, or is not
of the "non-Christian" are, and throughout the period of American occupation
always have been, "the mode of life, the degree of advancement in civilization,
and connection or lack of connection with some civilized community." (Cf. letter
of Collector of Internal Revenue dated September 17, 1910, and set out in the
principal opinion.)
The legislative and administrative history of the Philippine Islands clearly discloses
that the standard of civilization to which a specific tribe must be found to have
advanced, to justify its removal from the class embraces with the descriptive term
"non-Christian," as that term is used in the Philippine statute-book, is that degree
of civilization which results in a mode of life within the tribe, such that it is
feasible and practicable to extend to, and enforce upon its membership the
general laws and regulations, administrative, legislative, and judicial, which
control the conduct of the admitted civilized inhabitants of the Islands; a made of
life, furthermore, which does not find expression in tribal customs or practices
which tend to brutalize or debauch the members of the tribe indulging in such
customs or practices, or to expose to loss or peril the lives or property of those
who may be brought in contact with members of the tribe.
So the standard of civilization to which any given number or group of inhabitants
of particular province in these Islands, or any individual member of such a group,
must be found to have advanced, in order to remove such group or individual
from the class embraced within the statutory description of "non-Christian," is
that degree of civilization which would naturally and normally result in the
withdrawal by such persons of permanent allegiance or adherence to a "non-
Christian" tribe, had they at any time adhered to or maintained allegiance to such
a tribe; and which would qualify them whether they reside within or beyond the
habitat of a "non-Christian" tribe, not only to maintain a mode of life independent
of a apart from that maintain by such tribe, but a mode of life as would not be
inimical to the lives or property or general welfare of the civilized inhabitants of
the Islands with whom they are brought in contact.
The contention that, in this particular case, and without challenging the validity of
the statute, the writ should issue because of the failure to give these petitioners,
as well as the rest of the fifteen thousand Manguianes affected by the
reconcentration order, an opportunity to be heard before any attempt was made
to enforce it, begs the question and is, of course, tantamount to a contention that
there is no authority in law for the issuance of such an order.
If the fifteen thousand manguianes affected by the order complained of had
attained that degree of civilization which would have made it practicable to serve
notice upon, and give an opportunity for a real hearing, to all the members of the
tribe affected by the order, it may well be doubted whether the provincial board
and the Secretary of the Interior would have been justified in its enforcement By
what proceeding known to the law, or to be specially adopted in a particular case,
could the offices of any province provide for a genuine hearing upon a proposal to
issue a reconcentration order upon a head-hunting tribe in the north of the Island
of Luzon; or upon one of the nomadic tribes whose habitat is in the mountain
fastnesses of Mindanao, and whose individual members have no fixed or known
place of residence, or upon the fifteen thousand Manguianes roaming in the wilds
of Mindoro.
Of course, friendly headmen or chief might and, as a rule, should be consulted,
after the practice in the United States when tribes or groups of American Indians
have been placed upon reservations; but since non-Christian head men and chiefs
in the Philippines have no lawful authority to bind their acts or their consent, the
objection based on lack of a hearing, would have the same force whether the
issuance of a reconcentration order was or was not preceded by a pow-wow of
this kind.
The truth of the mater is that the power to provide for the issuance of such orders
rests upon analogous principles to those upon which the liberty and freedom or
action of children and persons of unsound minds is restrained, without consulting
their wishes, but for their own good and the general welfare. The power rests
upon necessity, that "great master of all things," and is properly exercised only
where certain individuals or groups of individual are found to be of such a low
grade of civilization that their own wishes cannot be permitted to determine their
mode of life or place of residence.
The status of the non-Christian inhabitants of these Islands, and the special and
necessarily paternal attitude assume toward them by the Insular Government is
well illustrated by the following provisions found in the Administrative Code of
1917:
SEC. 705. Special duties and purposes of Bureau (of non-Christian tribes). — It
shall be the duty of the Bureau of non-Christian tribes to continue the work for
advancement and liberty in favor of the regions inhabited by non-Christian
Filipinos and to foster by all adequate means and in a systematic, rapid, and
completely manner the moral, material, economic, social and political
development of those regions, always having in view the aim of rendering
permanent the mutual intelligence between and complete fusion of all the
Christian and non-Christian elements populating the provinces of the Archipelago.
SEC. 2116. Township and settlement fund. — There shall be maintained in the
provincial treasuries of the respective specially organized provinces a special fund
to be known as the township and settlement fund, which shall be available,
exclusively, for expenditures for the benefit of the townships and settlements of
the province, and non-Christian inhabitants of the province, upon approval of the
Secretary of the Interior.
As I understand it, the case at bar does not raise any real question as to the
jurisdiction of the courts of these Islands in habeas corpus proceedings, to review
the action of the administrative authorities in the enforcement of reconcentration
orders issued, under authority of section 2145 of the Administrative Code, against
a petitioner challenging the alleged fact that he is a "non-Christian" as that term is
used in the statute. I, therefore, express no opinion on that question at this time.
JOHNSON, J., dissenting:
I dissent. The petitioners were deprived of their liberty without a hearing. That
fact is not denied. I cannot give my consent to any act which deprives the
humblest citizen of his just liberty without a hearing, whether he be a Christian or
non-Christian. All persons in the Philippine Islands are entitled to a hearing, at
least, before they are deprived of their liberty.
MOIR, J., dissenting:
I dissent.
I realize that a dissenting opinion carries little weight, but may sense of justice will
not permit me to let this decision go on record without expressing may strong
dissent from the opinion of Justice Malcolm, concurred in by a majority of the
court. I shall not attempt to analyze the opinion or to go into the question in
detail. I shall simply state, as briefly as may be, the legal and human side of the
case as it presents itself to my mind.
The facts are that one Rubi and various other Manguianes in the Province of
Mindoro were ordered by the Provincial governor of Mindoro to remove their
residence from their native habitat and to establish themselves on a reservation
at Tigbao in the Province of Mindoro and to remain there, or be punished by
imprisonment if they escaped. This reservation, as appears from the resolution of
the provincial board, extends over an area of 800 hectares of land, which is
approximately 2,000 acres, on which about three hundred manguianes are
confined. One of the Manguianes, Dabalos, escaped from the reservation and was
taken in hand by the provincial sheriff and placed in prision at Calapan, solely
because he escaped from the reservation. The Manguianes used out a writ of
habeas corpus in this court, alleging that they are deprived of their liberty in
violation of law.
The Solicitor-General of the Philippine Islands makes return to the writ copied in
the majority opinion which states that the provincial governor of Mindoro with
the prior approval of his act by the Department Secretary ordered the placing of
the petitioners and others on a reservation.
The manguianes, it is stated on page 694 of the majority opinion, "are very low in
culture. They have considerable Negrito blood and have not advanced beyond the
Negritos in civilization. They are peaceful, timid, primitive, seminomadic people.
They number approximately 15,000 (?). The manguianes have shown no desire for
community life, and, as indicated in the preamble to Act No. 547, have no
progressed sufficiently in civilization to make it practicable to bring them under
any for of municipal government."
It may be well to add that the last P.I. Census (1903) shows that the Island of
Mindoro (not including smaller islands which together make the Province of
Mindoro) has an area of 3,851 square miles and a populations of 28, 361 of which
7, 369 are wild or uncivilized tribes (Manguianes). This appears to be the total
Mangyan population of the province. The total population was less than seven to
the mile (Vol. 2, P.I. Census, pp. 30 and 407).
The Island is fertile, heavily wooded and well watered.
It has no savage population, but it is sparsely settled by Christian Filipinos along
the coast and by Manguianes.
The Manguianes roamed its mountains and valleys, fishing and hunting at will long
before Magallanes [Magellan] anchored his boats in the water of Cebu. They have
made little or no progress in the ways of civilization. "They are a peaceful, timid,
primitive, seminomadic people," whom the Government of the Philippines Islands
would bring under the beneficient influence of civilization and progress.
The law provides for it in section 2145 of the Administrative Code, and for those
who like Dadalos do not take kindly to the ways provided for civilizing them
section 2759 provides the punishment.
The attorney for the petitioners has raised various constitutional questions, but
only the fundamental one will be considered by me. It is that the sections of the
Administrative Code, 2145 and 2759, quoted in the majority opinion, are in
violation of the first paragraph of section 3 of the Act of Congress of August 29,
1916, which reads as follows:
That no law shall be enacted in said Islands which shall deprive any person of life,
liberty or property without due process of law, or deny to any person therein the
equal protection of the laws.
It is not necessary to argue that a Mangyan is one of the persons protected by
that provision.
The Attorney-General argues that the treatment provided for the Manguianes is
similar to that accorded the Indians in the United States, and reference is made all
through the court's decision to the decisions of the United States Supreme Court
with reference to the Indians. It is not considered necessary to go into these cases
for the simple reason that all the Indians nations in the United States were
considered as separate nations and all acts taken in regard to them were the
result of separate treaties made by the United States Government with the Indian
nations, and, incompliance with these treaties, reservations were set apart for
them on which they lived and were protected form intrusion and molestation by
white men. Some these reservations were larger than the Islands of Luzon, and
they were not measured in hectares but in thousands of square miles.
The Manguianes are not a separate state. They have no treaty with the
Government of the Philippine Islands by which they have agreed to live within a
certain district where they are accorded exclusive rights. They are citizens of the
Philippine Islands. Legally they are Filipinos. They are entitled to all the rights and
privileges of any other citizen of this country. And when the provincial governor of
the Province of Mindoro attempted to take them from their native habitat and to
hold them on the little reservation of about 800 hectares, he deprived them of
their rights and their liberty without due process of law, and they were denied the
equal protection of the law.
The majority opinion says "they are restrained for their own good and the general
good of the Philippines."
They are to be made to accept the civilization of the more advanced Filipinos
whether they want it or not. They are backward and deficient in culture and must
be moved from their homes, however humble they may be and "bought under
the bells" and made to stay on a reservation.
Are these petitioners charged with any crime? There is no mention in the return
of the Solicitor-General of the Philippine Islands of any crime having been
committed by these "peacefully, timid, primitive, semi-nomadic people."
A memorandum of the Secretary of the Interior of the Philippine Islands is copied
in extenso in the majority opinion, and from it I gather the nature of their offense
which is that —
Living a nomadic and wayfaring life and evading the influence of civilization, they
(the manguianes) are engaged in the works of destruction — burning and
destroying the forests and making illegal caiñgins thereon. No bringing any benefit
to the State but, instead, injuring and damaging its interests, what will ultimately
become of those people with the sort of liberty they wish to preserve and for
which they are not fighting in court? They will ultimately become a heavy burden
to the State and, on account of their ignorance, they will commit crimes and make
depredations, or if not they will be subjected to involuntary servitude by those
who may want to abuse them.
There is no doubt in my mind that this people has not a right conception of liberty
and does not practice liberty in a rightful way. They understand liberty as the right
to do anything they will — going from one place to another in the mountains,
burning and destroying forests and making illegal caiñgins thereon.
Not knowing what true liberty is and not practising the same rightfully, how can
they are being deprived thereof without due process of law?
xxx xxx xxx
But does the constitutional guaranty that "no person shall be deprived of his
liberty without due process of law" apply to a class of persons who do not have a
correct idea of what liberty is and do not practise liberty in a rightful way?
To say that it does will mean to sanction and defend an erroneous idea of such
class of persons as to what liberty is. It will mean, in the case at bar, that the
Government should not adopt any measures looking to the welfare and
advancement of the class of persons in question. It will mean that this people be
let alone in the mountains and in a permanent state of savagery without even the
remotest hope of coming to understand liberty in its true and noble sense.
In dealing with the backward population, like the Manguianes, the Government
has been placed in the alternative of either letting them alone or guiding them in
the path of civilization. The latter measure was adopted as the one more in accord
with humanity and with national conscience.
xxx xxx xxx
The national legislation on the subject of non-Christian people has tended more
and more towards the education and civilization of such people and fitting them
to be citizens.
There appear to be two intimations or charges in this memorandum; one is that
the Manguianes destroy the forest by making a caiñgin. What is a "caiñgin?"
Simply this. These people move their camp or place of abode frequently and when
they do move to a new place, it is necessary to clear the land in order to plant
corn and camotes (sweet potatoes) and they cut down the smaller trees and burn
these around the larger ones, killing them, so that they can plant their crops. The
fires never spread in the tropical undergrowth of an island like Mindoro, but the
trees within the caiñgin are killed and crops are planted and harvested. This land
may be abandoned later on — due to superstition, to a lack of game in the
neighborhood, to poor crops from exhausted fertility, or to a natural desire to
move on.
Granting that the Manguianes do make caiñgins or clear lands in spots and then
abandon them for the more fertile lands, which every man knows to be just over
the hills, we cannot see that they are committing such a great abuse as to justify
incarcerating them on a small tract of land — for incarceration it is and nothing
less.
The second intimation or charge is that "they will become a heavy burden to the
state and on account of their ignorance they will commit crimes and make
depredations, or if not they will be subjected to involuntary servitude by those
who want to abuse them." They have never been a burden to the state and never
will be. They have not committed crimes and, when they do, let the law punish
them." The authorities are anticipating too much from these "peaceful, timid,
primitive, semi-nomadic people." Their history does not demonstrate that we
must expect them to commit crimes and jail them to prevent the possibility. But
the Secretary says "they will be subjected to involuntary servitude by those want
to abuse them." Are they more liable to be subjected to involuntary servitude
when left free to roam their native hills and gain a livelihood as they have been
accustomed to for hundreds of years, than they will be if closely confined on a
narrow reservation from which they may not escape without facing a term in jail?
Is not more likely that they will be glad to exchange their "freedom" on a small
reservation for the great boon of binding themselves and their children to the
more fortunate Christian Filipinos who will feed them and clothe them in return of
their services.?
It think it not only probable but almost a certainty that they will be all be
subjected to involuntary personal servitude if their freedom is limited as it has
been. How will they live? There may be persons who are willing to lend them
money with which to buy food on the promise that they will work for them. And if
they accept the loan and do not work for the lender we have another law on the
statute books, Act No. 2098, into whose noose they run their necks, and they may
be fined not more than two hundred pesos or imprisonment for not exceeding six
months or both, and when the sentence expires they must again go into debt or
starve, and if they do not work will again go to jail, and this maybe repeated till
they are too old to work and are cast adrift.
The manguianes have committed no offenses and are charged with none. It does
not appear they were ever consulted about their reconcentration. It does not
appear that they had any hearing or were allowed to make any defense. It seems
they were gathered here and there whenever found by the authorities of the law
and forcibly placed upon the reservation, because they are "non-Christian," and
because the provincial governor ordered it. Let it be clear there is no
discrimination because of religion. The term "non-Christian" means one who is
not a Christian Filipino, but it also means any of the so-called "wild" or backward
tribes of the Philippines. These non-Christian tribes are Moros, Igorrotes,
Bukidnons, Ifugaos, Manguianes and various others, about one millions souls all
together. Some of them, like the Moros, Tinguianes and Ifugaos, have made great
progress in civilization. The have beautiful fields reclaimed by hard labor — they
have herds of cattle and horses and some few of them are well educated. Some of
the non-Christians, like the Aetas and the Negritos, are very low in the scale of
civilization, but they are one and all "non-Christians," as the term is used and
understood in law and in fact.
All of them, according to the court's opinion under the present law, may be taken
from their homes and herded on a reservation at the instance of the provincial
governor, with the prior approval of the department head. To state such a
monstrous proposition is to show the wickedness and illegality of the section of
the law under which these people are restrained of their liberty. But it is argued
that there is no probability of the department head ever giving his approval to
such a crime, but the fact that he can do it and has done it in the present case in
what makes the law unconstitutional. The arbitrary and unrestricted power to do
harm should be the measure by which a law's legality is tested and not the
probability of doing harm.
It has been said that this is a government of laws and not of men; that there is no
arbitrary body of individuals; that the constitutional principles upon which our
government and its institutions rest do not leave room for the play and action of
purely personal and arbitrary power, but that all in authority are guided and
limited by these provisions which the people have, the through the organic law,
declared shall be the measure and scope of all control exercised over them. In
particular the fourteenth amendment, and especially the equal protection clause,
thereof, forbids that the individual shall be subjected to any arbitrary exercise of
the powers of government; it was intended to prohibit, and does prohibit, any
arbitrary deprivation of life or liberty, or arbitrary spoliation of property.
As we have seen, a statute which makes a purely arbitrary or unreasonable
classification, or which singles out any particular individuals or class as the subject
of hostile and discriminating legislation, is clearly unconstitutional as being
opposed to the fourteenth amendment and especially to the equal protection
clause thereof. This is a plain case, and requires no further discussion. (Vol. 4,
Encyclopedia of U.S. Supreme Court Reports, p. 366.)
When we consider the nature and the theory of our institutions of government,
the principles upon which they are supposed to rest, and review the history of
their development, we are constrained to conclude that they do not mean to
leave room for the play and action of purely personal and arbitrary power.
Sovereignty itself is, of course, not subject to law, for its is the author and source
of law; but in our system, while sovereign powers are delegated to the agencies of
government, sovereignty itself remains with the people, by whom and for whom
all government exists and acts. And the law is the definition and limitation of
power. It is, indeed, quite true, that there must always be lodged somewhere, and
in some person or body, the authority of final decision; and, in many cases of
mere administration the responsibility is purely political, no appeal lying except to
the ultimate tribunal of the public judgment, exercised either in the pressure of
opinion or by means of the suffrage. But the fundamental rights to life, liberty,
and the pursuit of happiness, considered as individual possessions, are secured by
those maxims of constitutional law which are the monuments showing the
victorious progress of the race in securing to men the blessings of civilization
under the reign of just and equal laws, so that, in the famous language of
Massachusetts Bill of Rights, the Government of Commonwealth "may be a
government of law and not of men." For the very idea 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, 118 U.S., 374.)
It is said that the present law is an old Act being substance Act No. 547 of the
Philippine Commission. But it has never been brought before this court for
determination of its constitutionality. No matter how beneficient the motives of
the lawmakers if the lawmakers if the law tends to deprive any man of life, liberty,
or property without due process law, it is void.
In may opinion the acts complained of which were taken in conformity with
section 2145 of the Administrative Code not only deprive these Manguianes of
their liberty, without due process of law, but will in all probability deprive them of
their life, without due process of law. History teaches that to take a semi-nomadic
tribe from their native fastnesses and to transfer them to the narrow confines of a
reservation is to invite disease an suffering and death. From my long experience in
the Islands, I should say that it would be a crime of title less magnitude to take the
Ifugaos from their mountain homes where they have reclaimed a wilderness and
made it a land of beauty and fruitfulness and to transfer them to the more fertile,
unoccupied, malaria infested valleys which they look down upon from their fields
— than it would be to order their decapitation en masse.
There can be no denial that the Ifugaos are "non-Christians," or "wild tribes" and
are in exactly the same category as the Manguianes. If the Manguianes may be so
taken from their native habitat and reconcentrated on a reservation — in effect
an open air jail — then so may the Ifugaos, so may the Tinguianes, who have
made more progress than the Ifugaos, and so may the Moros.
There are "non-Christian" in nearly every province in the Philippine Islands. All of
the thirty-nine governors upon the prior approval of the head of the department,
have the power under this law to take the non-Christian inhabitants of their
different provinces form their homes and put them on a reservation for "their
own good and the general good of the Philippines," and the court will grant them
no relief. These unfortunate citizens of the Philippine Islands would hold their
liberty, and their lives, may be, subject to the unregulated discretion of the
provincial governor.
And who would be safe?
After the reservation is once established might not a provincial governor decide
that some political enemy was a non-Christian, and that he would be safer on the
reservation. No matter what his education and culture, he could have no trial, he
could make no defense, the judge of the court might be in a distant province and
not within reach, and the provincial governor's fiat is final.
The case of the United States vs. Crook (Federal Cases 14891), cited in the
majority opinion, should be quoted at length. District Judge Dundy said:
During the fifteen years in which I have been engaged in administering the laws of
my country, I have never been called upon to hear or decide a case that appealed
so strongly to my sympathy as the one now under consideration. On the one side,
we have a few of the remnants of a once numerous and powerful, but now weak,
insignificant, unlettered, and generally despised race; and the other, we have the
representative of one of the most powerful, most enlightened, and most
christianized nations of modern times. On the one side, we have the
representatives of this wasted race coming into this national tribunal of ours,
asking for justice and liberty to enable them to adopt our boasted civilization, and
to pursue the arts of peace, which have made us great and happy as a nation; on
the other side, we have this magnificent, if not magnanimous, government,
resisting this application with the determination of sending these people back to
the country which is to them less desirable perpetual imprisonment in their own
native land. But I think it is creditable to the heart and mind of the brave and
distinguished officer who is made respondent herein to say that he has no sort of
sympathy in the business in which he is forced by his position to bear a part so
conspicuous; and, so far as I am individually concerned, I think it not improper to
say that, if the strongest possible sympathy could give the relators title to
freedom, they would have been restored to liberty the moment the arguments in
their behalf were closed. no examination or further thought would then have
been necessary or expedient. But in a country where liberty is regulated by law,
something more satisfactory and enduring than mere sympathy must furnish and
constitute the rule and basis of judicial action. It follows that this case must be
examined and decided on principles of law, and that unless the relators are
entitled to their discharge under the constitution or laws of the United States, or
some treaty, they must be remanded to the custody of the officer who caused
their arrest, to be returned to the Indian Territory which they left without the
consent of the government.
On the 8th of April, 1879, the relators Standing Bear and twenty-five others,
during the session of the court held at that time of Lincoln, presented their
petition, duly verified, praying for the allowance of a writ of habeas corpus and
their final discharged from custody thereunder.
The petition alleges, in substance, that the relators are Indians who have formerly
belonged to the Ponca tribe of Indians now located in the Indian Territory; that
they had some time previously withdrawn from the tribe, and completely severed
their tribal relations therewith, and had adopted the general habits of the whites,
and were then endeavoring to maintain themselves by their own exertions, and
without aid or assistance from the general government; that whilst they were
thus engaged, and without being guilty of violating any of the laws of the United
States, they were arrested and restrained of their liberty by order of the
respondent, George Crook.
The writ was issued and served on the respondent on the 8th day of April, and,
the distance between the place where the writ was made returnable and the
place where the relators were confined being more than twenty miles, ten days
were alloted in which to make return.
On the 18th of April the writ was returned, and the authority for the arrest and
detention is therein shown. The substance of the return to the writ, and the
additional statement since filed, is that the relators are individual members of,
and connected with, the Ponca Tribe of Indians; that they had fled or escaped
from a reservation situated in some place within the limits of the indian Territory
— had departed therefrom without permission from the government; and, at the
request of the secretary of the interior, the general of the army had issued an
order which required the respondent to arrest and return the relators to their
tribe in the Indian Territory, and that, pursuant to the said order, he had caused
the relators to be arrested on the Omaha Indian reservation, and that they were
in his custody for the purpose of being returned to the Indian Territory.
It is claimed upon the one side, and denied upon the other, that the relators had
withdrawn and severed, for all time, their connection with the tribe to which they
belonged; and upon this point alone was there any testimony produced by either
party hereto. The other matter stated in the petition and the return to the writ
are conceded to be true; so that the questions to be determined are purely
questions of law.
On the 8th of Mar, 1859, a treaty was made by the United States with the Ponca
tribe of Indians, by which a certain tract of country, north of the Niobrara river
and west of the Missouri, was set apart for the permanent home of the aid
Indians, in which the government agreed to protect them during their good
behaviour. But just when or how, or why, or under what circumstances, the
Indians left their reservation in Dakota and went to the Indian Territory does not
appear.
xxx xxx xxx
A question of much greater importance remains for consideration, which, when
determined, will be decisive of this whole controversy. This relates to the right of
the government to arrest and hold the relators for a time, for the purpose of
being returned to a point in the Indian Territory from which it is alleged the
Indians escaped. I am not vain enough to think that I can do full justice to a
question like the one under consideration. But, as the mater furnishes so much
valuable material for discussion, and so much food for reflection, I shall try to
present it as viewed from my own standpoint, without reference to consequences
or criticisms, which, though not specially invited, will be sure to follow.
xxx xxx xxx
On the 15th day of August, 1876, congress passed the general Indian
appropriation bill, and in it we find a provision authorizing the secretary of the
interior to use $25,000 for the removal of the Poncas to the Indian Territory, and
providing them a home therein, with consent of the tribe. (19 Sta., 192.)
xxx xxx xxx
The Poncas lived upon their reservation in southern Dakota, and cultivated a
portion of the same, until two or three years ago, when they removed therefrom,
but whether by force or otherwise does not appear. At all event, we find a portion
of them, including the relators, located at some point in the Indian Territory.
There, the testimony seems to show, is where the trouble commenced. Standing
Bear, the principal witness, states that out of five hundred and eighty-one Indians
who went from the reservation in Dakota to the Indian Territory, one hundred
and fifty-eight died within a year or so, and a great proportion of the others were
sick and disabled, caused, in a great measure, no doubt, from change of climate;
and to save himself and the survivors of his wasted family, and the feeble
remnant of his little band of followers, he determined to leave the Indian Territory
and return to his old home, where, to use his own language, "he might live and
die in peace, and be buried with his fathers." He also stated that he informed the
agent of their final purpose to leave, never to return, and that he and his
followers had finally, fully, and forever severed his and their connection with the
Ponca tribe of Indians, and had resolved to disband as a tribe, or band of Indians,
and to cut loose from the government, go to work, become self-sustaining, and
adopt the habits and customs of a higher civilization. To accomplish what would
seem to be a desirable and laudable purpose, all who were able to do so went to
work to earn a living. The Omaha Indians, who speak the same language, and with
whom many of the Poncas have long continued to intermarry, gave them
employment and ground to cultivate, so as to make them self-sustaining. And it
was when at the Omaha reservation, and when thus employed, that they were
arrested by order of the government, for the purpose of being taken back to the
Indian Territory. They claim to be unable to see the justice, or reason, or wisdom,
or necessity, of removing them by force from their own native plains and blood
relations to a far-off country, in which they can see little but new-made graves
opening for their reception. The land from which they fled in fear has no
attractions for them. The love of home and native land was strong enough in the
minds of these people to induce them to brave every peril to return and live and
die where they had been reared. The bones of the dead son of Standing Bear
were not to repose in the land they hoped to be leaving forever, but were
carefully preserved and protected and formed a part of what was to them
melancholy procession homeward. Such instances of parental affections, and such
love home and native land, may be heathen in origin, but it seems to that they are
not unlike Christian in principle.
And the court declared that the Indians were illegally held by authority of the
United States and in violation of their right to life, liberty, and the pursuit of
happiness, and ordered their release from custody.

