G.R. No.
160261 November 10, 2003 WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
ERNESTO B. FRANCISCO, JR., petitioner,
NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA
MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND
MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER
JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY SENATE
PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO
C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160262 November 10, 2003
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND
HENEDINA RAZON-ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO
QUADRA, petitioners-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR
ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE
VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE
SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE
PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160263 November 10, 2003
ARTURO M. DE CASTRO AND SOLEDAD M.
CAGAMPANG, petitioners,
INC., petitioners-in-intervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT,
AND JOSE G. DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF
THE HOUSE OF REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160277 November 10, 2003
FRANCISCO I. CHAVEZ, petitioner,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE
HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS
CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF
THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM
FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM
BERNARDO-LOKIN, MARCELINO LIBANAN, EMMYLOU TALIÑO-
SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS
BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR
ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO
MARAÑON, JR., CECILIA CARREON-JALOSJOS, AGAPITO AQUINO,
FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE
CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA
JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL
DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO,
FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON,
LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE
SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR.,
EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO,
CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO,
JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO
YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS,
CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS
ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO
BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH
SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ,
RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT
REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI,
BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK
COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA,
ANGELO MONTILLA, ROSELLER BARINAGA, JESNAR FALCON,
REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR.,
AND RUY ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160292 November 10, 2003
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA.
CECILIA PAPA, NAPOLEON C. REYES, ANTONIO H. ABAD, JR.,
ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S.
MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P.
NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF THE
HOUSE OF REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M.
GONZALES, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER
OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE
G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE
OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE
PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160310 November 10, 2003
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR,
MELVIN MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO,
EDUARDO MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE,
LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA,
MARIO TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA,
WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE ANN VITAL,
ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA,
LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY
EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON
ARCE, JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ,
ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS,
ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER
QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA,
FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO
LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX
VILLAESTER, AND EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON.
SPEAKER JOSE C. DE VENECIA, JR., THE SENATE, REPRESENTED
BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX
FUENTEBELLA, ET AL., respondents.
x---------------------------------------------------------x
G.R. No. 160318 November 10, 2003
PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,
vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF
REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M.
DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents.
x---------------------------------------------------------x
G.R. No. 160342 November 10, 2003
ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER
OF THE INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND
ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER
AND MEMBER OF THE ENGINEERING PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83
HONORABLE MEMBERS OF THE HOUSE LED BY HON.
REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.
x---------------------------------------------------------x
G.R. No. 160343 November 10, 2003
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER
OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE
G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE
OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE
PRESIDENT FRANKLIN M. DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160360 November 10, 2003
CLARO B. FLORES, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER,
AND THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE
PRESIDENT, respondents.
x---------------------------------------------------------x
G.R. No. 160365 November 10, 2003
U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C.
PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS,
LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON,
ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA,
KAREN B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-
PADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER
CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE
VENECIA, THE SENATE OF THE PHILIPPINES, SENATE PRESIDENT
FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX
FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND
AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE
REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT
COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO
G. DAVIDE, JR. respondents.
x---------------------------------------------------------x
G.R. No. 160370 November 10, 2003
FR. RANHILIO CALLANGAN AQUINO, petitioner,
vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE
SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents.
x---------------------------------------------------------x
G.R. No. 160376 November 10, 2003
NILO A. MALANYAON, petitioner,
vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN
REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES
OF IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE,
JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE
PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE
VENECIA, respondents.
x---------------------------------------------------------x
G.R. No. 160392 November 10, 2003
VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G.
DE VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH
SENATE PRESIDENT FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160397 November 10, 2003
IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST
CHIEF JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U.
VALLEJOS, JR., petitioner.
x---------------------------------------------------------x
G.R. No. 160403 November 10, 2003
PHILIPPINE BAR ASSOCIATION, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR
PRESIDING OFFICER, HON. JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE
OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON.
FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160405 November 10, 2003
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY
CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP, CEBU
PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD
MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW,
UNIVERSITY OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU,
INC. [YLAC], REPRSEENTED BY ATTY. MANUEL LEGASPI,
CONFEDERATION OF ACCREDITED MEDIATORS OF THE
PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R.
POCA, MANDAUE LAWYERS ASSOCIATION, [MANLAW],
REPRESENTED BY FELIPE VELASQUEZ, FEDERACION
INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY
THELMA L. JORDAN, CARLOS G. CO, PRESIENT OF CEBU
CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY
LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE
NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU
CHAMBER OF COMMERCE AND INTEGRATED BAR OF THE
PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP.
JOSE G. DE VENECIA, AS HOUSE SPEAKER AND THE SENATE,
REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE
PRESIDENT, respondents.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no matter how
passionate and seemingly irreconcilable it may appear to be, over the
determination by the independent branches of government of the nature,
scope and extent of their respective constitutional powers where the
Constitution itself provides for the means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often frictional,
at times turbulent, dynamics of the relationship among these co-equal
branches. This Court is confronted with one such today involving the
legislature and the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent cacophonous
sentiments thereon.
There may indeed be some legitimacy to the characterization that the
present controversy subject of the instant petitions – whether the filing of
the second impeachment complaint against Chief Justice Hilario G.
Davide, Jr. with the House of Representatives falls within the one year
bar provided in the Constitution, and whether the resolution thereof is a
political question – has resulted in a political crisis. Perhaps even more
truth to the view that it was brought upon by a political crisis of
conscience.
In any event, it is with the absolute certainty that our Constitution is
sufficient to address all the issues which this controversy spawns that this
Court unequivocally pronounces, at the first instance, that the feared
resort to extra-constitutional methods of resolving it is neither necessary
nor legally permissible. Both its resolution and protection of the public
interest lie in adherence to, not departure from, the Constitution.
In passing over the complex issues arising from the controversy, this
Court is ever mindful of the essential truth that the inviolate doctrine of
separation of powers among the legislative, executive or judicial
branches of government by no means prescribes for absolute autonomy
in the discharge by each of that part of the governmental power assigned
to it by the sovereign people.
At the same time, the corollary doctrine of checks and balances which
has been carefully calibrated by the Constitution to temper the official
acts of each of these three branches must be given effect without
destroying their indispensable co-equality.
Taken together, these two fundamental doctrines of republican
government, intended as they are to insure that governmental power is
wielded only for the good of the people, mandate a relationship of
interdependence and coordination among these branches where the
delicate functions of enacting, interpreting and enforcing laws are
harmonized to achieve a unity of governance, guided only by what is in
the greater interest and well-being of the people. Verily, salus populi est
suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers and
employees must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency,
act with patriotism and justice, and lead modest lives.
SECTION 2. The President, the Vice-President, the Members of
the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed from office,
on impeachment for, and conviction of, culpable violation of the
Constitution, treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust. All other public officers and
employees may be removed from office as provided by law, but
not by impeachment.
SECTION 3. (1) The House of Representatives shall have
the exclusive power to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen upon a
resolution of endorsement by any Member thereof, which shall be
included in the Order of Business within ten session days, and
referred to the proper Committee within three session days
thereafter. The Committee, after hearing, and by a majority vote
of all its Members, shall submit its report to the House within sixty
session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration
by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House
shall be necessary either to affirm a favorable resolution with the
Articles of Impeachment of the Committee, or override its contrary
resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is
filed by at least one-third of all the Members of the House, the
same shall constitute the Articles of Impeachment, and trial by the
Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the
same official more than once within a period of one year.
(6) The Senate shall have the sole power to try and decide all
cases of impeachment. When sitting for that purpose, the
Senators shall be on oath or affirmation. When the President of
the Philippines is on trial, the Chief Justice of the Supreme Court
shall preside, but shall not vote. No person shall be convicted
without the concurrence of two-thirds of all the Members of the
Senate.
(7) Judgment in cases of impeachment shall not extend further
than removal from office and disqualification to hold any office
under the Republic of the Philippines, but the party convicted
shall nevertheless be liable and subject to prosecution, trial, and
punishment according to law.
(8) The Congress shall promulgate its rules on impeachment to
effectively carry out the purpose of this section. (Emphasis
and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the
12th Congress of the House of Representatives adopted and approved
the Rules of Procedure in Impeachment Proceedings (House
Impeachment Rules) on November 28, 2001, superseding the previous
House Impeachment Rules1 approved by the 11th Congress.
The relevant distinctions between these two Congresses' House
Impeachment Rules are shown in the following tabulation:
 11TH CONGRESS 12TH CONGRESS and/or resolution, as
RULES NEW RULES the case may be, is not
sufficient in substance.
RULE II RULE V
In cases where a
INITIATING BAR AGAINST verified complaint or a
IMPEACHMENT INITIATION OF resolution of
IMPEACHMENT
impeachment is filed or
Section 2. Mode of PROCEEDINGS endorsed, as the case
Initiating AGAINST THE SAME may be, by at least
Impeachment. – OFFICIAL
one-third (1/3) of the
Impeachment shall be Members of the
initiated only by a Section 16. House, impeachment
verified complaint for – Impeachment proceedings are
impeachment filed by Proceedings Deemed deemed initiated at
any Member of the Initiated. – In cases the time of the filing
House of where a Member of the of such verified
Representatives or by House files a verified complaint or
any citizen upon a complaint of resolution of
resolution of impeachment or a impeachment with
endorsement by any citizen files a verified the Secretary
Member thereof or by a complaint that is General.
verified complaint or endorsed by a Member
resolution of of the House through a
impeachment filed by at resolution of
least one-third (1/3) of endorsement against RULE V Section 17. Bar
all the Members of the an impeachable officer, Against Initiation Of
House. impeachment BAR AGAINST Impeachment
proceedings against IMPEACHMENT Proceedings. – Within
such official are a period of one (1) year
deemed initiated on Section 14. Scope of from the date
the day the Committee Bar. – No impeachment impeachment
on Justice finds that proceedings shall be proceedings are
the verified complaint initiated against the deemed initiated as
and/or resolution same official more than provided in Section 16
against such official, as once within the period of hereof, no
the case may be, is one (1) year. impeachment
sufficient in substance, proceedings, as such,
or on the date the can be initiated against
House votes to the same official.
overturn or affirm the (Italics in the original;
finding of the said emphasis and
Committee that the underscoring supplied)
verified complaint
On July 22, 2002, the House of Representatives adopted a
Resolution,2 sponsored by Representative Felix William D. Fuentebella,
which directed the Committee on Justice "to conduct an investigation, in
aid of legislation, on the manner of disbursements and expenditures by
the Chief Justice of the Supreme Court of the Judiciary Development
Fund (JDF)."3
On June 2, 2003, former President Joseph E. Estrada filed an
impeachment complaint4 (first impeachment complaint) against Chief
Justice Hilario G. Davide Jr. and seven Associate Justices 5 of this Court
for "culpable violation of the Constitution, betrayal of the public trust and
other high crimes."6 The complaint was endorsed by Representatives
Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang
Dilangalen,7 and was referred to the House Committee on Justice on
August 5, 20038 in accordance with Section 3(2) of Article XI of the
Constitution which reads:
Section 3(2) A verified complaint for impeachment may be filed by
any Member of the House of Representatives or by any citizen
upon a resolution of endorsement by any Member thereof, which
shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session
days thereafter. The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for
consideration by the House within ten session days from receipt
thereof.
The House Committee on Justice ruled on October 13, 2003 that the first
impeachment complaint was "sufficient in form," 9 but voted to dismiss the
same on October 22, 2003 for being insufficient in substance. 10 To date,
the Committee Report to this effect has not yet been sent to the House in
plenary in accordance with the said Section 3(2) of Article XI of the
Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first
complaint or on October 23, 2003, a day after the House Committee on
Justice voted to dismiss it, the second impeachment complaint 11 was filed
with the Secretary General of the House12 by Representatives Gilberto C.
Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third
District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr.,
founded on the alleged results of the legislative inquiry initiated by above-
mentioned House Resolution. This second impeachment complaint was
accompanied by a "Resolution of Endorsement/Impeachment" signed by
at least one-third (1/3) of all the Members of the House of
Representatives.13
Thus arose the instant petitions against the House of Representatives, et.
al., most of which petitions contend that the filing of the second
impeachment complaint is unconstitutional as it violates the provision of
Section 5 of Article XI of the Constitution that "[n]o impeachment
proceedings shall be initiated against the same official more than once
within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging
that he has a duty as a member of the Integrated Bar of the Philippines to
use all available legal remedies to stop an unconstitutional impeachment,
that the issues raised in his petition for Certiorari, Prohibition and
Mandamus are of transcendental importance, and that he "himself was a
victim of the capricious and arbitrary changes in the Rules of Procedure
in Impeachment Proceedings introduced by the 12th Congress," 14 posits
that his right to bring an impeachment complaint against then
Ombudsman Aniano Desierto had been violated due to the capricious
and arbitrary changes in the House Impeachment Rules adopted and
approved on November 28, 2001 by the House of Representatives and
prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8,
and 9 thereof be declared unconstitutional; (2) this Court issue a writ of
mandamus directing respondents House of Representatives et. al. to
comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to
return the second impeachment complaint and/or strike it off the records
of the House of Representatives, and to promulgate rules which are
consistent with the Constitution; and (3) this Court permanently enjoin
respondent House of Representatives from proceeding with the second
impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens
and taxpayers, alleging that the issues of the case are of transcendental
importance, pray, in their petition for Certiorari/Prohibition, the issuance
of a writ "perpetually" prohibiting respondent House of Representatives
from filing any Articles of Impeachment against the Chief Justice with the
Senate; and for the issuance of a writ "perpetually" prohibiting
respondents Senate and Senate President Franklin Drilon from accepting
any Articles of Impeachment against the Chief Justice or, in the event
that the Senate has accepted the same, from proceeding with the
impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad
Cagampang, as citizens, taxpayers, lawyers and members of the
Integrated Bar of the Philippines, alleging that their petition for Prohibition
involves public interest as it involves the use of public funds necessary to
conduct the impeachment trial on the second impeachment complaint,
pray for the issuance of a writ of prohibition enjoining Congress from
conducting further proceedings on said second impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this
Court has recognized that he has locus standi to bring petitions of this
nature in the cases of Chavez v. PCGG15 and Chavez v. PEA-Amari
Coastal Bay Development Corporation,16 prays in his petition for
Injunction that the second impeachment complaint be declared
unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers
and members of the legal profession, pray in their petition for Prohibition
for an order prohibiting respondent House of Representatives from
drafting, adopting, approving and transmitting to the Senate the second
impeachment complaint, and respondents De Venecia and Nazareno
from transmitting the Articles of Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina
and Deputy Speaker Raul M. Gonzalez, alleging that, as members of the
House of Representatives, they have a legal interest in ensuring that only
constitutional impeachment proceedings are initiated, pray in their
petition for Certiorari/Prohibition that the second impeachment complaint
and any act proceeding therefrom be declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that
they have a right to be protected against all forms of senseless spending
of taxpayers' money and that they have an obligation to protect the
Supreme Court, the Chief Justice, and the integrity of the Judiciary,
allege in their petition for Certiorari and Prohibition that it is instituted as
"a class suit" and pray that (1) the House Resolution endorsing the
second impeachment complaint as well as all issuances emanating
therefrom be declared null and void; and (2) this Court enjoin the Senate
and the Senate President from taking cognizance of, hearing, trying and
deciding the second impeachment complaint, and issue a writ of
prohibition commanding the Senate, its prosecutors and agents to desist
from conducting any proceedings or to act on the impeachment
complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose
members are citizens and taxpayers, and its co-petitioner Crispin T.
Reyes, a citizen, taxpayer and a member of the Philippine Bar, both
allege in their petition, which does not state what its nature is, that the
filing of the second impeachment complaint involves paramount public
interest and pray that Sections 16 and 17 of the House Impeachment
Rules and the second impeachment complaint/Articles of Impeachment
be declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen
and a member of the Philippine Bar Association and of the Integrated Bar
of the Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a
taxpayer, pray in their petition for the issuance of a Temporary
Restraining Order and Permanent Injunction to enjoin the House of
Representatives from proceeding with the second impeachment
complaint.
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging
that it is mandated by the Code of Professional Responsibility to uphold
the Constitution, prays in its petition for Certiorari and Prohibition that
Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the
House Impeachment Rules be declared unconstitutional and that the
House of Representatives be permanently enjoined from proceeding with
the second impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his
petition for Certiorari and Prohibition that the House Impeachment Rules
be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc.,
et. al., in their petition for Prohibition and Injunction which they claim is a
class suit filed in behalf of all citizens, citing Oposa v. Factoran17 which
was filed in behalf of succeeding generations of Filipinos, pray for the
issuance of a writ prohibiting respondents House of Representatives and
the Senate from conducting further proceedings on the second
impeachment complaint and that this Court declare as unconstitutional
the second impeachment complaint and the acts of respondent House of
Representatives in interfering with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan
Aquino, alleging that the issues in his petition for Prohibition are of
national and transcendental significance and that as an official of the
Philippine Judicial Academy, he has a direct and substantial interest in
the unhampered operation of the Supreme Court and its officials in
discharging their duties in accordance with the Constitution, prays for the
issuance of a writ prohibiting the House of Representatives from
transmitting the Articles of Impeachment to the Senate and the Senate
from receiving the same or giving the impeachment complaint due
course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges
in his petition for Prohibition that respondents Fuentebella and Teodoro
at the time they filed the second impeachment complaint, were
"absolutely without any legal power to do so, as they acted without
jurisdiction as far as the Articles of Impeachment assail the alleged abuse
of powers of the Chief Justice to disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L.
Hofileña, alleging that as professors of law they have an abiding interest
in the subject matter of their petition for Certiorari and Prohibition as it
pertains to a constitutional issue "which they are trying to inculcate in the
minds of their students," pray that the House of Representatives be
enjoined from endorsing and the Senate from trying the Articles of
Impeachment and that the second impeachment complaint be declared
null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without
alleging his locus standi, but alleging that the second impeachment
complaint is founded on the issue of whether or not the Judicial
Development Fund (JDF) was spent in accordance with law and that the
House of Representatives does not have exclusive jurisdiction in the
examination and audit thereof, prays in his petition "To Declare
Complaint Null and Void for Lack of Cause of Action and Jurisdiction" that
the second impeachment complaint be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that
the issues raised in the filing of the second impeachment complaint
involve matters of transcendental importance, prays in its petition for
Certiorari/Prohibition that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2) respondent
House of Representatives be prohibited from transmitting the Articles of
Impeachment to the Senate; and (3) respondent Senate be prohibited
from accepting the Articles of Impeachment and from conducting any
proceedings thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens
and taxpayers, pray in their petition for Certiorari/Prohibition that (1) the
second impeachment complaint as well as the resolution of endorsement
and impeachment by the respondent House of Representatives be
declared null and void and (2) respondents Senate and Senate President
Franklin Drilon be prohibited from accepting any Articles of Impeachment
against the Chief Justice or, in the event that they have accepted the
same, that they be prohibited from proceeding with the impeachment
trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and
160263, the first three of the eighteen which were filed before this
Court,18 prayed for the issuance of a Temporary Restraining Order and/or
preliminary injunction to prevent the House of Representatives from
transmitting the Articles of Impeachment arising from the second
impeachment complaint to the Senate. Petition bearing docket number
G.R. No. 160261 likewise prayed for the declaration of the November 28,
2001 House Impeachment Rules as null and void for being
unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and
160295, which were filed on October 28, 2003, sought similar relief. In
addition, petition bearing docket number G.R. No. 160292 alleged that
House Resolution No. 260 (calling for a legislative inquiry into the
administration by the Chief Justice of the JDF) infringes on the
constitutional doctrine of separation of powers and is a direct violation of
the constitutional principle of fiscal autonomy of the judiciary.