This case is very similarly to the case of Standing Bear and others.

I think this Court should declare that section 2145 and 2759 of the Administrative
Code of 1917 are unconstitutional, null and void, and that the petitioners are
illegally restrained of their liberty, and that they have been denied the equal
protection of the law, and order the respondents immediately to liberate all of the
petitioners.

G.R. No. 204819 April 8, 2014

JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf

of their minor children, LUCIA CARLOS IMBONG and BERNADETTE CARLOS
IMBONG and MAGNIFICAT CHILD DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and Management, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, Culture and Sports and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.

MENDOZA, J.:

Freedom of religion was accorded preferred status by the framers of our

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

I. PROCEDURAL: Whether the Court may exercise its power of judicial review over 9] Delegation of Authority to the FDA
the controversy.
10] Autonomy of Local Govemments/ARMM
1] Power of Judicial Review
DISCUSSION
2] Actual Case or Controversy
Before delving into the constitutionality of the RH Law and its implementing rules,
3] Facial Challenge it behooves the Court to resolve some procedural impediments.

4] Locus Standi I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review
over the controversy.
5] Declaratory Relief
The Power of Judicial Review
6] One Subject/One Title Rule
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that
it should submit to the legislative and political wisdom of Congress and respect
the compromises made in the crafting of the RH Law, it being "a product of a
majoritarian democratic process"75 and "characterized by an inordinate amount
of transparency."76 The OSG posits that the authority of the Court to review
social legislation like the RH Law by certiorari is "weak," since the Constitution
vests the discretion to implement the constitutional policies and positive norms
with the political departments, in particular, with Congress.77 It further asserts
that in view of the Court's ruling in Southern Hemisphere v. Anti-Terrorism
Council,78 the remedies of certiorari and prohibition utilized by the petitioners
are improper to assail the validity of the acts of the legislature.79
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper
considering that the assailed law has yet to be enforced and applied to the
petitioners, and that the government has yet to distribute reproductive health
devices that are abortive. It claims that the RH Law cannot be challenged "on its
face" as it is not a speech-regulating measure.80
In many cases involving the determination of the constitutionality of the actions
of the Executive and the Legislature, it is often sought that the Court temper its
exercise of judicial power and accord due respect to the wisdom of its co-equal
branch on the basis of the principle of separation of powers. To be clear, the
separation of powers is a fundamental principle in our system of government,
which obtains not through express provision but by actual division in our
Constitution. Each department of the government has exclusive cognizance of
matters within its jurisdiction and is supreme within its own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested
in the Congress of the Philippines;82 (b) the executive power shall be vested in
the President of the Philippines;83 and (c) the judicial power shall be vested in
one Supreme Court and in such lower courts as may be established by law.84 The
Constitution has truly blocked out with deft strokes and in bold lines, the
allotment of powers among the three branches of government.85
In its relationship with its co-equals, the Judiciary recognizes the doctrine of
separation of powers which imposes upon the courts proper restraint, born of the
nature of their functions and of their respect for the other branches of
government, in striking down the acts of the Executive or the Legislature as
unconstitutional. Verily, the policy is a harmonious blend of courtesy and
caution.86
It has also long been observed, however, that in times of social disquietude or
political instability, the great landmarks of the Constitution are apt to be forgotten
or marred, if not entirely obliterated.87 In order to address this, the Constitution
impresses upon the Court to respect the acts performed by a co-equal branch
done within its sphere of competence and authority, but at the same time, allows
it to cross the line of separation - but only at a very limited and specific point - to
determine whether the acts of the executive and the legislative branches are null
because they were undertaken with grave abuse of discretion.88 Thus, while the
Court may not pass upon questions of wisdom, justice or expediency of the RH
Law, it may do so where an attendant unconstitutionality or grave abuse of
discretion results.89 The Court must demonstrate its unflinching commitment to
protect those cherished rights and principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of review
may be limited, the Constitution makes no distinction as to the kind of legislation
that may be subject to judicial scrutiny, be it in the form of social legislation or
otherwise. The reason is simple and goes back to the earlier point. The Court may
pass upon the constitutionality of acts of the legislative and the executive
branches, since its duty is not to review their collective wisdom but, rather, to
make sure that they have acted in consonance with their respective authorities
and rights as mandated of them by the Constitution. If after said review, the Court
finds no constitutional violations of any sort, then, it has no more authority of
proscribing the actions under review.90 This is in line with Article VIII, Section 1 of
the Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared that
certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials, as there is no other plain, speedy or adequate
remedy in the ordinary course of law. This ruling was later on applied in
Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v. Ermita,94 and
countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of the
judiciary to settle the dispute. "The question thus posed is judicial rather than
political. The duty (to adjudicate) remains to assure that the supremacy of the
Constitution is upheld. " Once a "controversy as to the application or
interpretation of constitutional provision is raised before this Court (as in the
instant case), it becomes a legal issue which the Court is bound by constitutional
mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano,
"judicial review is essential for the maintenance and enforcement of the
separation of powers and the balancing of powers among the three great
departments of government through the definition and maintenance of the
boundaries of authority and control between them. To him, judicial review is the
chief, indeed the only, medium of participation - or instrument of intervention - of
the judiciary in that balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have the
unbridled authority to rule on just any and every claim of constitutional violation.
Jurisprudence is replete with the rule that the power of judicial review is limited
by four exacting requisites, viz : (a) there must be an actual case or controversy;
(b) the petitioners must possess locus standi; (c) the question of constitutionality
must be raised at the earliest opportunity; and (d) the issue of constitutionality
must be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any
actual case or controversy because the RH Law has yet to be implemented.97
They claim that the questions raised by the petitions are not yet concrete and ripe
for adjudication since no one has been charged with violating any of its provisions
and that there is no showing that any of the petitioners' rights has been adversely
affected by its operation.98 In short, it is contended that judicial review of the RH
Law is premature.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.99 The rule is that
courts do not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The controversy must be justiciable-
definite and concrete, touching on the legal relations of parties having adverse
legal interests. In other words, the pleadings must show an active antagonistic
assertion of a legal right, on the one hand, and a denial thereof, on the other; that
is, it must concern a real, tangible and not merely a theoretical question or issue.
There ought to be an actual and substantial controversy admitting of specific relief
through a decree conclusive in nature, as distinguished from an opinion advising
what the law would be upon a hypothetical state of facts.100
Corollary to the requirement of an actual case or controversy is the requirement
of ripeness.101 A question is ripe for adjudication when the act being challenged
has had a direct adverse effect on the individual challenging it. For a case to be
considered ripe for adjudication, it is a prerequisite that something has then been
accomplished or performed by either branch before a court may come into the
picture, and the petitioner must allege the existence of an immediate or
threatened injury to himself as a result of the challenged action. He must show
that he has sustained or is immediately in danger of sustaining some direct injury
as a result of the act complained of102
In The Province of North Cotabato v. The Government of the Republic of the
Philippines,103 where the constitutionality of an unimplemented Memorandum
of Agreement on the Ancestral Domain (MOA-AD) was put in question, it was
argued that the Court has no authority to pass upon the issues raised as there was
yet no concrete act performed that could possibly violate the petitioners' and the
intervenors' rights. Citing precedents, the Court ruled that the fact of the law or
act in question being not yet effective does not negate ripeness. Concrete acts
under a law are not necessary to render the controversy ripe. Even a singular
violation of the Constitution and/or the law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and
that the same is ripe for judicial determination. Considering that the RH Law and
its implementing rules have already taken effect and that budgetary measures to
carry out the law have already been passed, it is evident that the subject petitions
present a justiciable controversy. As stated earlier, when an action of the
legislative branch is seriously alleged to have infringed the Constitution, it not only
becomes a right, but also a duty of the Judiciary to settle the dispute.104
Moreover, the petitioners have shown that the case is so because medical
practitioners or medical providers are in danger of being criminally prosecuted
under the RH Law for vague violations thereof, particularly public health officers
who are threatened to be dismissed from the service with forfeiture of retirement
and other benefits. They must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject
petitions, contending that the RH Law cannot be challenged "on its face" as it is
not a speech regulating measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a First
Amendment Challenge, is one that is launched to assail the validity of statutes
concerning not only protected speech, but also all other rights in the First
Amendment.106 These include religious freedom, freedom of the press, and the
right of the people to peaceably assemble, and to petition the Government for a
redress of grievances.107 After all, the fundamental right to religious freedom,
freedom of the press and peaceful assembly are but component rights of the right
to one's freedom of expression, as they are modes which one's thoughts are
externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been
generally maintained, albeit with some modifications. While this Court has
withheld the application of facial challenges to strictly penal statues,108 it has
expanded its scope to cover statutes not only regulating free speech, but also
those involving religious freedom, and other fundamental rights.109 The
underlying reason for this modification is simple. For unlike its counterpart in the
U.S., this Court, under its expanded jurisdiction, is mandated by the Fundamental
Law not only to settle actual controversies involving rights which are legally
demandable and enforceable, but also to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.110 Verily, the framers
of Our Constitution envisioned a proactive Judiciary, ever vigilant with its duty to
maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that
the constitutional human rights to life, speech and religion and other fundamental
rights mentioned above have been violated by the assailed legislation, the Court
has authority to take cognizance of these kindred petitions and to determine if
the RH Law can indeed pass constitutional scrutiny. To dismiss these petitions on
the simple expedient that there exist no actual case or controversy, would
diminish this Court as a reactive branch of government, acting only when the
Fundamental Law has been transgressed, to the detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their respective
petitions. It contends that the "as applied challenge" lodged by the petitioners
cannot prosper as the assailed law has yet to be enforced and applied against
them,111 and the government has yet to distribute reproductive health devices
that are abortive.112
The petitioners, for their part, invariably invoke the "transcendental importance"
doctrine and their status as citizens and taxpayers in establishing the requisite
locus standi.
Locus standi or legal standing is defined as a personal and substantial interest in a
case such that the party has sustained or will sustain direct injury as a result of the
challenged governmental act.113 It requires a personal stake in the outcome of
the controversy as to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that one
can challenge the constitutionality of a statute only if he asserts a violation of his
own rights. The rule prohibits one from challenging the constitutionality of the
statute grounded on a violation of the rights of third persons not before the court.
This rule is also known as the prohibition against third-party standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a
matter of procedure, hence, can be relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers, and legislators when the public interest so requires,
such as when the matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases
of paramount importance where serious constitutional questions are involved, the
standing requirement may be relaxed and a suit may be allowed to prosper even
where there is no direct injury to the party claiming the right of judicial review. In
the first Emergency Powers Cases,118 ordinary citizens and taxpayers were
allowed to question the constitutionality of several executive orders although
they had only an indirect and general interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may not be assailed
through an "as-applied challenge, still, the Court has time and again acted liberally
on the locus s tandi requirement. It has accorded certain individuals standing to
sue, not otherwise directly injured or with material interest affected by a
Government act, provided a constitutional issue of transcendental importance is
invoked. The rule on locus standi is, after all, a procedural technicality which the
Court has, on more than one occasion, waived or relaxed, thus allowing non-
traditional plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to
sue in the public interest, albeit they may not have been directly injured by the
operation of a law or any other government act. As held in Jaworski v.
PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a
petition for prohibition, the transcendental importance of the issues involved in
this case warrants that we set aside the technical defects and take primary
jurisdiction over the petition at bar. One cannot deny that the issues raised herein
have potentially pervasive influence on the social and moral well being of this
nation, specially the youth; hence, their proper and just determination is an
imperative need. This is in accordance with the well-entrenched principle that
rules of procedure are not inflexible tools designed to hinder or delay, but to
facilitate and promote the administration of justice. Their strict and rigid
application, which would result in technicalities that tend to frustrate, rather than
promote substantial justice, must always be eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the
public, but also to the bench and bar, the issues raised must be resolved for the
guidance of all. After all, the RH Law drastically affects the constitutional
provisions on the right to life and health, the freedom of religion and expression
and other constitutional rights. Mindful of all these and the fact that the issues of
contraception and reproductive health have already caused deep division among
a broad spectrum of society, the Court entertains no doubt that the petitions raise
issues of transcendental importance warranting immediate court adjudication.
More importantly, considering that it is the right to life of the mother and the
unborn which is primarily at issue, the Court need not wait for a life to be taken
away before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when
rights enshrined in the Constitution are being imperilled to be violated. To do so,
when the life of either the mother or her child is at stake, would lead to
irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for
declaratory relief over which the Court has no original jurisdiction.120 Suffice it to
state that most of the petitions are praying for injunctive reliefs and so the Court
would just consider them as petitions for prohibition under Rule 65, over which it
has original jurisdiction. Where the case has far-reaching implications and prays
for injunctive reliefs, the Court may consider them as petitions for prohibition
under Rule 65.121
One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming that it
violates Section 26(1 ), Article VI of the Constitution,122 prescribing the one
subject-one title rule. According to them, being one for reproductive health with
responsible parenthood, the assailed legislation violates the constitutional
standards of due process by concealing its true intent - to act as a population
control measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth or
population control measure,124 and that the concepts of "responsible
parenthood" and "reproductive health" are both interrelated as they are
inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court sees it
as principally a population control measure. The corpus of the RH Law is geared
towards the reduction of the country's population. While it claims to save lives
and keep our women and children healthy, it also promotes pregnancy-preventing
products. As stated earlier, the RH Law emphasizes the need to provide Filipinos,
especially the poor and the marginalized, with access to information on the full
range of modem family planning products and methods. These family planning
methods, natural or modem, however, are clearly geared towards the prevention
of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the
number of births in the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-
natal care as well. A large portion of the law, however, covers the dissemination
of information and provisions on access to medically-safe, non-abortifacient,
effective, legal, affordable, and quality reproductive health care services,
methods, devices, and supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of
contraception pervades the entire RH Law. It is, in fact, the central idea of the RH
Law.126 Indeed, remove the provisions that refer to contraception or are related
to it and the RH Law loses its very foundation.127 As earlier explained, "the other
positive provisions such as skilled birth attendance, maternal care including pre-
and post-natal services, prevention and management of reproductive tract
infections including HIV/AIDS are already provided for in the Magna Carta for
Women."128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In
Benjamin E. Cawaling, Jr. v. The Commission on Elections and Rep. Francis Joseph
G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the
Congress to employ in the title of the enactment language of such precision as to
mirror, fully index or catalogue all the contents and the minute details therein.
The rule is sufficiently complied with if the title is comprehensive enough as to
include the general object which the statute seeks to effect, and where, as here,
the persons interested are informed of the nature, scope and consequences of
the proposed law and its operation. Moreover, this Court has invariably adopted a
liberal rather than technical construction of the rule "so as not to cripple or
impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that both
"reproductive health" and "responsible parenthood" are interrelated and
germane to the overriding objective to control the population growth. As
expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human
rights of all persons including their right to equality and nondiscrimination of
these rights, the right to sustainable human development, the right to health
which includes reproductive health, the right to education and information, and
the right to choose and make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the demands of responsible
parenthood.
The one subject/one title rule expresses the principle that the title of a law must
not be "so uncertain that the average person reading it would not be informed of
the purpose of the enactment or put on inquiry as to its contents, or which is
misleading, either in referring to or indicating one subject where another or
different one is really embraced in the act, or in omitting any expression or
indication of the real subject or scope of the act."129
Considering the close intimacy between "reproductive health" and "responsible
parenthood" which bears to the attainment of the goal of achieving "sustainable
human development" as stated under its terms, the Court finds no reason to
believe that Congress intentionally sought to deceive the public as to the contents
of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health of
the unborn child under Section 12, Article II of the Constitution. The assailed
legislation allowing access to abortifacients/abortives effectively sanctions
abortion.130
According to the petitioners, despite its express terms prohibiting abortion,
Section 4(a) of the RH Law considers contraceptives that prevent the fertilized
ovum to reach and be implanted in the mother's womb as an abortifacient; thus,
sanctioning contraceptives that take effect after fertilization and prior to
implantation, contrary to the intent of the Framers of the Constitution to afford
protection to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient"
hormonal contraceptives, intrauterine devices, injectables and other safe, legal,
non-abortifacient and effective family planning products and supplies, medical
research shows that contraceptives use results in abortion as they operate to kill
the fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human good, the
petitioners assert that the State sanction of contraceptive use contravenes natural
law and is an affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food and
Drug Administration (FDA) to certify that the product or supply is not to be used
as an abortifacient, the assailed legislation effectively confirms that abortifacients
are not prohibited. Also considering that the FDA is not the agency that will
actually supervise or administer the use of these products and supplies to
prospective patients, there is no way it can truthfully make a certification that it
shall not be used for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the
Framers of the Constitution was simply the prohibition of abortion. They contend
that the RH Law does not violate the Constitution since the said law emphasizes
that only "non-abortifacient" reproductive health care services, methods, devices
products and supplies shall be made accessible to the public.134
According to the OSG, Congress has made a legislative determination that
contraceptives are not abortifacients by enacting the RH Law. As the RH Law was
enacted with due consideration to various studies and consultations with the
World Health Organization (WHO) and other experts in the medical field, it is
asserted that the Court afford deference and respect to such a determination and
pass judgment only when a particular drug or device is later on determined as an
abortive.135
For his part, respondent Lagman argues that the constitutional protection of one's
right to life is not violated considering that various studies of the WHO show that
life begins from the implantation of the fertilized ovum. Consequently, he argues
that the RH Law is constitutional since the law specifically provides that only
contraceptives that do not prevent the implantation of the fertilized ovum are
allowed.136
The Court's Position
It is a universally accepted principle that every human being enjoys the right to
life.137
Even if not formally established, the right to life, being grounded on natural law, is
inherent and, therefore, not a creation of, or dependent upon a particular law,
custom, or belief. It precedes and transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1,
Article III of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in
the Philippines is not of recent vintage. From the enactment of R.A. No. 4729,
entitled "An Act To Regulate The Sale, Dispensation, and/or Distribution of
Contraceptive Drugs and Devices "on June 18, 1966, prescribing rules on
contraceptive drugs and devices which prevent fertilization,138 to the promotion
of male vasectomy and tubal ligation,139 and the ratification of numerous
international agreements, the country has long recognized the need to promote
population control through the use of contraceptives in order to achieve long-
term economic development. Through the years, however, the use of
contraceptives and other family planning methods evolved from being a
component of demographic management, to one centered on the promotion of
public health, particularly, reproductive health.140
This has resulted in the enactment of various measures promoting women's rights
and health and the overall promotion of the family's well-being. Thus, aside from
R.A. No. 4729, R.A. No. 6365 or "The Population Act of the Philippines" and R.A.
No. 9710, otherwise known as the "The Magna Carta of Women" were legislated.
Notwithstanding this paradigm shift, the Philippine national population program
has always been grounded two cornerstone principles: "principle of no-abortion"
and the "principle of non-coercion."141 As will be discussed later, these principles
are not merely grounded on administrative policy, but rather, originates from the
constitutional protection expressly provided to afford protection to life and
guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of
when life begins is a scientific and medical issue that should not be decided, at
this stage, without proper hearing and evidence. During the deliberation,
however, it was agreed upon that the individual members of the Court could
express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the
particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally
protect the life of the mother and the life of the unborn from conception. The
natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
Government.
Textually, the Constitution affords protection to the unborn from conception. This
is undisputable because before conception, there is no unborn to speak of. For
said reason, it is no surprise that the Constitution is mute as to any proscription
prior to conception or when life begins. The problem has arisen because,
amazingly, there are quarters who have conveniently disregarded the scientific
fact that conception is reckoned from fertilization. They are waving the view that
life begins at implantation. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous
with "fertilization" of the female ovum by the male sperm.142 On the other side
of the spectrum are those who assert that conception refers to the "implantation"
of the fertilized ovum in the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should be
interpreted in their plain and ordinary meaning. As held in the recent case of
Chavez v. Judicial Bar Council:144
One of the primary and basic rules in statutory construction is that where the
words of a statute are clear, plain, and free from ambiguity, it must be given its
literal meaning and applied without attempted interpretation. It is a well-settled
principle of constitutional construction that the language employed in the
Constitution must be given their ordinary meaning except where technical terms
are employed. As much as possible, the words of the Constitution should be
understood in the sense they have in common use. What it says according to the
text of the provision to be construed compels acceptance and negates the power
of the courts to alter it, based on the postulate that the framers and the people
mean what they say. Verba legis non est recedendum - from the words of a
statute there should be no departure.

The raison d' etre for the rule is essentially two-fold: First, because it is assumed
that the words in which constitutional provisions are couched express the
objective sought to be attained; and second, because the Constitution is not
primarily a lawyer's document but essentially that of the people, in whose
consciousness it should ever be present as an important condition for the rule of
law to prevail.
In conformity with the above principle, the traditional meaning of the word
"conception" which, as described and defined by all reliable and reputable
sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of becoming
pregnant, formation of a viable zygote; the fertilization that results in a new entity
capable of developing into a being like its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the
fecundation of the female ovum by the male spermatozoon resulting in human
life capable of survival and maturation under normal conditions.146
Even in jurisprudence, an unborn child has already a legal personality. In
Continental Steel Manufacturing Corporation v. Hon. Accredited Voluntary
Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire civil
personality first before he/she could die. Even a child inside the womb already has
life. No less than the Constitution recognizes the life of the unborn from
conception, that the State must protect equally with the life of the mother. If the
unborn already has life, then the cessation thereof even prior to the child being
delivered, qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme
Court, said that the State "has respect for human life at all stages in the
pregnancy" and "a legitimate and substantial interest in preserving and promoting
fetal life." Invariably, in the decision, the fetus was referred to, or cited, as a baby
or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the
Framers regarding the term "conception" used in Section 12, Article II of the
Constitution. From their deliberations, it clearly refers to the moment of
"fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn
from the moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is
fertilized by the sperm that there is human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as such, the beginning of
human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first
question that needs to be answered is: Is the fertilized ovum alive? Biologically
categorically says yes, the fertilized ovum is alive. First of all, like all living
organisms, it takes in nutrients which it processes by itself. It begins doing this
upon fertilization. Secondly, as it takes in these nutrients, it grows from within.
Thirdly, it multiplies itself at a geometric rate in the continuous process of cell
division. All these processes are vital signs of life. Therefore, there is no question
that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At
the moment of conception, the nuclei of the ovum and the sperm rupture. As this
happens 23 chromosomes from the ovum combine with 23 chromosomes of the
sperm to form a total of 46 chromosomes. A chromosome count of 46 is found
only - and I repeat, only in human cells. Therefore, the fertilized ovum is human.
Since these questions have been answered affirmatively, we must conclude that if
the fertilized ovum is both alive and human, then, as night follows day, it must be
human life. Its nature is human.151
Why the Constitution used the phrase "from the moment of conception" and not
"from the moment of fertilization" was not because of doubt when human life
begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described by
us here before with the scientific phrase "fertilized ovum" may be beyond the
comprehension of some people; we want to use the simpler phrase "from the
moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection under
the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of
writing a Constitution, without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according to the
Commissioner's own admission, he would leave it to Congress to define when life
begins. So, Congress can define life to begin from six months after fertilization;
and that would really be very, very, dangerous. It is now determined by science
that life begins from the moment of conception. There can be no doubt about it.
So we should not give any doubt to Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point.
Actually, that is one of the questions I was going to raise during the period of
interpellations but it has been expressed already. The provision, as proposed right
now states:
The State shall equally protect the life of the mother and the life of the unborn
from the moment of conception.
When it speaks of "from the moment of conception," does this mean when the
egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine
whether certain contraceptives that we know today are abortifacient or not
because it is a fact that some of the so-called contraceptives deter the rooting of
the ovum in the uterus. If fertilization has already occurred, the next process is for
the fertilized ovum to travel towards the uterus and to take root. What happens
with some contraceptives is that they stop the opportunity for the fertilized ovum
to reach the uterus. Therefore, if we take the provision as it is proposed, these so
called contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called
abortifacient and, therefore, would be unconstitutional and should be banned
under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state
whether or not these certain contraceptives are abortifacient. Scientifically and
based on the provision as it is now proposed, they are already considered
abortifacient.154
From the deliberations above-quoted, it is apparent that the Framers of the
Constitution emphasized that the State shall provide equal protection to both the
mother and the unborn child from the earliest opportunity of life, that is, upon
fertilization or upon the union of the male sperm and the female ovum. It is also
apparent is that the Framers of the Constitution intended that to prohibit
Congress from enacting measures that would allow it determine when life begins.
Equally apparent, however, is that the Framers of the Constitution did not intend
to ban all contraceptives for being unconstitutional. In fact, Commissioner
Bernardo Villegas, spearheading the need to have a constitutional provision on
the right to life, recognized that the determination of whether a contraceptive
device is an abortifacient is a question of fact which should be left to the courts to
decide on based on established evidence.155
From the discussions above, contraceptives that kill or destroy the fertilized ovum
should be deemed an abortive and thus prohibited. Conversely, contraceptives
that actually prevent the union of the male sperm and the female ovum, and
those that similarly take action prior to fertilization should be deemed non-
abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx xxx xxx
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to
the point that I would like not only to protect the life of the unborn, but also the
lives of the millions of people in the world by fighting for a nuclear-free world. I
would just like to be assured of the legal and pragmatic implications of the term
"protection of the life of the unborn from the moment of conception." I raised
some of these implications this afternoon when I interjected in the interpellation
of Commissioner Regalado. I would like to ask that question again for a categorical
answer.
I mentioned that if we institutionalize the term "the life of the unborn from the
moment of conception" we are also actually saying "no," not "maybe," to certain
contraceptives which are already being encouraged at this point in time. Is that
the sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be
preventive. There is no unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some
contraceptives, such as the intra-uterine device which actually stops the egg
which has already been fertilized from taking route to the uterus. So if we say
"from the moment of conception," what really occurs is that some of these
contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the 1987 Constitution is
even admitted by petitioners during the oral arguments. There it was conceded
that tubal ligation, vasectomy, even condoms are not classified as
abortifacients.157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche: Atty. Noche:

So, there is no life to be protected. And it's not, I have to admit it's not an abortifacient, Your Honor.158

Justice Bersamin: Medical Meaning

To be protected. That conception begins at fertilization is not bereft of medical foundation. Mosby
s Medical, Nursing, and Allied Health Dictionary defines conception as "the
Atty. Noche: beginning of pregnancy usually taken to be the instant a spermatozoon enters an
ovum and forms a viable zygote."159
Under Section 12, yes.
It describes fertilization as "the union of male and female gametes to form a
Justice Bersamin: zygote from which the embryo develops."160

So you have no objection to condoms? The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161 used by
medical schools in the Philippines, also concludes that human life (human person)
Atty. Noche: begins at the moment of fertilization with the union of the egg and the sperm
resulting in the formation of a new individual, with a unique genetic composition
Not under Section 12, Article II. that dictates all developmental stages that ensue.

Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I
am discussing here Section 12, Article II, Your Honor, yes.
Similarly, recent medical research on the matter also reveals that: "Human
development begins after the union of male and female gametes or germ cells
during a process known as fertilization (conception). Fertilization is a sequence of
events that begins with the contact of a sperm (spermatozoon) with a secondary
oocyte (ovum) and ends with the fusion of their pronuclei (the haploid nuclei of
the sperm and ovum) and the mingling of their chromosomes to form a new cell.
This fertilized ovum, known as a zygote, is a large diploid cell that is the beginning,
or primordium, of a human being."162

Justice Bersamin: The authors of Human Embryology & Teratology163 mirror the same position.
They wrote: "Although life is a continuous process, fertilization is a critical
Alright. landmark because, under ordinary circumstances, a new, genetically distinct
human organism is thereby formed.... The combination of 23 chromosomes
present in each pronucleus results in 46 chromosomes in the zygote. Thus the
diploid number is restored and the embryonic genome is formed. The embryo
now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a
"Paper on the Reproductive Health Bill (Responsible Parenthood Bill)" and therein
concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that
PMA maintains its strong position that fertilization is sacred because it is at this
stage that conception, and thus human life, begins. Human lives are sacred from
the moment of conception, and that destroying those new lives is never licit, no
matter what the purported good outcome would be. In terms of biology and
human embryology, a human being begins immediately at fertilization and after
that, there is no point along the continuous line of human embryogenesis where
only a "potential" human being can be posited. Any philosophical, legal, or
political conclusion cannot escape this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a human organism
and that the life of a new human being commences at a scientifically well defined
"moment of conception." This conclusion is objective, consistent with the factual
evidence, and independent of any specific ethical, moral, political, or religious
view of human life or of human embryos.164
Conclusion: The Moment of Conception is Reckoned from
Fertilization
In all, whether it be taken from a plain meaning, or understood under medical
parlance, and more importantly, following the intention of the Framers of the
Constitution, the undeniable conclusion is that a zygote is a human organism and
that the life of a new human being commences at a scientifically well-defined
moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by
Hon. Lagman that life begins at implantation.165 According to him, "fertilization
and conception are two distinct and successive stages in the reproductive process.
They are not identical and synonymous."166 Citing a letter of the WHO, he wrote
that "medical authorities confirm that the implantation of the fertilized ovum is
the commencement of conception and it is only after implantation that pregnancy
can be medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or
scientific mooring. It does not pertain to the beginning of life but to the viability of
the fetus. The fertilized ovum/zygote is not an inanimate object - it is a living
human being complete with DNA and 46 chromosomes.168 Implantation has
been conceptualized only for convenience by those who had population control in
mind. To adopt it would constitute textual infidelity not only to the RH Law but
also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of
any drug or device that would prevent the implantation of the fetus at the uterine
wall. It would be provocative and further aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion and
abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in
protecting the life of the unborn from conception was to prevent the Legislature
from enacting a measure legalizing abortion. It was so clear that even the Court
cannot interpret it otherwise. This intent of the Framers was captured in the
record of the proceedings of the 1986 Constitutional Commission. Commissioner
Bernardo Villegas, the principal proponent of the protection of the unborn from
conception, explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever
passed by Congress or any pro-abortion decision passed by the Supreme
Court.169
A reading of the RH Law would show that it is in line with this intent and actually
proscribes abortion. While the Court has opted not to make any determination, at
this stage, when life begins, it finds that the RH Law itself clearly mandates that
protection be afforded from the moment of fertilization. As pointed out by Justice
Carpio, the RH Law is replete with provisions that embody the policy of the law to
protect to the fertilized ovum and that it should be afforded safe travel to the
uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the
Revised Penal Code, which penalizes the destruction or expulsion of the fertilized
ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following terms
shall be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods,
facilities, services and supplies that contribute to reproductive health and well-
being by addressing reproductive health-related problems. It also includes sexual
health, the purpose of which is the enhancement of life and personal relations.
The elements of reproductive health care include the following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to
decide freely and responsibly whether or not to have children; the number,
spacing and timing of their children; to make other decisions concerning
reproduction, free of discrimination, coercion and violence; to have the
information and means to do so; and to attain the highest standard of sexual
health and reproductive health: Provided, however, That reproductive health
rights do not include abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law,
presidential decree or issuance, executive order, letter of instruction,
administrative order, rule or regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No. 7392, otherwise known as the
Midwifery Act, is hereby repealed, modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting
abortifacients. To be clear, Section 4(a) of the RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x

(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's womb upon determination of
the FDA.
As stated above, the RH Law mandates that protection must be afforded from the
moment of fertilization. By using the word " or," the RH Law prohibits not only
drugs or devices that prevent implantation, but also those that induce abortion
and those that induce the destruction of a fetus inside the mother's womb. Thus,
an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb,
upon determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH
Law, consistent with the Constitution, recognizes that the fertilized ovum already
has life and that the State has a bounden duty to protect it. The conclusion
becomes clear because the RH Law, first, prohibits any drug or device that induces
abortion (first kind), which, as discussed exhaustively above, refers to that which
induces the killing or the destruction of the fertilized ovum, and, second, prohibits
any drug or device the fertilized ovum to reach and be implanted in the mother's
womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum to
reach and be implanted in the mother's womb is an abortifacient (third kind), the
RH Law does not intend to mean at all that life only begins only at implantation, as
Hon. Lagman suggests. It also does not declare either that protection will only be
given upon implantation, as the petitioners likewise suggest. Rather, it recognizes
that: one, there is a need to protect the fertilized ovum which already has life, and
two, the fertilized ovum must be protected the moment it becomes existent - all
the way until it reaches and implants in the mother's womb. After all, if life is only
recognized and afforded protection from the moment the fertilized ovum
implants - there is nothing to prevent any drug or device from killing or destroying
the fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the
fertilized ovum, the RH Law does not sanction abortion. To repeat, it is the Court's
position that life begins at fertilization, not at implantation. When a fertilized
ovum is implanted in the uterine wall , its viability is sustained but that instance of
implantation is not the point of beginning of life. It started earlier. And as defined
by the RH Law, any drug or device that induces abortion, that is, which kills or
destroys the fertilized ovum or prevents the fertilized ovum to reach and be
implanted in the mother's womb, is an abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the law
that "any product or supply included or to be included in the EDL must have a
certification from the FDA that said product and supply is made available on the
condition that it is not to be used as an abortifacient" as empty as it is absurd. The
FDA, with all its expertise, cannot fully attest that a drug or device will not all be
used as an abortifacient, since the agency cannot be present in every instance
when the contraceptive product or supply will be used.171
Pursuant to its declared policy of providing access only to safe, legal and non-
abortifacient contraceptives, however, the Court finds that the proviso of Section
9, as worded, should bend to the legislative intent and mean that "any product or
supply included or to be included in the EDL must have a certification from the
FDA that said product and supply is made available on the condition that it cannot
be used as abortifacient." Such a construction is consistent with the proviso under
the second paragraph of the same section that provides:

Provided, further, That the foregoing offices shall not purchase or acquire by any
means emergency contraceptive pills, postcoital pills, abortifacients that will be
used for such purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely
abused their office when they redefined the meaning of abortifacient. The RH Law
defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall
be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's womb upon determination of
the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's womb upon determination of
the Food and Drug Administration (FDA). [Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven
modern family planning method, device, or health product, whether natural or
artificial, that prevents pregnancy but does not primarily destroy a fertilized ovum
or prevent a fertilized ovum from being implanted in the mother's womb in doses
of its approved indication as determined by the Food and Drug Administration
(FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and
recognizes as "abortifacient" only those that primarily induce abortion or the
destruction of a fetus inside the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well
taken. As they pointed out, with the insertion of the word "primarily," Section
3.0l(a) and G) of the RH-IRR173 must be struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of
the RH-IRR is indeed ultra vires. It contravenes Section 4(a) of the RH Law and
should, therefore, be declared invalid. There is danger that the insertion of the
qualifier "primarily" will pave the way for the approval of contraceptives which
may harm or destroy the life of the unborn from conception/fertilization in
violation of Article II, Section 12 of the Constitution. With such qualification in the
RH-IRR, it appears to insinuate that a contraceptive will only be considered as an
"abortifacient" if its sole known effect is abortion or, as pertinent here, the
prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval
of contraceptives which are actually abortifacients because of their fail-safe
mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that these
contraceptives cannot act as abortive. With this, together with the definition of an
abortifacient under Section 4 (a) of the RH Law and its declared policy against
abortion, the undeniable conclusion is that contraceptives to be included in the
PNDFS and the EDL will not only be those contraceptives that do not have the
primary action of causing abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be
implanted in the mother's womb, but also those that do not have the secondary
action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line
with the principle that laws should be construed in a manner that its
constitutionality is sustained, the RH Law and its implementing rules must be
consistent with each other in prohibiting abortion. Thus, the word " primarily" in
Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the
validity of Section 3.0l(a) and G) of the RH-IRR and prohibit only those
contraceptives that have the primary effect of being an abortive would effectively
"open the floodgates to the approval of contraceptives which may harm or
destroy the life of the unborn from conception/fertilization in violation of Article
II, Section 12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion" embodied in
the constitutional protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it
requires the inclusion of hormonal contraceptives, intrauterine devices,
injectables and family products and supplies in the National Drug Formulary and
the inclusion of the same in the regular purchase of essential medicines and
supplies of all national hospitals.176 Citing various studies on the matter, the
petitioners posit that the risk of developing breast and cervical cancer is greatly
increased in women who use oral contraceptives as compared to women who
never use them. They point out that the risk is decreased when the use of
contraceptives is discontinued. Further, it is contended that the use of combined
oral contraceptive pills is associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic stroke, and an
indeterminate effect on risk of myocardial infarction.177 Given the definition of
"reproductive health" and "sexual health" under Sections 4(p)178 and (w)179 of
the RH Law, the petitioners assert that the assailed legislation only seeks to
ensure that women have pleasurable and satisfying sex lives.180
The OSG, however, points out that Section 15, Article II of the Constitution is not
self-executory, it being a mere statement of the administration's principle and
policy. Even if it were self-executory, the OSG posits that medical authorities
refute the claim that contraceptive pose a danger to the health of women.181
The Court's Position
A component to the right to life is the constitutional right to health. In this regard,
the Constitution is replete with provisions protecting and promoting the right to
health. Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the people
and instill health consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to provide for
the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to
health development which shall endeavor to make essential goods, health and
other social services available to all the people at affordable cost. There shall be
priority for the needs of the underprivileged, sick, elderly, disabled, women, and
children. The State shall endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug
regulatory system and undertake appropriate health, manpower development,
and research, responsive to the country's health needs and problems.

Section 13. The State shall establish a special agency for disabled person for their
rehabilitation, self-development, and self-reliance, and their integration into the
mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and from
substandard or hazardous products.
Contrary to the respondent's notion, however, these provisions are self-executing.
Unless the provisions clearly express the contrary, the provisions of the
Constitution should be considered self-executory. There is no need for legislation
to implement these self-executing provisions.182 In Manila Prince Hotel v.
GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to
enforce a constitutional mandate, the presumption now is that all provisions of
the constitution are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the fundamental law. This
can be cataclysmic. That is why the prevailing view is, as it has always been, that –
... in case of doubt, the Constitution should be considered self-executing rather
than non-self-executing. . . . Unless the contrary is clearly intended, the provisions
of the Constitution should be considered self-executing, as a contrary rule would
give the legislature discretion to determine when, or whether, they shall be
effective. These provisions would be subordinated to the will of the lawmaking
body, which could make them entirely meaningless by simply refusing to pass the
needed implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI,
do not question contraception and contraceptives per se.184 In fact, ALFI prays
that the status quo - under R.A. No. 5921 and R.A. No. 4729, the sale and
distribution of contraceptives are not prohibited when they are dispensed by a
prescription of a duly licensed by a physician - be maintained.185
The legislative intent in the enactment of the RH Law in this regard is to leave
intact the provisions of R.A. No. 4729. There is no intention at all to do away with
it. It is still a good law and its requirements are still in to be complied with. Thus,
the Court agrees with the observation of respondent Lagman that the effectivity
of the RH Law will not lead to the unmitigated proliferation of contraceptives
since the sale, distribution and dispensation of contraceptive drugs and devices
will still require the prescription of a licensed physician. With R.A. No. 4729 in
place, there exists adequate safeguards to ensure the public that only
contraceptives that are safe are made available to the public. As aptly explained
by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives, the same
cannot be dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or
Distribution of Contraceptive Drugs and Devices" and Republic Act No. 5921 or
"An Act Regulating the Practice of Pharmacy and Setting Standards of
Pharmaceutical Education in the Philippines and for Other Purposes" are not
repealed by the RH Law and the provisions of said Acts are not inconsistent with
the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive drugs
and devices are particularly governed by RA No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell,
dispense or otherwise distribute whether for or without consideration, any
contraceptive drug or device, unless such sale, dispensation or distribution is by a
duly licensed drug store or pharmaceutical company and with the prescription of
a qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used
exclusively for the purpose of preventing fertilization of the female ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or agent
introduced into the female reproductive system for the primary purpose of
preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act
shall be punished with a fine of not more than five hundred pesos or an
imprisonment of not less than six months or more than one year or both in the
discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921
provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine,
pharmaceutical, or drug of whatever nature and kind or device shall be
compounded, dispensed, sold or resold, or otherwise be made available to the
consuming public except through a prescription drugstore or hospital pharmacy,
duly established in accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and other
relevant statutes, the pretension of the petitioners that the RH Law will lead to
the unmitigated proliferation of contraceptives, whether harmful or not, is
completely unwarranted and baseless.186 [Emphases in the Original. Underlining
supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the RH
Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH
shall procure, distribute to LGUs and monitor the usage of family planning
supplies for the whole country. The DOH shall coordinate with all appropriate
local government bodies to plan and implement this procurement and distribution
program. The supply and budget allotments shall be based on, among others, the
current levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or limit
their children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and
monitoring program consistent with the overall provisions of this Act and the
guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must
consider the provisions of R.A. No. 4729, which is still in effect, and ensure that
the contraceptives that it will procure shall be from a duly licensed drug store or
pharmaceutical company and that the actual dispensation of these contraceptive
drugs and devices will done following a prescription of a qualified medical
practitioner. The distribution of contraceptive drugs and devices must not be
indiscriminately done. The public health must be protected by all possible means.
As pointed out by Justice De Castro, a heavy responsibility and burden are
assumed by the government in supplying contraceptive drugs and devices, for it
may be held accountable for any injury, illness or loss of life resulting from or
incidental to their use.187
At any rate, it bears pointing out that not a single contraceptive has yet been
submitted to the FDA pursuant to the RH Law. It behooves the Court to await its
determination which drugs or devices are declared by the FDA as safe, it being the
agency tasked to ensure that food and medicines available to the public are safe
for public consumption. Consequently, the Court finds that, at this point, the
attack on the RH Law on this ground is premature. Indeed, the various kinds of
contraceptives must first be measured up to the constitutional yardstick as
expounded herein, to be determined as the case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that
hormonal contraceptives and intra-uterine devices are safe and non-abortifacient.
The first sentence of Section 9 that ordains their inclusion by the National Drug
Formulary in the EDL by using the mandatory "shall" is to be construed as
operative only after they have been tested, evaluated, and approved by the FDA.
The FDA, not Congress, has the expertise to determine whether a particular
hormonal contraceptive or intrauterine device is safe and non-abortifacient. The
provision of the third sentence concerning the requirements for the inclusion or
removal of a particular family planning supply from the EDL supports this
construction.
Stated differently, the provision in Section 9 covering the inclusion of hormonal
contraceptives, intra-uterine devices, injectables, and other safe, legal, non-
abortifacient and effective family planning products and supplies by the National
Drug Formulary in the EDL is not mandatory. There must first be a determination
by the FDA that they are in fact safe, legal, non-abortifacient and effective family
planning products and supplies. There can be no predetermination by Congress
that the gamut of contraceptives are "safe, legal, non-abortifacient and effective"
without the proper scientific examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are not
covered by the constitutional proscription, there are those who, because of their
religious education and background, sincerely believe that contraceptives,
whether abortifacient or not, are evil. Some of these are medical practitioners
who essentially claim that their beliefs prohibit not only the use of contraceptives
but also the willing participation and cooperation in all things dealing with
contraceptive use. Petitioner PAX explained that "contraception is gravely
opposed to marital chastity, it is contrary to the good of the transmission of life,
and to the reciprocal self-giving of the spouses; it harms true love and denies the
sovereign rule of God in the transmission of Human life."188
The petitioners question the State-sponsored procurement of contraceptives,
arguing that the expenditure of their taxes on contraceptives violates the
guarantee of religious freedom since contraceptives contravene their religious
beliefs.189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address
religious sentiments by making provisions for a conscientious objector, the
constitutional guarantee is nonetheless violated because the law also imposes
upon the conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who would be able
to provide for the patient's needs. For the petitioners, this amounts to requiring
the conscientious objector to cooperate with the very thing he refuses to do
without violating his/her religious beliefs.190
They further argue that even if the conscientious objector's duty to refer is
recognized, the recognition is unduly limited, because although it allows a
conscientious objector in Section 23 (a)(3) the option to refer a patient seeking
reproductive health services and information - no escape is afforded the
conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient seeking
reproductive health procedures. They claim that the right of other individuals to
conscientiously object, such as: a) those working in public health facilities referred
to in Section 7; b) public officers involved in the implementation of the law
referred to in Section 23(b ); and c) teachers in public schools referred to in
Section 14 of the RH Law, are also not recognize.191
Petitioner Echavez and the other medical practitioners meanwhile, contend that
the requirement to refer the matter to another health care service provider is still
considered a compulsion on those objecting healthcare service providers. They
add that compelling them to do the act against their will violates the Doctrine of
Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular that they
tend to disregard the religion of Filipinos. Authorizing the use of contraceptives
with abortive effects, mandatory sex education, mandatory pro-bono
reproductive health services to indigents encroach upon the religious freedom of
those upon whom they are required.192
Petitioner CFC also argues that the requirement for a conscientious objector to
refer the person seeking reproductive health care services to another provider
infringes on one's freedom of religion as it forces the objector to become an
unwilling participant in the commission of a serious sin under Catholic teachings.
While the right to act on one's belief may be regulated by the State, the acts
prohibited by the RH Law are passive acts which produce neither harm nor injury
to the public.193
Petitioner CFC adds that the RH Law does not show compelling state interest to
justify regulation of religious freedom because it mentions no emergency, risk or
threat that endangers state interests. It does not explain how the rights of the
people (to equality, non-discrimination of rights, sustainable human development,
health, education, information, choice and to make decisions according to
religious convictions, ethics, cultural beliefs and the demands of responsible
parenthood) are being threatened or are not being met as to justify the
impairment of religious freedom.194
Finally, the petitioners also question Section 15 of the RH Law requiring would-be
couples to attend family planning and responsible parenthood seminars and to
obtain a certificate of compliance. They claim that the provision forces individuals
to participate in the implementation of the RH Law even if it contravenes their
religious beliefs.195 As the assailed law dangles the threat of penalty of fine
and/or imprisonment in case of non-compliance with its provisions, the
petitioners claim that the RH Law forcing them to provide, support and facilitate
access and information to contraception against their beliefs must be struck down
as it runs afoul to the constitutional guarantee of religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not provide
that a specific mode or type of contraceptives be used, be it natural or artificial. It
neither imposes nor sanctions any religion or belief.196 They point out that the
RH Law only seeks to serve the public interest by providing accessible, effective
and quality reproductive health services to ensure maternal and child health, in
line with the State's duty to bring to reality the social justice health guarantees of
the Constitution,197 and that what the law only prohibits are those acts or
practices, which deprive others of their right to reproductive health.198 They
assert that the assailed law only seeks to guarantee informed choice, which is an
assurance that no one will be compelled to violate his religion against his free
will.199

The respondents add that by asserting that only natural family planning should be
allowed, the petitioners are effectively going against the constitutional right to
religious freedom, the same right they invoked to assail the constitutionality of
the RH Law.200 In other words, by seeking the declaration that the RH Law is
unconstitutional, the petitioners are asking that the Court recognize only the
Catholic Church's sanctioned natural family planning methods and impose this on
the entire citizenry.201
With respect to the duty to refer, the respondents insist that the same does not
violate the constitutional guarantee of religious freedom, it being a carefully
balanced compromise between the interests of the religious objector, on one
hand, who is allowed to keep silent but is required to refer -and that of the citizen
who needs access to information and who has the right to expect that the health
care professional in front of her will act professionally. For the respondents, the
concession given by the State under Section 7 and 23(a)(3) is sufficient
accommodation to the right to freely exercise one's religion without unnecessarily
infringing on the rights of others.202
Whatever burden is placed on the petitioner's religious freedom is minimal as the
duty to refer is limited in duration, location and impact.203
Regarding mandatory family planning seminars under Section 15 , the
respondents claim that it is a reasonable regulation providing an opportunity for
would-be couples to have access to information regarding parenthood, family
planning, breastfeeding and infant nutrition. It is argued that those who object to
any information received on account of their attendance in the required seminars
are not compelled to accept information given to them. They are completely free
to reject any information they do not agree with and retain the freedom to decide
on matters of family life without intervention of the State.204
For their part, respondents De Venecia et al., dispute the notion that natural
family planning is the only method acceptable to Catholics and the Catholic
hierarchy. Citing various studies and surveys on the matter, they highlight the
changing stand of the Catholic Church on contraception throughout the years and
note the general acceptance of the benefits of contraceptives by its followers in
planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society. It is
made up of people of diverse ethnic, cultural and religious beliefs and
backgrounds. History has shown us that our government, in law and in practice,
has allowed these various religious, cultural, social and racial groups to thrive in a
single society together. It has embraced minority groups and is tolerant towards
all - the religious people of different sects and the non-believers. The undisputed
fact is that our people generally believe in a deity, whatever they conceived Him
to be, and to whom they call for guidance and enlightenment in crafting our
fundamental law. Thus, the preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to
build a just and humane society, and establish a Government that shall embody
our ideals and aspirations, promote the common good, conserve and develop our
patrimony, and secure to ourselves and our posterity, the blessings of
independence and democracy under the rule of law and a regime of truth, justice,
freedom, love, equality, and peace, do ordain and promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their
spirituality innate in our nature and consciousness as a people, shaped by
tradition and historical experience. As this is embodied in the preamble, it means
that the State recognizes with respect the influence of religion in so far as it instills
into the mind the purest principles of morality.205 Moreover, in recognition of
the contributions of religion to society, the 1935, 1973 and 1987 constitutions
contain benevolent and accommodating provisions towards religions such as tax
exemption of church property, salary of religious officers in government
institutions, and optional religious instructions in public schools.

The Framers, however, felt the need to put up a strong barrier so that the State
would not encroach into the affairs of the church, and vice-versa. The principle of
separation of Church and State was, thus, enshrined in Article II, Section 6 of the
1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual
respect.1âwphi1 Generally, the State cannot meddle in the internal affairs of the
church, much less question its faith and dogmas or dictate upon it. It cannot favor
one religion and discriminate against another. On the other hand, the church
cannot impose its beliefs and convictions on the State and the rest of the
citizenry. It cannot demand that the nation follow its beliefs, even if it sincerely
believes that they are good for the country.
Consistent with the principle that not any one religion should ever be preferred
over another, the Constitution in the above-cited provision utilizes the term
"church" in its generic sense, which refers to a temple, a mosque, an iglesia, or
any other house of God which metaphorically symbolizes a religious organization.
Thus, the "Church" means the religious congregations collectively.
Balancing the benefits that religion affords and the need to provide an ample
barrier to protect the State from the pursuit of its secular objectives, the
Constitution lays down the following mandate in Article III, Section 5 and Article
VI, Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political
rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or employed,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest,
preacher, minister, other religious teacher, or dignitary as such, except when such
priest, preacher, minister, or dignitary is assigned to the armed forces, or to any
penal institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two
guarantees: the Establishment Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any
religion or favoring any religion as against other religions. It mandates a strict
neutrality in affairs among religious groups."206 Essentially, it prohibits the
establishment of a state religion and the use of public resources for the support or
prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the
inviolability of the human conscience.207 Under this part of religious freedom
guarantee, the State is prohibited from unduly interfering with the outside
manifestations of one's belief and faith.208 Explaining the concept of religious
freedom, the Court, in Victoriano v. Elizalde Rope Workers Union209 wrote:
The constitutional provisions not only prohibits legislation for the support of any
religious tenets or the modes of worship of any sect, thus forestalling compulsion
by law of the acceptance of any creed or the practice of any form of worship (U.S.
Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of
one's chosen form of religion within limits of utmost amplitude. It has been said
that the religion clauses of the Constitution are all designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to live as he believes he ought to
live, consistent with the liberty of others and with the common good. Any
legislation whose effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the religions, is invalid, even
though the burden may be characterized as being only indirect. (Sherbert v.
Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates
conduct by enacting, within its power, a general law which has for its purpose and
effect to advance the state's secular goals, the statute is valid despite its indirect
burden on religious observance, unless the state can accomplish its purpose
without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563,
81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve
contradictory purposes. They have a single goal-to promote freedom of individual
religious beliefs and practices. In simplest terms, the free exercise clause prohibits
government from inhibiting religious beliefs with penalties for religious beliefs
and practice, while the establishment clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and practices. In other words, the
two religion clauses were intended to deny government the power to use either
the carrot or the stick to influence individual religious beliefs and practices.210
Corollary to the guarantee of free exercise of one's religion is the principle that
the guarantee of religious freedom is comprised of two parts: the freedom to
believe, and the freedom to act on one's belief. The first part is absolute. As
explained in Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious belief,
limitless and without bounds. One may believe in most anything, however
strange, bizarre and unreasonable the same may appear to others, even heretical
when weighed in the scales of orthodoxy or doctrinal standards. But between the
freedom of belief and the exercise of said belief, there is quite a stretch of road to
travel.212
The second part however, is limited and subject to the awesome power of the
State and can be enjoyed only with proper regard to the rights of others. It is
"subject to regulation where the belief is translated into external acts that affect
the public welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the Court
adheres to the doctrine of benevolent neutrality. This has been clearly decided by
the Court in Estrada v. Escritor, (Escritor)214 where it was stated "that benevolent
neutrality-accommodation, whether mandatory or permissive, is the spirit, intent
and framework underlying the Philippine Constitution."215 In the same case, it
was further explained that"
The benevolent neutrality theory believes that with respect to these
governmental actions, accommodation of religion may be allowed, not to
promote the government's favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance. "The purpose of
accommodation is to remove a burden on, or facilitate the exercise of, a person's
or institution's religion."216 "What is sought under the theory of accommodation
is not a declaration of unconstitutionality of a facially neutral law, but an
exemption from its application or its 'burdensome effect,' whether by the
legislature or the courts."217
In ascertaining the limits of the exercise of religious freedom, the compelling state
interest test is proper.218 Underlying the compelling state interest test is the
notion that free exercise is a fundamental right and that laws burdening it should
be subject to strict scrutiny.219 In Escritor, it was written:

Philippine jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible Society,
the Court mentioned the "clear and present danger" test but did not employ it.
Nevertheless, this test continued to be cited in subsequent cases on religious
liberty. The Gerona case then pronounced that the test of permissibility of
religious freedom is whether it violates the established institutions of society and
law. The Victoriano case mentioned the "immediate and grave danger" test as
well as the doctrine that a law of general applicability may burden religious
exercise provided the law is the least restrictive means to accomplish the goal of
the law. The case also used, albeit inappropriately, the "compelling state interest"
test. After Victoriano , German went back to the Gerona rule. Ebralinag then
employed the "grave and immediate danger" test and overruled the Gerona test.
The fairly recent case of Iglesia ni Cristo went back to the " clear and present
danger" test in the maiden case of A merican Bible Society. Not surprisingly, all
the cases which employed the "clear and present danger" or "grave and
immediate danger" test involved, in one form or another, religious speech as this
test is often used in cases on freedom of expression. On the other hand, the
Gerona and German cases set the rule that religious freedom will not prevail over
established institutions of society and law. Gerona, however, which was the
authority cited by German has been overruled by Ebralinag which employed the
"grave and immediate danger" test . Victoriano was the only case that employed
the "compelling state interest" test, but as explained previously, the use of the
test was inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican Bible Society, Ebralinag
and Iglesia ni Cristo where the "clear and present danger" and "grave and
immediate danger" tests were appropriate as speech has easily discernible or
immediate effects. The Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent neutrality approach, thus not
appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test is
proper where conduct is involved for the whole gamut of human conduct has
different effects on the state's interests: some effects may be immediate and
short-term while others delayed and far-reaching. A test that would protect the
interests of the state in preventing a substantive evil, whether immediate or
delayed, is therefore necessary. However, not any interest of the state would
suffice to prevail over the right to religious freedom as this is a fundamental right
that enjoys a preferred position in the hierarchy of rights - "the most inalienable
and sacred of all human rights", in the words of Jefferson. This right is sacred for
an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The
entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of
Almighty God in order to build a just and humane society and establish a
government." As held in Sherbert, only the gravest abuses, endangering
paramount interests can limit this fundamental right. A mere balancing of
interests which balances a right with just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can prevail over the
fundamental right to religious liberty. The test requires the state to carry a heavy
burden, a compelling one, for to do otherwise would allow the state to batter
religion, especially the less powerful ones until they are destroyed. In determining
which shall prevail between the state's interest and religious liberty,
reasonableness shall be the guide. The "compelling state interest" serves the
purpose of revering religious liberty while at the same time affording protection
to the paramount interests of the state. This was the test used in Sherbert which
involved conduct, i.e. refusal to work on Saturdays. In the end, the "compelling
state interest" test, by upholding the paramount interests of the state, seeks to
protect the very state, without which, religious liberty will not be preserved.
[Emphases in the original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court to determine
whether the use of contraceptives or one's participation in the support of modem
reproductive health measures is moral from a religious standpoint or whether the
same is right or wrong according to one's dogma or belief. For the Court has
declared that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are unquestionably ecclesiastical
matters which are outside the province of the civil courts."220 The jurisdiction of
the Court extends only to public and secular morality. Whatever pronouncement
the Court makes in the case at bench should be understood only in this realm
where it has authority. Stated otherwise, while the Court stands without authority
to rule on ecclesiastical matters, as vanguard of the Constitution, it does have
authority to determine whether the RH Law contravenes the guarantee of
religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion and
religious beliefs and convictions. It is replete with assurances the no one can be
compelled to violate the tenets of his religion or defy his religious convictions
against his free will. Provisions in the RH Law respecting religious freedom are the
following:
1. The State recognizes and guarantees the human rights of all persons including
their right to equality and nondiscrimination of these rights, the right to
sustainable human development, the right to health which includes reproductive
health, the right to education and information, and the right to choose and make
decisions for themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood. [Section 2,
Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the
foundation of the family which in turn is the foundation of the nation. Pursuant
thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood." [Section 2, Declaration
of Policy]
3. The State shall promote and provide information and access, without bias, to all
methods of family planning, including effective natural and modern methods
which have been proven medically safe, legal, non-abortifacient, and effective in
accordance with scientific and evidence-based medical research standards such as
those registered and approved by the FDA for the poor and marginalized as
identified through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide funding support to
promote modern natural methods of family planning, especially the Billings
Ovulation Method, consistent with the needs of acceptors and their religious
convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and couples to
have the number of children they desire with due consideration to the health,
particularly of women, and the resources available and affordable to them and in
accordance with existing laws, public morals and their religious convictions.
[Section 3CDJ
5. The State shall respect individuals' preferences and choice of family planning
methods that are in accordance with their religious convictions and cultural
beliefs, taking into consideration the State's obligations under various human
rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and
people's organizations, civil society, faith-based organizations, the religious sector
and communities is crucial to ensure that reproductive health and population and
development policies, plans, and programs will address the priority needs of
women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond to
the needs and aspirations of the family and children. It is likewise a shared
responsibility between parents to determine and achieve the desired number of
children, spacing and timing of their children according to their own family life
aspirations, taking into account psychological preparedness, health status,
sociocultural and economic concerns consistent with their religious convictions.
[Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use of
contraceptives. To some medical practitioners, however, the whole idea of using
contraceptives is an anathema. Consistent with the principle of benevolent
neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the government
can do with religion, it also limits what religious sects can or cannot do with the
government. They can neither cause the government to adopt their particular
doctrines as policy for everyone, nor can they not cause the government to
restrict other groups. To do so, in simple terms, would cause the State to adhere
to a particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State
cannot enhance its population control program through the RH Law simply
because the promotion of contraceptive use is contrary to their religious beliefs.
Indeed, the State is not precluded to pursue its legitimate secular objectives
without being dictated upon by the policies of any one religion. One cannot refuse
to pay his taxes simply because it will cloud his conscience. The demarcation line
between Church and State demands that one render unto Caesar the things that
are Caesar's and unto God the things that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health
manifestly respects diverse religious beliefs in line with the Non-Establishment
Clause, the same conclusion cannot be reached with respect to Sections 7, 23 and
24 thereof. The said provisions commonly mandate that a hospital or a medical
practitioner to immediately refer a person seeking health care and services under
the law to another accessible healthcare provider despite their conscientious
objections based on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by
government legislation or practice, the compelling state interest test in line with
the Court's espousal of the Doctrine of Benevolent Neutrality in Escritor, finds
application. In this case, the conscientious objector's claim to religious freedom
would warrant an exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling state interest in the
accomplishment of an important secular objective. Necessarily so, the plea of
conscientious objectors for exemption from the RH Law deserves no less than
strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right to
religious freedom has been burdened. As in Escritor, there is no doubt that an
intense tug-of-war plagues a conscientious objector. One side coaxes him into
obedience to the law and the abandonment of his religious beliefs, while the
other entices him to a clean conscience yet under the pain of penalty. The
scenario is an illustration of the predicament of medical practitioners whose
religious beliefs are incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law
violates the religious belief and conviction of a conscientious objector. Once the
medical practitioner, against his will, refers a patient seeking information on
modem reproductive health products, services, procedures and methods, his
conscience is immediately burdened as he has been compelled to perform an act
against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has
written, "at the basis of the free exercise clause is the respect for the inviolability
of the human conscience.222
Though it has been said that the act of referral is an opt-out clause, it is, however,
a false compromise because it makes pro-life health providers complicit in the
performance of an act that they find morally repugnant or offensive. They cannot,
in conscience, do indirectly what they cannot do directly. One may not be the
principal, but he is equally guilty if he abets the offensive act by indirect
participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the
right to free speech, it being an externalization of one's thought and conscience.
This in turn includes the right to be silent. With the constitutional guarantee of
religious freedom follows the protection that should be afforded to individuals in
communicating their beliefs to others as well as the protection for simply being
silent. The Bill of Rights guarantees the liberty of the individual to utter what is in
his mind and the liberty not to utter what is not in his mind.223 While the RH Law
seeks to provide freedom of choice through informed consent, freedom of choice
guarantees the liberty of the religious conscience and prohibits any degree of
compulsion or burden, whether direct or indirect, in the practice of one's
religion.224
In case of conflict between the religious beliefs and moral convictions of
individuals, on one hand, and the interest of the State, on the other, to provide
access and information on reproductive health products, services, procedures and
methods to enable the people to determine the timing, number and spacing of
the birth of their children, the Court is of the strong view that the religious
freedom of health providers, whether public or private, should be accorded
primacy. Accordingly, a conscientious objector should be exempt from compliance
with the mandates of the RH Law. If he would be compelled to act contrary to his
religious belief and conviction, it would be violative of "the principle of non-
coercion" enshrined in the constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session,
found in the case of Doogan and Wood v. NHS Greater Glasgow and Clyde Health
Board,225 that the midwives claiming to be conscientious objectors under the
provisions of Scotland's Abortion Act of 1967, could not be required to delegate,
supervise or support staff on their labor ward who were involved in abortions.226
The Inner House stated "that if 'participation' were defined according to whether
the person was taking part 'directly' or ' indirectly' this would actually mean more
complexity and uncertainty."227
While the said case did not cover the act of referral, the applicable principle was
the same - they could not be forced to assist abortions if it would be against their
conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and
hospitals owned and operated by a religious group and health care service
providers. Considering that Section 24 of the RH Law penalizes such institutions
should they fail or refuse to comply with their duty to refer under Section 7 and
Section 23(a)(3), the Court deems that it must be struck down for being violative
of the freedom of religion. The same applies to Section 23(a)(l) and (a)(2) in
relation to Section 24, considering that in the dissemination of information
regarding programs and services and in the performance of reproductive health
procedures, the religious freedom of health care service providers should be
respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the
Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of
others and with the common good."10
The Court is not oblivious to the view that penalties provided by law endeavour to
ensure compliance. Without set consequences for either an active violation or
mere inaction, a law tends to be toothless and ineffectual. Nonetheless, when
what is bartered for an effective implementation of a law is a constitutionally-
protected right the Court firmly chooses to stamp its disapproval. The punishment
of a healthcare service provider, who fails and/or refuses to refer a patient to
another, or who declines to perform reproductive health procedure on a patient
because incompatible religious beliefs, is a clear inhibition of a constitutional
guarantee which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal
health officers, chiefs of hospital, head nurses, supervising midwives, among
others, who by virtue of their office are specifically charged with the duty to
implement the provisions of the RPRH Act and these Rules, cannot be considered
as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The
conscientious objection clause should be equally protective of the religious belief
of public health officers. There is no perceptible distinction why they should not
be considered exempt from the mandates of the law. The protection accorded to
other conscientious objectors should equally apply to all medical practitioners
without distinction whether they belong to the public or private sector. After all,
the freedom to believe is intrinsic in every individual and the protective robe that
guarantees its free exercise is not taken off even if one acquires employment in
the government.
It should be stressed that intellectual liberty occupies a place inferior to none in
the hierarchy of human values. The mind must be free to think what it wills,
whether in the secular or religious sphere, to give expression to its beliefs by oral
discourse or through the media and, thus, seek other candid views in occasions or
gatherings or in more permanent aggrupation. Embraced in such concept then are
freedom of religion, freedom of speech, of the press, assembly and petition, and
freedom of association.229
The discriminatory provision is void not only because no such exception is stated
in the RH Law itself but also because it is violative of the equal protection clause in
the Constitution. Quoting respondent Lagman, if there is any conflict between the
RH-IRR and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on page
52, you mentioned RH Law is replete with provisions in upholding the freedom of
religion and respecting religious convictions. Earlier, you affirmed this with
qualifications. Now, you have read, I presumed you have read the IRR-
Implementing Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not
thoroughly dissected the nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law.
But in the IRR it says: " .... skilled health professionals such as provincial, city or
municipal health officers, chief of hospitals, head nurses, supervising midwives,
among others, who by virtue of their office are specifically charged with the duty
to implement the provisions of the RPRH Act and these Rules, cannot be
considered as conscientious objectors." Do you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.

Justice Mendoza:
In other words, public health officers in contrast to the private practitioners who
can be conscientious objectors, skilled health professionals cannot be considered
conscientious objectors. Do you agree with this? Is this not against the
constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must
prevail.230
Compelling State Interest
The foregoing discussion then begets the question on whether the respondents,
in defense of the subject provisions, were able to: 1] demonstrate a more
compelling state interest to restrain conscientious objectors in their choice of
services to render; and 2] discharge the burden of proof that the obligatory
character of the law is the least intrusive means to achieve the objectives of the
law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in
vain. The OSG was curiously silent in the establishment of a more compelling state
interest that would rationalize the curbing of a conscientious objector's right not
to adhere to an action contrary to his religious convictions. During the oral
arguments, the OSG maintained the same silence and evasion. The Transcripts of
the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the compelling
State interest in imposing this duty to refer to a conscientious objector which
refuses to do so because of his religious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard is a compelling
State interest, this is an ordinary health legislation involving professionals. This is
not a free speech matter or a pure free exercise matter. This is a regulation by the
State of the relationship between medical doctors and their patients.231
Resultantly, the Court finds no compelling state interest which would limit the
free exercise clause of the conscientious objectors, however few in number. Only
the prevention of an immediate and grave danger to the security and welfare of
the community can justify the infringement of religious freedom. If the
government fails to show the seriousness and immediacy of the threat, State
intrusion is constitutionally unacceptable.232
Freedom of religion means more than just the freedom to believe. It also means
the freedom to act or not to act according to what one believes. And this freedom
is violated when one is compelled to act against one's belief or is prevented from
acting according to one's belief.233
Apparently, in these cases, there is no immediate danger to the life or health of an
individual in the perceived scenario of the subject provisions. After all, a couple
who plans the timing, number and spacing of the birth of their children refers to a
future event that is contingent on whether or not the mother decides to adopt or
use the information, product, method or supply given to her or whether she even
decides to become pregnant at all. On the other hand, the burden placed upon
those who object to contraceptive use is immediate and occurs the moment a
patient seeks consultation on reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement of
the conscientious objector's religious freedom, the respondents have failed to
demonstrate "the gravest abuses, endangering paramount interests" which could
limit or override a person's fundamental right to religious freedom. Also, the
respondents have not presented any government effort exerted to show that the
means it takes to achieve its legitimate state objective is the least intrusive
means.234 Other than the assertion that the act of referring would only be
momentary, considering that the act of referral by a conscientious objector is the
very action being contested as violative of religious freedom, it behooves the
respondents to demonstrate that no other means can be undertaken by the State
to achieve its objective without violating the rights of the conscientious objector.
The health concerns of women may still be addressed by other practitioners who
may perform reproductive health-related procedures with open willingness and
motivation. Suffice it to say, a person who is forced to perform an act in utter
reluctance deserves the protection of the Court as the last vanguard of
constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to
ensure that the right to health is protected. Considering other legislations as they
stand now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365 or "The
Population Act of the Philippines" and R.A. No. 9710, otherwise known as "The
Magna Carta of Women," amply cater to the needs of women in relation to health
services and programs. The pertinent provision of Magna Carta on comprehensive
health services and programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The
State shall, at all times, provide for a comprehensive, culture-sensitive, and
gender-responsive health services and programs covering all stages of a woman's
life cycle and which addresses the major causes of women's mortality and
morbidity: Provided, That in the provision for comprehensive health services, due
respect shall be accorded to women's religious convictions, the rights of the
spouses to found a family in accordance with their religious convictions, and the
demands of responsible parenthood, and the right of women to protection from
hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address pregnancy and
infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family planning;
(4) Family and State collaboration in youth sexuality education and health services
without prejudice to the primary right and duty of parents to educate their
children;
(5) Prevention and management of reproductive tract infections, including
sexually transmitted diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and
cervical cancers, and other gynecological conditions and disorders;