On October 28, 2003, during the plenary session of the House of
Representatives, a motion was put forth that the second impeachment
complaint be formally transmitted to the Senate, but it was not carried
because the House of Representatives adjourned for lack of
quorum,19 and as reflected above, to date, the Articles of Impeachment
have yet to be forwarded to the Senate.
Before acting on the petitions with prayers for temporary restraining order
and/or writ of preliminary injunction which were filed on or before October
28, 2003, Justices Puno and Vitug offered to recuse themselves, but the
Court rejected their offer. Justice Panganiban inhibited himself, but the
Court directed him to participate.
Without necessarily giving the petitions due course, this Court in its
Resolution of October 28, 2003, resolved to (a) consolidate the petitions;
(b) require respondent House of Representatives and the Senate, as well
as the Solicitor General, to comment on the petitions not later than 4:30
p.m. of November 3, 2003; (c) set the petitions for oral arguments on
November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal
experts as amici curiae.20 In addition, this Court called on petitioners and
respondents to maintain the status quo, enjoining all the parties and
others acting for and in their behalf to refrain from committing acts that
would render the petitions moot.
Also on October 28, 2003, when respondent House of Representatives
through Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by
way of special appearance, submitted a Manifestation asserting that this
Court has no jurisdiction to hear, much less prohibit or enjoin the House
of Representatives, which is an independent and co-equal branch of
government under the Constitution, from the performance of its
constitutionally mandated duty to initiate impeachment cases. On even
date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion
to Intervene (Ex Abudante Cautela)21 and Comment, praying that "the
consolidated petitions be dismissed for lack of jurisdiction of the Court
over the issues affecting the impeachment proceedings and that the sole
power, authority and jurisdiction of the Senate as the impeachment court
to try and decide impeachment cases, including the one where the Chief
Justice is the respondent, be recognized and upheld pursuant to the
provisions of Article XI of the Constitution."22
Acting on the other petitions which were subsequently filed, this Court
resolved to (a) consolidate them with the earlier consolidated petitions;
(b) require respondents to file their comment not later than 4:30 p.m. of
November 3, 2003; and (c) include them for oral arguments on November
5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate
President Franklin M. Drilon, filed a Manifestation stating that insofar as it
is concerned, the petitions are plainly premature and have no basis in law
or in fact, adding that as of the time of the filing of the petitions, no
justiciable issue was presented before it since (1) its constitutional duty to
constitute itself as an impeachment court commences only upon its
receipt of the Articles of Impeachment, which it had not, and (2) the
principal issues raised by the petitions pertain exclusively to the
proceedings in the House of Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and
160295, questioning the status quo Resolution issued by this Court on
October 28, 2003 on the ground that it would unnecessarily put Congress
and this Court in a "constitutional deadlock" and praying for the dismissal
of all the petitions as the matter in question is not yet ripe for judicial
determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino
Quadra filed in G.R. No. 160262 a "Motion for Leave of Court to
Intervene and to Admit the Herein Incorporated Petition in Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No.
160261. On November 5, 2003, World War II Veterans Legionnaires of
the Philippines, Inc. also filed a "Petition-in-Intervention with Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292,
160295, and 160310.
The motions for intervention were granted and both Senator Pimentel's
Comment and Attorneys Macalintal and Quadra's Petition in Intervention
were admitted.
On November 5-6, 2003, this Court heard the views of the amici
curiae and the arguments of petitioners, intervenors Senator Pimentel
and Attorney Makalintal, and Solicitor General Alfredo Benipayo on the
principal issues outlined in an Advisory issued by this Court on November
3, 2003, to wit:
Whether the certiorari jurisdiction of the Supreme Court may be
invoked; who can invoke it; on what issues and at what time; and
whether it should be exercised by this Court at this time.
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive" power to initiate all cases of
impeachment;
 e) Senate's "sole" power to try and decide all cases of
impeachment;
f) constitutionality of the House Rules on
Impeachment vis-a-vis Section 3(5) of Article XI of the
Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues
arising from the instant petitions as well as the myriad arguments and
opinions presented for and against the grant of the reliefs prayed for, this
Court has sifted and determined them to be as follows: (1) the threshold
and novel issue of whether or not the power of judicial review extends to
those arising from impeachment proceedings; (2) whether or not the
essential pre-requisites for the exercise of the power of judicial review
have been fulfilled; and (3) the substantive issues yet remaining. These
matters shall now be discussed in seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to exercise the power
of judicial review to determine the validity of the second impeachment
complaint.
This Court's power of judicial review is conferred on the judicial branch of
the government in Section 1, Article VIII of our present 1987 Constitution:
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. (Emphasis supplied)
Such power of judicial review was early on exhaustively expounded upon
by Justice Jose P. Laurel in the definitive 1936 case of Angara v.
Electoral Commission23 after the effectivity of the 1935 Constitution
whose provisions, unlike the present Constitution, did not contain the
present provision in Article VIII, Section 1, par. 2 on what judicial power
includes. Thus, Justice Laurel discoursed:
x x x In times of social disquietude or political excitement, the
great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the
judicial department is the only constitutional organ which
can be called upon to determine the proper allocation of
powers between the several departments and among the
integral or constituent units thereof.
As any human production, our Constitution is of course lacking
perfection and perfectibility, but as much as it was within the
power of our people, acting through their delegates to so provide,
that instrument which is the expression of their sovereignty
however limited, has established a republican government
intended to operate and function as a harmonious whole, under a
system of checks and balances, and subject to specific limitations
and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers and
agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution
had not provided for a mechanism by which to direct the
course of government along constitutional channels, for then
the distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the limitations
and restrictions embodied in our Constitution are real as they
should be in any living constitution. In the United States where no
express constitutional grant is found in their constitution, the
possession of this moderating power of the courts, not to
speak of its historical origin and development there, has been set
at rest by popular acquiescence for a period of more than one
and a half centuries. In our case, this moderating power is
granted, if not expressly, by clear implication from section 2
of article VIII of our Constitution.
The Constitution is a definition of the powers of government. Who
is to determine the nature, scope and extent of such
powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when
the judiciary mediates to allocate constitutional boundaries,
it does not assert any superiority over the other departments; it
 does not in reality nullify or invalidate an act of the legislature,
but only asserts the solemn and sacred obligation assigned
to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the
parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth
all that is involved in what is termed "judicial supremacy" which
properly is the power of judicial review under the
Constitution. Even then, this power of judicial review is limited to
actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any
attempt at abstraction could only lead to dialectics and barren
legal questions and to sterile conclusions unrelated to actualities.
Narrowed as its function is in this manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the
legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people
as expressed through their representatives in the executive and
legislative departments of the government. 24 (Italics in the
original; emphasis and underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to "determine
the proper allocation of powers" of the different branches of government
and "to direct the course of government along constitutional channels" is
inherent in all courts25 as a necessary consequence of the judicial power
itself, which is "the power of the court to settle actual controversies
involving rights which are legally demandable and enforceable." 26
Thus, even in the United States where the power of judicial review is not
explicitly conferred upon the courts by its Constitution, such power has
"been set at rest by popular acquiescence for a period of more than one
and a half centuries." To be sure, it was in the 1803 leading case
of Marbury v. Madison27 that the power of judicial review was first
articulated by Chief Justice Marshall, to wit:
It is also not entirely unworthy of observation, that in declaring
what shall be the supreme law of the land, the constitution itself is
first mentioned; and not the laws of the United States generally,
but those only which shall be made in pursuance of the
constitution, have that rank.
Thus, the particular phraseology of the constitution of the
United States confirms and strengthens the principle, supposed
to be essential to all written constitutions, that a law
repugnant to the constitution is void; and that courts, as well
as other departments, are bound by that instrument.28 (Italics
in the original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express
grant in the 1935 Constitution, the power of judicial review was exercised
by our courts to invalidate constitutionally infirm acts. 29 And as pointed
out by noted political law professor and former Supreme Court Justice
Vicente V. Mendoza,30 the executive and legislative branches of our
government in fact effectively acknowledged this power of judicial review
in Article 7 of the Civil Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by disuse, or
custom or practice to the contrary.
When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall
govern.
Administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws or
the Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 judicial review is
indeed an integral component of the delicate system of checks and
balances which, together with the corollary principle of separation of
powers, forms the bedrock of our republican form of government and
insures that its vast powers are utilized only for the benefit of the people
for which it serves.
The separation of powers is a fundamental principle in our
system of government. It 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. But it does not
follow from the fact that the three powers are to be kept separate
and distinct that the Constitution intended them to be absolutely
unrestrained and independent of each other. The Constitution
has provided for an elaborate system of checks and
 balances to secure coordination in the workings of the
various departments of the government. x x x And the
judiciary in turn, with the Supreme Court as the final arbiter,
effectively checks the other departments in the exercise of
its power to determine the law, and hence to declare
executive and legislative acts void if violative of the
Constitution.32 (Emphasis and underscoring supplied)
In the scholarly estimation of former Supreme Court Justice Florentino
Feliciano, "x x x 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."33 To him, "[j]udicial review is the chief, indeed the only, medium of
participation – or instrument of intervention – of the judiciary in that
balancing operation."34
To ensure the potency of the power of judicial review to curb grave abuse
of discretion by "any branch or instrumentalities of government," the
afore-quoted Section 1, Article VIII of the Constitution engraves, for the
first time into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this Court, the nature of and rationale
for which are mirrored in the following excerpt from the sponsorship
speech of its proponent, former Chief Justice Constitutional
Commissioner Roberto Concepcion:
xxx
The first section starts with a sentence copied from former Constitutions.
It says:
The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it
first and explain.
Judicial power includes the duty of 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 or instrumentality of the
government.
Fellow Members of this Commission, this is actually a product
of our experience during martial law. As a matter of fact, it has
some antecedents in the past, but the role of the judiciary
during the deposed regime was marred considerably by the
circumstance that in a number of cases against the
government, which then had no legal defense at all, the
solicitor general set up the defense of political questions and
got away with it. As a consequence, certain principles
concerning particularly the writ of habeas corpus, that is, the
authority of courts to order the release of political detainees, and
other matters related to the operation and effect of martial law
failed because the government set up the defense of political
question. And the Supreme Court said: "Well, since it is political,
we have no authority to pass upon it." The Committee on the
Judiciary feels that this was not a proper solution of the
questions involved. It did not merely request an
encroachment upon the rights of the people, but it, in effect,
encouraged further violations thereof during the martial law
regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power
of the agencies and offices of the government as well as
those of its officers. In other words, the judiciary is the final
arbiter on the question whether or not a branch of
government or any of its officials has acted without
jurisdiction or in excess of jurisdiction, or so capriciously as
to constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means
that the courts cannot hereafter evade the duty to settle
matters of this nature, by claiming that such matters
constitute a political question.35 (Italics in the original;
emphasis and underscoring supplied)
To determine the merits of the issues raised in the instant petitions, this
Court must necessarily turn to the Constitution itself which employs the
well-settled principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the
Constitution must be given their ordinary meaning except where technical
terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure
Administration,36 this Court, speaking through Chief Justice Enrique
Fernando, declared:
We look to the language of the document itself in our search
for its meaning. We do not of course stop there, but that is
where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary
meaning except where technical terms are employed in
which case the significance thus attached to them
prevails. As the Constitution is not primarily a lawyer's document,
it being essential for the rule of law to obtain that it should ever be
present in the people's consciousness, its language as much as
possible 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. Thus these are the cases where the
need for construction is reduced to a minimum. 37 (Emphasis and
underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the
Constitution should be interpreted in accordance with the intent of its
framers. And so did this Court apply this principle in Civil Liberties Union
v. Executive Secretary38 in this wise:
A foolproof yardstick in constitutional construction is the intention
underlying the provision under consideration. Thus, it has been
held that the Court in construing a Constitution should bear in
mind the object sought to be accomplished by its adoption, and
the evils, if any, sought to be prevented or remedied. A doubtful
provision will be examined in the light of the history of the times,
and the condition and circumstances under which the Constitution
was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the
particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to
make the words consonant to that reason and calculated to
effect that purpose.39 (Emphasis and underscoring supplied)
As it did in Nitafan v. Commissioner on Internal Revenue40 where,
speaking through Madame Justice Amuerfina A. Melencio-Herrera, it
declared:
x x x The ascertainment of that intent is but in keeping with
the fundamental principle of constitutional construction that
the intent of the framers of the organic law and of the people
adopting it should be given effect. The primary task in
constitutional construction is to ascertain and thereafter assure
the realization of the purpose of the framers and of the people in
the adoption of the Constitution. It may also be safely assumed
that the people in ratifying the Constitution were guided
mainly by the explanation offered by the framers.41 (Emphasis
and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted
as a whole. Thus, in Chiongbian v. De Leon,42 this Court, through Chief
Justice Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could
not have dedicated a provision of our Constitution merely for
the benefit of one person without considering that it could
also affect others. When they adopted subsection 2, they
permitted, if not willed, that said provision should function to
the full extent of its substance and its terms, not by itself
alone, but in conjunction with all other provisions of that
great document.43 (Emphasis and underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court
affirmed that:
It is a well-established rule in constitutional construction that
no one provision of the Constitution is to be separated from
all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate
the great purposes of the instrument. Sections bearing on a
particular subject should be considered and interpreted
together as to effectuate the whole purpose of the
Constitution and one section is not to be allowed to defeat
 another, if by any reasonable construction, the two can be
made to stand together.
In other words, the court must harmonize them, if practicable, and
must lean in favor of a construction which will render every word
operative, rather than one which may make the words idle and
nugatory.45 (Emphasis supplied)
If, however, the plain meaning of the word is not found to be clear, resort
to other aids is available. In still the same case of Civil Liberties Union v.
Executive Secretary, this Court expounded:
While it is permissible in this jurisdiction to consult the debates
and proceedings of the constitutional convention in order to
arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other
guides fail as said proceedings are powerless to vary the
terms of the Constitution when the meaning is clear. Debates
in the constitutional convention "are of value as showing the
views of the individual members, and as indicating the reasons
for their votes, but they give us no light as to the views of the
large majority who did not talk, much less of the mass of our
fellow citizens whose votes at the polls gave that instrument the
force of fundamental law. We think it safer to construe the
constitution from what appears upon its face." The proper
interpretation therefore depends more on how it was
understood by the people adopting it than in the framers's
understanding thereof.46 (Emphasis and underscoring supplied)
It is in the context of the foregoing backdrop of constitutional refinement
and jurisprudential application of the power of judicial review that
respondents Speaker De Venecia, et. al. and intervenor Senator
Pimentel raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De Venecia et.
al. that impeachment is a political action which cannot assume a judicial
character. Hence, any question, issue or incident arising at any stage of
the impeachment proceeding is beyond the reach of judicial review. 47
For his part, intervenor Senator Pimentel contends that the Senate's "sole
power to try" impeachment cases48 (1) entirely excludes the application of
judicial review over it; and (2) necessarily includes the Senate's power to
determine constitutional questions relative to impeachment
proceedings.49
In furthering their arguments on the proposition that impeachment
proceedings are outside the scope of judicial review, respondents
Speaker De Venecia, et. al. and intervenor Senator Pimentel rely heavily
on American authorities, principally the majority opinion in the case
of Nixon v. United States.50 Thus, they contend that the exercise of
judicial review over impeachment proceedings is inappropriate since it
runs counter to the framers' decision to allocate to different fora the
powers to try impeachments and to try crimes; it disturbs the system of
checks and balances, under which impeachment is the only legislative
check on the judiciary; and it would create a lack of finality and difficulty
in fashioning relief.51 Respondents likewise point to deliberations on the
US Constitution to show the intent to isolate judicial power of review in
cases of impeachment.
Respondents' and intervenors' reliance upon American jurisprudence, the
American Constitution and American authorities cannot be credited to
support the proposition that the Senate's "sole power to try and decide
impeachment cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional commitment of all
issues pertaining to impeachment to the legislature, to the total exclusion
of the power of judicial review to check and restrain any grave abuse of
the impeachment process. Nor can it reasonably support the
interpretation that it necessarily confers upon the Senate the inherently
judicial power to determine constitutional questions incident to
impeachment proceedings.
Said American jurisprudence and authorities, much less the American
Constitution, are of dubious application for these are no longer controlling
within our jurisdiction and have only limited persuasive merit insofar as
Philippine constitutional law is concerned. As held in the case of Garcia
vs. COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should
not be beguiled by foreign jurisprudence some of which are hardly
applicable because they have been dictated by different constitutional
settings and needs."53 Indeed, although the Philippine Constitution can
trace its origins to that of the United States, their paths of development
have long since diverged. In the colorful words of Father Bernas, "[w]e
have cut the umbilical cord."
The major difference between the judicial power of the Philippine
Supreme Court and that of the U.S. Supreme Court is that while the
power of judicial review is only impliedly granted to the U.S. Supreme
Court and is discretionary in nature, that granted to the Philippine
Supreme Court and lower courts, as expressly provided for in the
Constitution, is not just a power but also a duty, and it was given an
expanded definition to include the power to correct any grave abuse of
discretion on the part of any government branch or instrumentality.
There are also glaring distinctions between the U.S. Constitution and the
Philippine Constitution with respect to the power of the House of
Representatives over impeachment proceedings. While the U.S.
Constitution bestows sole power of impeachment to the House of
Representatives without limitation,54 our Constitution, though vesting in
the House of Representatives the exclusive power to initiate
impeachment cases,55 provides for several limitations to the exercise of
such power as embodied in Section 3(2), (3), (4) and (5), Article XI
thereof. These limitations include the manner of filing, required vote to
impeach, and the one year bar on the impeachment of one and the same
official.
Respondents are also of the view that judicial review of impeachments
undermines their finality and may also lead to conflicts between
Congress and the judiciary. Thus, they call upon this Court to exercise
judicial statesmanship on the principle that "whenever possible, the Court
should defer to the judgment of the people expressed legislatively,
recognizing full well the perils of judicial willfulness and pride." 56
But did not the people also express their will when they instituted the
above-mentioned safeguards in the Constitution? This shows that the
Constitution did not intend to leave the matter of impeachment to the sole
discretion of Congress. Instead, it provided for certain well-defined limits,
or in the language of Baker v. Carr,57 "judicially discoverable standards"
for determining the validity of the exercise of such discretion, through the
power of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by
respondents in support of the argument that the impeachment power is
beyond the scope of judicial review, are not in point. These cases
concern the denial of petitions for writs of mandamus to compel the
legislature to perform non-ministerial acts, and do not concern the
exercise of the power of judicial review.
There is indeed a plethora of cases in which this Court exercised the
power of judicial review over congressional action. Thus, in Santiago v.
Guingona, Jr.,60 this Court ruled that it is well within the power and
jurisdiction of the Court to inquire whether the Senate or its officials
committed a violation of the Constitution or grave abuse of discretion in
the exercise of their functions and prerogatives. In Tanada v. Angara,61 in
seeking to nullify an act of the Philippine Senate on the ground that it
contravened the Constitution, it held that the petition raises a justiciable
controversy and that when 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. In Bondoc v.
Pineda,62 this Court declared null and void a resolution of the House of
Representatives withdrawing the nomination, and rescinding the election,
of a congressman as a member of the House Electoral Tribunal for being
violative of Section 17, Article VI of the Constitution. In Coseteng v.
Mitra,63 it held that the resolution of whether the House representation in
the Commission on Appointments was based on proportional
representation of the political parties as provided in Section 18, Article VI
of the Constitution is subject to judicial review. In Daza v. Singson,64 it
held that the act of the House of Representatives in removing the
petitioner from the Commission on Appointments is subject to judicial
review. In Tanada v. Cuenco,65 it held that although under the
Constitution, the legislative power is vested exclusively in Congress, this
does not detract from the power of the courts to pass upon the
constitutionality of acts of Congress. In Angara v. Electoral
Commission,66 it ruled that confirmation by the National Assembly of the
election of any member, irrespective of whether his election is contested,
is not essential before such member-elect may discharge the duties and
enjoy the privileges of a member of the National Assembly.
Finally, there exists no constitutional basis for the contention that the
exercise of judicial review over impeachment proceedings would upset
the system of checks and balances. Verily, the Constitution is to be
interpreted as a whole and "one section is not to be allowed to defeat
another."67 Both are integral components of the calibrated system of
independence and interdependence that insures that no branch of
government act beyond the powers assigned to it by the Constitution.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the courts' power of
judicial review, like almost all powers conferred by the Constitution, is
subject to several limitations, namely: (1) an actual case or controversy
calling for the exercise of judicial power; (2) the person challenging the
act must have "standing" to challenge; he must have a personal and
substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible opportunity; and
(4) the issue of constitutionality must be the very lis mota of the case.
x x x Even then, this power of judicial review is limited to actual
cases and controversies to be exercised after full opportunity of
argument by the parties, and limited further to the constitutional
question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions unrelated to actualities.
Narrowed as its function is in this manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the
legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people
as expressed through their representatives in the executive and
legislative departments of the government. 68 (Italics in the
original)
Standing
Locus standi or legal standing or has been defined as a personal and
substantial interest in the case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is being
challenged. The gist of the question of standing is whether a party
alleges such personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult
constitutional questions.69
Intervenor Soriano, in praying for the dismissal of the petitions, contends
that petitioners do not have standing since only the Chief Justice has
sustained and will sustain direct personal injury. Amicus curiae former
Justice Minister and Solicitor General Estelito Mendoza similarly
contends.
Upon the other hand, the Solicitor General asserts that petitioners have
standing since this Court had, in the past, accorded standing to
taxpayers, voters, concerned citizens, legislators in cases involving
paramount public interest70 and transcendental importance,71 and that
procedural matters are subordinate to the need to determine whether or
not the other branches of the government have kept themselves within
the limits of the Constitution and the laws and that they have not abused
the discretion given to them.72 Amicus curiae Dean Raul Pangalangan of
the U.P. College of Law is of the same opinion, citing transcendental
importance and the well-entrenched rule exception that, when the real
party in interest is unable to vindicate his rights by seeking the same
remedies, as in the case of the Chief Justice who, for ethical reasons,
cannot himself invoke the jurisdiction of this Court, the courts will grant
petitioners standing.
There is, however, a difference between the rule on real-party-in-interest
and the rule on standing, for the former is a concept of civil
procedure73 while the latter has constitutional underpinnings. 74 In view of
the arguments set forth regarding standing, it behooves the Court to
reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant
by locus standi and to distinguish it from real party-in-interest.
The difference between the rule on standing and real party in
interest has been noted by authorities thus: "It is important to note
. . . that standing because of its constitutional and public policy
underpinnings, is very different from questions relating to whether
a particular plaintiff is the real party in interest or has capacity to
sue. Although all three requirements are directed towards
ensuring that only certain parties can maintain an action, standing
restrictions require a partial consideration of the merits, as well as
broader policy concerns relating to the proper role of the judiciary
in certain areas.
Standing is a special concern in constitutional law because in
some cases suits are brought not by parties who have been
personally injured by the operation of a law or by official action
taken, but by concerned citizens, taxpayers or voters who actually
sue in the public interest. Hence the question in standing is
whether such parties have "alleged such a personal stake in the
outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult
constitutional questions."
xxx
On the other hand, the question as to "real party in interest" is
whether he is "the party who would be benefited or injured by the
 judgment, or the 'party entitled to the avails of the
suit.'"76 (Citations omitted)
While rights personal to the Chief Justice may have been injured by the
alleged unconstitutional acts of the House of Representatives, none of
the petitioners before us asserts a violation of the personal rights of the
Chief Justice. On the contrary, they invariably invoke the vindication of
their own rights – as taxpayers; members of Congress; citizens,
individually or in a class suit; and members of the bar and of the legal
profession – which were supposedly violated by the alleged
unconstitutional acts of the House of Representatives.
In a long line of cases, however, concerned citizens, taxpayers and
legislators when specific requirements have been met have been given
standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must be able
to show, not only that the law or any government act is invalid, but also
that he sustained or is in imminent danger of sustaining some direct
injury as a result of its enforcement, and not merely that he suffers
thereby in some indefinite way. It must appear that the person
complaining has been or is about to be denied some right or privilege to
which he is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute or act complained of. 77 In
fine, when the proceeding involves the assertion of a public right, 78 the
mere fact that he is a citizen satisfies the requirement of personal
interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that
public funds are illegally disbursed, or that public money is being
deflected to any improper purpose, or that there is a wastage of public
funds through the enforcement of an invalid or unconstitutional
law.79 Before he can invoke the power of judicial review, however, he
must specifically prove that he has sufficient interest in preventing the
illegal expenditure of money raised by taxation and that he would sustain
a direct injury as a result of the enforcement of the questioned statute or
contract. It is not sufficient that he has merely a general interest common
to all members of the public.80
At all events, courts are vested with discretion as to whether or not a
taxpayer's suit should be entertained.81 This Court opts to grant standing
to most of the petitioners, given their allegation that any impending
transmittal to the Senate of the Articles of Impeachment and the ensuing
trial of the Chief Justice will necessarily involve the expenditure of public
funds.
As for a legislator, he is allowed to sue to question the validity of any
official action which he claims infringes his prerogatives as a
legislator.82 Indeed, a member of the House of Representatives has
standing to maintain inviolate the prerogatives, powers and privileges
vested by the Constitution in his office. 83
While an association has legal personality to represent its
members,84 especially when it is composed of substantial taxpayers and
the outcome will affect their vital interests,85 the mere invocation by
the Integrated Bar of the Philippines or any member of the legal
profession of the duty to preserve the rule of law and nothing more,
although undoubtedly true, does not suffice to clothe it with standing. Its
interest is too general. It is shared by other groups and the whole
citizenry. However, a reading of the petitions shows that it has advanced
constitutional issues which deserve the attention of this Court in view of
their seriousness, novelty and weight as precedents. 86 It, therefore,
behooves this Court to relax the rules on standing and to resolve the
issues presented by it.
In the same vein, when dealing with class suits filed in behalf of all
citizens, persons intervening must be sufficiently numerous to fully
protect the interests of all concerned87 to enable the court to deal properly
with all interests involved in the suit, 88 for a judgment in a class suit,
whether favorable or unfavorable to the class, is, under the res
judicata principle, binding on all members of the class whether or not they
were before the court.89 Where it clearly appears that not all interests can
be sufficiently represented as shown by the divergent issues raised in the
numerous petitions before this Court, G.R. No. 160365 as a class suit
ought to fail. Since petitioners additionally allege standing as citizens and
taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole
ground of transcendental importance, while Atty. Dioscoro U. Vallejos, in
G.R. No. 160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the
following instructive determinants formulated by former Supreme Court
Justice Florentino P. Feliciano are instructive: (1) the character of the
funds or other assets involved in the case; (2) the presence of a clear
case of disregard of a constitutional or statutory prohibition by the public
respondent agency or instrumentality of the government; and (3) the lack
of any other party with a more direct and specific interest in raising the
questions being raised.90 Applying these determinants, this Court is
satisfied that the issues raised herein are indeed of transcendental
importance.
In not a few cases, this Court has in fact adopted a liberal attitude on
the locus standi of a petitioner where the petitioner is able to craft an
issue of transcendental significance to the people, as when the issues
raised are of paramount importance to the public. 91 Such liberality does
not, however, mean that the requirement that a party should have an
interest in the matter is totally eliminated. A party must, at the very least,
still plead the existence of such interest, it not being one of which courts
can take judicial notice. In petitioner Vallejos' case, he failed to allege any
interest in the case. He does not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the
Rules of Court requires an intervenor to possess a legal interest in the
matter in litigation, or in the success of either of the parties, or an interest
against both, or is so situated as to be adversely affected by a distribution
or other disposition of property in the custody of the court or of an officer
thereof. While intervention is not a matter of right, it may be permitted by
the courts when the applicant shows facts which satisfy the requirements
of the law authorizing intervention. 92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's
case, they seek to join petitioners Candelaria, et. al. in G.R. No. 160262.
Since, save for one additional issue, they raise the same issues and the
same standing, and no objection on the part of petitioners Candelaria, et.
al. has been interposed, this Court as earlier stated, granted the Motion
for Leave of Court to Intervene and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261.
Invoking their right as citizens to intervene, alleging that "they will suffer if
this insidious scheme of the minority members of the House of
Representatives is successful," this Court found the requisites for
intervention had been complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261,
160262, 160263, 160277, 160292, 160295, and 160310 were of
transcendental importance, World War II Veterans Legionnaires of the
Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene"
to raise the additional issue of whether or not the second impeachment
complaint against the Chief Justice is valid and based on any of the
grounds prescribed by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., et al. and World War II Veterans
Legionnaires of the Philippines, Inc. possess a legal interest in the matter
in litigation the respective motions to intervene were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene for the
limited purpose of making of record and arguing a point of view that
differs with Senate President Drilon's. He alleges that submitting to this
Court's jurisdiction as the Senate President does will undermine the
independence of the Senate which will sit as an impeachment court once
the Articles of Impeachment are transmitted to it from the House of
Representatives. Clearly, Senator Pimentel possesses a legal interest in
the matter in litigation, he being a member of Congress against which the
herein petitions are directed. For this reason, and to fully ventilate all
substantial issues relating to the matter at hand, his Motion to Intervene
was granted and he was, as earlier stated, allowed to argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be
denied for, while he asserts an interest as a taxpayer, he failed to meet
the standing requirement for bringing taxpayer's suits as set forth
in Dumlao v. Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the
expenditure of public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being extracted and
spent in violation of specific constitutional protection against
abuses of legislative power," or that there is a misapplication of
such funds by respondent COMELEC, or that public money is
being deflected to any improper purpose. Neither do petitioners
seek to restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law.94 (Citations
omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege
that the act of petitioners will result in illegal disbursement of public funds
or in public money being deflected to any improper purpose. Additionally,
his mere interest as a member of the Bar does not suffice to clothe him
with standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held
that for a case to be considered ripe for adjudication, "it is a prerequisite
that something had by then been accomplished or performed by either
branch before a court may come into the picture." 96 Only then may the
courts pass on the validity of what was done, if and when the latter is
challenged in an appropriate legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing
of the second impeachment complaint against the Chief Justice in
accordance with the House Impeachment Rules adopted by the 12th
Congress, the constitutionality of which is questioned. The questioned
acts having been carried out, i.e., the second impeachment complaint
had been filed with the House of Representatives and the 2001 Rules
have already been already promulgated and enforced, the prerequisite
that the alleged unconstitutional act should be accomplished and
performed before suit, as Tan v. Macapagal holds, has been complied
with.
Related to the issue of ripeness is the question of whether the instant
petitions are premature. Amicus curiae former Senate President Jovito R.
Salonga opines that there may be no urgent need for this Court to render
a decision at this time, it being the final arbiter on questions of
constitutionality anyway. He thus recommends that all remedies in the
House and Senate should first be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of
Law who suggests to this Court to take judicial notice of on-going
attempts to encourage signatories to the second impeachment complaint
to withdraw their signatures and opines that the House Impeachment
Rules provide for an opportunity for members to raise constitutional
questions themselves when the Articles of Impeachment are presented
on a motion to transmit to the same to the Senate. The dean maintains
that even assuming that the Articles are transmitted to the Senate, the
Chief Justice can raise the issue of their constitutional infirmity by way of
a motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the
Representatives of their signatures would not, by itself, cure the House
Impeachment Rules of their constitutional infirmity. Neither would such a
withdrawal, by itself, obliterate the questioned second impeachment
complaint since it would only place it under the ambit of Sections 3(2)
and (3) of Article XI of the Constitution97 and, therefore, petitioners would
continue to suffer their injuries.
Second and most importantly, the futility of seeking remedies from either
or both Houses of Congress before coming to this Court is shown by the
fact that, as previously discussed, neither the House of Representatives
nor the Senate is clothed with the power to rule with definitiveness on the
issue of constitutionality, whether concerning impeachment proceedings
or otherwise, as said power is exclusively vested in the judiciary by the
earlier quoted Section I, Article VIII of the Constitution. Remedy cannot
be sought from a body which is bereft of power to grant it.
Justiciability
In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto
Concepcion defined the term "political question," viz:
[T]he term "political question" connotes, in legal parlance, what it
means in ordinary parlance, namely, a question of policy. In other
words, in the language of Corpus Juris Secundum, it refers to
"those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the Government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular
measure.99 (Italics in the original)
Prior to the 1973 Constitution, without consistency and seemingly without
any rhyme or reason, this Court vacillated on its stance of taking
cognizance of cases which involved political questions. In some cases,
this Court hid behind the cover of the political question doctrine and
refused to exercise its power of judicial review. 100 In other cases,
however, despite the seeming political nature of the therein issues
involved, this Court assumed jurisdiction whenever it found
constitutionally imposed limits on powers or functions conferred upon
political bodies.101 Even in the landmark 1988 case of Javellana v.
Executive Secretary102 which raised the issue of whether the 1973
Constitution was ratified, hence, in force, this Court shunted the political
question doctrine and took cognizance thereof. Ratification by the people
of a Constitution is a political question, it being a question decided by the
people in their sovereign capacity.
The frequency with which this Court invoked the political question
doctrine to refuse to take jurisdiction over certain cases during the
Marcos regime motivated Chief Justice Concepcion, when he became a
Constitutional Commissioner, to clarify this Court's power of judicial
review and its application on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose,
the usual comment that the judiciary is the weakest among the three
major branches of the service. Since the legislature holds the purse and
the executive the sword, the judiciary has nothing with which to enforce
its decisions or commands except the power of reason and appeal to
conscience which, after all, reflects the will of God, and is the most
powerful of all other powers without exception. x x x And so, with the
body's indulgence, I will proceed to read the provisions drafted by the
Committee on the Judiciary.
The first section starts with a sentence copied from former Constitutions.
It says:
The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it
first and explain.
Judicial power includes the duty of 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 or instrumentality of the
government.
Fellow Members of this Commission, this is actually a product of
our experience during martial law. As a matter of fact, it has some
antecedents in the past, but the role of the judiciary during the
deposed regime was marred considerably by the
circumstance that in a number of cases against the
government, which then had no legal defense at all, the
solicitor general set up the defense of political questions and
got away with it. As a consequence, certain principles
concerning particularly the writ of habeas corpus, that is, the
authority of courts to order the release of political detainees,
and other matters related to the operation and effect of
martial law failed because the government set up the
defense of political question. And the Supreme Court said:
"Well, since it is political, we have no authority to pass upon
it." The Committee on the Judiciary feels that this was not a
proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but
it, in effect, encouraged further violations thereof during the
martial law regime. I am sure the members of the Bar are
familiar with this situation. But for the benefit of the Members of
the Commission who are not lawyers, allow me to explain. I will
start with a decision of the Supreme Court in 1973 on the case
of Javellana vs. the Secretary of Justice, if I am not mistaken.
Martial law was announced on September 22, although the
proclamation was dated September 21. The obvious reason for
the delay in its publication was that the administration had
apprehended and detained prominent newsmen on September
21. So that when martial law was announced on September 22,
the media hardly published anything about it. In fact, the media
could not publish any story not only because our main writers
were already incarcerated, but also because those who
succeeded them in their jobs were under mortal threat of being
the object of wrath of the ruling party. The 1971 Constitutional
Convention had begun on June 1, 1971 and by September 21 or
22 had not finished the Constitution; it had barely agreed in the
fundamentals of the Constitution. I forgot to say that upon the
proclamation of martial law, some delegates to that 1971
Constitutional Convention, dozens of them, were picked up. One
of them was our very own colleague, Commissioner Calderon.
So, the unfinished draft of the Constitution was taken over by
representatives of Malacañang. In 17 days, they finished what the
delegates to the 1971 Constitutional Convention had been unable
to accomplish for about 14 months. The draft of the 1973
Constitution was presented to the President around December 1,
1972, whereupon the President issued a decree calling a
plebiscite which suspended the operation of some provisions in
the martial law decree which prohibited discussions, much less
public discussions of certain matters of public concern. The
purpose was presumably to allow a free discussion on the draft of
the Constitution on which a plebiscite was to be held sometime in
January 1973. If I may use a word famous by our colleague,
Commissioner Ople, during the interregnum, however, the draft of
the Constitution was analyzed and criticized with such a telling
effect that Malacañang felt the danger of its approval. So, the
President suspended indefinitely the holding of the plebiscite and
announced that he would consult the people in a referendum to
be held from January 10 to January 15. But the questions to be
submitted in the referendum were not announced until the eve of
its scheduled beginning, under the supposed supervision not of
the Commission on Elections, but of what was then designated as
"citizens assemblies or barangays." Thus the barangays came
into existence. The questions to be propounded were released
with proposed answers thereto, suggesting that it was
unnecessary to hold a plebiscite because the answers given in
the referendum should be regarded as the votes cast in the
plebiscite. Thereupon, a motion was filed with the Supreme Court
praying that the holding of the referendum be suspended. When
the motion was being heard before the Supreme Court, the
Minister of Justice delivered to the Court a proclamation of the
President declaring that the new Constitution was already in force
because the overwhelming majority of the votes cast in the
referendum favored the Constitution. Immediately after the
departure of the Minister of Justice, I proceeded to the session
room where the case was being heard. I then informed the Court
and the parties the presidential proclamation declaring that the
1973 Constitution had been ratified by the people and is now in
force.
A number of other cases were filed to declare the presidential
proclamation null and void. The main defense put up by the
government was that the issue was a political question and that
the court had no jurisdiction to entertain the case.
xxx
The government said that in a referendum held from January 10
This is why the first part of the second paragraph of Section I provides
to January 15, the vast majority ratified the draft of the
that:
Constitution. Note that all members of the Supreme Court were
residents of Manila, but none of them had been notified of any
referendum in their respective places of residence, much less did
they participate in the alleged referendum. None of them saw any
referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a
majority of the members of the Court felt that there had been no
referendum.
Second, a referendum cannot substitute for a plebiscite. There is
a big difference between a referendum and a plebiscite. But
another group of justices upheld the defense that the issue
was a political question. Whereupon, they dismissed the
case. This is not the only major case in which the plea of
"political question" was set up. There have been a number of
other cases in the past.
x x x The defense of the political question was rejected
because the issue was clearly justiciable.
xxx
x x x When your Committee on the Judiciary began to perform its
functions, it faced the following questions: What is judicial power?
What is a political question?
The Supreme Court, like all other courts, has one main function:
to settle actual controversies involving conflicts of rights which are
demandable and enforceable. There are rights which are
guaranteed by law but cannot be enforced by a judiciary party. In
a decided case, a husband complained that his wife was unwilling
to perform her duties as a wife. The Court said: "We can tell your
wife what her duties as such are and that she is bound to comply
with them, but we cannot force her physically to discharge her
main marital duty to her husband. There are some rights
guaranteed by law, but they are so personal that to enforce them
by actual compulsion would be highly derogatory to human
dignity."
Judicial power includes the duty of courts to settle actual
controversies involving rights which are legally demandable or
enforceable . . .
The courts, therefore, cannot entertain, much less decide,
hypothetical questions. In a presidential system of
 government, the Supreme Court has, also another important
function. The powers of government are generally
considered divided into three branches: the Legislative, the
Executive and the Judiciary. Each one is supreme within its
own sphere and independent of the others. Because of that
supremacy power to determine whether a given law is valid
or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power
of the agencies and offices of the government as well as
those of its officers. In other words, the judiciary is the final
arbiter on the question whether or not a branch of
government or any of its officials has acted without
jurisdiction or in excess of jurisdiction, or so capriciously as
to constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which
means that the courts cannot hereafter evade the duty to
settle matters of this nature, by claiming that such matters
constitute a political question.