(7) Prevention of abortion and management of pregnancy-related complications;
(8) In cases of violence against women and children, women and children victims
and survivors shall be provided with comprehensive health services that include
psychosocial, therapeutic, medical, and legal interventions and assistance towards
healing, recovery, and empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant to
ethical norms and medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of
women and girls. In addition, healthy lifestyle activities are encouraged and
promoted through programs and projects as strategies in the prevention of
diseases.
(b) Comprehensive Health Information and Education. - The State shall provide
women in all sectors with appropriate, timely, complete, and accurate
information and education on all the above-stated aspects of women's health in
government education and training programs, with due regard to the following:
(1) The natural and primary right and duty of parents in the rearing of the youth
and the development of moral character and the right of children to be brought
up in an atmosphere of morality and rectitude for the enrichment and
strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including fertility
awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the
compelling state interest was "Fifteen maternal deaths per day, hundreds of
thousands of unintended pregnancies, lives changed, x x x."235 He, however,
failed to substantiate this point by concrete facts and figures from reputable
sources.
The undisputed fact, however, is that the World Health Organization reported
that the Filipino maternal mortality rate dropped to 48 percent from 1990 to
2008, 236 although there was still no RH Law at that time. Despite such
revelation, the proponents still insist that such number of maternal deaths
constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social
healthcare programs for Filipino women, they could not be solved by a measure
that puts an unwarrantable stranglehold on religious beliefs in exchange for blind
conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set forth
in the law. While generally healthcare service providers cannot be forced to
render reproductive health care procedures if doing it would contravene their
religious beliefs, an exception must be made in life-threatening cases that require
the performance of emergency procedures. In these situations, the right to life of
the mother should be given preference, considering that a referral by a medical
practitioner would amount to a denial of service, resulting to unnecessarily
placing the life of a mother in grave danger. Thus, during the oral arguments, Atty.
Liban, representing CFC, manifested: "the forced referral clause that we are
objecting on grounds of violation of freedom of religion does not contemplate an
emergency."237
In a conflict situation between the life of the mother and the life of a child, the
doctor is morally obliged always to try to save both lives. If, however, it is
impossible, the resulting death to one should not be deliberate. Atty. Noche
explained:
Principle of Double-Effect. - May we please remind the principal author of the RH
Bill in the House of Representatives of the principle of double-effect wherein
intentional harm on the life of either the mother of the child is never justified to
bring about a "good" effect. In a conflict situation between the life of the child and
the life of the mother, the doctor is morally obliged always to try to save both
lives. However, he can act in favor of one (not necessarily the mother) when it is
medically impossible to save both, provided that no direct harm is intended to the
other. If the above principles are observed, the loss of the child's life or the
mother's life is not intentional and, therefore, unavoidable. Hence, the doctor
would not be guilty of abortion or murder. The mother is never pitted against the
child because both their lives are equally valuable.238
Accordingly, if it is necessary to save the life of a mother, procedures endangering
the life of the child may be resorted to even if is against the religious sentiments
of the medical practitioner. As quoted above, whatever burden imposed upon a
medical practitioner in this case would have been more than justified considering
the life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a condition for the
issuance of a marriage license, the Court finds the same to be a reasonable
exercise of police power by the government. A cursory reading of the assailed
provision bares that the religious freedom of the petitioners is not at all violated.
All the law requires is for would-be spouses to attend a seminar on parenthood,
family planning breastfeeding and infant nutrition. It does not even mandate the
type of family planning methods to be included in the seminar, whether they be
natural or artificial. As correctly noted by the OSG, those who receive any
information during their attendance in the required seminars are not compelled
to accept the information given to them, are completely free to reject the
information they find unacceptable, and retain the freedom to decide on matters
of family life without the intervention of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the
provisions of the Constitution by intruding into marital privacy and autonomy. It
argues that it cultivates disunity and fosters animosity in the family rather than
promote its solidarity and total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it is
the basic social institution. In fact, one article, Article XV, is devoted entirely to the
family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the
family and shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood;
The right of children to assistance, including proper care and nutrition, and special
protection from all forms of neglect, abuse, cruelty, exploitation and other
conditions prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and
implementation of policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population growth,
contains provisions which tend to wreck the family as a solid social institution. It
bars the husband and/or the father from participating in the decision making
process regarding their common future progeny. It likewise deprives the parents
of their authority over their minor daughter simply because she is already a
parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures on
any person of legal age on the ground of lack of consent or authorization of the
following persons in the following instances:
(i) Spousal consent in case of married persons: provided, That in case of
disagreement, the decision of the one undergoing the procedures shall prevail.
[Emphasis supplied]
The above provision refers to reproductive health procedures like tubal litigation
and vasectomy which, by their very nature, should require mutual consent and
decision between the husband and the wife as they affect issues intimately
related to the founding of a family. Section 3, Art. XV of the Constitution espouses
that the State shall defend the "right of the spouses to found a family." One
person cannot found a family. The right, therefore, is shared by both spouses. In
the same Section 3, their right "to participate in the planning and implementation
of policies and programs that affect them " is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making. By
giving absolute authority to the spouse who would undergo a procedure, and
barring the other spouse from participating in the decision would drive a wedge
between the husband and wife, possibly result in bitter animosity, and endanger
the marriage and the family, all for the sake of reducing the population. This
would be a marked departure from the policy of the State to protect marriage as
an inviolable social institution.241
Decision-making involving a reproductive health procedure is a private matter
which belongs to the couple, not just one of them. Any decision they would reach
would affect their future as a family because the size of the family or the number
of their children significantly matters. The decision whether or not to undergo the
procedure belongs exclusively to, and shared by, both spouses as one cohesive
unit as they chart their own destiny. It is a constitutionally guaranteed private
right. Unless it prejudices the State, which has not shown any compelling interest,
the State should see to it that they chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710,
otherwise known as the "Magna Carta for Women," provides that women shall
have equal rights in all matters relating to marriage and family relations, including
the joint decision on the number and spacing of their children. Indeed,
responsible parenthood, as Section 3(v) of the RH Law states, is a shared
responsibility between parents. Section 23(a)(2)(i) of the RH Law should not be
allowed to betray the constitutional mandate to protect and strengthen the family
by giving to only one spouse the absolute authority to decide whether to undergo
reproductive health procedure.242
The right to chart their own destiny together falls within the protected zone of
marital privacy and such state intervention would encroach into the zones of
spousal privacy guaranteed by the Constitution. In our jurisdiction, the right to
privacy was first recognized in Marje v. Mutuc,243 where the Court, speaking
through Chief Justice Fernando, held that "the right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection."244 Marje adopted the ruling of the US
Supreme Court in Griswold v. Connecticut,245 where Justice William O. Douglas
wrote:
We deal with a right of privacy older than the Bill of Rights -older than our political
parties, older than our school system. Marriage is a coming together for better or
for worse, hopefully enduring, and intimate to the degree of being sacred. It is an
association that promotes a way of life, not causes; a harmony in living, not
political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right to privacy of married persons. Nevertheless,
it recognized the zone of privacy rightfully enjoyed by couples. Justice Douglas in
Grisworld wrote that "specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them life and
substance. Various guarantees create zones of privacy."246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the
minor, who will be undergoing a procedure, is already a parent or has had a
miscarriage. Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to family planning services,
whether natural or artificial: Provided, That minors will not be allowed access to
modern methods of family planning without written consent from their parents or
guardian/s except when the minor is already a parent or has had a miscarriage.
There can be no other interpretation of this provision except that when a minor is
already a parent or has had a miscarriage, the parents are excluded from the
decision making process of the minor with regard to family planning. Even if she is
not yet emancipated, the parental authority is already cut off just because there is
a need to tame population growth.
It is precisely in such situations when a minor parent needs the comfort, care,
advice, and guidance of her own parents. The State cannot replace her natural
mother and father when it comes to providing her needs and comfort. To say that
their consent is no longer relevant is clearly anti-family. It does not promote unity
in the family. It is an affront to the constitutional mandate to protect and
strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the
natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
Government."247 In this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the right of
parents. It imports the assertion that the right of parents is superior to that of the
State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental
control over their minor-child or the right of the spouses to mutually decide on
matters which very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the violation of one's
privacy with respect to his family. It would be dismissive of the unique and
strongly-held Filipino tradition of maintaining close family ties and violative of the
recognition that the State affords couples entering into the special contract of
marriage to as one unit in forming the foundation of the family and society.
The State cannot, without a compelling state interest, take over the role of
parents in the care and custody of a minor child, whether or not the latter is
already a parent or has had a miscarriage. Only a compelling state interest can
justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in
the second paragraph of Section 7 or with respect to the consenting spouse under
Section 23(a)(2)(i), a distinction must be made. There must be a differentiation
between access to information about family planning services, on one hand, and
access to the reproductive health procedures and modern family planning
methods themselves, on the other. Insofar as access to information is concerned,
the Court finds no constitutional objection to the acquisition of information by the
minor referred to under the exception in the second paragraph of Section 7 that
would enable her to take proper care of her own body and that of her unborn
child. After all, Section 12, Article II of the Constitution mandates the State to
protect both the life of the mother as that of the unborn child. Considering that
information to enable a person to make informed decisions is essential in the
protection and maintenance of ones' health, access to such information with
respect to reproductive health must be allowed. In this situation, the fear that
parents might be deprived of their parental control is unfounded because they are
not prohibited to exercise parental guidance and control over their minor child
and assist her in deciding whether to accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in life-
threatening cases that require the performance of emergency procedures. In such
cases, the life of the minor who has already suffered a miscarriage and that of the
spouse should not be put at grave risk simply for lack of consent. It should be
emphasized that no person should be denied the appropriate medical care
urgently needed to preserve the primordial right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii)249 should be struck
down. By effectively limiting the requirement of parental consent to "only in
elective surgical procedures," it denies the parents their right of parental
authority in cases where what is involved are "non-surgical procedures." Save for
the two exceptions discussed above, and in the case of an abused child as
provided in the first sentence of Section 23(a)(2)(ii), the parents should not be
deprived of their constitutional right of parental authority. To deny them of this
right would be an affront to the constitutional mandate to protect and strengthen
the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof,
mandating the teaching of Age-and Development-Appropriate Reproductive
Health Education under threat of fine and/or imprisonment violates the principle
of academic freedom . According to the petitioners, these provisions effectively
force educational institutions to teach reproductive health education even if they
believe that the same is not suitable to be taught to their students.250 Citing
various studies conducted in the United States and statistical data gathered in the
country, the petitioners aver that the prevalence of contraceptives has led to an
increase of out-of-wedlock births; divorce and breakdown of families; the
acceptance of abortion and euthanasia; the "feminization of poverty"; the aging
of society; and promotion of promiscuity among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of the
RH Law is premature because the Department of Education, Culture and Sports
has yet to formulate a curriculum on age-appropriate reproductive health
education. One can only speculate on the content, manner and medium of
instruction that will be used to educate the adolescents and whether they will
contradict the religious beliefs of the petitioners and validate their apprehensions.
Thus, considering the premature nature of this particular issue, the Court declines
to rule on its constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the
natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and development of moral character shall receive the support of the
Government. Like the 1973 Constitution and the 1935 Constitution, the 1987
Constitution affirms the State recognition of the invaluable role of parents in
preparing the youth to become productive members of society. Notably, it places
more importance on the role of parents in the development of their children by
recognizing that said role shall be "primary," that is, that the right of parents in
upbringing the youth is superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to aid parents in
the moral development of the youth. Indeed, the Constitution makes mention of
the importance of developing the youth and their important role in nation
building.253 Considering that Section 14 provides not only for the age-
appropriate-reproductive health education, but also for values formation; the
development of knowledge and skills in self-protection against discrimination;
sexual abuse and violence against women and children and other forms of gender
based violence and teen pregnancy; physical, social and emotional changes in
adolescents; women's rights and children's rights; responsible teenage behavior;
gender and development; and responsible parenthood, and that Rule 10, Section
11.01 of the RH-IRR and Section 4(t) of the RH Law itself provides for the teaching
of responsible teenage behavior, gender sensitivity and physical and emotional
changes among adolescents - the Court finds that the legal mandate provided
under the assailed provision supplements, rather than supplants, the rights and
duties of the parents in the moral development of their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive
health education program shall be developed in conjunction with parent-teacher-
community associations, school officials and other interest groups, it could very
well be said that it will be in line with the religious beliefs of the petitioners. By
imposing such a condition, it becomes apparent that the petitioners' contention
that Section 14 violates Article XV, Section 3(1) of the Constitution is without
merit.254
While the Court notes the possibility that educators might raise their objection to
their participation in the reproductive health education program provided under
Section 14 of the RH Law on the ground that the same violates their religious
beliefs, the Court reserves its judgment should an actual case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus violates
the due process clause of the Constitution. According to them, Section 23 (a)(l)
mentions a "private health service provider" among those who may be held
punishable but does not define who is a "private health care service provider."
They argue that confusion further results since Section 7 only makes reference to
a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts
hospitals operated by religious groups from rendering reproductive health service
and modern family planning methods. It is unclear, however, if these institutions
are also exempt from giving reproductive health information under Section 23(a)
(l), or from rendering reproductive health procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and
providing of incorrect information, but at the same time fails to define "incorrect
information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must necessarily
guess its meaning and differ as to its application. It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid;
and (2) it leaves law enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government muscle.255 Moreover, in
determining whether the words used in a statute are vague, words must not only
be taken in accordance with their plain meaning alone, but also in relation to
other parts of the statute. It is a rule that every part of the statute must be
interpreted with reference to the context, that is, every part of it must be
construed together with the other parts and kept subservient to the general
intent of the whole enactment.256
As correctly noted by the OSG, in determining the definition of "private health
care service provider," reference must be made to Section 4(n) of the RH Law
which defines a "public health service provider," viz:
(n) Public health care service provider refers to: (1) public health care institution,
which is duly licensed and accredited and devoted primarily to the maintenance
and operation of facilities for health promotion, disease prevention, diagnosis,
treatment and care of individuals suffering from illness, disease, injury, disability
or deformity, or in need of obstetrical or other medical and nursing care; (2)
public health care professional, who is a doctor of medicine, a nurse or a midvvife;
(3) public health worker engaged in the delivery of health care services; or (4)
barangay health worker who has undergone training programs under any
accredited government and NGO and who voluntarily renders primarily health
care services in the community after having been accredited to function as such
by the local health board in accordance with the guidelines promulgated by the
Department of Health (DOH) .
Further, the use of the term "private health care institution" in Section 7 of the
law, instead of "private health care service provider," should not be a cause of
confusion for the obvious reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from
being obligated to render reproductive health service and modem family planning
methods, includes exemption from being obligated to give reproductive health
information and to render reproductive health procedures. Clearly, subject to the
qualifications and exemptions earlier discussed, the right to be exempt from being
obligated to render reproductive health service and modem family planning
methods, necessarily includes exemption from being obligated to give
reproductive health information and to render reproductive health procedures.
The terms "service" and "methods" are broad enough to include the providing of
information and the rendering of medical procedures.
The same can be said with respect to the contention that the RH Law punishes
health care service providers who intentionally withhold, restrict and provide
incorrect information regarding reproductive health programs and services. For
ready reference, the assailed provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/ or
intentionally provide incorrect information regarding programs and services on
reproductive health including the right to informed choice and access to a full
range of legal, medically-safe, non-abortifacient and effective family planning
methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a
copy or model or with established rules; inaccurate, faulty; failing to agree with
the requirements of duty, morality or propriety; and failing to coincide with the
truth. 257 On the other hand, the word "knowingly" means with awareness or
deliberateness that is intentional.258 Used together in relation to Section 23(a)(l),
they connote a sense of malice and ill motive to mislead or misrepresent the
public as to the nature and effect of programs and services on reproductive
health. Public health and safety demand that health care service providers give
their honest and correct medical information in accordance with what is
acceptable in medical practice. While health care service providers are not barred
from expressing their own personal opinions regarding the programs and services
on reproductive health, their right must be tempered with the need to provide
public health and safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause
under the Constitution as it discriminates against the poor because it makes them
the primary target of the government program that promotes contraceptive use .
They argue that, rather than promoting reproductive health among the poor, the
RH Law introduces contraceptives that would effectively reduce the number of
the poor. Their bases are the various provisions in the RH Law dealing with the
poor, especially those mentioned in the guiding principles259 and definition of
terms260 of the law.
They add that the exclusion of private educational institutions from the
mandatory reproductive health education program imposed by the RH Law
renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to
expound on the concept of equal protection. Thus:
One of the basic principles on which this government was founded is that of the
equality of right which is embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the requirements of justice and fair
play. It has been embodied in a separate clause, however, to provide for a more
specific guaranty against any form of undue favoritism or hostility from the
government. Arbitrariness in general may be challenged on the basis of the due
process clause. But if the particular act assailed partakes of an unwarranted
partiality or prejudice, the sharper weapon to cut it down is the equal protection
clause.
"According to a long line of decisions, equal protection simply requires that all
persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed." It "requires public bodies and inst
itutions to treat similarly situated individuals in a similar manner." "The purpose
of the equal protection clause is to secure every person within a state's
jurisdiction against intentional and arbitrary discrimination, whether occasioned
by the express terms of a statue or by its improper execution through the state's
duly constituted authorities." "In other words, the concept of equal justice under
the law requires the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a legitimate
governmental objective."
The equal protection clause is aimed at all official state actions, not just those of
the legislature. Its inhibitions cover all the departments of the government
including the political and executive departments, and extend to all actions of a
state denying equal protection of the laws, through whatever agency or whatever
guise is taken.
It, however, does not require the universal application of the laws to all persons
or things without distinction. What it simply requires is equality among equals as
determined according to a valid classification. Indeed, the equal protection clause
permits classification. Such classification, however, to be valid must pass the test
of reasonableness. The test has four requisites: (1) The classification rests on
substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not
limited to existing conditions only; and (4) It applies equally to all members of the
same class. "Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must include
or embrace all persons who naturally belong to the class. "The classification will
be regarded as invalid if all the members of the class are not similarly treated,
both as to rights conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that the members of
the class should possess the same characteristics in equal degree. Substantial
similarity will suffice; and as long as this is achieved, all those covered by the
classification are to be treated equally. The mere fact that an individual belonging
to a class differs from the other members, as long as that class is substantially
distinguishable from all others, does not justify the non-application of the law to
him."
The classification must not be based on existing circumstances only, or so
constituted as to preclude addition to the number included in the class. It must be
of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. [Emphases supplied; citations
excluded]
To provide that the poor are to be given priority in the government's reproductive
health care program is not a violation of the equal protection clause. In fact, it is
pursuant to Section 11, Article XIII of the Constitution which recognizes the
distinct necessity to address the needs of the underprivileged by providing that
they be given priority in addressing the health development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to
health development which shall endeavor to make essential goods, health and
other social services available to all the people at affordable cost. There shall be
priority for the needs of the underprivileged, sick, elderly, disabled, women, and
children. The State shall endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and marginalized
couples who are suffering from fertility issues and desire to have children. There
is, therefore, no merit to the contention that the RH Law only seeks to target the
poor to reduce their number. While the RH Law admits the use of contraceptives,
it does not, as elucidated above, sanction abortion. As Section 3(1) explains, the
"promotion and/or stabilization of the population growth rate is incidental to the
advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may
have and does not impose conditions upon couples who intend to have children.
While the petitioners surmise that the assailed law seeks to charge couples with
the duty to have children only if they would raise them in a truly humane way, a
deeper look into its provisions shows that what the law seeks to do is to simply
provide priority to the poor in the implementation of government programs to
promote basic reproductive health care.
With respect to the exclusion of private educational institutions from the
mandatory reproductive health education program under Section 14, suffice it to
state that the mere fact that the children of those who are less fortunate attend
public educational institutions does not amount to substantial distinction
sufficient to annul the assailed provision. On the other hand, substantial
distinction rests between public educational institutions and private educational
institutions, particularly because there is a need to recognize the academic
freedom of private educational institutions especially with respect to religious
instruction and to consider their sensitivity towards the teaching of reproductive
health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates
the constitutional prohibition against involuntary servitude. They posit that
Section 17 of the assailed legislation requiring private and non-government health
care service providers to render forty-eight (48) hours of pro bono reproductive
health services, actually amounts to involuntary servitude because it requires
medical practitioners to perform acts against their will.262
The OSG counters that the rendition of pro bono services envisioned in Section 17
can hardly be considered as forced labor analogous to slavery, as reproductive
health care service providers have the discretion as to the manner and time of
giving pro bono services. Moreover, the OSG points out that the imposition is
within the powers of the government, the accreditation of medical practitioners
with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued
with public interest that it is both a power and a duty of the State to control and
regulate it in order to protect and promote the public welfare. Like the legal
profession, the practice of medicine is not a right but a privileged burdened with
conditions as it directly involves the very lives of the people. A fortiori, this power
includes the power of Congress263 to prescribe the qualifications for the practice
of professions or trades which affect the public welfare, the public health, the
public morals, and the public safety; and to regulate or control such professions or
trades, even to the point of revoking such right altogether.264
Moreover, as some petitioners put it, the notion of involuntary servitude
connotes the presence of force, threats, intimidation or other similar means of
coercion and compulsion.265 A reading of the assailed provision, however,
reveals that it only encourages private and non- government reproductive
healthcare service providers to render pro bono service. Other than non-
accreditation with PhilHealth, no penalty is imposed should they choose to do
otherwise. Private and non-government reproductive healthcare service providers
also enjoy the liberty to choose which kind of health service they wish to provide,
when, where and how to provide it or whether to provide it all. Clearly, therefore,
no compulsion, force or threat is made upon them to render pro bono service
against their will. While the rendering of such service was made a prerequisite to
accreditation with PhilHealth, the Court does not consider the same to be an
unreasonable burden, but rather, a necessary incentive imposed by Congress in
the furtherance of a perceived legitimate state interest.
Consistent with what the Court had earlier discussed, however, it should be
emphasized that conscientious objectors are exempt from this provision as long as
their religious beliefs and convictions do not allow them to render reproductive
health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the
power to determine whether or not a supply or product is to be included in the
Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only have
the power but also the competency to evaluate, register and cover health services
and methods. It is the only government entity empowered to render such services
and highly proficient to do so. It should be understood that health services and
methods fall under the gamut of terms that are associated with what is ordinarily
understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711
reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office to
be called the Food and Drug Administration (FDA) in the Department of Health
(DOH). Said Administration shall be under the Office of the Secretary and shall
have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and
regulations issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health
products;
"(c) To analyze and inspect health products in connection with the
implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health
products standards, and to recommend standards of identity, purity, safety,
efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements to serve as
basis for the issuance of appropriate authorization and spot-check for compliance
with regulations regarding operation of manufacturers, importers, exporters,
distributors, wholesalers, drug outlets, and other establishments and facilities of
health products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the
issuance of appropriate authorizations to ensure safety, efficacy, purity, and
quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters,
wholesalers, retailers, consumers, and non-consumer users of health products to
report to the FDA any incident that reasonably indicates that said product has
caused or contributed to the death, serious illness or serious injury to a consumer,
a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint for
health products, whether or not registered with the FDA Provided, That for
registered health products, the cease and desist order is valid for thirty (30) days
and may be extended for sixty ( 60) days only after due process has been
observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health
product found to have caused death, serious illness or serious injury to a
consumer or patient, or is found to be imminently injurious, unsafe, dangerous, or
grossly deceptive, and to require all concerned to implement the risk
management plan which is a requirement for the issuance of the appropriate
authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the FDA
are specific to enable the agency to carry out the mandates of the law. Being the
country's premiere and sole agency that ensures the safety of food and medicines
available to the public, the FDA was equipped with the necessary powers and
functions to make it effective. Pursuant to the principle of necessary implication,
the mandate by Congress to the FDA to ensure public health and safety by
permitting only food and medicines that are safe includes "service" and
"methods." From the declared policy of the RH Law, it is clear that Congress
intended that the public be given only those medicines that are proven medically
safe, legal, non-abortifacient, and effective in accordance with scientific and
evidence-based medical research standards. The philosophy behind the permitted
delegation was explained in Echagaray v. Secretary of Justice,267 as follows:
The reason is the increasing complexity of the task of the government and the
growing inability of the legislature to cope directly with the many problems
demanding its attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature cannot be
expected reasonably to comprehend. Specialization even in legislation has
become necessary. To many of the problems attendant upon present day
undertakings, the legislature may not have the competence, let alone the interest
and the time, to provide the required direct and efficacious, not to say specific
solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH Law
infringes upon the powers devolved to local government units (LGUs) under
Section 17 of the Local Government Code. Said Section 17 vested upon the LGUs
the duties and functions pertaining to the delivery of basic services and facilities,
as follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to be self-reliant and shall continue
exercising the powers and discharging the duties and functions currently vested
upon them. They shall also discharge the functions and responsibilities of national
agencies and offices devolved to them pursuant to this Code. Local government
units shall likewise exercise such other powers and discharge such other functions
and responsibilities as are necessary, appropriate, or incidental to efficient and
effective provision of the basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the functions
and responsibilities that have already been devolved upon them from the national
agencies on the aspect of providing for basic services and facilities in their
respective jurisdictions, paragraph (c) of the same provision provides a categorical
exception of cases involving nationally-funded projects, facilities, programs and
services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and
infrastructure projects and other facilities, programs and services funded by the
National Government under the annual General Appropriations Act, other special
laws, pertinent executive orders, and those wholly or partially funded from
foreign sources, are not covered under this Section, except in those cases where
the local government unit concerned is duly designated as the implementing
agency for such projects, facilities, programs and services. [Emphases supplied]
The essence of this express reservation of power by the national government is
that, unless an LGU is particularly designated as the implementing agency, it has
no power over a program for which funding has been provided by the national
government under the annual general appropriations act, even if the program
involves the delivery of basic services within the jurisdiction of the LGU.269 A
complete relinquishment of central government powers on the matter of
providing basic facilities and services cannot be implied as the Local Government
Code itself weighs against it.270
In this case, a reading of the RH Law clearly shows that whether it pertains to the
establishment of health care facilities,271 the hiring of skilled health
professionals,272 or the training of barangay health workers,273 it will be the
national government that will provide for the funding of its implementation. Local
autonomy is not absolute. The national government still has the say when it
comes to national priority programs which the local government is called upon to
implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely
encouraged to provide these services. There is nothing in the wording of the law
which can be construed as making the availability of these services mandatory for
the LGUs. For said reason, it cannot be said that the RH Law amounts to an undue
encroachment by the national government upon the autonomy enjoyed by the
local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments
can be equally applied to the ARMM. The RH Law does not infringe upon its
autonomy. Moreover, Article III, Sections 6, 10 and 11 of R.A. No. 9054, or the
organic act of the ARMM, alluded to by petitioner Tillah to justify the exemption
of the operation of the RH Law in the autonomous region, refer to the policy
statements for the guidance of the regional government. These provisions relied
upon by the petitioners simply delineate the powers that may be exercised by the
regional government, which can, in no manner, be characterized as an abdication
by the State of its power to enact legislation that would benefit the general
welfare. After all, despite the veritable autonomy granted the ARMM, the
Constitution and the supporting jurisprudence, as they now stand, reject the
notion of imperium et imperio in the relationship between the national and the
regional governments.274 Except for the express and implied limitations imposed
on it by the Constitution, Congress cannot be restricted to exercise its inherent
and plenary power to legislate on all subjects which extends to all matters of
general concern or common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural law,276 suffice it to
say that the Court does not duly recognize it as a legal basis for upholding or
invalidating a law. Our only guidepost is the Constitution. While every law enacted
by man emanated from what is perceived as natural law, the Court is not obliged
to see if a statute, executive issuance or ordinance is in conformity to it. To begin
with, it is not enacted by an acceptable legitimate body. Moreover, natural laws
are mere thoughts and notions on inherent rights espoused by theorists,
philosophers and theologists. The jurists of the philosophical school are interested
in the law as an abstraction, rather than in the actual law of the past or
present.277 Unless, a natural right has been transformed into a written law, it
cannot serve as a basis to strike down a law. In Republic v. Sandiganbayan,278 the
very case cited by the petitioners, it was explained that the Court is not duty-
bound to examine every law or action and whether it conforms with both the
Constitution and natural law. Rather, natural law is to be used sparingly only in
the most peculiar of circumstances involving rights inherent to man where no law
is applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking away
of life. It does not allow abortion in any shape or form. It only seeks to enhance
the population control program of the government by providing information and
making non-abortifacient contraceptives more readily available to the public,
especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as it
seeks to provide access to medically-safe, non-abortifacient, effective, legal,
affordable, and quality reproductive healthcare services, methods, devices, and
supplies. As earlier pointed out, however, the religious freedom of some sectors
of society cannot be trampled upon in pursuit of what the law hopes to achieve.
After all, the Constitutional safeguard to religious freedom is a recognition that
man stands accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State, one religious
group cannot be allowed to impose its beliefs on the rest of the society. Philippine
modem society leaves enough room for diversity and pluralism. As such, everyone
should be tolerant and open-minded so that peace and harmony may continue to
reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does not escape the
Court that what it seeks to address is the problem of rising poverty and
unemployment in the country. Let it be said that the cause of these perennial
issues is not the large population but the unequal distribution of wealth. Even if
population growth is controlled, poverty will remain as long as the country's
wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the long
run. The European and Asian countries, which embarked on such a program
generations ago , are now burdened with ageing populations. The number of their
young workers is dwindling with adverse effects on their economy. These young
workers represent a significant human capital which could have helped them
invigorate, innovate and fuel their economy. These countries are now trying to
reverse their programs, but they are still struggling. For one, Singapore, even with
incentives, is failing.
And in this country, the economy is being propped up by remittances from our
Overseas Filipino Workers. This is because we have an ample supply of young
able-bodied workers. What would happen if the country would be weighed down
by an ageing population and the fewer younger generation would not be able to
support them? This would be the situation when our total fertility rate would go
down below the replacement level of two (2) children per woman.280
Indeed, at the present, the country has a population problem, but the State
should not use coercive measures (like the penal provisions of the RH Law against
conscientious objectors) to solve it. Nonetheless, the policy of the Court is non-
interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its duty
is to say what the law is as enacted by the lawmaking body. That is not the same
as saying what the law should be or what is the correct rule in a given set of
circumstances. It is not the province of the judiciary to look into the wisdom of
the law nor to question the policies adopted by the legislative branch. Nor is it the
business of this Tribunal to remedy every unjust situation that may arise from the
application of a particular law. It is for the legislature to enact remedial legislation
if that would be necessary in the premises. But as always, with apt judicial caution
and cold neutrality, the Court must carry out the delicate function of interpreting
the law, guided by the Constitution and existing legislation and mindful of settled
jurisprudence. The Court's function is therefore limited, and accordingly, must
confine itself to the judicial task of saying what the law is, as enacted by the
lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation and
enhancement of the prior existing contraceptive and reproductive health laws,
but with coercive measures. Even if the Court decrees the RH Law as entirely
unconstitutional, there will still be the Population Act (R.A. No. 6365), the
Contraceptive Act (R.A. No. 4729) and the reproductive health for women or The
Magna Carta of Women (R.A. No. 9710), sans the coercive provisions of the
assailed legislation. All the same, the principle of "no-abortion" and "non-
coercion" in the adoption of any family planning method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court
declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with respect to the
following provisions which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a)
require private health facilities and non-maternity specialty hospitals and
hospitals owned and operated by a religious group to refer patients, not in an
emergency or life-threatening case, as defined under Republic Act No. 8344, to
another health facility which is conveniently accessible; and b) allow minor-
parents or minors who have suffered a miscarriage access to modem methods of
family planning without written consent from their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly
Section 5 .24 thereof, insofar as they punish any healthcare service provider who
fails and or refuses to disseminate information regarding programs and services
on reproductive health regardless of his or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they
allow a married individual, not in an emergency or life-threatening case, as
defined under Republic Act No. 8344, to undergo reproductive health procedures
without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as
they limit the requirement of parental consent only to elective surgical
procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly
Section 5.24 thereof, insofar as they punish any healthcare service provider who
fails and/or refuses to refer a patient not in an emergency or life-threatening case,
as defined under Republic Act No. 8344, to another health care service provider
within the same facility or one which is conveniently accessible regardless of his
or her religious beliefs;

6) Section 23(b) and the corresponding provision in the RH-IRR, particularly

Section 5 .24 thereof, insofar as they punish any public officer who refuses to
support reproductive health programs or shall do any act that hinders the full
implementation of a reproductive health program, regardless of his or her
religious beliefs;

7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the

rendering of pro bona reproductive health service in so far as they affect the
conscientious objector in securing PhilHealth accreditation; and

8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier
"primarily" in defining abortifacients and contraceptives, as they are ultra vires
and, therefore, null and void for contravening Section 4(a) of the RH Law and
violating Section 12, Article II of the Constitution.

The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by
its Order, dated July 16, 2013 , is hereby LIFTED, insofar as the provisions of R.A.
No. 10354 which have been herein declared as constitutional.

SO ORDERED.
 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

A.M. No. P-02-1651 June 22, 2006 Respondent Escritor testified that when she entered the judiciary in 1999, she was
(Formerly OCA I.P.I. No. 00-1021-P) 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
ALEJANDRO ESTRADA, Complainant, years ago when her husband was still alive but living with another woman. She
vs. also admitted that she and Quilapio have a son.5 But as a member of the religious
SOLEDAD S. ESCRITOR, Respondent. sect known as the Jehovah’s Witnesses and the Watch Tower and Bible Tract
Society, respondent asserted that their conjugal arrangement is in conformity
PUNO, J.: 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
While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Pledging Faithfulness."7
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 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 Constitution148 and the Family Code,149 argues
that marriage and the family are so crucial to the stability and peace of the nation
that the conjugal arrangement embraced in the Declaration of Pledging
Faithfulness should not be recognized or given effect, as "it is utterly destructive
of the avowed institutions of marriage and the family for it reduces to a mockery
these legally exalted and socially significant institutions which in their purity
demand respect and dignity."150
Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor
General in so far as he asserts that the State has a compelling interest in the
preservation of marriage and the family as basic social institutions, which is
ultimately the public policy underlying the criminal sanctions against concubinage
and bigamy. He also argues that in dismissing the administrative complaint against
respondent, "the majority opinion effectively condones and accords a semblance
of legitimacy to her patently unlawful cohabitation..." and "facilitates the
circumvention of the Revised Penal Code." According to Mr. Justice Carpio, by
choosing to turn a blind eye to respondent’s criminal conduct, the majority is in
fact recognizing a practice, custom or agreement that subverts marriage. He
argues in a similar fashion as regards the state’s interest in the sound
administration of justice.
There has never been any question that the state has an interest in protecting the
institutions of marriage and the family, or even in the sound administration of
justice. Indeed, the provisions by which respondent’s relationship is said to have
impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code, Articles 334 and 349 of the Revised Penal Code, and even
the provisions on marriage and family in the Civil Code and Family Code, all clearly
demonstrate the State’s need to protect these secular interests.
Be that as it may, the free exercise of religion is specifically articulated as one of
the fundamental rights in our Constitution. It is a fundamental right that enjoys a
preferred position in the hierarchy of rights — "the most inalienable and sacred of
human rights," in the words of Jefferson. Hence, it is not enough to contend that
the state’s interest is important, because our Constitution itself holds the right to
religious freedom sacred. The State must articulate in specific terms the state
interest involved in preventing the exemption, which must be compelling, for only
the gravest abuses, endangering paramount interests can limit the fundamental
right to religious freedom. To rule otherwise would be to emasculate the Free
Exercise Clause as a source of right by itself.
Thus, it is not the State’s broad interest in "protecting the institutions of marriage
and the family," or even "in the sound administration of justice" that must be
weighed against respondent’s claim, but the State’s narrow interest in refusing to
make an exception for the cohabitation which respondent’s faith finds moral. In
other words, the government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those
objectives will be undermined if exemptions are granted.151 This, the Solicitor
General failed to do.
To paraphrase Justice Blackmun’s application of the compelling interest test, the
State’s interest in enforcing its prohibition, in order to be sufficiently compelling
to outweigh a free exercise claim, cannot be merely abstract or symbolic. The
State cannot plausibly assert that unbending application of a criminal prohibition
is essential to fulfill any compelling interest, if it does not, in fact, attempt to
enforce that prohibition. In the case at bar, the State has not evinced any
concrete interest in enforcing the concubinage or bigamy charges against
respondent or her partner. The State has never sought to prosecute respondent
nor her partner. The State’s asserted interest thus amounts only to the symbolic
preservation of an unenforced prohibition. Incidentally, as echoes of the words of
Messrs. J. Bellosillo and Vitug, in their concurring opinions in our 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.