I have made these extended remarks to the end that the
Commissioners may have an initial food for thought on the
subject of the judiciary.103 (Italics in the original; emphasis
supplied)
During the deliberations of the Constitutional Commission, Chief Justice
Concepcion further clarified the concept of judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial
power" but judicial power is not vested in the Supreme Court
alone but also in other lower courts as may be created by
law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman
seems to identify political questions with jurisdictional
questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to
ordinary cases but where there is a question as to whether
the government had authority or had abused its authority to
the extent of lacking jurisdiction or excess of jurisdiction,
that is not a political question. Therefore, the court has the
duty to decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always have to be
decided by the Supreme Court according to the new numerical
need for votes.
On another point, is it the intention of Section 1 to do away
with the political question doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse
of discretion, amounting to a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not
intended to do away with the political question doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it sought to
define what is judicial power. But the Gentleman will notice it
says, "judicial power includes" and the reason being that the
definition that we might make may not cover all possible
areas.
FR. BERNAS. So, this is not an attempt to solve the
problems arising from the political question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact
that truly political questions are beyond the pale of judicial
power.104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional
Commission, it is clear that judicial power is not only a power; it is also a
duty, a duty which cannot be abdicated by the mere specter of this
creature called the political question doctrine. Chief Justice Concepcion
hastened to clarify, however, that Section 1, Article VIII was not intended
to do away with "truly political questions." From this clarification it is
gathered that there are two species of political questions: (1) "truly
political questions" and (2) those which "are not truly political questions."
Truly political questions are thus beyond judicial review, the reason for
respect of the doctrine of separation of powers to be maintained. On the
other hand, by virtue of Section 1, Article VIII of the Constitution, courts
can review questions which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP
College of Law, this Court has in fact in a number of cases taken
jurisdiction over questions which are not truly political following the
effectivity of the present Constitution.
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice
Irene Cortes, held:
The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas
which the Court, under previous constitutions, would have
normally left to the political departments to decide.106 x x x
In Bengzon v. Senate Blue Ribbon Committee,107 through Justice
Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this
Court must perform under the Constitution. Moreover, as held in a
recent case, "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries
has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although said
provision by no means does away with the applicability of
the principle in appropriate cases."108 (Emphasis and
underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this
Court ruled:
In the case now before us, the jurisdictional objection becomes
even less tenable and decisive. The reason is that, even if we
were to assume that the issue presented before us was political
in nature, we would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question. 110 x x x (Emphasis and
underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable
political questions and non-justiciable political questions, however.
Identification of these two species of political questions may be
problematic. There has been no clear standard. The American case
of Baker v. Carr111 attempts to provide some:
x x x Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or
a lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or
the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government; or an unusual need for questioning adherence to a
political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question.112 (Underscoring supplied)
Of these standards, the more reliable have been the first three: (1) a
textually demonstrable constitutional commitment of the issue to a
coordinate political department; (2) the lack of judicially discoverable and
manageable standards for resolving it; and (3) the impossibility of
deciding without an initial policy determination of a kind clearly for non-
judicial discretion. These standards are not separate and distinct
concepts but are interrelated to each in that the presence of one
strengthens the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American
concept of judicial review is radically different from our current concept,
for Section 1, Article VIII of the Constitution provides our courts with far
less discretion in determining whether they should pass upon a
constitutional issue.
In our jurisdiction, the determination of a truly political question from a
non-justiciable political question lies in the answer to the question of
whether there are constitutionally imposed limits on powers or functions
conferred upon political bodies. If there are, then our courts are duty-
bound to examine whether the branch or instrumentality of the
government properly acted within such limits. This Court shall thus now
apply this standard to the present controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment
complaint constitute valid impeachable offenses under the
Constitution.
II. Whether the second impeachment complaint was filed in
accordance with Section 3(4), Article XI of the Constitution.
III. Whether the legislative inquiry by the House Committee on
Justice into the Judicial Development Fund is an unconstitutional
infringement of the constitutionally mandated fiscal autonomy of
the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on
Impeachment adopted by the 12th Congress are unconstitutional
for violating the provisions of Section 3, Article XI of the
Constitution.
V. Whether the second impeachment complaint is barred under
Section 3(5) of Article XI of the Constitution.
The first issue goes into the merits of the second impeachment
complaint over which this Court has no jurisdiction. More
importantly, any discussion of this issue would require this Court
to make a determination of what constitutes an impeachable
offense. Such a determination is a purely political question which
the Constitution has left to the sound discretion of the legislation.
Such an intent is clear from the deliberations of the Constitutional
Commission.113
Although Section 2 of Article XI of the Constitution enumerates six
grounds for impeachment, two of these, namely, other high crimes and
betrayal of public trust, elude a precise definition. In fact, an examination
of the records of the 1986 Constitutional Commission shows that the
framers could find no better way to approximate the boundaries of
betrayal of public trust and other high crimes than by alluding to both
positive and negative examples of both, without arriving at their clear cut
definition or even a standard therefor.114 Clearly, the issue calls upon this
court to decide a non-justiciable political question which is beyond the
scope of its judicial power under Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the
constitutionality of a governmental act should be avoided whenever
possible. Thus, in the case of Sotto v. Commission on Elections,115 this
Court held:
x x x It is a well-established rule that a court should not pass upon
a constitutional question and decide a law to be unconstitutional
or invalid, unless such question is raised by the parties and that
when it is raised, if the record also presents some other
ground upon which the court may rest its judgment, that
course will be adopted and the constitutional question will
be left for consideration until a case arises in which a
decision upon such question will be
unavoidable.116 [Emphasis and underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian
Reform,117 where this Court invalidated Sections 13 and 32 of Republic
Act No. 6657 for being confiscatory and violative of due process, to wit:
It has been established that this Court will assume jurisdiction
over a constitutional question only if it is shown that the
essential requisites of a judicial inquiry into such a question
are first satisfied. Thus, there must be an actual case or
controversy involving a conflict of legal rights susceptible of
judicial determination, the constitutional question must have been
opportunely raised by the proper party, and the resolution of the
question is unavoidably necessary to the decision of the
case itself.118 [Emphasis supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it
is truly unavoidable and is the very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the
invalidity of the second impeachment complaint, collectively raise several
constitutional issues upon which the outcome of this controversy could
possibly be made to rest. In determining whether one, some or all of the
remaining substantial issues should be passed upon, this Court is guided
by the related cannon of adjudication that "the court should not form a
rule of constitutional law broader than is required by the precise facts to
which it is applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that,
among other reasons, the second impeachment complaint is invalid since
it directly resulted from a Resolution120 calling for a legislative inquiry into
the JDF, which Resolution and legislative inquiry petitioners claim to
likewise be unconstitutional for being: (a) a violation of the rules and
jurisprudence on investigations in aid of legislation; (b) an open breach of
the doctrine of separation of powers; (c) a violation of the constitutionally
mandated fiscal autonomy of the judiciary; and (d) an assault on the
independence of the judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is
the studied opinion of this Court that the issue of the constitutionality of
the said Resolution and resulting legislative inquiry is too far removed
from the issue of the validity of the second impeachment complaint.
Moreover, the resolution of said issue would, in the Court's opinion,
require it to form a rule of constitutional law touching on the separate and
distinct matter of legislative inquiries in general, which would thus be
broader than is required by the facts of these consolidated cases. This
opinion is further strengthened by the fact that said petitioners have
raised other grounds in support of their petition which would not be
adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative
inquiries has already been enunciated by this Court in Bengzon, Jr. v.
Senate Blue Ribbon Commttee,122 viz:
The 1987 Constitution expressly recognizes the power of both
houses of Congress to conduct inquiries in aid of legislation.
Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation
in accordance with its duly published rules of procedure. The
rights of persons appearing in or affected by such inquiries shall
be respected.
The power of both houses of Congress to conduct inquiries in aid
of legislation is not, therefore absolute or unlimited. Its exercise is
circumscribed by the afore-quoted provision of the Constitution.
Thus, as provided therein, the investigation must be "in aid of
legislation in accordance with its duly published rules of
procedure" and that "the rights of persons appearing in or
affected by such inquiries shall be respected." It follows then that
the right rights of persons under the Bill of Rights must be
respected, including the right to due process and the right not be
compelled to testify against one's self. 123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino
Quadra, while joining the original petition of petitioners Candelaria, et.
al., introduce the new argument that since the second impeachment
complaint was verified and filed only by Representatives Gilberto
Teodoro, Jr. and Felix William Fuentebella, the same does not fall under
the provisions of Section 3 (4), Article XI of the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the Members of
the House, the same shall constitute the Articles of Impeachment,
and trial by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of
Representatives signed a Resolution of Endorsement/Impeachment, the
same did not satisfy the requisites for the application of the afore-
mentioned section in that the "verified complaint or resolution of
impeachment" was not filed "by at least one-third of all the Members of
the House." With the exception of Representatives Teodoro and
Fuentebella, the signatories to said Resolution are alleged to have
verified the same merely as a "Resolution of Endorsement." Intervenors
point to the "Verification" of the Resolution of Endorsement which states
that:
"We are the proponents/sponsors of the Resolution of
Endorsement of the abovementioned Complaint of
Representatives Gilberto Teodoro and Felix William B.
Fuentebella x x x"124
Intervenors Macalintal and Quadra further claim that what the
Constitution requires in order for said second impeachment complaint to
automatically become the Articles of Impeachment and for trial in the
Senate to begin "forthwith," is that the verified complaint be "filed," not
merely endorsed, by at least one-third of the Members of the House of
Representatives. Not having complied with this requirement, they
concede that the second impeachment complaint should have been
calendared and referred to the House Committee on Justice under
Section 3(2), Article XI of the Constitution, viz:
Section 3(2) A verified complaint for impeachment may be filed by
any Member of the House of Representatives or by any citizen
upon a resolution of endorsement by any Member thereof, which
shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session
days thereafter. The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for
consideration by the House within ten session days from receipt
thereof.
Intervenors' foregoing position is echoed by Justice Maambong who
opined that for Section 3 (4), Article XI of the Constitution to apply, there
should be 76 or more representatives who signed and verified the second
impeachment complaint as complainants, signed and verified the
signatories to a resolution of impeachment. Justice Maambong likewise
asserted that the Resolution of Endorsement/Impeachment signed by at
least one-third of the members of the House of Representatives
as endorsers is not the resolution of impeachment contemplated by the
Constitution, such resolution of endorsement being necessary only from
at least one Member whenever a citizen files a verified impeachment
complaint.
While the foregoing issue, as argued by intervenors Macalintal and
Quadra, does indeed limit the scope of the constitutional issues to the
provisions on impeachment, more compelling considerations militate
against its adoption as the lis mota or crux of the present controversy.
Chief among this is the fact that only Attorneys Macalintal and Quadra,
intervenors in G.R. No. 160262, have raised this issue as a ground for
invalidating the second impeachment complaint. Thus, to adopt this
additional ground as the basis for deciding the instant consolidated
petitions would not only render for naught the efforts of the original
petitioners in G.R. No. 160262, but the efforts presented by the other
petitioners as well.
Again, the decision to discard the resolution of this issue as unnecessary
for the determination of the instant cases is made easier by the fact that
said intervenors Macalintal and Quadra have joined in the petition of
Candelaria, et. al., adopting the latter's arguments and issues as their
own. Consequently, they are not unduly prejudiced by this Court's
decision.
In sum, this Court holds that the two remaining issues, inextricably linked
as they are, constitute the very lis mota of the instant controversy: (1)
whether Sections 15 and 16 of Rule V of the House Impeachment Rules
adopted by the 12th Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the Constitution; and (2) whether, as
a result thereof, the second impeachment complaint is barred under
Section 3(5) of Article XI of the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the
ground that the Senate, sitting as an impeachment court, has the sole
power to try and decide all cases of impeachment. Again, this Court
reiterates that the power of judicial review includes the power of review
over justiciable issues in impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al. argue that
"[t]here is a moral compulsion for the Court to not assume jurisdiction
over the impeachment because all the Members thereof are subject to
impeachment."125 But this argument is very much like saying the
Legislature has a moral compulsion not to pass laws with penalty clauses
because Members of the House of Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an option
before this Court. Adjudication may not be declined, because this Court is
not legally disqualified. Nor can jurisdiction be renounced as there is no
other tribunal to which the controversy may be referred." 126 Otherwise,
this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2)
of the Constitution. More than being clothed with authority thus, this Court
is duty-bound to take cognizance of the instant petitions.127 In the august
words of amicus curiae Father Bernas, "jurisdiction is not just a power; it
is a solemn duty which may not be renounced. To renounce it, even if it is
vexatious, would be a dereliction of duty."
Even in cases where it is an interested party, the Court under our system
of government cannot inhibit itself and must rule upon the challenge
because no other office has the authority to do so. 128 On the occasion
that this Court had been an interested party to the controversy before it, it
has acted upon the matter "not with officiousness but in the discharge of
an unavoidable duty and, as always, with detachment and
fairness."129 After all, "by [his] appointment to the office, the public has
laid on [a member of the judiciary] their confidence that [he] is mentally
and morally fit to pass upon the merits of their varied contentions. For this
reason, they expect [him] to be fearless in [his] pursuit to render justice,
to be unafraid to displease any person, interest or power and to be
equipped with a moral fiber strong enough to resist the temptations
lurking in [his] office."130
The duty to exercise the power of adjudication regardless of interest had
already been settled in the case of Abbas v. Senate Electoral
Tribunal.131 In that case, the petitioners filed with the respondent Senate
Electoral Tribunal a Motion for Disqualification or Inhibition of the
Senators-Members thereof from the hearing and resolution of SET Case
No. 002-87 on the ground that all of them were interested parties to said
case as respondents therein. This would have reduced the Tribunal's
membership to only its three Justices-Members whose disqualification
was not sought, leaving them to decide the matter. This Court held:
Where, as here, a situation is created which precludes the
substitution of any Senator sitting in the Tribunal by any of his
other colleagues in the Senate without inviting the same
objections to the substitute's competence, the proposed mass
disqualification, if sanctioned and ordered, would leave the
Tribunal no alternative but to abandon a duty that no other court
or body can perform, but which it cannot lawfully discharge if
shorn of the participation of its entire membership of Senators.
To our mind, this is the overriding consideration — that the
Tribunal be not prevented from discharging a duty which it alone
has the power to perform, the performance of which is in the
highest public interest as evidenced by its being expressly
imposed by no less than the fundamental law.
It is aptly noted in the first of the questioned Resolutions that the
framers of the Constitution could not have been unaware of the
possibility of an election contest that would involve all Senators—
elect, six of whom would inevitably have to sit in judgment
thereon. Indeed, such possibility might surface again in the wake
of the 1992 elections when once more, but for the last time, all 24
seats in the Senate will be at stake. Yet the Constitution provides
no scheme or mode for settling such unusual situations or for the
substitution of Senators designated to the Tribunal whose
disqualification may be sought. Litigants in such situations must
simply place their trust and hopes of vindication in the fairness
and sense of justice of the Members of the Tribunal. Justices and
Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member
of the Senate Electoral Tribunal may inhibit or disqualify himself
from sitting in judgment on any case before said Tribunal.
Every Member of the Tribunal may, as his conscience dictates,
refrain from participating in the resolution of a case where he
sincerely feels that his personal interests or biases would stand in
the way of an objective and impartial judgment. What we are
merely saying is that in the light of the Constitution, the Senate
Electoral Tribunal cannot legally function as such, absent its
entire membership of Senators and that no amendment of its
Rules can confer on the three Justices-Members alone the power
of valid adjudication of a senatorial election contest.
More recently in the case of Estrada v. Desierto,132 it was held that:
Moreover, to disqualify any of the members of the Court,
particularly a majority of them, is nothing short of pro
tanto depriving the Court itself of its jurisdiction as established by
the fundamental law. Disqualification of a judge is a deprivation of
his judicial power. And if that judge is the one designated by the
Constitution to exercise the jurisdiction of his court, as is the case
with the Justices of this Court, the deprivation of his or their
judicial power is equivalent to the deprivation of the judicial power
of the court itself. It affects the very heart of judicial
independence. The proposed mass disqualification, if sanctioned
and ordered, would leave the Court no alternative but to abandon
a duty which it cannot lawfully discharge if shorn of the
participation of its entire membership of Justices.133 (Italics in the
original)
Besides, there are specific safeguards already laid down by the Court
when it exercises its power of judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited
the "seven pillars" of limitations of the power of judicial review,
enunciated by US Supreme Court Justice Brandeis in Ashwander v.
TVA135 as follows:
1. The Court will not pass upon the constitutionality of legislation
in a friendly, non-adversary proceeding, declining because to
decide such questions 'is legitimate only in the last resort, and as
a necessity in the determination of real, earnest and vital
controversy between individuals. It never was the thought that, by
means of a friendly suit, a party beaten in the legislature could
transfer to the courts an inquiry as to the constitutionality of the
legislative act.'
2. The Court will not 'anticipate a question of constitutional law in
advance of the necessity of deciding it.' . . . 'It is not the habit of
the Court to decide questions of a constitutional nature unless
absolutely necessary to a decision of the case.'
3. The Court will not 'formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be applied.'
4. The Court will not pass upon a constitutional question although
properly presented by the record, if there is also present some
other ground upon which the case may be disposed of. This rule
has found most varied application. Thus, if a case can be decided
on either of two grounds, one involving a constitutional question,
the other a question of statutory construction or general law, the
Court will decide only the latter. Appeals from the highest court of
a state challenging its decision of a question under the Federal
Constitution are frequently dismissed because the judgment can
be sustained on an independent state ground.
5. The Court will not pass upon the validity of a statute upon
complaint of one who fails to show that he is injured by its
operation. Among the many applications of this rule, none is more
striking than the denial of the right of challenge to one who lacks
a personal or property right. Thus, the challenge by a public
official interested only in the performance of his official duty will
not be entertained . . . In Fairchild v. Hughes, the Court affirmed
the dismissal of a suit brought by a citizen who sought to have the
Nineteenth Amendment declared unconstitutional.
In Massachusetts v. Mellon, the challenge of the federal Maternity
Act was not entertained although made by the Commonwealth on
behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at
the instance of one who has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in
question, and even if a serious doubt of constitutionality is raised,
it is a cardinal principle that this Court will first ascertain whether
a construction of the statute is fairly possible by which the
question may be avoided (citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized
in Ashwander v. TVA from different decisions of the United States
Supreme Court, can be encapsulated into the following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as
required by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of
the operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this Court
in the exercise of judicial review:
1. actual case or controversy calling for the exercise of judicial
power
2. the person challenging the act must have "standing" to
challenge; he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a
result of its enforcement
3. the question of constitutionality must be raised at the earliest
possible opportunity
4. the issue of constitutionality must be the very lis mota of the
case.136
Respondents Speaker de Venecia, et. al. raise another argument for
judicial restraint the possibility that "judicial review of impeachments
might also lead to embarrassing conflicts between the Congress and the
[J]udiciary." They stress the need to avoid the appearance of impropriety
or conflicts of interest in judicial hearings, and the scenario that it would
be confusing and humiliating and risk serious political instability at home
and abroad if the judiciary countermanded the vote of Congress to
remove an impeachable official.137 Intervenor Soriano echoes this
argument by alleging that failure of this Court to enforce its Resolution
against Congress would result in the diminution of its judicial authority
and erode public confidence and faith in the judiciary.
Such an argument, however, is specious, to say the least. As correctly
stated by the Solicitor General, the possibility of the occurrence of a
constitutional crisis is not a reason for this Court to refrain from upholding
the Constitution in all impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if not precipitate,
a crisis.
Justice Feliciano warned against the dangers when this Court refuses to
act.
x x x Frequently, the fight over a controversial legislative or
executive act is not regarded as settled until the Supreme Court
has passed upon the constitutionality of the act involved, the
judgment has not only juridical effects but also political
consequences. Those political consequences may follow even
where the Court fails to grant the petitioner's prayer to nullify an
act for lack of the necessary number of votes. Frequently, failure
to act explicitly, one way or the other, itself constitutes a decision
for the respondent and validation, or at least quasi-validation,
follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court was split
and "in the end there were not enough votes either to grant the petitions,
or to sustain respondent's claims,"140 the pre-existing constitutional order
was disrupted which paved the way for the establishment of the martial
law regime.
Such an argument by respondents and intervenor also presumes that the
coordinate branches of the government would behave in a lawless
manner and not do their duty under the law to uphold the Constitution
and obey the laws of the land. Yet there is no reason to believe that any
of the branches of government will behave in a precipitate manner and
risk social upheaval, violence, chaos and anarchy by encouraging
disrespect for the fundamental law of the land.
Substituting the word public officers for judges, this Court is well guided
by the doctrine in People v. Veneracion, to wit:141
Obedience to the rule of law forms the bedrock of our system of
justice. If [public officers], under the guise of religious or political
beliefs were allowed to roam unrestricted beyond boundaries
within which they are required by law to exercise the duties of
their office, then law becomes meaningless. A government of
laws, not of men excludes the exercise of broad discretionary
powers by those acting under its authority. Under this system,
[public officers] are guided by the Rule of Law, and ought "to
protect and enforce it without fear or favor," resist encroachments
by governments, political parties, or even the interference of their
own personal beliefs.142
Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia,
argues that Sections 16 and 17 of Rule V of the House Impeachment
Rules do not violate Section 3 (5) of Article XI of our present Constitution,
contending that the term "initiate" does not mean "to file;" that Section 3
(1) is clear in that it is the House of Representatives, as a collective body,
which has the exclusive power to initiate all cases of impeachment; that
initiate could not possibly mean "to file" because filing can, as Section 3
(2), Article XI of the Constitution provides, only be accomplished in 3
ways, to wit: (1) by a verified complaint for impeachment by any member
of the House of Representatives; or (2) by any citizen upon a resolution
of endorsement by any member; or (3) by at least 1/3 of all the members
of the House. Respondent House of Representatives concludes that the
one year bar prohibiting the initiation of impeachment proceedings
against the same officials could not have been violated as the
impeachment complaint against Chief Justice Davide and seven
Associate Justices had not been initiated as the House of
Representatives, acting as the collective body, has yet to act on it.
The resolution of this issue thus hinges on the interpretation of the term
"initiate." Resort to statutory construction is, therefore, in order.
That the sponsor of the provision of Section 3(5) of the Constitution,
Commissioner Florenz Regalado, who eventually became an Associate
Justice of this Court, agreed on the meaning of "initiate" as "to file," as
proffered and explained by Constitutional Commissioner Maambong
during the Constitutional Commission proceedings, which he
(Commissioner Regalado) as amicus curiae affirmed during the oral
arguments on the instant petitions held on November 5, 2003 at which he
added that the act of "initiating" included the act of taking initial action on
the complaint, dissipates any doubt that indeed the word "initiate" as it
twice appears in Article XI (3) and (5) of the Constitution means to file the
complaint and take initial action on it.
"Initiate" of course is understood by ordinary men to mean, as
dictionaries do, to begin, to commence, or set going. As Webster's Third
New International Dictionary of the English Language concisely puts it, it
means "to perform or facilitate the first action," which jibes with Justice
Regalado's position, and that of Father Bernas, who elucidated during the
oral arguments of the instant petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a
comlexus of acts consisting of a beginning, a middle and an end.
The end is the transmittal of the articles of impeachment to the
Senate. The middle consists of those deliberative moments
leading to the formulation of the articles of impeachment. The
beginning or the initiation is the filing of the complaint and its
referral to the Committee on Justice.
Finally, it should be noted that the House Rule relied upon by
Representatives Cojuangco and Fuentebella says that
impeachment is "deemed initiated" when the Justice Committee
votes in favor of impeachment or when the House reverses a
contrary vote of the Committee. Note that the Rule does not say
"impeachment proceedings" are initiated but rather are "deemed
initiated." The language is recognition that initiation happened
earlier, but by legal fiction there is an attempt to postpone it to a
time after actual initiation. (Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution is
looking into the intent of the law. Fortunately, the intent of the framers of
the 1987 Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the
procedure and the substantive provisions on impeachment, I
understand there have been many proposals and, I think, these
would need some time for Committee action.
However, I would just like to indicate that I submitted to the
Committee a resolution on impeachment proceedings, copies of
which have been furnished the Members of this body. This is
borne out of my experience as a member of the Committee on
Justice, Human Rights and Good Government which took charge
of the last impeachment resolution filed before the First Batasang
Pambansa. For the information of the Committee, the
resolution covers several steps in the impeachment
proceedings starting with initiation, action of the Speaker
committee action, calendaring of report, voting on the report,
transmittal referral to the Senate, trial and judgment by the
Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a
reconsideration of the approval of the amendment submitted by
Commissioner Regalado, but I will just make of record my
thinking that we do not really initiate the filing of the Articles of
Impeachment on the floor. The procedure, as I have pointed
out earlier, was that the initiation starts with the filing of the
complaint. And what is actually done on the floor is that the
committee resolution containing the Articles of Impeachment
is the one approved by the body.
As the phraseology now runs, which may be corrected by the
Committee on Style, it appears that the initiation starts on the
floor. If we only have time, I could cite examples in the case of the
impeachment proceedings of President Richard Nixon wherein
the Committee on the Judiciary submitted the recommendation,
the resolution, and the Articles of Impeachment to the body, and it
was the body who approved the resolution. It is not the body
which initiates it. It only approves or disapproves the
resolution. So, on that score, probably the Committee on Style
could help in rearranging these words because we have to be
very technical about this. I have been bringing with me The Rules
of the House of Representatives of the U.S. Congress. The
Senate Rules are with me. The proceedings on the case of
Richard Nixon are with me. I have submitted my proposal, but the
Committee has already decided. Nevertheless, I just want to
indicate this on record.
 xxx
MR. MAAMBONG. I would just like to move for a reconsideration
of the approval of Section 3 (3). My reconsideration will not at all
affect the substance, but it is only in keeping with the exact
formulation of the Rules of the House of Representatives of the
United States regarding impeachment.
I am proposing, Madam President, without doing damage to any
of this provision, that on page 2, Section 3 (3), from lines 17 to
18, we delete the words which read: "to initiate impeachment
proceedings" and the comma (,) and insert on line 19 after the
word "resolution" the phrase WITH THE ARTICLES, and then
capitalize the letter "i" in "impeachment" and replace the word
"by" with OF, so that the whole section will now read: "A vote of at
least one-third of all the Members of the House shall be
necessary either to affirm a resolution WITH THE ARTICLES of
Impeachment OF the Committee or to override its contrary
resolution. The vote of each Member shall be recorded."
I already mentioned earlier yesterday that the initiation, as far
as the House of Representatives of the United States is
concerned, really starts from the filing of the verified
complaint and every resolution to impeach always carries with it
the Articles of Impeachment. As a matter of fact, the words
"Articles of Impeachment" are mentioned on line 25 in the case of
the direct filing of a verified compliant of one-third of all the
Members of the House. I will mention again, Madam President,
that my amendment will not vary the substance in any way. It is
only in keeping with the uniform procedure of the House of
Representatives of the United States Congress. Thank you,
Madam President.143 (Italics in the original; emphasis and
udnerscoring supplied)
This amendment proposed by Commissioner Maambong was clarified
and accepted by the Committee on the Accountability of Public
Officers.144
It is thus clear that the framers intended "initiation" to start with the filing
of the complaint. In his amicus curiae brief, Commissioner Maambong
explained that "the obvious reason in deleting the phrase "to initiate
impeachment proceedings" as contained in the text of the provision of
Section 3 (3) was to settle and make it understood once and for all
that the initiation of impeachment proceedings starts with the filing
of the complaint, and the vote of one-third of the House in a resolution
of impeachment does not initiate the impeachment proceedings which
was already initiated by the filing of a verified complaint under
Section 3, paragraph (2), Article XI of the Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of the same
view as is Father Bernas, who was also a member of the 1986
Constitutional Commission, that the word "initiate" as used in Article XI,
Section 3(5) means to file, both adding, however, that the filing must be
accompanied by an action to set the complaint moving.
During the oral arguments before this Court, Father Bernas clarified that
the word "initiate," appearing in the constitutional provision on
impeachment, viz:
Section 3 (1) The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
xxx
(5) No impeachment proceedings shall be initiated against the
same official more than once within a period of one year,
(Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment
proceeding."
Father Bernas explains that in these two provisions, the common verb is
"to initiate." The object in the first sentence is "impeachment case." The
object in the second sentence is "impeachment proceeding." Following
the principle of reddendo singuala sinuilis, the term "cases" must be
distinguished from the term "proceedings." An impeachment case is the
legal controversy that must be decided by the Senate. Above-quoted first
provision provides that the House, by a vote of one-third of all its
members, can bring a case to the Senate. It is in that sense that the
House has "exclusive power" to initiate all cases of impeachment. No
other body can do it. However, before a decision is made to initiate a
case in the Senate, a "proceeding" must be followed to arrive at a
conclusion. A proceeding must be "initiated." To initiate, which comes
from the Latin word initium, means to begin. On the other hand,
proceeding is a progressive noun. It has a beginning, a middle, and an
end. It takes place not in the Senate but in the House and consists of
several steps: (1) there is the filing of a verified complaint either by a
Member of the House of Representatives or by a private citizen endorsed
by a Member of the House of the Representatives; (2) there is the
processing of this complaint by the proper Committee which may either
reject the complaint or uphold it; (3) whether the resolution of the
Committee rejects or upholds the complaint, the resolution must be
forwarded to the House for further processing; and (4) there is the
processing of the same complaint by the House of Representatives which
either affirms a favorable resolution of the Committee or overrides a
contrary resolution by a vote of one-third of all the members. If at least
one third of all the Members upholds the complaint, Articles of
Impeachment are prepared and transmitted to the Senate. It is at this
point that the House "initiates an impeachment case." It is at this point
that an impeachable public official is successfully impeached. That is, he
or she is successfully charged with an impeachment "case" before the
Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not
initiated when the complaint is transmitted to the Senate for trial because
that is the end of the House proceeding and the beginning of another
proceeding, namely the trial. Neither is the "impeachment proceeding"
initiated when the House deliberates on the resolution passed on to it by
the Committee, because something prior to that has already been done.
The action of the House is already a further step in the proceeding, not its
initiation or beginning. Rather, the proceeding is initiated or begins, when
a verified complaint is filed and referred to the Committee on Justice for
action. This is the initiating step which triggers the series of steps that
follow.
The framers of the Constitution also understood initiation in its ordinary
meaning. Thus when a proposal reached the floor proposing that "A vote
of at least one-third of all the Members of the House shall be
necessary… to initiate impeachment proceedings," this was met by a
proposal to delete the line on the ground that the vote of the House does
not initiate impeachment proceeding but rather the filing of a complaint
does.146 Thus the line was deleted and is not found in the present
Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment
proceeding shall be initiated against the same official more than once
within a period of one year," it means that no second verified complaint
may be accepted and referred to the Committee on Justice for action. By
his explanation, this interpretation is founded on the common
understanding of the meaning of "to initiate" which means to begin. He
reminds that the Constitution is ratified by the people, both ordinary and
sophisticated, as they understand it; and that ordinary people read
ordinary meaning into ordinary words and not abstruse meaning, they
ratify words as they understand it and not as sophisticated lawyers
confuse it.
To the argument that only the House of Representatives as a body can
initiate impeachment proceedings because Section 3 (1) says "The
House of Representatives shall have the exclusive power to initiate all
cases of impeachment," This is a misreading of said provision and is
contrary to the principle of reddendo singula singulis by equating
"impeachment cases" with "impeachment proceeding."
From the records of the Constitutional Commission, to the amicus
curiae briefs of two former Constitutional Commissioners, it is without a
doubt that the term "to initiate" refers to the filing of the impeachment
complaint coupled with Congress' taking initial action of said complaint.
Having concluded that the initiation takes place by the act of filing and
referral or endorsement of the impeachment complaint to the House
Committee on Justice or, by the filing by at least one-third of the
members of the House of Representatives with the Secretary General of
the House, the meaning of Section 3 (5) of Article XI becomes clear.
Once an impeachment complaint has been initiated, another
impeachment complaint may not be filed against the same official within
a one year period.
Under Sections 16 and 17 of Rule V of the House Impeachment Rules,
impeachment proceedings are deemed initiated (1) if there is a finding by
the House Committee on Justice that the verified complaint and/or
resolution is sufficient in substance, or (2) once the House itself affirms or
overturns the finding of the Committee on Justice that the verified
complaint and/or resolution is not sufficient in substance or (3) by the
filing or endorsement before the Secretary-General of the House of
Representatives of a verified complaint or a resolution of impeachment
by at least 1/3 of the members of the House. These rules clearly
contravene Section 3 (5) of Article XI since the rules give the term
"initiate" a meaning different meaning from filing and referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court
could not use contemporaneous construction as an aid in the
interpretation of Sec.3 (5) of Article XI, citing Vera v. Avelino147 wherein
this Court stated that "their personal opinions (referring to Justices who
were delegates to the Constitution Convention) on the matter at issue
expressed during this Court's our deliberations stand on a different
footing from the properly recorded utterances of debates and
proceedings." Further citing said case, he states that this Court likened
the former members of the Constitutional Convention to actors who are
so absorbed in their emotional roles that intelligent spectators may know
more about the real meaning because of the latter's balanced
perspectives and disinterestedness.148
Justice Gutierrez's statements have no application in the present
petitions. There are at present only two members of this Court who
participated in the 1986 Constitutional Commission – Chief Justice
Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken
part in these proceedings for obvious reasons. Moreover, this Court has
not simply relied on the personal opinions now given by members of the
Constitutional Commission, but has examined the records of the
deliberations and proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8)
of Article XI, it is clear and unequivocal that it and only it has the power
to make and interpret its rules governing impeachment. Its argument is
premised on the assumption that Congress has absolute power to
promulgate its rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate
its rules on impeachment to effectively carry out the purpose of this
section." Clearly, its power to promulgate its rules on impeachment is
limited by the phrase "to effectively carry out the purpose of this section."
Hence, these rules cannot contravene the very purpose of the
Constitution which said rules were intended to effectively carry out.
Moreover, Section 3 of Article XI clearly provides for other specific
limitations on its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen upon a
resolution of endorsement by any Member thereof, which shall be
included in the Order of Business within ten session days, and
referred to the proper Committee within three session days
thereafter. The Committee, after hearing, and by a majority vote
of all its Members, shall submit its report to the House within sixty
session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration
by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House
shall be necessary to either affirm a favorable resolution with the
Articles of Impeachment of the Committee, or override its contrary
resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is
filed by at least one-third of all the Members of the House, the
same shall constitute the Articles of Impeachment, and trial by the
Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the
same official more than once within a period of one year.
It is basic that all rules must not contravene the Constitution which is the
fundamental law. If as alleged Congress had absolute rule making power,
then it would by necessary implication have the power to alter or amend
the meaning of the Constitution without need of referendum.
In Osmeña v. Pendatun,149 this Court held that it is within the province of
either House of Congress to interpret its rules and that it was the best
judge of what constituted "disorderly behavior" of its members. However,
in Paceta v. Secretary of the Commission on Appointments,150 Justice
(later Chief Justice) Enrique Fernando, speaking for this Court and
quoting Justice Brandeis in United States v. Smith,151 declared that where
the construction to be given to a rule affects persons other than members
of the Legislature, the question becomes judicial in nature. In Arroyo v.
De Venecia,152 quoting United States v. Ballin, Joseph & Co.,153 Justice
Vicente Mendoza, speaking for this Court, held that while the Constitution
empowers each house to determine its rules of proceedings, it may not
by its rules ignore constitutional restraints or violate fundamental rights,
and further that there should be a reasonable relation between the mode
or method of proceeding established by the rule and the result which is
sought to be attained. It is only within these limitations that all matters of
method are open to the determination of the Legislature. In the same
case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring
and Dissenting Opinion, was even more emphatic as he stressed that in
the Philippine setting there is even more reason for courts to inquire into
the validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the
petitioner are non-justiciable. Nor do I agree that we will
trivialize the principle of separation of power if we assume
jurisdiction over he case at bar. Even in the United States, the
principle of separation of power is no longer an impregnable
impediment against the interposition of judicial power on cases
involving breach of rules of procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US
1) as a window to view the issues before the Court. It is
in Ballin where the US Supreme Court first defined the
boundaries of the power of the judiciary to review congressional
rules. It held:
"x x x
"The Constitution, in the same section, provides, that each house
may determine the rules of its proceedings." It appears that in
pursuance of this authority the House had, prior to that day,
passed this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the
Speaker, the names of members sufficient to make a quorum in
the hall of the House who do not vote shall be noted by the clerk
and recorded in the journal, and reported to the Speaker with the
names of the members voting, and be counted and announced in
determining the presence of a quorum to do business. (House
Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The
question, therefore, is as to the validity of this rule, and not
what methods the Speaker may of his own motion resort to for
determining the presence of a quorum, nor what matters the
Speaker or clerk may of their own volition place upon the journal.
Neither do the advantages or disadvantages, the wisdom or folly,
of such a rule present any matters for judicial consideration. With
the courts the question is only one of power. The Constitution
empowers each house to determine its rules of proceedings.
It may not by its rules ignore constitutional restraints or
violate fundamental rights, and there should be a reasonable
relation between the mode or method of proceedings
established by the rule and the result which is sought to be
attained. But within these limitations all matters of method are
open to the determination of the House, and it is no impeachment
of the rule to say that some other way would be better, more
accurate, or even more just. It is no objection to the validity of a
rule that a different one has been prescribed and in force for a
length of time. The power to make rules is not one which once
exercised is exhausted. It is a continuous power, always subject
to be exercised by the House, and within the limitations
suggested, absolute and beyond the challenge of any other body
or tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass
upon the validity of congressional rules, i.e, whether they are
constitutional. Rule XV was examined by the Court and it was
found to satisfy the test: (1) that it did not ignore any constitutional
restraint; (2) it did not violate any fundamental right; and (3) its
method had a reasonable relationship with the result sought to be
attained. By examining Rule XV, the Court did not allow its
jurisdiction to be defeated by the mere invocation of the principle
of separation of powers.154
xxx
In the Philippine setting, there is a more compelling
reason for courts to categorically reject the political question
defense when its interposition will cover up abuse of power.
For section 1, Article VIII of our Constitution
was intentionally cobbled to empower courts "x x x 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." This power is new and was not granted to our
courts in the 1935 and 1972 Constitutions. It was not also
xeroxed from the US Constitution or any foreign state
constitution. The CONCOM granted this enormous power to
our courts in view of our experience under martial law where
abusive exercises of state power were shielded from judicial
scrutiny by the misuse of the political question doctrine. Led
by the eminent former Chief Justice Roberto Concepcion, the
CONCOM expanded and sharpened the checking powers of the
judiciary vis-à-vis the Executive and the Legislative departments
of government.155
 xxx
The Constitution cannot be any clearer. What it granted to this
Court is not a mere power which it can decline to exercise.