G.R. No. 190582 April 8, 2010
ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO,
Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.
DEL CASTILLO, J.:
... [F]reedom to differ is not limited to things that do not matter much. That would
be a mere shadow of freedom. The test of its substance is the right to differ as to
things that touch the heart of the existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette1
One unavoidable consequence of everyone having the freedom to choose is that
others may make different choices – choices we would not make for ourselves,
choices we may disapprove of, even choices that may shock or offend or anger us.
However, choices are not to be legally prohibited merely because they are
different, and the right to disagree and debate about important questions of
public policy is a core value protected by our Bill of Rights. Indeed, our democracy
is built on genuine recognition of, and respect for, diversity and difference in
opinion.
Since ancient times, society has grappled with deep disagreements about the
definitions and demands of morality. In many cases, where moral convictions are
concerned, harmony among those theoretically opposed is an insurmountable
goal. Yet herein lies the paradox – philosophical justifications about what is moral
are indispensable and yet at the same time powerless to create agreement. This
Court recognizes, however, that practical solutions are preferable to ideological
stalemates; accommodation is better than intransigence; reason more worthy
than rhetoric. This will allow persons of diverse viewpoints to live together, if not
harmoniously, then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an
application for a writ of preliminary mandatory injunction, filed by Ang Ladlad
LGBT Party (Ang Ladlad) against the Resolutions of the Commission on Elections
(COMELEC) dated November 11, 20092 (the First Assailed Resolution) and
December 16, 20093 (the Second Assailed Resolution) in SPP No. 09-228 (PL)
(collectively, the Assailed Resolutions). The case has its roots in the COMELEC’s
refusal to accredit Ang Ladlad as a party-list organization under Republic Act (RA)
No. 7941, otherwise known as the Party-List System Act.4
Ang Ladlad is an organization composed of men and women who identify
themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs).
Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC
in 2006. The application for accreditation was denied on the ground that the
organization had no substantial membership base. On August 17, 2009, Ang
Ladlad again filed a Petition5 for registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a
marginalized and under-represented sector that is particularly disadvantaged
because of their sexual orientation and gender identity; that LGBTs are victims of
exclusion, discrimination, and violence; that because of negative societal
attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang
Ladlad complied with the 8-point guidelines enunciated by this Court in Ang
Bagong Bayani-OFW Labor Party v. Commission on Elections.6 Ang Ladlad laid out
its national membership base consisting of individual members and organizational
supporters, and outlined its platform of governance.7
On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC
(Second Division) dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino
Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is particularly
disadvantaged because of their sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a person’s capacity for profound emotional, affectional and sexual
attraction to, and intimate and sexual relations with, individuals of a different
gender, of the same gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that petitioner tolerates
immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even their women did
change the natural use into that which is against nature: And likewise also the
men, leaving the natural use of the woman, burned in their lust one toward
another; men with men working that which is unseemly, and receiving in
themselves that recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are indeed a people
transgressing beyond bounds." (7.81) "And we rained down on them a shower (of
brimstone): Then see what was the end of those who indulged in sin and crime!"
(7:84) "He said: "O my Lord! Help Thou me against people who do mischief"
(29:30).
As correctly pointed out by the Law Department in its Comment dated October 2,
2008:
The ANG LADLAD apparently advocates sexual immorality as indicated in the
Petition’s par. 6F: ‘Consensual partnerships or relationships by gays and lesbians
who are already of age’. It is further indicated in par. 24 of the Petition which
waves for the record: ‘In 2007, Men Having Sex with Men or MSMs in the
Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and
Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship, or
accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal
Code are deemed part of the requirement to be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as
‘Any act, omission, establishment, business, condition of property, or anything
else which x x x (3) shocks, defies; or disregards decency or morality x x x
It also collides with Article 1306 of the Civil Code: ‘The contracting parties may
establish such stipulations, clauses, terms and conditions as they may deem
convenient, provided they are not contrary to law, morals, good customs, public
order or public policy. Art 1409 of the Civil Code provides that ‘Contracts whose
cause, object or purpose is contrary to law, morals, good customs, public order or
public policy’ are inexistent and void from the beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal
Code, as amended, penalizes ‘Immoral doctrines, obscene publications and
exhibitions and indecent shows’ as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent
shows. — The penalty of prision mayor or a fine ranging from six thousand to
twelve thousand pesos, or both such imprisonment and fine, shall be imposed
upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to
public morals;
2. (a) The authors of obscene literature, published with their knowledge in any
form; the editors publishing such literature; and the owners/operators of the
establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit
indecent or immoral plays, scenes, acts or shows, it being understood that the
obscene literature or indecent or immoral plays, scenes, acts or shows, whether
live or in film, which are prescribed by virtue hereof, shall include those which: (1)
glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the
market for violence, lust or pornography; (3) offend any race or religion; (4) tend
to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public
order, morals, good customs, established policies, lawful orders, decrees and
edicts.
3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or
literature which are offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating
immoral doctrines but likewise for not being truthful when it said that it "or any of
its nominees/party-list representatives have not violated or failed to comply with
laws, rules, or regulations relating to the elections."
Furthermore, should this Commission grant the petition, we will be exposing our
youth to an environment that does not conform to the teachings of our faith.
Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in one article
that "older practicing homosexuals are a threat to the youth." As an agency of the
government, ours too is the State’s avowed duty under Section 13, Article II of the
Constitution to protect our youth from moral and spiritual degradation.8
When Ang Ladlad sought reconsideration,9 three commissioners voted to
overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal,
Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to
deny Ang Ladlad’s Motion for Reconsideration (Commissioners Nicodemo T.
Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking
the tie and speaking for the majority in his Separate Opinion, upheld the First
Assailed Resolution, stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-list system.
Even assuming that it has properly proven its under-representation and
marginalization, it cannot be said that Ladlad’s expressed sexual orientations per
se would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the party-
list system of electing congressional representatives is to enable Filipino citizens
belonging to marginalized and under-represented sectors, organizations and
parties, and who lack well-defined political constituencies but who could
contribute to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole, to become members of the House of
Representatives.
If entry into the party-list system would depend only on the ability of an
organization to represent its constituencies, then all representative organizations
would have found themselves into the party-list race. But that is not the intention
of the framers of the law. The party-list system is not a tool to advocate tolerance
and acceptance of misunderstood persons or groups of persons. Rather, the
party-list system is a tool for the realization of aspirations of marginalized
individuals whose interests are also the nation’s – only that their interests have
not been brought to the attention of the nation because of their under
representation. Until the time comes when Ladlad is able to justify that having
mixed sexual orientations and transgender identities is beneficial to the nation, its
application for accreditation under the party-list system will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine
jurisprudence, courts do not recognize lesbians, gays, homosexuals, and bisexuals
(LGBT) as a "special class" of individuals. x x x Significantly, it has also been held
that homosexuality is not a constitutionally protected fundamental right, and that
"nothing in the U.S. Constitution discloses a comparable intent to protect or
promote the social or legal equality of homosexual relations," as in the case of
race or religion or belief.
xxxx
Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s is
elevated, there can be no denying that Ladlad constituencies are still males and
females, and they will remain either male or female protected by the same Bill of
Rights that applies to all citizens alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian or Muslim
religious practices. Neither is there any attempt to any particular religious group’s
moral rules on Ladlad. Rather, what are being adopted as moral parameters and
precepts are generally accepted public morals. They are possibly religious-based,
but as a society, the Philippines cannot ignore its more than 500 years of Muslim
and Christian upbringing, such that some moral precepts espoused by said
religions have sipped [sic] into society and these are not publicly accepted moral
norms.
V. Legal Provisions
But above morality and social norms, they have become part of the law of the
land. Article 201 of the Revised Penal Code imposes the penalty of prision mayor
upon "Those who shall publicly expound or proclaim doctrines openly contrary to
public morals." It penalizes "immoral doctrines, obscene publications and
exhibition and indecent shows." "Ang Ladlad" apparently falls under these legal
provisions. This is clear from its Petition’s paragraph 6F: "Consensual partnerships
or relationships by gays and lesbians who are already of age’ It is further indicated
in par. 24 of the Petition which waves for the record: ‘In 2007, Men Having Sex
with Men or MSMs in the Philippines were estimated as 670,000. Moreoever,
Article 694 of the Civil Code defines "nuisance" as any act, omission x x x or
anything else x x x which shocks, defies or disregards decency or morality x x x."
These are all unlawful.10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the
Assailed Resolutions and direct the COMELEC to grant Ang Ladlad’s application for
accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary
mandatory injunction against the COMELEC, which had previously announced that
it would begin printing the final ballots for the May 2010 elections by January 25,
2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its
Comment on behalf of COMELEC not later than 12:00 noon of January 11, 2010.11
Instead of filing a Comment, however, the OSG filed a Motion for Extension,
requesting that it be given until January 16, 2010 to Comment.12 Somewhat
surprisingly, the OSG later filed a Comment in support of petitioner’s
application.13 Thus, in order to give COMELEC the opportunity to fully ventilate its
position, we required it to file its own comment.14 The COMELEC, through its Law
Department, filed its Comment on February 2, 2010.15
In the meantime, due to the urgency of the petition, we issued a temporary
restraining order on January 12, 2010, effective immediately and continuing until
further orders from this Court, directing the COMELEC to cease and desist from
implementing the Assailed Resolutions.16
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion
to Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-
Intervention.17 The CHR opined that the denial of Ang Ladlad’s petition on moral
grounds violated the standards and principles of the Constitution, the Universal
Declaration of Human Rights (UDHR), and the International Covenant on Civil and
Political Rights (ICCPR). On January 19, 2010, we granted the CHR’s motion to
intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which
motion was granted on February 2, 2010.19
The Parties’ Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the
exclusion by using religious dogma, violated the constitutional guarantees against
the establishment of religion. Petitioner also claimed that the Assailed Resolutions
contravened its constitutional rights to privacy, freedom of speech and assembly,
and equal protection of laws, as well as constituted violations of the Philippines’
international obligations against discrimination based on sexual orientation.
The OSG concurred with Ang Ladlad’s petition and argued that the COMELEC
erred in denying petitioner’s application for registration since there was no basis
for COMELEC’s allegations of immorality. It also opined that LGBTs have their own
special interests and concerns which should have been recognized by the
COMELEC as a separate classification. However, insofar as the purported
violations of petitioner’s freedom of speech, expression, and assembly were
concerned, the OSG maintained that there had been no restrictions on these
rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete
and genuine national political agenda to benefit the nation and that the petition
was validly dismissed on moral grounds. It also argued for the first time that the
LGBT sector is not among the sectors enumerated by the Constitution and RA
7941, and that petitioner made untruthful statements in its petition when it
alleged its national existence contrary to actual verification reports by COMELEC’s
field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlad’s application for registration on the ground that
the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it
associated with or related to any of the sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the
proposition that only those sectors specifically enumerated in the law or related
to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers,
and professionals) may be registered under the party-list system. As we explicitly
ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections,20 "the
enumeration of marginalized and under-represented sectors is not exclusive". The
crucial element is not whether a sector is specifically enumerated, but whether a
particular organization complies with the requirements of the Constitution and RA
7941.
Respondent also argues that Ang Ladlad made untruthful statements in its § Arts Center of Cabanatuan City – Nueva Ecija
petition when it alleged that it had nationwide existence through its members and
affiliate organizations. The COMELEC claims that upon verification by its field § Boys Legion – Metro Manila
personnel, it was shown that "save for a few isolated places in the country,
petitioner does not exist in almost all provinces in the country."21 § Cagayan de Oro People Like Us (CDO PLUS)

This argument that "petitioner made untruthful statements in its petition when it § Can’t Live in the Closet, Inc. (CLIC) – Metro Manila
alleged its national existence" is a new one; previously, the COMELEC claimed that
petitioner was "not being truthful when it said that it or any of its § Cebu Pride – Cebu City
nominees/party-list representatives have not violated or failed to comply with
laws, rules, or regulations relating to the elections." Nowhere was this ground for § Circle of Friends
denial of petitioner’s accreditation mentioned or even alluded to in the Assailed
Resolutions. This, in itself, is quite curious, considering that the reports of § Dipolog Gay Association – Zamboanga del Norte
petitioner’s alleged non-existence were already available to the COMELEC prior to
the issuance of the First Assailed Resolution. At best, this is irregular procedure; at § Gay, Bisexual, & Transgender Youth Association (GABAY)
worst, a belated afterthought, a change in respondent’s theory, and a serious
violation of petitioner’s right to procedural due process. § Gay and Lesbian Activists Network for Gender Equality (GALANG) – Metro
Manila
Nonetheless, we find that there has been no misrepresentation. A cursory perusal
of Ang Ladlad’s initial petition shows that it never claimed to exist in each § Gay Men’s Support Group (GMSG) – Metro Manila
province of the Philippines. Rather, petitioner alleged that the LGBT community in
the Philippines was estimated to constitute at least 670,000 persons; that it had § Gay United for Peace and Solidarity (GUPS) – Lanao del Norte
16,100 affiliates and members around the country, and 4,044 members in its
electronic discussion group.22 Ang Ladlad also represented itself to be "a national § Iloilo City Gay Association – Iloilo City
LGBT umbrella organization with affiliates around the Philippines composed of the
following LGBT networks:" § Kabulig Writer’s Group – Camarines Sur

§ Abra Gay Association § Lesbian Advocates Philippines, Inc. (LEAP)

§ Aklan Butterfly Brigade (ABB) – Aklan § LUMINA – Baguio City

§ Albay Gay Association § Marikina Gay Association – Metro Manila

 these regions. In fact, if COMELEC’s findings are to be believed, petitioner does
§ Metropolitan Community Church (MCC) – Metro Manila not even exist in Quezon City, which is registered as Ang Ladlad’s principal place
of business.
§ Naga City Gay Association – Naga City
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its
§ ONE BACARDI compliance with the legal requirements for accreditation. Indeed, aside from
COMELEC’s moral objection and the belated allegation of non-existence, nowhere
§ Order of St. Aelred (OSAe) – Metro Manila in the records has the respondent ever found/ruled that Ang Ladlad is not
qualified to register as a party-list organization under any of the requisites under
§ PUP LAKAN RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims,
lies in Ang Ladlad’s morality, or lack thereof.
§ RADAR PRIDEWEAR
Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for Registration
§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made
§ San Jose del Monte Gay Association – Bulacan respecting an establishment of religion, or prohibiting the free exercise thereof."
At bottom, what our non-establishment clause calls for is "government neutrality
§ Sining Kayumanggi Royal Family – Rizal in religious matters."24 Clearly, "governmental reliance on religious justification is
inconsistent with this policy of neutrality."25 We thus find that it was grave
§ Society of Transexual Women of the Philippines (STRAP) – Metro Manila violation of the non-establishment clause for the COMELEC to utilize the Bible and
the Koran to justify the exclusion of Ang Ladlad.
§ Soul Jive – Antipolo, Rizal
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions
§ The Link – Davao City should depend, instead, on whether the COMELEC is able to advance some
justification for its rulings beyond mere conformity to religious doctrine.
§ Tayabas Gay Association – Quezon Otherwise stated, government must act for secular purposes and in ways that
have primarily secular effects. As we held in Estrada v. Escritor:26
§ Women’s Bisexual Network – Metro Manila
x x x The morality referred to in the law is public and necessarily secular, not
§ Zamboanga Gay Association – Zamboanga City23 religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as
expressed in public debate may influence the civil public order but public moral
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD disputes may be resolved only on grounds articulable in secular terms."
LGBT, it is no surprise that they found that petitioner had no presence in any of Otherwise, if government relies upon religious beliefs in formulating public
policies and morals, the resulting policies and morals would require conformity to
what some might regard as religious programs or agenda. The non-believers
would therefore be compelled to conform to a standard of conduct buttressed by
a religious belief, i.e., to a "compelled religion," anathema to religious freedom.
Likewise, if government based its actions upon religious beliefs, it would tacitly
approve or endorse that belief and thereby also tacitly disapprove contrary
religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even make
it appear that those whose beliefs are disapproved are second-class
citizens.1avvphi1
In other words, government action, including its proscription of immorality as
expressed in criminal law like concubinage, must have a secular purpose. That is,
the government proscribes this conduct because it is "detrimental (or dangerous)
to those conditions upon which depend the existence and progress of human
society" and not because the conduct is proscribed by the beliefs of one religion
or the other. Although admittedly, moral judgments based on religion might have
a compelling influence on those engaged in public deliberations over what actions
would be considered a moral disapprobation punishable by law. After all, they
might also be adherents of a religion and thus have religious opinions and moral
codes with a compelling influence on them; the human mind endeavors to
regulate the temporal and spiritual institutions of society in a uniform manner,
harmonizing earth with heaven. Succinctly put, a law could be religious or Kantian
or Aquinian or utilitarian in its deepest roots, but it must have an articulable and
discernible secular purpose and justification to pass scrutiny of the religion
clauses. x x x Recognizing the religious nature of the Filipinos and the elevating
influence of religion in society, however, the Philippine constitution's religion
clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality
recognizes that government must pursue its secular goals and interests but at the
same time strive to uphold religious liberty to the greatest extent possible within
flexible constitutional limits. Thus, although the morality contemplated by laws is
secular, benevolent neutrality could allow for accommodation of morality based
on religion, provided it does not offend compelling state interests.27
Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration
Respondent suggests that although the moral condemnation of homosexuality
and homosexual conduct may be religion-based, it has long been transplanted
into generally accepted public morals. The COMELEC argues:
Petitioner’s accreditation was denied not necessarily because their group consists
of LGBTs but because of the danger it poses to the people especially the youth.
Once it is recognized by the government, a sector which believes that there is
nothing wrong in having sexual relations with individuals of the same gender is a
bad example. It will bring down the standard of morals we cherish in our civilized
society. Any society without a set of moral precepts is in danger of losing its own
existence.28
We are not blind to the fact that, through the years, homosexual conduct, and
perhaps homosexuals themselves, have borne the brunt of societal disapproval. It
is not difficult to imagine the reasons behind this censure – religious beliefs,
convictions about the preservation of marriage, family, and procreation, even
dislike or distrust of homosexuals themselves and their perceived lifestyle.
Nonetheless, we recall that the Philippines has not seen fit to criminalize
homosexual conduct. Evidently, therefore, these "generally accepted public
morals" have not been convincingly transplanted into the realm of law.29
The Assailed Resolutions have not identified any specific overt immoral act
performed by Ang Ladlad. Even the OSG agrees that "there should have been a
finding by the COMELEC that the group’s members have committed or are
committing immoral acts."30 The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of a
different gender, or more than one gender, but mere attraction does not translate
to immoral acts. There is a great divide between thought and action. Reduction ad
absurdum. If immoral thoughts could be penalized, COMELEC would have its
hands full of disqualification cases against both the "straights" and the gays."
Certainly this is not the intendment of the law.31
Respondent has failed to explain what societal ills are sought to be prevented, or
why special protection is required for the youth. Neither has the COMELEC
condescended to justify its position that petitioner’s admission into the party-list
system would be so harmful as to irreparably damage the moral fabric of society.
We, of course, do not suggest that the state is wholly without authority to
regulate matters concerning morality, sexuality, and sexual relations, and we
recognize that the government will and should continue to restrict behavior
considered detrimental to society. Nonetheless, we cannot countenance
advocates who, undoubtedly with the loftiest of intentions, situate morality on
one end of an argument or another, without bothering to go through the rigors of
legal reasoning and explanation. In this, the notion of morality is robbed of all
value. Clearly then, the bare invocation of morality will not remove an issue from
our scrutiny.
We also find the COMELEC’s reference to purported violations of our penal and
civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code
defines a nuisance as "any act, omission, establishment, condition of property, or
anything else which shocks, defies, or disregards decency or morality," the
remedies for which are a prosecution under the Revised Penal Code or any local
ordinance, a civil action, or abatement without judicial proceedings.32 A violation
of Article 201 of the Revised Penal Code, on the other hand, requires proof
beyond reasonable doubt to support a criminal conviction. It hardly needs to be
emphasized that mere allegation of violation of laws is not proof, and a mere
blanket invocation of public morals cannot replace the institution of civil or
criminal proceedings and a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient
governmental interest to justify exclusion of homosexuals from participation in
the party-list system. The denial of Ang Ladlad’s registration on purely moral
grounds amounts more to a statement of dislike and disapproval of homosexuals,
rather than a tool to further any substantial public interest. Respondent’s blanket
justifications give rise to the inevitable conclusion that the COMELEC targets
homosexuals themselves as a class, not because of any particular morally
reprehensible act. It is this selective targeting that implicates our equal protection
clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which provides
"nor shall any person be denied equal protection of the laws," courts have never
interpreted the provision as an absolute prohibition on classification. "Equality,"
said Aristotle, "consists in the same treatment of similar persons."33 The equal
protection clause guarantees that no person or class of persons shall be deprived
of the same protection of laws which is enjoyed by other persons or other classes
in the same place and in like circumstances.34
Recent jurisprudence has affirmed that if a law neither burdens a fundamental
right nor targets a suspect class, we will uphold the classification as long as it
bears a rational relationship to some legitimate government end.35 In Central
Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas,36 we declared that
"[i]n our jurisdiction, the standard of analysis of equal protection challenges x x x
have followed the ‘rational basis’ test, coupled with a deferential attitude to
legislative classifications and a reluctance to invalidate a law unless there is a
showing of a clear and unequivocal breach of the Constitution."37
The COMELEC posits that the majority of the Philippine population considers
homosexual conduct as immoral and unacceptable, and this constitutes sufficient
reason to disqualify the petitioner. Unfortunately for the respondent, the
Philippine electorate has expressed no such belief. No law exists to criminalize
homosexual behavior or expressions or parties about homosexual behavior.
Indeed, even if we were to assume that public opinion is as the COMELEC
describes it, the asserted state interest here – that is, moral disapproval of an
unpopular minority – is not a legitimate state interest that is sufficient to satisfy
rational basis review under the equal protection clause. The COMELEC’s
differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to
the formulation of legislation that would benefit the nation, furthers no legitimate
state interest other than disapproval of or dislike for a disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual, and
transgender have the same interest in participating in the party-list system on the
same basis as other political parties similarly situated. State intrusion in this case
is equally burdensome. Hence, laws of general application should apply with equal
force to LGBTs, and they deserve to participate in the party-list system on the
same basis as other marginalized and under-represented sectors.
It bears stressing that our finding that COMELEC’s act of differentiating LGBTs
from heterosexuals insofar as the party-list system is concerned does not imply
that any other law distinguishing between heterosexuals and homosexuals under
different circumstances would similarly fail. We disagree with the OSG’s position
that homosexuals are a class in themselves for the purposes of the equal
protection clause.38 We are not prepared to single out homosexuals as a separate
class meriting special or differentiated treatment. We have not received sufficient
evidence to this effect, and it is simply unnecessary to make such a ruling today.
Petitioner itself has merely demanded that it be recognized under the same basis
as all other groups similarly situated, and that the COMELEC made "an
unwarranted and impermissible classification not justified by the circumstances of
the case."
Freedom of Expression and Association
Under our system of laws, every group has the right to promote its agenda and
attempt to persuade society of the validity of its position through normal
democratic means.39 It is in the public square that deeply held convictions and
differing opinions should be distilled and deliberated upon. As we held in Estrada
v. Escritor:40
In a democracy, this common agreement on political and moral ideas is distilled in
the public square. Where citizens are free, every opinion, every prejudice, every
aspiration, and every moral discernment has access to the public square where
people deliberate the order of their life together. Citizens are the bearers of
opinion, including opinion shaped by, or espousing religious belief, and these
citizens have equal access to the public square. In this representative democracy,
the state is prohibited from determining which convictions and moral judgments
may be proposed for public deliberation. Through a constitutionally designed
process, the people deliberate and decide. Majority rule is a necessary principle in
this democratic governance. Thus, when public deliberation on moral judgments
is finally crystallized into law, the laws will largely reflect the beliefs and
preferences of the majority, i.e., the mainstream or median groups. Nevertheless,
in the very act of adopting and accepting a constitution and the limits it specifies –
including protection of religious freedom "not only for a minority, however small
– not only for a majority, however large – but for each of us" – the majority
imposes upon itself a self-denying ordinance. It promises not to do what it
otherwise could do: to ride roughshod over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a
democratic society, and this freedom applies not only to those that are favorably
received but also to those that offend, shock, or disturb. Any restriction imposed
in this sphere must be proportionate to the legitimate aim pursued. Absent any
compelling state interest, it is not for the COMELEC or this Court to impose its
views on the populace. Otherwise stated, the COMELEC is certainly not free to
interfere with speech for no better reason than promoting an approved message
or discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct is
not illegal in this country. It follows that both expressions concerning one’s
homosexuality and the activity of forming a political association that supports
LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even
overwhelming public perception that homosexual conduct violates public morality
does not justify criminalizing same-sex conduct.41 European and United Nations
judicial decisions have ruled in favor of gay rights claimants on both privacy and
equality grounds, citing general privacy and equal protection provisions in foreign
and international texts.42 To the extent that there is much to learn from other
jurisdictions that have reflected on the issues we face here, such jurisprudence is
certainly illuminating. These foreign authorities, while not formally binding on
Philippine courts, may nevertheless have persuasive influence on the Court’s
analysis.
In the area of freedom of expression, for instance, United States courts have ruled
that existing free speech doctrines protect gay and lesbian rights to expressive
conduct. In order to justify the prohibition of a particular expression of opinion,
public institutions must show that their actions were caused by "something more
than a mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint."43
With respect to freedom of association for the advancement of ideas and beliefs,
in Europe, with its vibrant human rights tradition, the European Court of Human
Rights (ECHR) has repeatedly stated that a political party may campaign for a
change in the law or the constitutional structures of a state if it uses legal and
democratic means and the changes it proposes are consistent with democratic
principles. The ECHR has emphasized that political ideas that challenge the
existing order and whose realization is advocated by peaceful means must be
afforded a proper opportunity of expression through the exercise of the right of
association, even if such ideas may seem shocking or unacceptable to the
authorities or the majority of the population.44 A political group should not be
hindered solely because it seeks to publicly debate controversial political issues in
order to find solutions capable of satisfying everyone concerned.45 Only if a
political party incites violence or puts forward policies that are incompatible with
democracy does it fall outside the protection of the freedom of association
guarantee.46
We do not doubt that a number of our citizens may believe that homosexual
conduct is distasteful, offensive, or even defiant. They are entitled to hold and
express that view. On the other hand, LGBTs and their supporters, in all likelihood,
believe with equal fervor that relationships between individuals of the same sex
are morally equivalent to heterosexual relationships. They, too, are entitled to
hold and express that view. However, as far as this Court is concerned, our
democracy precludes using the religious or moral views of one part of the
community to exclude from consideration the values of other members of the
community.
Of course, none of this suggests the impending arrival of a golden age for gay
rights litigants. It well may be that this Decision will only serve to highlight the
discrepancy between the rigid constitutional analysis of this Court and the more
complex moral sentiments of Filipinos. We do not suggest that public opinion,
even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights
claims and we neither attempt nor expect to affect individual perceptions of
homosexuality through this Decision.
The OSG argues that since there has been neither prior restraint nor subsequent
punishment imposed on Ang Ladlad, and its members have not been deprived of
their right to voluntarily associate, then there has been no restriction on their
freedom of expression or association. The OSG argues that:
There was no utterance restricted, no publication censored, or any assembly
denied. [COMELEC] simply exercised its authority to review and verify the
qualifications of petitioner as a sectoral party applying to participate in the party-
list system. This lawful exercise of duty cannot be said to be a transgression of
Section 4, Article III of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive the members of the
petitioner to freely take part in the conduct of elections. Their right to vote will
not be hampered by said denial. In fact, the right to vote is a constitutionally-
guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner contends
that the denial of Ang Ladlad’s petition has the clear and immediate effect of
limiting, if not outrightly nullifying the capacity of its members to fully and equally
participate in public life through engagement in the party list elections.
This argument is puerile. The holding of a public office is not a right but a privilege
subject to limitations imposed by law. x x x47
The OSG fails to recall that petitioner has, in fact, established its qualifications to
participate in the party-list system, and – as advanced by the OSG itself – the
moral objection offered by the COMELEC was not a limitation imposed by law. To
the extent, therefore, that the petitioner has been precluded, because of
COMELEC’s action, from publicly expressing its views as a political party and
participating on an equal basis in the political process with other equally-qualified
party-list candidates, we find that there has, indeed, been a transgression of
petitioner’s fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in scope and
promise, international human rights law, in particular, has grown dynamically in
its attempt to bring about a more just and humane world order. For individuals
and groups struggling with inadequate structural and governmental support,
international human rights norms are particularly significant, and should be
effectively enforced in domestic legal systems so that such norms may become
actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to protect
and promote human rights. In particular, we explicitly recognize the principle of
non-discrimination as it relates to the right to electoral participation, enunciated
in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any discrimination
to the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
In this context, the principle of non-discrimination requires that laws of general
application relating to elections be applied equally to all persons, regardless of
sexual orientation. Although sexual orientation is not specifically enumerated as a
status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human
Rights Committee has opined that the reference to "sex" in Article 26 should be
construed to include "sexual orientation."48 Additionally, a variety of United
Nations bodies have declared discrimination on the basis of sexual orientation to
be prohibited under various international agreements.49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country, directly
or through freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot, guaranteeing the
free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right to
electoral participation is elaborated by the Human Rights Committee in its
General Comment No. 25 (Participation in Public Affairs and the Right to Vote) as
follows:
1. Article 25 of the Covenant recognizes and protects the right of every citizen to
take part in the conduct of public affairs, the right to vote and to be elected and
the right to have access to public service. Whatever form of constitution or
government is in force, the Covenant requires States to adopt such legislative and
other measures as may be necessary to ensure that citizens have an effective
opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic
government based on the consent of the people and in conformity with the
principles of the Covenant.
xxxx
15. The effective implementation of the right and the opportunity to stand for
elective office ensures that persons entitled to vote have a free choice of
candidates. Any restrictions on the right to stand for election, such as minimum
age, must be justifiable on objective and reasonable criteria. Persons who are
otherwise eligible to stand for election should not be excluded by unreasonable or
discriminatory requirements such as education, residence or descent, or by
reason of political affiliation. No person should suffer discrimination or
disadvantage of any kind because of that person's candidacy. States parties should
indicate and explain the legislative provisions which exclude any group or
category of persons from elective office.50
We stress, however, that although this Court stands willing to assume the
responsibility of giving effect to the Philippines’ international law obligations, the
blanket invocation of international law is not the panacea for all social ills. We
refer now to the petitioner’s invocation of the Yogyakarta Principles (the
Application of International Human Rights Law In Relation to Sexual Orientation
and Gender Identity),51 which petitioner declares to reflect binding principles of
international law.
At this time, we are not prepared to declare that these Yogyakarta Principles
contain norms that are obligatory on the Philippines. There are declarations and
obligations outlined in said Principles which are not reflective of the current state
of international law, and do not find basis in any of the sources of international
law enumerated under Article 38(1) of the Statute of the International Court of
Justice.52 Petitioner has not undertaken any objective and rigorous analysis of
these alleged principles of international law to ascertain their true status.
We also hasten to add that not everything that society – or a certain segment of
society – wants or demands is automatically a human right. This is not an arbitrary
human intervention that may be added to or subtracted from at will. It is
unfortunate that much of what passes for human rights today is a much broader
context of needs that identifies many social desires as rights in order to further
claims that international law obliges states to sanction these innovations. This has
the effect of diluting real human rights, and is a result of the notion that if "wants"
are couched in "rights" language, then they are no longer controversial.1avvphi1
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a
declaration formulated by various international law professors, are – at best – de
lege ferenda – and do not constitute binding obligations on the Philippines.
Indeed, so much of contemporary international law is characterized by the "soft
law" nomenclature, i.e., international law is full of principles that promote
international cooperation, harmony, and respect for human rights, most of which
amount to no more than well-meaning desires, without the support of either
State practice or opinio juris.53