Precisely to deter this disinclination, the Constitution
imposed it as a duty of this Court to strike down any act of a
branch or instrumentality of government or any of its
officials done with grave abuse of discretion amounting to
lack or excess of jurisdiction. Rightly or wrongly, the
Constitution has elongated the checking powers of this Court
against the other branches of government despite their more
democratic character, the President and the legislators being
elected by the people.156
xxx
The provision defining judicial power as including the 'duty of the
courts of justice. . . 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' constitutes the capstone of the efforts of the
Constitutional Commission to upgrade the powers of this court
vis-à-vis the other branches of government. This provision was
dictated by our experience under martial law which taught us that
a stronger and more independent judiciary is needed to abort
abuses in government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to annul
acts of government committed with grave abuse of discretion, the
new Constitution transformed this Court from passivity to
activism. This transformation, dictated by our distinct experience
as nation, is not merely evolutionary but revolutionary. Under the
1935 and the 1973 Constitutions, this Court approached
constitutional violations by initially determining what it cannot
do; under the 1987 Constitution, there is a shift in stress –
this Court is mandated to approach constitutional violations
not by finding out what it should not do but what
it must do. The Court must discharge this solemn duty by not
resuscitating a past that petrifies the present.
I urge my brethren in the Court to give due and serious
consideration to this new constitutional provision as the case at
bar once more calls us to define the parameters of our power to
review violations of the rules of the House. We will not be true to
our trust as the last bulwark against government abuses if
we refuse to exercise this new power or if we wield it with
timidity. To be sure, it is this exceeding timidity to unsheathe
the judicial sword that has increasingly emboldened other
branches of government to denigrate, if not defy, orders of
our courts. In Tolentino, I endorsed the view of former Senator
Salonga that this novel provision stretching the latitude of judicial
power is distinctly Filipino and its interpretation should not be
depreciated by undue reliance on inapplicable foreign
jurisprudence. In resolving the case at bar, the lessons of our own
history should provide us the light and not the experience of
foreigners.157 (Italics in the original emphasis and underscoring
supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to the instant
petitions. Here, the third parties alleging the violation of private rights and
the Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon v.
US158 as basis for arguing that this Court may not decide on the
constitutionality of Sections 16 and 17 of the House Impeachment Rules.
As already observed, the U.S. Federal Constitution simply provides that
"the House of Representatives shall have the sole power of
impeachment." It adds nothing more. It gives no clue whatsoever as to
how this "sole power" is to be exercised. No limitation whatsoever is
given. Thus, the US Supreme Court concluded that there was a textually
demonstrable constitutional commitment of a constitutional power to the
House of Representatives. This reasoning does not hold with regard to
impeachment power of the Philippine House of Representatives since our
Constitution, as earlier enumerated, furnishes several provisions
articulating how that "exclusive power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House
Impeachment Rules which state that impeachment proceedings are
deemed initiated (1) if there is a finding by the House Committee on
Justice that the verified complaint and/or resolution is sufficient in
substance, or (2) once the House itself affirms or overturns the finding of
the Committee on Justice that the verified complaint and/or resolution is
not sufficient in substance or (3) by the filing or endorsement before the
Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members
of the House thus clearly contravene Section 3 (5) of Article XI as they
give the term "initiate" a meaning different from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing of the
impeachment complaint and referral to the House Committee on Justice,
the initial action taken thereon, the meaning of Section 3 (5) of Article XI
becomes clear. Once an impeachment complaint has been initiated in the
foregoing manner, another may not be filed against the same official
within a one year period following Article XI, Section 3(5) of the
Constitution.
In fine, considering that the first impeachment complaint, was filed by
former President Estrada against Chief Justice Hilario G. Davide, Jr.,
along with seven associate justices of this Court, on June 2, 2003 and
referred to the House Committee on Justice on August 5, 2003, the
second impeachment complaint filed by Representatives Gilberto C.
Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on
October 23, 2003 violates the constitutional prohibition against the
initiation of impeachment proceedings against the same impeachable
officer within a one-year period.
Conclusion
If there is anything constant about this country, it is that there is always a
phenomenon that takes the center stage of our individual and collective
consciousness as a people with our characteristic flair for human drama,
conflict or tragedy. Of course this is not to demean the seriousness of the
controversy over the Davide impeachment. For many of us, the past two
weeks have proven to be an exasperating, mentally and emotionally
exhausting experience. Both sides have fought bitterly a dialectical
struggle to articulate what they respectively believe to be the correct
position or view on the issues involved. Passions had ran high as
demonstrators, whether for or against the impeachment of the Chief
Justice, took to the streets armed with their familiar slogans and chants to
air their voice on the matter. Various sectors of society - from the
business, retired military, to the academe and denominations of faith –
offered suggestions for a return to a state of normalcy in the official
relations of the governmental branches affected to obviate any perceived
resulting instability upon areas of national life.
Through all these and as early as the time when the Articles of
Impeachment had been constituted, this Court was specifically asked,
told, urged and argued to take no action of any kind and form with
respect to the prosecution by the House of Representatives of the
impeachment complaint against the subject respondent public official.
When the present petitions were knocking so to speak at the doorsteps of
this Court, the same clamor for non-interference was made through what
are now the arguments of "lack of jurisdiction," "non-justiciability," and
"judicial self-restraint" aimed at halting the Court from any move that may
have a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the
question of the constitutionality of initiating the impeachment complaint
against Chief Justice Davide is concerned. To reiterate what has been
already explained, the Court found the existence in full of all the requisite
conditions for its exercise of its constitutionally vested power and duty of
judicial review over an issue whose resolution precisely called for the
construction or interpretation of a provision of the fundamental law of the
land. What lies in here is an issue of a genuine constitutional material
which only this Court can properly and competently address and
adjudicate in accordance with the clear-cut allocation of powers under
our system of government. Face-to-face thus with a matter or problem
that squarely falls under the Court's jurisdiction, no other course of action
can be had but for it to pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the
process of impeachment has effectively set up a regime of judicial
supremacy, is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and
resolved on the merits only the main issue of whether the impeachment
proceedings initiated against the Chief Justice transgressed the
constitutionally imposed one-year time bar rule. Beyond this, it did not go
about assuming jurisdiction where it had none, nor indiscriminately turn
justiciable issues out of decidedly political questions. Because it is not at
all the business of this Court to assert judicial dominance over the other
two great branches of the government. Rather, the raison d'etre of the
judiciary is to complement the discharge by the executive and legislative
of their own powers to bring about ultimately the beneficent effects of
having founded and ordered our society upon the rule of law.
It is suggested that by our taking cognizance of the issue of
constitutionality of the impeachment proceedings against the Chief
Justice, the members of this Court have actually closed ranks to protect a
brethren. That the members' interests in ruling on said issue is as much WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure
at stake as is that of the Chief Justice. Nothing could be farther from the in Impeachment Proceedings which were approved by the House of
truth. Representatives on November 28, 2001 are unconstitutional.
Consequently, the second impeachment complaint against Chief Justice
The institution that is the Supreme Court together with all other courts Hilario G. Davide, Jr. which was filed by Representatives Gilberto C.
has long held and been entrusted with the judicial power to resolve Teodoro, Jr. and Felix William B. Fuentebella with the Office of the
conflicting legal rights regardless of the personalities involved in the suits Secretary General of the House of Representatives on October 23, 2003
or actions. This Court has dispensed justice over the course of time, is barred under paragraph 5, section 3 of Article XI of the Constitution.
unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by
whatever imputations or speculations could be made to it, so long as it SO ORDERED.
rendered judgment according to the law and the facts. Why can it not
now be trusted to wield judicial power in these petitions just because it is Bellosillo and Tinga, JJ., see separate opinion.
the highest ranking magistrate who is involved when it is an Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.
incontrovertible fact that the fundamental issue is not him but the validity Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see
of a government branch's official act as tested by the limits set by the separate concurring opinion.
Constitution? Of course, there are rules on the inhibition of any member Quisumbing, J., concurring separate opinion received.
of the judiciary from taking part in a case in specified instances. But to Carpio, J., concur.
disqualify this entire institution now from the suit at bar is to regard the Austria-Martinez, J., concur in the majority opinion and in the separate
Supreme Court as likely incapable of impartiality when one of its opinion of J. Vitug.
members is a party to a case, which is simply a non sequitur. Corona, J., will write a separate concurring opinion.
Azcuna, J., concur in the separate opinion.
No one is above the law or the Constitution. This is a basic precept in any
legal system which recognizes equality of all men before the law as
essential to the law's moral authority and that of its agents to secure
respect for and obedience to its commands. Perhaps, there is no other
government branch or instrumentality that is most zealous in protecting
that principle of legal equality other than the Supreme Court which has
discerned its real meaning and ramifications through its application to
numerous cases especially of the high-profile kind in the annals of
jurisprudence. The Chief Justice is not above the law and neither is any
other member of this Court. But just because he is the Chief Justice does
not imply that he gets to have less in law than anybody else. The law is
solicitous of every individual's rights irrespective of his station in life.

The Filipino nation and its democratic institutions have no doubt been put
to test once again by this impeachment case against Chief Justice Hilario
Davide. Accordingly, this Court has resorted to no other than the
Constitution in search for a solution to what many feared would ripen to a
crisis in government. But though it is indeed immensely a blessing for this
Court to have found answers in our bedrock of legal principles, it is
equally important that it went through this crucible of a democratic
process, if only to discover that it can resolve differences without the use
of force and aggression upon each other.
A.M. No. P-02-1651 August 4, 2003
ALEJANDRO ESTRADA, complainant,
vs.
SOLEDAD S. ESCRITOR, respondent.
PUNO, J.:
The case at bar takes us to a most difficult area of constitutional law
where man stands accountable to an authority higher than the state. To
be held on balance are the state's interest and the respondent's religious
freedom. In this highly sensitive area of law, the task of balancing
between authority and liberty is most delicate because to the person
invoking religious freedom, the consequences of the case are not only
temporal. The task is not made easier by the American origin of our
religion clauses and the wealth of U.S. jurisprudence on these clauses for
in the United States, there is probably no more intensely controverted
area of constitutional interpretation than the religion clauses.1 The U.S.
Supreme Court itself has acknowledged that in this constitutional area,
there is "considerable internal inconsistency in the opinions of the
Court."2 As stated by a professor of law, "(i)t is by now notorious that
legal doctrines and judicial decisions in the area of religious freedom are
in serious disarray. In perhaps no other area of constitutional law have
confusion and inconsistency achieved such undisputed
sovereignty."3 Nevertheless, this thicket is the only path to take to
conquer the mountain of a legal problem the case at bar presents. Both
the penetrating and panoramic view this climb would provide will largely
chart the course of religious freedom in Philippine jurisdiction. That the
religious freedom question arose in an administrative case involving only
one person does not alter the paramount importance of the question for
the "constitution commands the positive protection by government of
religious freedom -not only for a minority, however small- not only for a
majority, however large- but for each of us."4
I. Facts
The facts of the case will determine whether respondent will prevail in her
plea of religious freedom. It is necessary therefore to lay down the facts
in detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro
Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch
253, Regional Trial Court of Las Piñas City, requesting for an
investigation of rumors that respondent Soledad Escritor, court interpreter
in said court, is living with a man not her husband. They allegedly have a
child of eighteen to twenty years old. Estrada is not personally related
either to Escritor or her partner and is a resident not of Las Piñas City but
of Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as
he believes that she is committing an immoral act that tarnishes the
image of the court, thus she should not be allowed to remain employed
therein as it might appear that the court condones her act.5
Judge Caoibes referred the letter to Escritor who stated that "there is no
truth as to the veracity of the allegation" and challenged Estrada to
"appear in the open and prove his allegation in the proper forum."6 Judge
Caoibes set a preliminary conference on October 12, 2000. Escritor
moved for the inhibition of Judge Caoibes from hearing her case to avoid
suspicion and bias as she previously filed an administrative complaint
against him and said case was still pending in the Office of the Court
Administrator (OCA). Escritor's motion was denied. The preliminary
conference proceeded with both Estrada and Escritor in attendance.
Estrada confirmed that he filed the letter-complaint for immorality against
Escritor because in his frequent visits to the Hall of Justice of Las Piñas
City, he learned from conversations therein that Escritor was living with a
man not her husband and that she had an eighteen to twenty-year old
son by this man. This prompted him to write to Judge Caoibes as he
believed that employees of the judiciary should be respectable and
Escritor's live-in arrangement did not command respect.7
Respondent Escritor testified that when she entered the judiciary in
1999,8 she was already a widow, her husband having died in 1998. 9 She
admitted that she has been living with Luciano Quilapio, Jr. without the
benefit of marriage for twenty years and that they have a son. But as a
member of the religious sect known as the Jehovah's Witnesses and the
Watch Tower and Bible Tract Society, their conjugal arrangement is in
conformity with their religious beliefs. In fact, after ten years of living
together, she executed on July 28, 1991 a "Declaration of Pledging
Faithfulness," viz:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted
Luciano D. Quilapio, Jr., as my mate in marital relationship; that I
have done all within my ability to obtain legal recognition of this
relationship by the proper public authorities and that it is because
of having been unable to do so that I therefore make this public
declaration pledging faithfulness in this marital relationship.
 I recognize this relationship as a binding tie before 'Jehovah' God
and before all persons to be held to and honored in full accord
with the principles of God's Word. I will continue to seek the
means to obtain legal recognition of this relationship by the civil
authorities and if at any future time a change in circumstances
make this possible, I promise to legalize this union.
Signed this 28th day of July 1991.10
Escritor's partner, Quilapio, executed a similar pledge on the same
day.11 Both pledges were executed in Atimonan, Quezon and signed by
three witnesses. At the time Escritor executed her pledge, her husband
was still alive but living with another woman. Quilapio was likewise
married at that time, but had been separated in fact from his wife. During
her testimony, Escritor volunteered to present members of her
congregation to confirm the truthfulness of their "Declarations of Pledging
Faithfulness," but Judge Caoibes deemed it unnecessary and considered
her identification of her signature and the signature of Quilapio sufficient
authentication of the documents.12
Judge Caoibes endorsed the complaint to Executive Judge Manuel B.
Fernandez, Jr., who, in turn, endorsed the same to Court Administrator
Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation
of Acting Court Administrator Zenaida N. Elepaño, directed Escritor to
comment on the charge against her. In her comment, Escritor reiterated
her religious congregation's approval of her conjugal arrangement with
Quilapio, viz:
Herein respondent does not ignore alleged accusation but she
reiterates to state with candor that there is no truth as to the
veracity of same allegation. Included herewith are documents
denominated as Declaration of Pledging Faithfulness (Exhibit 1
and Exhibit 2) duly signed by both respondent and her mate in
marital relationship with the witnesses concurring their
acceptance to the arrangement as approved by the WATCH
TOWER BIBLE and TRACT SOCIETY, Philippine Branch.
Same marital arrangement is recognized as a binding tie before
"JEHOVAH" God and before all persons to be held to and
honored in full accord with the principles of God's Word.
xxx xxx xxx
Undersigned submits to the just, humane and fair discretion of the
Court with verification from the WATCH TOWER BIBLE and
TRACT SOCIETY, Philippine Branch . . . to which undersigned
believes to be a high authority in relation to her case. 13
Deputy Court Administrator Christopher O. Lock recommended that the
case be referred to Executive Judge Bonifacio Sanz Maceda, RTC
Branch 255, Las Piñas City for investigation, report and recommendation.
In the course of Judge Maceda's investigation, Escritor again testified
that her congregation allows her conjugal arrangement with Quilapio and
it does not consider it immoral. She offered to supply the investigating
judge some clippings which explain the basis of her congregation's belief
and practice regarding her conjugal arrangement. Escritor started living
with Quilapio twenty years ago when her husband was still alive but living
with another woman. She met this woman who confirmed to her that she
was living with her (Escritor's) husband.14
Gregorio Salazar, a member of the Jehovah's Witnesses since 1985, also
testified. He had been a presiding minister since 1991 and in such
capacity is aware of the rules and regulations of their congregation. He
explained the import of and procedure for executing a "Declaration of
Pledging Faithfulness", viz:
Q: Now, insofar as the pre-marital relationship is concern
(sic), can you cite some particular rules and regulations in your
congregation?
A: Well, we of course, talk to the persons with regards (sic)
to all the parties involved and then we request them to execute a
Public Declaration of Pledge of faithfulness.
Q: What is that document?
A: Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of
Pledge of faithfulness, who are suppose (sic) to execute this
document?
A: This must be signed, the document must be signed by the
elders of the congregation; the couple, who is a member (sic) of
the congregation, baptized member and true member of the
congregation.
Q: What standard rules and regulations do you have in
relation with this document?
A: Actually, sir, the signing of that document, ah, with the
couple has consent to marital relationship (sic) gives the Christian
Congregation view that the couple has put themselves on record
before God and man that they are faithful to each other. As if that
relation is validated by God.
Q: From your explanation, Minister, do you consider it a
pledge or a document between the parties, who are members of
the congregation?
A: It is a pledge and a document. It is a declaration, pledge
of a (sic) pledge of faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am
the one who contracted with the opposite member of my
congregation, opposite sex, and that this document will give us
the right to a marital relationship.
Q: So, in short, when you execute a declaration of pledge of
faithfulness, it is a preparation for you to enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties,
cohabiting or living under the same roof?
A: Well, the Pledge of faithfulness document is (sic) already
approved as to the marital relationship.
Q: Do you mean to say, Minister, by executing this
document the contracting parties have the right to cohabit?
A: Can I sir, cite, what the Bible says, the basis of that
Pledge of Faithfulness as we Christians follow. The basis is
herein stated in the Book of Matthew, Chapter Five, Verse
Twenty-two. So, in that verse of the Bible, Jesus said "that
everyone divorcing his wife, except on account of fornication,
makes her a subject for adultery, and whoever marries a divorced
woman commits adultery.15
Escritor and Quilapio transferred to Salazar's Congregation, the Almanza
Congregation in Las Piñas, in May 2001. The declarations having been
executed in Atimonan, Quezon in 1991, Salazar had no personal
knowledge of the personal circumstances of Escritor and Quilapio when
they executed their declarations. However, when the two transferred to
Almanza, Salazar inquired about their status from the Atimonan
Congregation, gathered comments of the elders therein, and requested a
copy of their declarations. The Almanza Congregation assumed that the
personal circumstances of the couple had been considered by the
Atimonan Congregation when they executed their declarations.
Escritor and Quilapio's declarations are recorded in the Watch Tower
Central office. They were executed in the usual and approved form
prescribed by the Watch Tower Bible and Tract Society which was lifted
from the article, "Maintaining Marriage in Honor Before God and
Men,"16 in the March 15, 1977 issue of the Watch Tower magazine,
entitled The Watchtower.