As a final note, we cannot help but observe that the social issues presented by
this case are emotionally charged, societal attitudes are in flux, even the
psychiatric and religious communities are divided in opinion. This Court’s role is
not to impose its own view of acceptable behavior. Rather, it is to apply the
Constitution and laws as best as it can, uninfluenced by public opinion, and
confident in the knowledge that our democracy is resilient enough to withstand
vigorous debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission

on Elections dated November 11, 2009 and December 16, 2009 in SPP No. 09-228
(PL) are hereby SET ASIDE. The Commission on Elections is directed to GRANT
petitioner’s application for party-list accreditation.

SO ORDERED.

G.R. No. 164785 March 15, 2010
ELISEO F. SORIANO, Petitioner,
vs.
MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and
Television Review and Classification Board, MOVIE AND TELEVISION REVIEW
AND CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ,
MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S.
YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, Respondents.
VELASCO, JR., J.:
Before us is this motion of petitioner Eliseo F. Soriano for reconsideration of the
Decision of the Court dated April 29, 2009, modifying that of the Movie and
Television Review and Classification Board (MTRCB) by imposing the penalty of
three-month suspension on the television show Ang Dating Daan, instead of on
petitioner Soriano, as host of that program.
Petitioner seeks reconsideration on the following grounds or issues: (1) the
suspension thus meted out to the program constitutes prior restraint; (2) the
Court erred in ruling that his utterances1 did not constitute exercise of religion;
(3) the Court erred in finding the language used as offensive and obscene; (4) the
Court should have applied its policy of non-interference in cases of conflict
between religious groups; and (5) the Court erred in penalizing the television
program for the acts of petitioner.
The motion has no merit.
Petitioner’s threshold posture that the suspension thus imposed constitutes prior
restraint and an abridgement of his exercise of religion and freedom of expression
is a mere rehash of the position he articulated in the underlying petitions for
certiorari and expounded in his memorandum.2 So are the supportive arguments
and some of the citations of decisional law, Philippine and American, holding it
together. They have been considered, sufficiently discussed in some detail, and
found to be without merit in our Decision. It would, thus, make little sense to
embark on another lengthy discussion of the same issues and arguments.
Suffice it to reiterate that the sanction imposed on the TV program in question
does not, under the factual milieu of the case, constitute prior restraint, but
partakes of the nature of subsequent punishment for past violation committed by
petitioner in the course of the broadcast of the program on August 10, 2004. To
be sure, petitioner has not contested the fact of his having made statements on
the air that were contextually violative of the program’s "G" rating. To merit a "G"
rating, the program must be "suitable for all ages," which, in turn, means that the
"material for television [does not], in the judgment of the [MTRCB], x x x contain
anything unsuitable for children and minors, and may be viewed without adult
guidance or supervision."3 As previously discussed by the Court, the vulgar
language petitioner used on prime-time television can in no way be characterized
as suitable for all ages, and is wholly inappropriate for children.
Petitioner next harps on the primacy of his freedoms, referring particularly to the
exercise of his religious beliefs and profession, as presiding minister of his flock,
over the right and duty of the state as parens patriae. Petitioner’s position may be
accorded some cogency, but for the fact that it fails to consider that the medium
he used to make his statements was a television broadcast, which is accessible to
children of virtually all ages. As already laid down in the Decision subject of this
recourse, the interest of the government in protecting children who may be
subjected to petitioner’s invectives must take precedence over his desire to air
publicly his dirty laundry. The public soapbox that is television must be guarded by
the state, which purpose the MTRCB serves, and has served, in suspending Ang
Dating Daan for petitioner’s statements. As emphasized in Gonzalez v. Kalaw
Katigbak,4 the freedom of broadcast media is, in terms of degree of protection it
deserves, lesser in scope, especially as regards television, which reaches every
home where there is a set, and where children will likely be among the avid
viewers of the programs shown. The same case also laid the basis for the
classification system of the MTRCB when it stated, "It cannot be denied though
that the State as parens patriae is called upon to manifest an attitude of caring for
the welfare of the young."5
The penalty of suspension imposed on petitioner has driven him to liken the Court
to "a blind man who was asked to describe an elephant, and by his description he
stubbornly believed that an elephant is just the same as a Meralco post after
touching one if its legs."6 Petitioner makes this comparison with the view that the
factual backdrop against which his statements were made was purportedly not
considered by the Court. As he presently argues:
The Honorable Court should have rendered its decision in light of the surrounding
circumstances why and what prompted herein petitioner to utter those words.
Clearly, he was provoked because of the malicious and blatant splicing by the INC
ministers of his recorded voice. Verily, Petitioner submits that the choice of words
he used has been harsh but strongly maintains that the same was consistent with
his constitutional right of freedom of speech and religion.
Contrary to petitioner’s impression, the Court has, in fact, considered the factual
antecedents of and his motive in making his utterances, and has found those
circumstances wanting as defense for violating the program’s "G" rating. Consider
the following excerpts from the Court’s Decision:
There is nothing in petitioner’s statements subject of the complaints expressing
any particular religious belief, nothing furthering his avowed evangelical mission.
The fact that he came out with his statements in a televised bible exposition
program does not automatically accord them the character of a religious
discourse. Plain and simple insults directed at another person cannot be elevated
to the status of religious speech. Even petitioner’s attempts to place his words in
context show that he was moved by anger and the need to seek retribution, not
by any religious conviction. His claim, assuming its veracity, that some INC
ministers distorted his statements respecting amounts Ang Dating Daan owed to a
TV station does not convert the foul language used in retaliation as religious
speech. We cannot accept that petitioner made his statements in defense of his
reputation and religion, as they constitute no intelligible defense or refutation of
the alleged lies being spread by a rival religious group. They simply illustrate that
petitioner had descended to the level of name-calling and foul-language
discourse. Petitioner could have chosen to contradict and disprove his detractors,
but opted for the low road.
And just to set things straight, the penalty imposed is on the program, not on
petitioner.
Petitioner would next have the Court adopt a hands-off approach to the conflict
between him and the Iglesia Ni Cristo. In support of his urging, he cites Iglesia ni
Cristo v. Court of Appeals.7
Petitioner’s invocation of Iglesia ni Cristo to support his hands-off thesis is
erroneous. Obviously, he fails to appreciate what the Court stated in that
particular case when it rejected the argument that a religious program is beyond
MTRCB’s review and regulatory authority. We reproduce what the Court
pertinently wrote in Iglesia ni Cristo:
We thus reject petitioner’s postulate that its religious program is per se beyond
review by the respondent [MTRCB]. Its public broadcast on TV of its religious
program brings it out of the bosom of internal belief. Television is a medium that
reaches even the eyes and ears of children. The Court iterates the rule that the
exercise of religious freedom can be regulated by the State when it will bring
about the clear and present danger of some substantive evil which the State is
duty bound to prevent, i.e. serious detriment to the more overriding interest of
public health, public morals, or public welfare. A laissez faire policy on the
exercise of religion can be seductive to the liberal mind but history counsels the
Court against its blind adoption as religion is and continues to be a volatile area of
concern in our country today. Across the sea and in our shore, the bloodiest and
bitterest wars fought by men were caused by irreconcilable religious differences.
Our country is still not safe from the recurrence of this stultifying strife
considering our warring religious beliefs and the fanaticism with which some of us
cling and claw to these beliefs. x x x For when religion divides and its exercise
destroys, the State should not stand still.8 (Emphasis added.)
Lastly, petitioner claims that there was violation of due process of law, alleging
that the registered producer of the program is not a party to the proceedings.
Hence, the program cannot, so petitioner asserts, be penalized.
We will let the records speak for themselves to refute that argument.
As per petitioner’s admission in his petition for certiorari filed with the Court, he is
"the Executive Producer of Ang Dating Daan, a televised bible exposition program
produced by the Philippine-based religious organization, Church of God
International."9 It is unclear, then, which producer the movant is referring to in
claiming that there was no representation before the MTRCB. He was and is the
representative of Ang Dating Daan, and the claim that there was no due process
of law is simply bereft of merit.
Even as the foregoing disquisitions would suffice to write finis to the instant
motion, certain relevant issues have been raised by some members of the Court
that ought to be addressed if only to put things in their proper perspective. We
refer to the matter of obscenity.
As stressed at every possible turn in the challenged Court’s Decision, the defining
standards to be employed in judging the harmful effects of the statements
petitioner used would be those for the average child, not those for the average
adult. We note that the ratings and regulation of television broadcasts take into
account the protection of the child, and it is from the child’s narrow viewpoint
that the utterances must be considered, if not measured. The ratings "G," "PG"
(parental guidance), "PG-13," and "R" (restricted or for adults only) suggest as
much. The concern was then, as now, that the program petitioner hosted and
produced would reach an unintended audience, the average child, and so it is how
this audience would view his words that matters. The average child would not be
concerned with colorful speech, but, instead, focus on the literal, everyday
meaning of words used. It was this literal approach that rendered petitioner’s
utterances obscene.1avvphi1
The Court has taken stock of Action for Children’s Television v. FCC,10 but finds
this U.S. case not to be of governing application to this jurisdiction under the
present state of things. The so-called "safe harbor" of 10:00 p.m. to 6:00 a.m.,
adverted to in Action for Children’s Television as the time wherein broadcast of
indecent material may be permitted, is believed inapplicable here. As it were,
there is no legislative enactment or executive issuance setting a similar period in
the Philippines wherein indecent material may be broadcast. Rather than fix a
period for allowing indecent programming, what is used in this jurisdiction is the
system of classification of television programs, which the petitioner violated. His
program was rated "G," purported to be suitable for all ages. We cannot lose sight
of the violation of his program’s classification that carried with it the producer’s
implied assurance that the program did not contain anything unsuitable for
children and minors. The hour at which it was broadcasted was of little moment in
light of the guarantee that the program was safe for children’s viewing.
The suspension of the program has not been arrived at lightly. Taking into account
all the factors involved and the arguments pressed on the Court, the suspension
of the program is a sufficiently limited disciplinary action, both to address the
violation and to serve as an object lesson for the future. The likelihood is great
that any disciplinary action imposed on petitioner would be met with an equally
energetic defense as has been put up here. The simple but stubborn fact is that
there has been a violation of government regulations that have been put in place
with a laudable purpose, and this violation must accordingly be dealt with. We are
not unmindful of the concerns on the restriction of freedoms that may occur in
imposing sanctions upon erring individuals and institutions, but it cannot be over-
emphasized that the freedoms encased in the Bill of Rights are far from absolute.
Each has its own limits, responsibilities, and obligations. Everyone is expected to
bear the burden implicit in the exercise of these freedoms. So it must be here.
WHEREFORE, petitioner’s motion for reconsideration is hereby DENIED.
No further pleadings shall be entertained in this case. Let entry of judgment be
made in due course.
SO ORDERED.
DISSENTING OPINION
CARPIO, J.:
Liberty is a right that inheres in every one of us as a member of the human family.
When a person is deprived of his right, all of us are diminished and debased for
liberty is total and indivisible.1
Among the cherished liberties in a democracy such as ours is freedom of
expression. A democracy needs a healthy public sphere where the people can
exchange ideas, acquire knowledge and information, confront public issues, or
discuss matters of public interest, without fear of reprisals.2 Free speech must be
protected so that the people can engage in the discussion and deliberation
necessary for the successful operation of democratic institutions.3 Thus, no less
than our Constitution mandates full protection to freedom of speech, of
expression, and of the press.4 All of the protections expressed in the Bill of Rights
are important, but the courts have accorded to free speech the status of a
preferred freedom. This qualitative significance of freedom of expression arises
from the fact that it is the indispensable condition of nearly every other
freedom.5
The freedom of expression clause is precisely a guarantee against both prior
restraint and subsequent punishment. It protects from any undue interference by
the government the people's right to freely speak their minds. The guarantee
rests on the principle that freedom of expression is essential to a functioning
democracy and suppression of expression leads to authoritarianism.
Prior restraint has been defined as official governmental restrictions on any form
of expression in advance of actual dissemination. But the mere prohibition of
government interference before words are spoken is not an adequate protection
of the freedom of expression if the government could arbitrarily punish after the
words have been spoken. The threat of subsequent punishment itself would
operate as a very effective prior restraint.6
Any form of prior restraint bears a presumption against its constitutional validity.
The burden is on the censor to justify any imposition of prior restraint, not on the
censored to put up a defense against it. In the case of print media, it has been
held that just because press freedom may sometimes be abused does not mean
that the press does not deserve immunity from prior restraint. The settled rule is
that any such abuse may be remedied by subsequent punishment.7
This Court, in Eastern Broadcasting Corporation v. Dans, Jr.,8 laid down the
following guideline:
All forms of media, whether print or broadcast, are entitled to the broad
protection of the freedom of speech and expression clause. The test for
limitations on freedom of expression continues to be the clear and present danger
rule - that words are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the substantive evils
that the lawmaker has a right to prevent.
Chief Justice Fernando expounded on the meaning of the "clear and present
danger" test in Gonzalez v. Chairman Katigbak,9 to wit:
The test, to repeat, to determine whether freedom of expression may be limited
is the clear and present danger of an evil of a substantive character that the State
has a right to prevent. Such danger must not only be clear but must also be
present. There should be no doubt that what is feared may be traced to the
expression complained of. The causal connection must be evident. Also, there
must be reasonable apprehension about its imminence. The time element cannot
be ignored. Nor does it suffice if such danger be only probable. There is the
requirement of its being well-nigh inevitable.
Where the medium of a television broadcast is concerned, as in the case at hand,
well-entrenched is the rule that censorship is allowable only under the clearest
proof of a clear and present danger of a substantive evil to public safety, public
morals, public health, or any other legitimate public interest.10
One of the established exceptions in freedom of expression is speech
characterized as obscene. I will briefly discuss obscenity as the majority opinion
characterized the subject speech in this case as obscene, thereby taking the
speech out of the scope of constitutional protection.
The leading test for determining what material could be considered obscene was
the famous Regina v. Hicklin11 case wherein Lord Cockburn enunciated thus:
I think the test of obscenity is this, whether the tendency of the matter charged as
obscenity is to deprave and corrupt those whose minds are open to such immoral
influences, and into whose hands a publication of this sort may fall.
Judge Learned Hand, in United States v. Kennerly,12 opposed the strictness of the
Hicklin test even as he was obliged to follow the rule. He wrote:
I hope it is not improper for me to say that the rule as laid down, however
consonant it may be with mid-Victorian morals, does not seem to me to answer to
the understanding and morality of the present time.
Roth v. United States13 laid down the more reasonable and thus, more
acceptable test for obscenity: "whether to the average person, applying
contemporary community standards, the dominant theme of the material taken
as a whole appeals to prurient interest." Such material is defined as that which
has "a tendency to excite lustful thoughts," and "prurient interest" as "a shameful
or morbid interest in nudity, sex, or excretion."
Miller v. California14 merely expanded the Roth test to include two additional
criteria: "the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and the work, taken as
whole, lacks serious literary, artistic, political, or scientific value." The basic test, as
applied in our jurisprudence,15 extracts the essence of both Roth and Miller –
that is, whether the material appeals to prurient interest.
The present controversy emanated from the alleged splicing of a video recording
wherein petitioner was supposedly made to appear as if he was asking for
contributions to raise 37 trillion pesos instead of the allegedly true amount of 3.6
million pesos. The video was played by ministers of Iglesia ni Cristo in their
television program "Ang Tamang Daan."
In response, petitioner Eliseo Soriano, as host of the television program "Ang
Dating Daan," made the following utterances:16
Bro. Josel Mallari:
Ulit-ulit na iyang talagang kawalanghiyaan na iyan, naku. E, markado nang
masyado at saka branded na itong nga ito anong klase po sila. Wala kayong
babalikan diyan Kapatid na Manny. Iyang klase ng mga ministro na iyan, pasamain
lamang si Kapatid na Eli e pati mga ninakaw na tape, pati mga audio na pinag-edit-
edit, lalagyan ng caption para makita nila, maipakita nilang malinaw 'yung
panloloko nila. Kasi Sis. Luz, puwede mo nang hindi lagyan ng caption e, patunugin
mo na lang na ganun ang sinasabi. Pero talagang para mai-emphasize nila 'yung
kanilang kawalanghiyaan, lalagyan pa nila ng caption na hindi naman talagang
sinabi ni Bro. Eli kundi pinagdugtong lang 'yung audio.
Bro. Eli Soriano:
At saka ang malisyoso. Kitang-kita malisyoso e. Paninirang-puri e. Alam mo kung
bakit? Mahilig daw ako talagang manghingi para sa aking pangangailangan.
Pangangailangan ko ba 'yung pambayad sa UNTV e ang mga kontrata diyan ay
hindi naman ako kapatid na Josel.
Bro. Josel Mallari:
Ay, opo.
Bro. Eli Soriano:
Hindi ko kontrata iyang babayaran na iyan. I am not even a signatory to that
contract. Pagkatapos para pagbintangan mo ako na humingi ako para sa
pangangailangan ko, gago ka talaga Michael. Masahol ka pa sa putang babae. O, di
ba? Yung putang babae ang gumagana lang doon yung ibaba, kay Michael ang
gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko
masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong
ito. Sige, sumagot kayo. At habang ginaganyan ninyo ako, ang mga miyembro
ninyo unti-unting maliliwanagan. Makikita n'yo rin, magreresulta ng maganda
iyan.
Bro. Manny Catangay Jusay:
Bro. Eli, ay iyan nga po ang sinasabi ko e, habang gumagawa sila ng ganyan, gaya
nung sinabi nung Kapatid natin kagabi dahil napanood 'yung kasinungalingan ni
Pol Guevarra, ay, lumuluha 'yung Kapatid, inaanyayahan 'yung mag-anak niya.
Magsialis na kayo diyan. Lipat na kayo rito. Kasi kung nag-iisip lang ang isang
Iglesia ni Cristo matapos ninyong mapanood itong episode na ito, iiwanan ninyo e,
kung mahal ninyo ang kaluluwa ninyo. Hindi kayo paaakay sa ganyan,
nagpafabricate ng mga kasinungalingan. Sabi ko nga lahat ng paraan ng
pakikipagbaka nagawa na nila e, isa na lang ang hindi 'yung pakikipagdebate at
patunayan na sila ang totoo. Iyon na lang ang hindi nila nagagawa. Pero demanda,
paninirang-puri – nagtataka nga ako e, tayo, kaunting kibot, nakademanda sila e.
'yung ginagawa nila, ewan ko, idinedemanda n'yo ba Bro. Eli?
The majority opinion ruled that the highlighted portion of the aforequoted speech
was obscene and was, therefore, not entitled to constitutional protection.
Well-settled is the rule that speech, to be considered obscene, must appeal to
prurient interest as defined in Roth and firmly adopted in our jurisdiction.17 The
subject speech cannot, by any stretch of the imagination, be said to appeal to any
prurient interest. The highlighted portion of the verbal exchange between the two
feuding religious groups is utterly bereft of any tendency to excite lustful thoughts
as to be deemed obscene. The majority's finding of obscenity is clearly untenable.
In contrast, a radio broadcast of a monologue replete with indecent words such as
shit, piss, fuck, cunt, cocksucker, motherfucker, and tits, has been held protected
speech depending on the context relating to the time of broadcast.18 However, in
this case before us, the words "putang babae" (female prostitute), and the
descriptive action phrases "ang gumagana lang doon yung ibaba" and "kay
Michael ang gumagana ang itaas" were enough to constitute outright obscenity
for the majority. The majority opinion simply forced these words and phrases into
a strained standard formula for censorship. But such overbroad standard must be
struck down for it indiscriminately infringes upon free speech.
The subject speech in this case may, at most, be considered indecent speech.
Indecent speech conveyed through the medium of broadcast is a case of first
impression in our jurisdiction. However, this issue has been settled in American
case law, which has persuasive influence in our jurisprudence. There, the rule is
that indecent speech is protected depending on the context in which it is spoken.
The concept of what is "indecent" is intimately connected with the exposure of
children to language that describes, in terms patently offensive, as measured by
contemporary community standards for the broadcast medium, sexual or
excretory activities and organs, at times of the day when there is a reasonable risk
that children may be in the audience.19
FCC v. Pacifica Foundation20 is the landmark U.S. case on the regulation of
indecent speech in broadcast. The case involved a radio broadcast of "Filthy
Words," a 12-minute monologue by American stand-up comedian and social critic,
George Carlin. Appended to the decision is the following verbatim transcript
prepared by the Federal Communications Commission:
The original seven words were, shit, piss, fuck, cunt, cocksucker, motherfucker,
and tits. Those are the ones that will curve your spine, grow hair on your hands
and maybe, even bring us, God help us, peace without honor and a bourbon. And
now the first thing that we noticed was that word fuck was really repeated in
there because the word motherfucker is a compound word and it's another form
of the word fuck. You want to be a purist, it can't be on the list of basic words.
Also, cocksucker is a compound word and neither half of that is really dirty. The
word-the half sucker that's merely suggestive and the word cock is a half-way
dirty word, 50% dirty-dirty half the time, depending on what you mean by it. Uh,
remember when you first heard it, like in 6th grade, you used to giggle. And the
cock crowed three times, the cock-three times. It's in the Bible, cock in the Bible.
And the first time you heard about a cock-fight, remember-What? Huh? It ain't
that, are you stupid? It's chickens, you know, Then you have the four letter words
from the old Angle-Saxon fame. Uh, shit and fuck. The word shit, uh, is an
interesting kind of word in that the middle class has never really accepted it and
approved it. They use it like, crazy but it's not really okay. It's still a rude, dirty, old
kind of gushy word. They don't like that, but they say it, like, they say it like, a lady
now in a middle-class home, you'll hear most of the time she says it as an
expletive, you know, it's out of her mouth before she knows. She says, Oh shit oh
shit, oh shit. If she drops something, Oh, the shit hurt the broccoli. Shit. Thank
you.
Shit! I won the Grammy, man, for the comedy album. Isn't that groovy? That's
true. Thank you. Thank you man. Yeah. Thank you man. Thank you. Thank you
very much, man. Thank, no, for that and for the Grammy, man, [']cause that's
based on people liking it man, that's okay man. Let's let that go, man. I got my
Grammy. I can let my hair hang down now, shit. Ha! So! Now the word shit is okay
for the man. At work you can say it like crazy. Mostly figuratively, Get that shit out
of here, will ya? I don't want to see that shit anymore. I can't cut that shit, buddy.
I've had that shit up to here. I think you're full of shit myself. He don't know shit
from Shinola. you know that? Always wondered how the Shinola people felt about
that Hi, I'm the new man from Shinola, Hi, how are ya? Nice to see ya. How are