The declaration requires the approval of the elders of the Jehovah's
Witnesses congregation and is binding within the congregation all over
the world except in countries where divorce is allowed. The Jehovah's
congregation requires that at the time the declarations are executed, the
couple cannot secure the civil authorities' approval of the marital
relationship because of legal impediments. It is thus standard practice of
the congregation to check the couple's marital status before giving
imprimatur to the conjugal arrangement. The execution of the declaration
finds scriptural basis in Matthew 5:32 that when the spouse commits
adultery, the offended spouse can remarry. The marital status of the
declarants and their respective spouses' commission of adultery are
investigated before the declarations are executed. Thus, in the case of
Escritor, it is presumed that the Atimonan Congregation conducted an
investigation on her marital status before the declaration was approved
and the declaration is valid everywhere, including the Almanza
Congregation. That Escritor's and Quilapio's declarations were approved
are shown by the signatures of three witnesses, the elders in the
Atimonan Congregation. Salazar confirmed from the congregation's
branch office that these three witnesses are elders in the Atimonan
Congregation. Although in 1998 Escritor was widowed, thereby lifting the
legal impediment to marry on her part, her mate is still not capacitated to
remarry. Thus, their declarations remain valid. Once all legal
impediments for both are lifted, the couple can already register their
marriage with the civil authorities and the validity of the declarations
ceases. The elders in the congregations can then solemnize their
marriage as authorized by Philippine law. In sum, therefore, insofar as
the congregation is concerned, there is nothing immoral about the
conjugal arrangement between Escritor and Quilapio and they remain
members in good standing in the congregation. 17
Salvador Reyes, a minister at the General de Leon, Valenzuela City
Congregation of the Jehovah's Witnesses since 1974 and member of the
headquarters of the Watch Tower Bible and Tract Society of the
Philippines, Inc., presented the original copy of the magazine article
entitled, "Maintaining Marriage Before God and Men" to which Escritor
and Minister Salazar referred in their testimonies. The article appeared in
the March 15, 1977 issue of the Watchtower magazine published in
Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower
Bible and Tract Society of the Philippines, Inc., authorized Reyes to
represent him in authenticating the article. The article is distributed to the
Jehovah's Witnesses congregations which also distribute them to the
public.18
The parties submitted their respective memoranda to the investigating
judge. Both stated that the issue for resolution is whether or not the
relationship between respondent Escritor and Quilapio is valid and
binding in their own religious congregation, the Jehovah's Witnesses.
Complainant Estrada adds however, that the effect of the relationship to
Escritor's administrative liability must likewise be determined. Estrada
argued, through counsel, that the Declaration of Pledging Faithfulness
recognizes the supremacy of the "proper public authorities" such that she
bound herself "to seek means to . . . legalize their union." Thus, even
assuming arguendo that the declaration is valid and binding in her
congregation, it is binding only to her co-members in the congregation
and serves only the internal purpose of displaying to the rest of the
congregation that she and her mate are a respectable and morally
upright couple. Their religious belief and practice, however, cannot
override the norms of conduct required by law for government
employees. To rule otherwise would create a dangerous precedent as
those who cannot legalize their live-in relationship can simply join the
Jehovah's Witnesses congregation and use their religion as a defense
against legal liability.19
On the other hand, respondent Escritor reiterates the validity of her
conjugal arrangement with Quilapio based on the belief and practice of
her religion, the Jehovah's Witnesses. She quoted portions of the
magazine article entitled, "Maintaining Marriage Before God and Men," in
her memorandum signed by herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits "1" and "2")
executed by the respondent and her mate greatly affect the
administrative liability of respondent. Jehovah's Witnesses admit
and recognize (sic) the supremacy of the proper public authorities
in the marriage arrangement. However, it is helpful to understand
the relative nature of Caesar's authority regarding marriage. From
country to country, marriage and divorce legislation presents a
multitude of different angles and aspects. Rather than becoming
entangled in a confusion of technicalities, the Christian, or the
one desiring to become a disciple of God's Son, can be guided by
basic Scriptural principles that hold true in all cases.
God's view is of first concern. So, first of all the person must
consider whether that one's present relationship, or the
relationship into which he or she contemplates entering, is one
that could meet with God's approval, or whether in itself, it
violates the standards of God's Word. Take, for example, the
situation where a man lives with a wife but also spends time living
with another woman as a concubine. As long as such a state of
concubinage prevails, the relationship of the second woman can
never be harmonized with Christian principles, nor could any
declaration on the part of the woman or the man make it so. The
only right course is cessation of the relationship. Similarly with an
incestuous relationship with a member of one's immediate family,
or a homosexual relationship or other such situation condemned
by God's Word. It is not the lack of any legal validation that
makes such relationships unacceptable; they are in themselves
unscriptural and hence, immoral. Hence, a person involved in
such a situation could not make any kind of "Declaration of
Faithfulness," since it would have no merit in God's eyes.
If the relationship is such that it can have God's approval, then, a
second principle to consider is that one should do all one can to
establish the honorableness of one's marital union in the eyes of
all. (Heb. 13:4). If divorce is possible, then such step should now
be taken so that, having obtained the divorce (on whatever legal
grounds may be available), the present union can receive civil
validation as a recognized marriage.
Finally, if the marital relationship is not one out of harmony with
the principles of God's Word, and if one has done all that can
 reasonably be done to have it recognized by civil authorities and
has been blocked in doing so, then, a Declaration Pledging
Faithfulness can be signed. In some cases, as has been noted,
the extreme slowness of official action may make accomplishing
of legal steps a matter of many, many years of effort. Or it may be
that the costs represent a crushingly heavy burden that the
individual would need years to be able to meet. In such cases,
the declaration pledging faithfulness will provide the congregation
with the basis for viewing the existing union as honorable while
the individual continues conscientiously to work out the legal
aspects to the best of his ability.
Keeping in mind the basic principles presented, the respondent
as a Minister of Jehovah God, should be able to approach the
matter in a balanced way, neither underestimating nor
overestimating the validation offered by the political state. She
always gives primary concern to God's view of the union. Along
with this, every effort should be made to set a fine example of
faithfulness and devotion to one's mate, thus, keeping the
marriage "honorable among all." Such course will bring God's
blessing and result to the honor and praise of the author of
marriage, Jehovah God. (1 Cor. 10:31-33)20
Respondent also brought to the attention of the investigating judge that
complainant's Memorandum came from Judge Caoibes'
chambers21 whom she claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found
Escritor's factual allegations credible as they were supported by
testimonial and documentary evidence. He also noted that "(b)y strict
Catholic standards, the live-in relationship of respondent with her mate
should fall within the definition of immoral conduct, to wit: 'that which is
willful, flagrant, or shameless, and which shows a moral indifference to
the opinion of the good and respectable members of the community' (7
C.J.S. 959)' (Delos Reyes vs. Aznar, 179 SCRA, at p. 666)." He pointed
out, however, that "the more relevant question is whether or not to exact
from respondent Escritor, a member of 'Jehovah's Witnesses,' the strict
moral standards of the Catholic faith in determining her administrative
responsibility in the case at bar."22 The investigating judge acknowledged
that "religious freedom is a fundamental right which is entitled to the
highest priority and the amplest protection among human rights, for it
involves the relationship of man to his Creator (at p. 270, EBRALINAG
supra, citing Chief Justice Enrique M. Fernando's separate opinion in
German vs. Barangan, 135 SCRA 514, 530-531)" and thereby
recommended the dismissal of the complaint against Escritor.23
After considering the Report and Recommendation of Executive Judge
Maceda, the Office of the Court Administrator, through Deputy Court
Administrator (DCA) Lock and with the approval of Court Administrator
Presbitero Velasco, concurred with the factual findings of Judge Maceda
but departed from his recommendation to dismiss the complaint. DCA
Lock stressed that although Escritor had become capacitated to marry by
the time she joined the judiciary as her husband had died a year before,
"it is due to her relationship with a married man, voluntarily carried on,
that respondent may still be subject to disciplinary action." 24 Considering
the ruling of the Court in Dicdican v. Fernan, et al. 25 that "court personnel
have been enjoined to adhere to the exacting standards of morality and
decency in their professional and private conduct in order to preserve the
good name and integrity of the court of justice," DCA Lock found
Escritor's defense of freedom of religion unavailing to warrant dismissal
of the charge of immorality. Accordingly, he recommended that
respondent be found guilty of immorality and that she be penalized with
suspension of six months and one day without pay with a warning that a
repetition of a similar act will be dealt with more severely in accordance
with the Civil Service Rules.26
II. Issue
Whether or not respondent should be found guilty of the administrative
charge of "gross and immoral conduct." To resolve this issue, it is
necessary to determine the sub-issue of whether or not respondent's
right to religious freedom should carve out an exception from the
prevailing jurisprudence on illicit relations for which government
employees are held administratively liable.
III. Applicable Laws
Respondent is charged with committing "gross and immoral conduct"
under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or
employee in the Civil Service shall be suspended or dismissed
except for cause as provided by law and after due process.
(b) The following shall be grounds for disciplinary action:
 xxx xxx xxx
(5) Disgraceful and immoral conduct; xxx.
Not represented by counsel, respondent, in layman's terms, invokes the
religious beliefs and practices and moral standards of her religion, the
Jehovah's Witnesses, in asserting that her conjugal arrangement with a
man not her legal husband does not constitute disgraceful and immoral
conduct for which she should be held administratively liable. While not
articulated by respondent, she invokes religious freedom under Article III,
Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political
rights.
IV. Old World Antecedents of the American Religion Clauses
To understand the life that the religion clauses have taken, it would be
well to understand not only its birth in the United States, but its
conception in the Old World. One cannot understand, much less
intelligently criticize the approaches of the courts and the political
branches to religious freedom in the recent past in the United States
without a deep appreciation of the roots of these controversies in the
ancient and medieval world and in the American experience.27 This fresh
look at the religion clauses is proper in deciding this case of first
impression.
In primitive times, all of life may be said to have been religious. Every
significant event in the primitive man's life, from birth to death, was
marked by religious ceremonies. Tribal society survived because
religious sanctions effectively elicited adherence to social customs. A
person who broke a custom violated a taboo which would then bring
upon him "the wrathful vengeance of a superhuman mysterious
power."28 Distinction between the religious and non-religious would thus
have been meaningless to him. He sought protection from all kinds of evil
- whether a wild beast or tribe enemy and lightning or wind - from the
same person. The head of the clan or the Old Man of the tribe or the king
protected his wards against both human and superhuman enemies. In
time, the king not only interceded for his people with the divine powers,
but he himself was looked upon as a divine being and his laws as divine
decrees.29
Time came, however, when the function of acting as intermediary
between human and spiritual powers became sufficiently differentiated
from the responsibility of leading the tribe in war and policing it in peace
as to require the full-time services of a special priest class. This saw the
birth of the social and communal problem of the competing claims of the
king and priest. Nevertheless, from the beginning, the king and not the
priest was superior. The head of the tribe was the warrior, and although
he also performed priestly functions, he carried out these functions
because he was the head and representative of the community. 30
There being no distinction between the religious and the secular, the
same authority that promulgated laws regulating relations between man
and man promulgated laws concerning man's obligations to the
supernatural. This authority was the king who was the head of the state
and the source of all law and who only delegated performance of rituals
and sacrifice to the priests. The Code of Hammurabi, king of Babylonia,
imposed penalties for homicide, larceny, perjury, and other crimes;
regulated the fees of surgeons and the wages of masons and tailors and
prescribed rules for inheritance of property;31 and also catalogued the
gods and assigned them their places in the divine hierarchy so as to put
Hammurabi's own god to a position of equality with existing gods. 32 In
sum, the relationship of religion to the state (king) in pre-Hebreic times
may be characterized as a union of the two forces, with the state almost
universally the dominant partner.33
With the rise of the Hebrew state, a new term had to be coined to
describe the relation of the Hebrew state with the Mosaic religion:
theocracy. The authority and power of the state was ascribed to
God.34 The Mosaic creed was not merely regarded as the religion of the
state, it was (at least until Saul) the state itself. Among the Hebrews,
patriarch, prophet, and priest preceded king and prince. As man of God,
Moses decided when the people should travel and when to pitch camp,
when they should make war and when peace. Saul and David were
made kings by the prophet Samuel, disciple of Eli the priest. Like the
Code of Hammurabi, the Mosaic code combined civil laws with religious
mandates, but unlike the Hammurabi Code, religious laws were not of
secondary importance. On the contrary, religious motivation was primary
and all-embracing: sacrifices were made and Israel was prohibited from
exacting usury, mistreating aliens or using false weights, all because God
commanded these.
Moses of the Bible led not like the ancient kings. The latter used religion
as an engine to advance the purposes of the state. Hammurabi unified
Mesopotamia and established Babylon as its capital by elevating its city-
god to a primary position over the previous reigning gods. 35 Moses, on
the other hand, capitalized on the natural yearnings of the Hebrew slaves
for freedom and independence to further God's purposes. Liberation and
Exodus were preludes to Sinai and the receipt of the Divine Law. The
conquest of Canaan was a preparation for the building of the temple and
the full worship of God.36
Upon the monotheism of Moses was the theocracy of Israel founded.
This monotheism, more than anything else, charted not only the future of
religion in western civilization, but equally, the future of the relationship
between religion and state in the west. This fact is acknowledged by
many writers, among whom is Northcott who pointed out, viz:
Historically it was the Hebrew and Christian conception of a
single and universal God that introduced a religious exclusivism
leading to compulsion and persecution in the realm of religion.
Ancient religions were regarded as confined to each separate
people believing in them, and the question of change from one
religious belief to another did not arise. It was not until an
exclusive fellowship, that the questions of proselytism, change of
belief and liberty of religion arose.37 (emphasis supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In
this period, religion was not only superior to the state, but it was all of the
state. The Law of God as transmitted through Moses and his successors
was the whole of government.
With Saul, however, the state rose to be the rival and ultimately, the
master, of religion. Saul and David each received their kingdom from
Samuel the prophet and disciple of Eli the priest, but soon the king
dominated prophet and priest. Saul disobeyed and even sought to slay
Samuel the prophet of God.38 Under Solomon, the subordination of
religion to state became complete; he used religion as an engine to
further the state's purposes. He reformed the order of priesthood
established by Moses because the high priest under that order endorsed
the claim of his rival to the throne.39
The subordination of religion to the state was also true in pre-Christian
Rome which engaged in emperor-worship. When Augustus became head
of the Roman state and the priestly hierarchy, he placed religion at a high
esteem as part of a political plan to establish the real religion of pre-
Christian Rome - the worship of the head of the state. He set his great
uncle Julius Caesar among the gods, and commanded that worship of
Divine Julius should not be less than worship of Apollo, Jupiter and other
gods. When Augustus died, he also joined the ranks of the gods, as other
emperors before him.40
The onset of Christianity, however, posed a difficulty to the emperor as
the Christians' dogmatic exclusiveness prevented them from paying
homage to publicly accepted gods. In the first two centuries after the
death of Jesus, Christians were subjected to persecution. By the time of
the emperor Trajan, Christians were considered outlaws. Their crime was
"hatred of the human race", placing them in the same category as pirates
and brigands and other "enemies of mankind" who were subject to
summary punishments.41
In 284, Diocletian became emperor and sought to reorganize the empire
and make its administration more efficient. But the closely-knit
hierarchically controlled church presented a serious problem, being a
state within a state over which he had no control. He had two options:
either to force it into submission and break its power or enter into an
alliance with it and procure political control over it. He opted for force and
revived the persecution, destroyed the churches, confiscated sacred
books, imprisoned the clergy and by torture forced them to sacrifice. 42 But
his efforts proved futile.
The later emperor, Constantine, took the second option of alliance.
Constantine joined with Galerius and Licinius, his two co-rulers of the
empire, in issuing an edict of toleration to Christians "on condition that
nothing is done by them contrary to discipline." 43 A year later, after
Galerius died, Constantine and Licius jointly issued the epochal Edict of
Milan (312 or 313), a document of monumental importance in the history
of religious liberty. It provided "that liberty of worship shall not be denied
to any, but that the mind and will of every individual shall be free to
manage divine affairs according to his own choice." (emphasis supplied)
Thus, all restrictive statutes were abrogated and it was enacted "that
every person who cherishes the desire to observe the Christian religion
shall freely and unconditionally proceed to observe the same without let
or hindrance." Furthermore, it was provided that the "same free and open
power to follow their own religion or worship is granted also to others, in
accordance with the tranquillity of our times, in order that every person
may have free opportunity to worship the object of his choice."(emphasis
supplied)44
Before long, not only did Christianity achieve equal status, but acquired
privilege, then prestige, and eventually, exclusive power. Religion
became an engine of state policy as Constantine considered Christianity
a means of unifying his complex empire. Within seven years after the
Edict of Milan, under the emperor's command, great Christian edifices
were erected, the clergy were freed from public burdens others had to
bear, and private heathen sacrifices were forbidden.
The favors granted to Christianity came at a price: state interference in
religious affairs. Constantine and his successors called and dismissed
church councils, and enforced unity of belief and practice. Until recently
the church had been the victim of persecution and repression, but this
time it welcomed the state's persecution and repression of the
nonconformist and the orthodox on the belief that it was better for
heretics to be purged of their error than to die unsaved.
Both in theory as in practice, the partnership between church and state
was not easy. It was a constant struggle of one claiming dominance over
the other. In time, however, after the collapse and disintegration of the
Roman Empire, and while monarchical states were gradually being
consolidated among the numerous feudal holdings, the church stood as
the one permanent, stable and universal power. Not surprisingly,
therefore, it claimed not merely equality but superiority over the secular
states. This claim, symbolized by Pope Leo's crowning of Charlemagne,
became the church's accepted principle of its relationship to the state in
the Middle Ages. As viewed by the church, the union of church and state
was now a union of the state in the church. The rulers of the states did
not concede to this claim of supremacy. Thus, while Charlemagne
received his crown from the Pope, he himself crowned his own son as
successor to nullify the inference of supremacy. 45 The whole history of
medieval Europe was a struggle for supremacy between prince and Pope
and the resulting religious wars and persecution of heretics and
nonconformists. At about the second quarter of the 13th century, the
Inquisition was established, the purpose of which was the discovery and
extermination of heresy. Accused heretics were tortured with the
approval of the church in the bull Ad extirpanda issued by Pope Innocent
IV in 1252.
The corruption and abuses of the Catholic Church spurred the
Reformation aimed at reforming the Catholic Church and resulting in the
establishment of Protestant churches. While Protestants are accustomed
to ascribe to the Reformation the rise of religious liberty and its
acceptance as the principle governing the relations between a
democratic state and its citizens, history shows that it is more accurate to
say that the "same causes that gave rise to the Protestant revolution also
resulted in the widespread acceptance of the principle of religious liberty,
and ultimately of the principle of separation of church and state."46 Pleas
for tolerance and freedom of conscience can without doubt be found in
the writings of leaders of the Reformation. But just as Protestants living in
the countries of papists pleaded for toleration of religion, so did the
papists that lived where Protestants were dominant.47 Papist and
Protestant governments alike accepted the idea of cooperation between
church and state and regarded as essential to national unity the
uniformity of at least the outward manifestations of religion. 48 Certainly,
Luther, leader of the Reformation, stated that "neither pope, nor bishop,
nor any man whatever has the right of making one syllable binding on a
Christian man, unless it be done with his own consent." 49 But when the
tables had turned and he was no longer the hunted heretic, he likewise
stated when he made an alliance with the secular powers that "(h)eretics
are not to be disputed with, but to be condemned unheard, and whilst
they perish by fire, the faithful ought to pursue the evil to its source, and
bathe their hands in the blood of the Catholic bishops, and of the Pope,
who is a devil in disguise."50 To Luther, unity among the peoples in the
interests of the state was an important consideration. Other personalities
in the Reformation such as Melanchton, Zwingli and Calvin strongly
espoused theocracy or the use of the state as an engine to further
religion. In establishing theocracy in Geneva, Calvin made absence from
the sermon a crime, he included criticism of the clergy in the crime of
blasphemy punishable by death, and to eliminate heresy, he cooperated
in the Inquisition.51
There were, however, those who truly advocated religious liberty.