ya? Boy, I don't know whether to shit or wind my watch. Guess, I'll shit on my
watch. Oh, the shit is going to hit de fan. Built like a brick shit-house. Up, he's up
shit's creek. He's had it. He hit me, I'm sorry. Hot shit, holy shit, tough shit, eat
shit. shit-eating grin. Uh, whoever thought of that was ill. He had a shit-eating
grin! He had a what? Shit on a stick. Shit in a handbag. I always like that. He ain't
worth shit in a handbag. Shitty. He acted real shitty. You know what I mean? I got
the money back, but a real shitty attitude. Heh, he had a shit-fit. Wow! Shit-fit.
Whew! Glad I wasn't there. All the animals-Bull shit, horse shit, cow shit, rat shit,
bat shit. First time I heard bat shit, I really came apart. A guy in Oklahoma, Boggs,
said it, man. Aw! Bat shit. Vera reminded me of that last night. Snake shit, slicker
than owl shit. Get your shit together. Shit or get off the pot. I got a shit-load full of
them. I got a shit-pot full, all right. Shit-head, shit-heel, shit in your heart, shit for
brains, shit-face. I always try to think how that could have originated; the first guy
that said that. Somebody got drunk and fell in some shit, you know. Hey, I'm shit-
face. Shit-face, today. Anyway, enough of that shit. The big one, the word fuck
that's the one that hangs them up the most. [']Cause in a lot of cases that's the
very act that hangs them up the most. So, it's natural that the word would, uh,
have the same effect. It's a great word, fuck, nice word, easy word, cute word,
kind of. Easy word to say. One syllable, short u. Fuck. You know, it's easy. Starts
with a nice soft sound fuh ends with a kuh. Right? A little something for everyone.
Fuck Good word. Kind of a proud word, too. Who are you? I am FUCK, FUCK OF
THE MOUNTAIN. Tune in again next week to FUCK OF THE MOUNTAIN. It's an
interesting word too, [']cause it's got a double kind of a life-personality-dual, you
know, whatever the right phrase is. It leads a double life, the word fuck. First of
all, it means, sometimes, most of the time, fuck. What does it mean? It means to
make love. Right? We're going to make love, yeh, we're going to fuck, yeh, we're
going to fuck, yeh, we're going to make love. we're really going to fuck, yeh, we're
going to make love. Right? And it also means the beginning of life, it's the act that
begins life, so there's the word hanging around with words like love, and life, and
yet on the other hand, it's also a word that we really use to hurt each other with,
man. It's a heavy one that you have toward the end of the argument. Right? You
finally can't make out. Oh, fuck you man. I said, fuck you. Stupid fuck. Fuck you
and everybody that looks like you man. It would be nice to change the movies that
we already have and substitute the word fuck for the word kill, wherever we
could, and some of those movie cliches would change a little bit. Madfuckers still
on the loose. Stop me before I fuck again. Fuck the ump, fuck the ump, fuck the
ump, fuck the ump, fuck the ump. Easy on the clutch Bill, you'll fuck that engine
again. The other shit one was, I don't give a shit. Like it's worth something, you
know? I don't give a shit. Hey, well, I don't take no shit, you know what I mean?
You know why I don't take no shit? [']Cause I don't give a shit. If I give a shit, I
would have to pack shit. But I don't pack no shit cause I don't give a shit. You
wouldn't shit me, would you? That's a joke when you're a kid with a worm looking
out the bird's ass. You wouldn't shit me, would you? It's an eight-year-old joke but
a good one. The additions to the list. I found three more words that had to be put
on the list of words you could never say on television, and they were fart, turd
and twat, those three. Fart, we talked about, it's harmless. It's like tits, it's a cutie
word, no problem. Turd, you can't say but who wants to, you know? The subject
never comes up on the panel so I'm not worried about that one. Now the word
twat is an interesting word. Twat! Yeh, right in the twat. Twat is an interesting
word because it's the only one I know of, the only slang word applying to the, a
part of the sexual anatomy that doesn't have another meaning to it. Like, ah,
snatch, box and pussy all have other meanings, man. Even in a Walt Disney movie,
you can say, We're going to snatch that pussy and put him in a box and bring him
on the airplane. Everybody loves it. The twat stands alone, man, as it should. And
two-way words. Ah, ass is okay providing you're riding into town on a religious
feast day. You can't say, up your ass. You can say, stuff it!
Worthy of note, in Pacifica, the FCC did not resort to any subsequent punishment,
much less any prior restraint.21 The station was not suspended for the broadcast
of the monologue, which the U.S. Supreme Court merely considered indecent
speech based on the context in which it was delivered. According to the U.S.
Supreme Court, the monologue would have been protected were it delivered in
another context. The monologue was broadcast at 2:00 p.m., when children were
presumptively in the audience.
A later case, Action for Children's Television v. FCC,22 establishes the safe harbor
period to be from 10:00 in the evening to 6:00 in the morning, when the number
of children in the audience is at a minimum. In effect, between the hours of 10:00
p.m. and 6:00 a.m., the broadcasting of material considered indecent is permitted.
Between the hours of 6:00 a.m. and 10:00 p.m., the broadcast of any indecent
material may be sanctioned.
In this case, the subject speech by petitioner was broadcast starting 10:00 p.m.
onwards, clearly within the safe harbor period as established in Action for
Children's Television. Correctly applying Pacifica's context-based ruling,
petitioner's speech, if indeed indecent, enjoys constitutional protection and may
not be sanctioned. The rule on this matter, as laid down by Pacifica in relation to
Action for Children's Television, is crystal-clear. But should the majority still have
any doubt in their minds, such doubt should be resolved in favor of free speech
and against any interference by government. The suspension of "Ang Dating
Daan" by the MTRCB was a content-based, not a content-neutral regulation. Thus,
the suspension should have been subjected to strict scrutiny following the rule in
Chavez v. Gonzales.23 The test should be strict because the regulation went into
the very heart of the rationale for the right to free speech – that speech may not
be prohibited just because government officials disapprove of the speaker's
views.24
Further, the majority opinion held that even if petitioner's utterances were not
obscene but merely indecent speech, they would still be outside of the
constitutional protection because they were conveyed through a medium easily
accessible to children. The majority misapplied the doctrine of FCC v. Pacifica, the
leading jurisprudence on this matter. Pacifica did not hold that indecent speech,
when conveyed through a medium easily accessible to children, would
automatically be outside the constitutional protection. On the contrary, the U.S.
Supreme Court emphasized the narrowness of its ruling in Pacifica. The guideline
that Pacifica laid down is that the broadcast of a monologue containing indecent
speech could be considered protected or unprotected depending on the context,
that is, the time of the day or the night when the indecent utterances were
delivered.
The majority's ruling in this case sets a dangerous precedent. This decision makes
it possible for any television or radio program, on the slightest suspicion of being a
danger to national security or on other pretexts, to likewise face suspension. The
exacting "clear and present danger" test is dispensed with to give way to the
"balancing of interests" test in favor of the government's exercise of its regulatory
power. Granting without conceding that "balancing of interests" is the
appropriate test in setting a limitation to free speech, suspension of a television
program is a measure way too harsh that it would be inappropriate as the most
reasonable means for averting a perceived harm to society. The restriction on
freedom need not be greater than is necessary to further the governmental
interest.25
The "balancing of interests" test requires that a determination must first be made
whether the necessary safeguarding of the public interest involved may be
achieved by some other measure less restrictive of the protected freedom.26 The
majority immediately resorted to outright suspension without first exploring other
measures less restrictive of freedom of speech. It cites MTRCB v. ABS-CBN
Broadcasting Corporation27 in justifying the government's exercise of regulatory
power. But the ABS-CBN case involved a mere fine as punishment, not a prior
restraint in the form of suspension as in this case. In the cited case, one of the
episodes of "The Inside Story," a television program of ABS-CBN, was aired
without prior review and approval by the MTRCB. For this omission, the MTRCB
subsequently fined ABS-CBN in the amount of ₱20,000. However, even as the
television station was fined, the program continued to be aired and was never
suspended.
Indeed, prior restraint by suspension is an extreme measure that may only be
imposed after satisfying the "clear and present danger" test, which requires the
perceived danger to be both grave and imminent. Prior restraint is simply uncalled
for in this case where what is involved is not even obscene speech, but mere
indecent speech. Note too, that the subject utterances in this case were broadcast
starting 10:00 p.m. onwards, well within the safe harbor period for permissible
television broadcast of speech which may be characterized as indecent.
Suspension of the program stops not only petitioner, but also the other leaders of
his congregation from exercising their constitutional right to free speech through
their medium of choice, which is television. The majority opinion attempts to
assuage petitioner's misery by saying that petitioner can still exercise his right to
speak his mind using other venues. But this proposition assumes that petitioner
has access to other venues where he may continue his interrupted exercise of free
speech using his chosen mode, television broadcast.
While we may not agree with petitioner's choice of language in expressing his
disgust in this word war between two feuding religious groups, let us not forget
that freedom of speech includes the expression of thoughts that we do not
approve of, not just thoughts that are agreeable.28 To paraphrase Voltaire: We
may disapprove of what petitioner has said, but we must defend to the death his
right to say it.
The three-month suspension cannot be passed off merely as a preventive
suspension that does not partake of a penalty. The actual and real effect of the
three-month suspension is a prior restraint on expression in violation of a
fundamental constitutional right. Even Congress cannot validly pass a law
imposing a three-month preventive suspension on freedom of expression for
offensive or vulgar language uttered in the past. Congress may punish such
offensive or vulgar language after their utterance, with damages, fine, or
imprisonment; but Congress has no power to suspend or suppress the people's
right to speak freely because of such utterances. In short, Congress may pass a law
punishing defamation or tortious speech but the punishment cannot be the
suspension or suppression of the constitutional right to freedom of expression.
Otherwise, such law would be abridging the freedom of speech, of expression, or
of the press. If Congress cannot pass such a law, neither can respondent MTRCB
promulgate a rule or a decision suspending for three months petitioner's
constitutional right to freedom of speech. And of course, neither can this Court
give its stamp of imprimatur to such an unconstitutional MTRCB rule or decision.
I end this dissenting opinion with a reminder from Justice Oliver Wendell Holmes
– that the market place of ideas is still the best alternative to censorship.29 The
market place of ideas makes freedom of speech robust and allows people to be
more tolerant of opposing views. It has been said that freedom of speech is not
only to freely express oneself within the context of the law but also to hear what
others say, that all may be enlightened, regardless of how obnoxious or erroneous
the opposing views may be.30
Accordingly, I vote to GRANT the motion for reconsideration.
DISSENTING OPINION
ABAD, J.:
I am submitting this dissent to the ably written ponencia of Justice Presbiterio J.
Velasco, Jr. that seeks to deny the petitioner’s motion for reconsideration of the
Court’s decision in the case.
Brief Antecedent
Petitioner Eliseo F. Soriano, a television evangelist, hosted the Ang Dating Daan, a
popular television ministry aired nationwide everyday from 10:00 p.m. to
midnight over public television. The program carried a "general patronage" rating
from the Movie and Television Review and Classification Board (MTRCB).
The Ang Dating Daan’s rivalry with another religious television program, the
Iglesia ni Cristo’s Ang Tamang Daan, is well known. The hosts of the two shows
have regularly engaged in verbal sparring on air, hurling accusations and counter-
accusations with respect to their opposing religious beliefs and practices.
It appears that in his program Ang Tamang Daan, Michael M. Sandoval (Michael)
of the Iglesia ni Cristo attacked petitioner Soriano of the Ang Dating Daan for
alleged inconsistencies in his Bible teachings. Michael compared spliced
recordings of Soriano’s statements, matched with subtitles of his utterances, to
demonstrate those inconsistencies. On August 10, 2004, in an apparent reaction
to what he perceived as a malicious attack against him by the rival television
program, Soriano accused Michael of prostituting himself with his fabricated
presentations. Thus:
"….gago ka talaga Michael. Masahol ka pa sa putang babae. O di ba? Yung putang
babae ang gumagana lang doon yung ibaba, kay Michael ang gumagana ang itaas,
o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang
babae yan. Sobra ang kasinungalingan ng demonyong ito…"
Michael and seven other ministers of the Iglesia ni Cristo lodged a complaint
against petitioner Soriano before the MTRCB. Acting swiftly, the latter
preventively suspended the airing of Soriano’s Ang Dating Daan television
program for 20 days, pursuant to its powers under Section 3(d) of Presidential
Decree 19861 and its related rules.
Petitioner Soriano challenged the validity of that preventive suspension before
this Court in G.R. 164785. Meanwhile, after hearing the main case or on
September 27, 2004, the MTRCB found Soriano guilty as charged and imposed on
him a penalty of three months suspension from appearing on the Ang Dating Daan
program. Soriano thus filed a second petition in G.R. 165636 to question that
decision. The Court consolidated the two cases.
On April 29, 2009 the Court rendered a decision, upholding MTRCB’s power to
impose preventive suspension and affirming its decision against petitioner Soriano
with the modification of applying the three-month suspension to the program And
Dating Daan, rather than to Soriano.
Issue Presented
This dissenting opinion presents a narrow issue: whether or not the Court is
justified in imposing the penalty of three-month suspension on the television
program Ang Dating Daan on the ground of host petitioner Soriano’s remarks
about Iglesia ni Cristo’s Michael prostituting himself when he attacked Soriano in
the Iglesia’s own television program.
The Dissent
The Ang Dating Daan is a nationwide television ministry of a church organization
officially known as "Members of the Church of God International" headed by
petitioner Soriano. It is a vast religious movement not so far from those of Mike
Velarde’s El Shadai, Eddie Villanueva’s Jesus is Lord, and Apollo Quiboloy’s The
Kingdom of Jesus Christ. These movements have generated such tremendous
following that they have been able to sustain daily television and radio programs
that reach out to their members and followers all over the country. Some of their
programs are broadcast abroad. Ang Dating Daan is aired in the United States and
Canada.
The Catholic Church is of course the largest religious organization in the
Philippines. If its members get their spiritual nourishments from attending masses
or novenas in their local churches, those of petitioner Soriano’s church tune in
every night to listen to his televised Bible teachings and how these teachings
apply to their lives. They hardly have places of worship like the Catholic Church or
the mainstream protestant movements.
Thus, suspending the Ang Dating Daan television program is the equivalent of
closing down their churches to its followers. Their inability to tune in on their
Bible teaching program in the evening is for them like going to church on Sunday
morning, only to find its doors and windows heavily barred. Inside, the halls are
empty.
Do they deserve this? No.
1. A tiny moment of lost temper.
Petitioner Soriano’s Bible ministry has been on television continuously for 27
years since 1983 with no prior record of use of foul language. For a 15-second
outburst of its head at his bitterest critics, it seems not fair for the Court to close
down this Bible ministry to its large followers altogether for a full quarter of a
year. It is like cutting the leg to cure a smelly foot.
2. Not obscene.
Primarily, it is obscenity on television that the constitutional guarantee of
freedom of speech does not protect. As the Court’s decision points out, the test of
obscenity is whether the average person, applying contemporary standards,
would find the speech, taken as a whole, appeals to the prurient interest. A thing
is prurient when it arouses lascivious thoughts or desires2 or tends to arouse
sexual desire.3
A quarter-of-a-year suspension would probably be justified when a general
patronage program intentionally sneaks in snippets of lewd, prurient materials to
attract an audience to the program. This has not been the case here.
3. Merely borders on indecent.

Actually, the Court concedes that petitioner Soriano’s short outburst was not in
the category of the obscene. It was just "indecent." But were his words and their
meaning utterly indecent? In a scale of 10, did he use the grossest language? He
did not.
First, Soriano actually exercised some restraints in the sense that he did not use
the vernacular word for the female sexual organ when referring to it, which word
even the published opinions of the Court avoided despite its adult readers. He
referred to it as "yung ibaba" or down below. And, instead of using the patently
offensive vernacular equivalent of the word "fuck" that describes the sexual act in
which the prostitute engages herself, he instead used the word "gumagana lang
doon yung ibaba" or what functions is only down below. At most, his utterance
merely bordered on the indecent.
Second, the word "puta" or "prostitute" describes a bad trade but it is not a bad
word. The world needs a word to describe it. "Evil" is bad but the word "evil" is
not; the use of the words "puta" or "evil" helps people understand the values that
compete in this world. A policy that places these ordinary descriptive words
beyond the hearing of children is unrealistic and is based on groundless fear.
Surely no member of the Court will recall that when yet a child his or her hearing
the word "puta" for the first time left him or her wounded for life.
Third, Soriano did not tell his viewers that being a prostitute was good. He did not
praise prostitutes as to make them attractive models to his listeners. Indeed, he
condemned Michael for acting like a prostitute in attacking him on the air. The
trouble is that the Court, like the MTRCB read his few lines in isolation. Actually,
from the larger picture, Soriano appears to have been provoked by Michael’s
resort to splicing his speeches and making it appear that he had taught
inconsistent and false doctrines to his listeners. If Michael’s sin were true, Soriano
was simply defending himself with justified anger.
And fourth, the Court appears to have given a literal meaning to what Soriano
said.
"Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung putang babae
ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas,
o di ba!"
This was a figure of speech. Michael was a man, so he could not literally be a
female prostitute. Its real meaning is that Michael was acting like a prostitute in
mouthing the ideas of anyone who cared to pay him for such service. It had no
indecent meaning. The Bible itself uses the word "prostitute" as a figure of
speech. "By their deeds they prostituted themselves," said Psalm 106:39 of the
Israelites who continued to worship idols after God had taken them out of
Egyptian slavery.4 Soriano’s real message is that Michael prostituted himself by
his calumny against him.
If at all, petitioner Soriano’s breach of the rule of decency is slight, one on a scale
of 10. Still, the Court would deprive the Ang Dating Daan followers of their nightly
bible teachings for a quarter of a year because their head teacher had used figures
of speech to make his message vivid.
4. The average child as listener
The Court claims that, since Ang Dating Daan carried a general patronage rating,
Soriano’s speech no doubt caused harm to the children who watched the show.
This statement is much too sweeping.
The Court relies on the United States case of Federal Communications
Commission (FCC) v. Pacifica Foundation,5 a 1978 landmark case. Here are
snatches of the challenged monologue that was aired on radio:
The original seven words were, shit, piss, fuck, cunt, cocksucker, motherfucker,
and tits. Those are the ones that will curve your spine, grow hair on your hands
and maybe, even bring us, God help us, peace without honor and bourbon…Also
cocksucker is a compound word and neither half of that is really dirty…And the
cock crowed three times, the cock—three times. It’s in the Bible, cock in the
Bible…Hot shit, holy shit, tough shit, eat shit, shit-eating grin…It’s a great word,
fuck, nice word, easy word, cute word, kind of. Easy word to say. One syllable,
short u. Fuck…A little something for everyone. Fuck. Good word. x x x
Imagine how the above would sound if translated into any of the Filipino
vernaculars. The U.S. Supreme Court held that the above is not protected speech
and that the FCC could regulate its airing on radio. The U.S. Supreme Court was of
course correct.
Here, however, there is no question that Soriano attacked Michael, using figure of
speech, at past 10:00 in the evening, not at 2:00 in the afternoon. The average
Filipino child would have been long in bed by the time Ang Dating Daan appeared
on the television screen. What is more, Bible teaching and interpretation is not
the stuff of kids. It is not likely that they would give up programs of interest to
them just to listen to Soriano drawing a distinction between "faith" and "work or
action." The Court has stretched the "child" angle beyond realistic proportions.
The MTRCB probably gave the program a general patronage rating simply because
Ang Dating Daan had never before been involved in any questionable broadcast in
the previous 27 years that it had been on the air.
The monologue in the FCC case that was broadcast at 2 in the afternoon was pure
indecent and gross language, uttered for its own sake with no social value at all. It
cannot compare to Soriano’s speech where the indecent words were slight and
spoken as mere figure of speech to defend himself from what he perceived as
malicious criticism.
5. Disproportionate penalty
The Court applied the balancing of interest test in justifying the imposition of the
penalty of suspension against Ang Dating Daan. Under this test, when particular
conduct is regulated in the interest of public order and the regulation results in an
indirect, conditional, partial abridgment of speech, the duty of the courts is to
determine which of the two conflicting interests demands the greater protection
under the particular circumstances presented.
An example of this is where an ordinance prohibits the making of loud noises from
9:00 p.m. to 6:00 a.m. Can this ordinance be applied to prevent vehicles circling
the neighborhood at such hours of night, playing campaign jingles on their
loudspeakers to win votes for candidates in the election? Here, there is a tension
between the rights of candidates to address their constituents and the interest of
the people in healthy undisturbed sleep. The Court would probably uphold the
ordinance since public interest demands a quiet night’s rest for all and since the
restraint on the freedom of speech is indirect, conditional, and partial. The
candidate is free to make his broadcast during daytime when people are normally
awake and can appreciate what he is saying.
But here, the abridgment of speech—three months total suspension of the Ang
Dating Daan television bible teaching program—cannot be regarded as indirect,
conditional, or partial. It is a direct, unconditional, and total abridgment of the
freedom of speech, to which a religious organization is entitled, for a whole
quarter of a year.
In the American case of FCC, a parent complained. He was riding with his son in
the car at 2:00 in the afternoon and they heard the grossly indecent monologue
on radio. Here, no parent has in fact come forward with a complaint that his child
had heard petitioner Soriano’s speech and was harmed by it. The Court cannot
pretend that this is a case of angry or agitated parents against Ang Dating Daan.
The complaint here came from Iglesia ni Cristo preachers and members who
deeply loathed Soriano and his church. The Court’s decision will not be a victory
for the children but for the Iglesia ni Cristo, finally enabling it to silence an
abhorred competing religious belief and its practices.
What is more, since this case is about protecting children, the more appropriate
penalty, if Soriano’s speech during the program mentioned was indecent and had
offended them, is to raise his program’s restriction classification. The MTRCB
classify programs to protect vulnerable audiences. It can change the present G or
General Patronage classification of Ang Dating Daan to PG or "with Parental
Guidance only" for three months. This can come with a warning that should the
program commit the same violation, the MTRCB can make the new classification
permanent or, if the violation is recurring, cancel its program’s permit.

This has precedent. In Gonzales v. Katigbak,6 the Court did not ban the motion
picture just because there were suggestive scenes in it that were not fit for
children. It simply classified the picture as for adults only. By doing this, the Court
would not be cutting the leg to cure a smelly foot.

I vote to partially grant the motion for reconsideration by modifying the three-
month suspension penalty imposed on the program Ang Dating Daan. In its place,
I vote to raise the program’s restriction classification from G or General Patronage
to PG or with Parental Guidance for three months with warning that should
petitioner Soriano commit the same violation, the classification of his program will
be permanently changed or, if the violation is persistent, the program will be
altogether cancelled.