Erasmus, who belonged to the Renaissance than the Reformation, wrote
that "(t)he terrible papal edict, the more terrible imperial edict, the
imprisonments, the confiscations, the recantations, the fagots and
burnings, all these things I can see accomplish nothing except to make
the evil more widespread."52 The minority or dissident sects also ardently
advocated religious liberty. The Anabaptists, persecuted and despised,
along with the Socinians (Unitarians) and the Friends of the Quakers
founded by George Fox in the 17th century, endorsed the supremacy and
freedom of the individual conscience. They regarded religion as outside
the realm of political governments.53 The English Baptists proclaimed that
the "magistrate is not to meddle with religion or matters of conscience,
nor compel men to this or that form of religion." 54
Thus, out of the Reformation, three rationalizations of church-state
relations may be distinguished: the Erastian (after the German doctor
Erastus), the theocratic, and the separatist. The first assumed state
superiority in ecclesiastical affairs and the use of religion as an engine of
state policy as demonstrated by Luther's belief that civic cohesion could
not exist without religious unity so that coercion to achieve religious unity
was justified. The second was founded on ecclesiastical supremacy and
the use of state machinery to further religious interests as promoted by
Calvin. The third, which was yet to achieve ultimate and complete
expression in the New World, was discernibly in its incipient form in the
arguments of some dissident minorities that the magistrate should not
intermeddle in religious affairs.55 After the Reformation, Erastianism
pervaded all Europe except for Calvin's theocratic Geneva. In England,
perhaps more than in any other country, Erastianism was at its height. To
illustrate, a statute was enacted by Parliament in 1678, which, to
encourage woolen trade, imposed on all clergymen the duty of seeing to
it that no person was buried in a shroud made of any substance other
than wool.56 Under Elizabeth, supremacy of the crown over the church
was complete: ecclesiastical offices were regulated by her proclamations,
recusants were fined and imprisoned, Jesuits and proselytizing priests
were put to death for high treason, the thirty-nine Articles of the Church of
England were adopted and English Protestantism attained its present
doctrinal status.57 Elizabeth was to be recognized as "the only Supreme
Governor of this realm . . . as well in all spiritual or ecclesiastical things or
causes as temporal." She and her successors were vested, in their
dominions, with "all manner of jurisdictions, privileges, and
preeminences, in any wise touching or concerning any spiritual or
ecclesiastical jurisdiction."58 Later, however, Cromwell established the
constitution in 1647 which granted full liberty to all Protestant sects, but
denied toleration to Catholics.59 In 1689, William III issued the Act of
Toleration which established a de facto toleration for all except Catholics.
The Catholics achieved religious liberty in the 19th century when the
Roman Catholic Relief Act of 1829 was adopted. The Jews followed suit
in 1858 when they were finally permitted to sit in Parliament. 60
When the representatives of the American states met in Philadelphia in
1787 to draft the constitutional foundation of the new republic, the
theocratic state which had flourished intermittently in Israel, Judea, the
Holy Roman Empire and Geneva was completely gone. The prevailing
church-state relationship in Europe was Erastianism embodied in the
system of jurisdictionalism whereby one faith was favored as the official
state-supported religion, but other faiths were permitted to exist with
freedom in various degrees. No nation had yet adopted as the basis of its
church-state relations the principle of the mutual independence of religion
and government and the concomitant principle that neither might be used
as an engine to further the policies of the other, although the principle
was in its seminal form in the arguments of some dissident minorities and
intellectual leaders of the Renaissance. The religious wars of 16th and
17th century Europe were a thing of the past by the time America
declared its independence from the Old World, but their memory was still
vivid in the minds of the Constitutional Fathers as expressed by the
United States Supreme Court, viz:
The centuries immediately before and contemporaneous with the
colonization of America had been filled with turmoil, civil strife,
and persecution generated in large part by established sects
determined to maintain their absolute political and religious
supremacy. With the power of government supporting them, at
various times and places, Catholics had persecuted Protestants,
Protestants had persecuted Catholics, Protestant sects had
persecuted other protestant sects, Catholics of one shade of
belief had persecuted Catholics of another shade of belief, and all
of these had from time to time persecuted Jews. In efforts to force
loyalty to whatever religious group happened to be on top and in
league with the government of a particular time and place, men
and women had been fined, cast in jail, cruelly tortured, and
killed. Among the offenses for which these punishments had been
inflicted were such things as speaking disrespectfully of the views
of ministers of government-established churches, non-attendance
at those churches, expressions of non-belief in their doctrines,
and failure to pay taxes and tithes to support them. 61
In 1784, James Madison captured in this statement the entire history of
church-state relations in Europe up to the time the United States
Constitution was adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of
the secular arm to extinguish religious discord, by proscribing all
differences in religious opinions.62
In sum, this history shows two salient features: First, with minor
exceptions, the history of church-state relationships was characterized by
persecution, oppression, hatred, bloodshed, and war, all in the name of
the God of Love and of the Prince of Peace. Second, likewise with minor
exceptions, this history witnessed the unscrupulous use of religion by
secular powers to promote secular purposes and policies, and the willing
acceptance of that role by the vanguards of religion in exchange for the
favors and mundane benefits conferred by ambitious princes and
emperors in exchange for religion's invaluable service. This was the
context in which the unique experiment of the principle of religious
freedom and separation of church and state saw its birth in American
constitutional democracy and in human history. 63
V. Factors Contributing to the Adoption of the American Religion
Clauses
Settlers fleeing from religious persecution in Europe, primarily in
Anglican-dominated England, established many of the American
colonies. British thought pervaded these colonies as the immigrants
brought with them their religious and political ideas from England and
English books and pamphlets largely provided their cultural fare. 64 But
although these settlers escaped from Europe to be freed from bondage of
laws which compelled them to support and attend government favored
churches, some of these settlers themselves transplanted into American
soil the oppressive practices they escaped from. The charters granted by
the English Crown to the individuals and companies designated to make
the laws which would control the destinies of the colonials authorized
them to erect religious establishments, which all, whether believers or
not, were required to support or attend.65 At one time, six of the colonies
established a state religion. Other colonies, however, such as Rhode
Island and Delaware tolerated a high degree of religious diversity. Still
others, which originally tolerated only a single religion, eventually
extended support to several different faiths. 66
This was the state of the American colonies when the unique American
experiment of separation of church and state came about. The birth of
the experiment cannot be attributed to a single cause or event. Rather, a
number of interdependent practical and ideological factors contributed in
bringing it forth. Among these were the "English Act of Toleration of 1689,
the multiplicity of sects, the lack of church affiliation on the part of most
Americans, the rise of commercial intercourse, the exigencies of the
Revolutionary War, the Williams-Penn tradition and the success of their
experiments, the writings of Locke, the social contract theory, the Great
Awakening, and the influence of European rationalism and
deism."67 Each of these factors shall be briefly discussed.
First, the practical factors. England's policy of opening the gates of the
American colonies to different faiths resulted in the multiplicity of sects in
the colonies. With an Erastian justification, English lords chose to forego
protecting what was considered to be the true and eternal church of a
particular time in order to encourage trade and commerce. The colonies
were large financial investments which would be profitable only if people
would settle there. It would be difficult to engage in trade with persons
one seeks to destroy for religious belief, thus tolerance was a necessity.
This tended to distract the colonies from their preoccupations over their
religion and its exclusiveness, encouraging them "to think less of the
Church and more of the State and of commerce." 68 The diversity brought
about by the colonies' open gates encouraged religious freedom and
non-establishment in several ways. First, as there were too many
dissenting sects to abolish, there was no alternative but to learn to live
together. Secondly, because of the daily exposure to different religions,
the passionate conviction in the exclusive rightness of one's religion,
which impels persecution for the sake of one's religion, waned. Finally,
because of the great diversity of the sects, religious uniformity was not
possible, and without such uniformity, establishment could not survive.69
But while there was a multiplicity of denomination, paradoxically, there
was a scarcity of adherents. Only about four percent of the entire
population of the country had a church affiliation at the time the republic
was founded.70 This might be attributed to the drifting to the American
colonies of the skepticism that characterized European
Enlightenment.71 Economic considerations might have also been a factor.
The individualism of the American colonist, manifested in the multiplicity
of sects, also resulted in much unaffiliated religion which treated religion
as a personal non-institutional matter. The prevalence of lack of church
affiliation contributed to religious liberty and disestablishment as persons
who were not connected with any church were not likely to persecute
others for similar independence nor accede to compulsory taxation to
support a church to which they did not belong. 72
However, for those who were affiliated to churches, the colonial policy
regarding their worship generally followed the tenor of the English Act of
Toleration of 1689. In England, this Act conferred on Protestant
dissenters the right to hold public services subject to registration of their
ministers and places of worship.73 Although the toleration accorded to
Protestant dissenters who qualified under its terms was only a modest
advance in religious freedom, it nevertheless was of some influence to
the American experiment.74 Even then, for practical considerations,
concessions had to be made to other dissenting churches to ensure their
cooperation in the War of Independence which thus had a unifying effect
on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-18th
century, an evangelical religious revival originating in New England,
caused a break with formal church religion and a resistance to coercion
by established churches. This movement emphasized an emotional,
personal religion that appealed directly to the individual, putting emphasis
on the rights and duties of the individual conscience and its answerability
exclusively to God. Thus, although they had no quarrel with orthodox
Christian theology as in fact they were fundamentalists, this group
became staunch advocates of separation of church and state.75
Then there was the Williams-Penn tradition. Roger Williams was the
founder of the colony of Rhode Island where he established a community
of Baptists, Quakers and other nonconformists. In this colony, religious
freedom was not based on practical considerations but on the concept of
mutual independence of religion and government. In 1663, Rhode Island
obtained a charter from the British crown which declared that settlers
have it "much on their heart to hold forth a livelie experiment that a most
flourishing civil state may best be maintained . . . with full libertie in
religious concernments."76 In Williams' pamphlet, The Bloudy Tenent of
Persecution for cause of Conscience, discussed in a Conference
between Truth and Peace,77 he articulated the philosophical basis for his
argument of religious liberty. To him, religious freedom and separation of
church and state did not constitute two but only one principle. Religious
persecution is wrong because it "confounds the Civil and Religious" and
because "States . . . are proved essentially Civil. The "power of true
discerning the true fear of God" is not one of the powers that the people
have transferred to Civil Authority.78 Williams' Bloudy Tenet is considered
an epochal milestone in the history of religious freedom and the
separation of church and state.79
William Penn, proprietor of the land that became Pennsylvania, was also
an ardent advocate of toleration, having been imprisoned for his religious
convictions as a member of the despised Quakers. He opposed coercion
in matters of conscience because "imposition, restraint and persecution
for conscience sake, highly invade the Divine prerogative." Aside from his
idealism, proprietary interests made toleration in Pennsylvania
necessary. He attracted large numbers of settlers by promising religious
toleration, thus bringing in immigrants both from the Continent and
Britain. At the end of the colonial period, Pennsylvania had the greatest
variety of religious groups. Penn was responsible in large part for the
"Concessions and agreements of the Proprietors, Freeholders, and
inhabitants of West Jersey, in America", a monumental document in the
history of civil liberty which provided among others, for liberty of
conscience.80 The Baptist followers of Williams and the Quakers who
came after Penn continued the tradition started by the leaders of their
denominations. Aside from the Baptists and the Quakers, the
Presbyterians likewise greatly contributed to the evolution of separation
and freedom.81 The Constitutional fathers who convened in Philadelphia
in 1787, and Congress and the states that adopted the First Amendment
in 1791 were very familiar with and strongly influenced by the successful
examples of Rhode Island and Pennsylvania.82
Undeniably, John Locke and the social contract theory also contributed to
the American experiment. The social contract theory popularized by
Locke was so widely accepted as to be deemed self-evident truth in
America's Declaration of Independence. With the doctrine of natural
rights and equality set forth in the Declaration of Independence, there
was no room for religious discrimination. It was difficult to justify inequality
in religious treatment by a new nation that severed its political bonds with
the English crown which violated the self-evident truth that all men are
created equal.83
The social contract theory was applied by many religious groups in
arguing against establishment, putting emphasis on religion as a natural
right that is entirely personal and not within the scope of the powers of a
political body. That Locke and the social contract theory were influential
in the development of religious freedom and separation is evident from
the memorial presented by the Baptists to the Continental Congress in
1774, viz:
Men unite in society, according to the great Mr. Locke, with an
intention in every one the better to preserve himself, his liberty
and property. The power of the society, or Legislature constituted
by them, can never be supposed to extend any further than the
common good, but is obliged to secure every one's property. To
give laws, to receive obedience, to compel with the sword, belong
to none but the civil magistrate; and on this ground we affirm that
the magistrate's power extends not to establishing any articles of
faith or forms of worship, by force of laws; for laws are of no force
without penalties. The care of souls cannot belong to the civil
magistrate, because his power consists only in outward force; but
pure and saving religion consists in the inward persuasion of the
mind, without which nothing can be acceptable to
God.84 (emphasis supplied)
The idea that religion was outside the jurisdiction of civil government was
acceptable to both the religionist and rationalist. To the religionist, God or
Christ did not desire that government have that jurisdiction ("render unto
Caesar that which is Caesar's"; "my kingdom is not of this world") and to
the rationalist, the power to act in the realm of religion was not one of the
powers conferred on government as part of the social contract.85
Not only the social contract theory drifted to the colonies from Europe.
Many of the leaders of the Revolutionary and post-revolutionary period
were also influenced by European deism and rationalism, 86 in general,
and some were apathetic if not antagonistic to formal religious worship
and institutionalized religion. Jefferson, Paine, John Adams, Washington,
Franklin, Madison, among others were reckoned to be among the
Unitarians or Deists. Unitarianism and Deism contributed to the emphasis
on secular interests and the relegation of historic theology to the
background.87 For these men of the enlightenment, religion should be
allowed to rise and fall on its own, and the state must be protected from
the clutches of the church whose entanglements has caused intolerance
and corruption as witnessed throughout history. 88 Not only the leaders but
also the masses embraced rationalism at the end of the eighteenth
century, accounting for the popularity of Paine's Age of Reason. 89
Finally, the events leading to religious freedom and separation in Virginia
contributed significantly to the American experiment of the First
Amendment. Virginia was the "first state in the history of the world to
proclaim the decree of absolute divorce between church and
state."90 Many factors contributed to this, among which were that half to
two-thirds of the population were organized dissenting sects, the Great
Awakening had won many converts, the established Anglican Church of
Virginia found themselves on the losing side of the Revolution and had
alienated many influential laymen with its identification with the Crown's
tyranny, and above all, present in Virginia was a group of political leaders
who were devoted to liberty generally,91 who had accepted the social
contract as self-evident, and who had been greatly influenced by Deism
and Unitarianism. Among these leaders were Washington, Patrick Henry,
George Mason, James Madison and above the rest, Thomas Jefferson.
The first major step towards separation in Virginia was the adoption of
the following provision in the Bill of Rights of the state's first constitution:
That religion, or the duty which we owe to our Creator, and the
manner of discharging it, can be directed only by reason and
conviction, not by force or violence; and therefore, all men are
equally entitled to the free exercise of religion according to the
dictates of conscience; and that it is the mutual duty of all to
practice Christian forbearance, love, and charity towards each
other.92 (emphasis supplied)
The adoption of the Bill of Rights signified the beginning of the end of
establishment. Baptists, Presbyterians and Lutherans flooded the first
legislative assembly with petitions for abolition of establishment. While
the majority of the population were dissenters, a majority of the
legislature were churchmen. The legislature compromised and enacted a
bill in 1776 abolishing the more oppressive features of establishment and
granting exemptions to the dissenters, but not guaranteeing separation. It
repealed the laws punishing heresy and absence from worship and
requiring the dissenters to contribute to the support of the
establishment.93 But the dissenters were not satisfied; they not only
wanted abolition of support for the establishment, they opposed the
compulsory support of their own religion as others. As members of the
established church would not allow that only they would pay taxes while
the rest did not, the legislature enacted in 1779 a bill making permanent
the establishment's loss of its exclusive status and its power to tax its
members; but those who voted for it did so in the hope that a general
assessment bill would be passed. Without the latter, the establishment
would not survive. Thus, a bill was introduced in 1779 requiring every
person to enroll his name with the county clerk and indicate which
"society for the purpose of Religious Worship" he wished to support. On
the basis of this list, collections were to be made by the sheriff and turned
over to the clergymen and teachers designated by the religious
congregation. The assessment of any person who failed to enroll in any
society was to be divided proportionately among the societies. 94 The bill
evoked strong opposition.
In 1784, another bill, entitled "Bill Establishing a Provision for Teachers of
the Christian Religion" was introduced requiring all persons "to pay a
moderate tax or contribution annually for the support of the Christian
religion, or of some Christian church, denomination or communion of
Christians, or for some form of Christian worship."95 This likewise aroused
the same opposition to the 1779 bill. The most telling blow against the
1784 bill was the monumental "Memorial and Remonstrance against
Religious Assessments" written by Madison and widely distributed before
the reconvening of legislature in the fall of 1785.96 It stressed natural
rights, the government's lack of jurisdiction over the domain of religion,
and the social contract as the ideological basis of separation while also
citing practical considerations such as loss of population through
migration. He wrote, viz:
Because we hold it for a 'fundamental and undeniable truth,' that
religion, or the duty which we owe to our creator, and the manner
of discharging it, can be directed only by reason and conviction,
not by force or violence. The religion, then, of every man, must be
left to the conviction and conscience of every man; and it is the
right of every man to exercise it as these may dictate. This right
is, in its nature, an unalienable right. It is unalienable, because
 the opinions of men, depending only on the evidence
contemplated in their own minds, cannot follow the dictates of
other men; it is unalienable, also, because what is here a right
towards men, is a duty towards the creator. It is the duty of every
man to render the creator such homage, and such only as he
believes to be acceptable to him; this duty is precedent, both in
order of time and degree of obligation, to the claims of civil
society. Before any man can be considered as a member of civil
society, he must be considered as a subject of the governor of
the universe; and if a member of civil society, who enters into any
subordinate association, must always do it with a reservation of
his duty to the general authority, much more must every man who
becomes a member of any particular civil society do it with the
saving his allegiance to the universal sovereign. 97 (emphases
supplied)
Madison articulated in the Memorial the widely held beliefs in 1785 as
indicated by the great number of signatures appended to the Memorial.
The assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier 1779
bill of Jefferson which had not been voted on, the "Bill for Establishing
Religious Freedom", and it was finally passed in January 1786. It
provided, viz:
Well aware that Almighty God hath created the mind free; that all
attempts to influence it by temporal punishments or burdens, or
by civil incapacitations, tend not only to beget habits of hypocrisy
and meanness, and are a departure from the plan of the Holy
Author of our religion, who being Lord both of body and mind, yet
chose not to propagate it by coercions on either, as was in his
Almighty power to do;
xxx xxx xxx
Be it therefore enacted by the General Assembly. That no man
shall be compelled to frequent or support any religious worship,
place or ministry whatsoever, nor shall be enforced, restrained,
molested or burdened in his body or goods, nor shall otherwise
suffer on account of his religious opinions or beliefs, but that all
men shall be free to profess, and by argument to maintain, their
opinions in matters of religion, and that the same shall in no wise
diminish, enlarge or affect their civil capacities. 98 (emphases
supplied)
This statute forbade any kind of taxation in support of religion and
effectually ended any thought of a general or particular establishment in
Virginia.99 But the passage of this law was obtained not only because of
the influence of the great leaders in Virginia but also because of
substantial popular support coming mainly from the two great dissenting
sects, namely the Presbyterians and the Baptists. The former were never
established in Virginia and an underprivileged minority of the population.
This made them anxious to pull down the existing state church as they
realized that it was impossible for them to be elevated to that privileged
position. Apart from these expediential considerations, however, many of
the Presbyterians were sincere advocates of separation100 grounded on
rational, secular arguments and to the language of natural
religion.101 Influenced by Roger Williams, the Baptists, on the other hand,
assumed that religion was essentially a matter of concern of the
individual and his God, i.e., subjective, spiritual and supernatural, having
no relation with the social order.102 To them, the Holy Ghost was sufficient
to maintain and direct the Church without governmental assistance and
state-supported religion was contrary ti the spirit of the Gospel. 103 Thus,
separation was necessary.104 Jefferson's religious freedom statute was a
milestone in the history of religious freedom. The United States Supreme
Court has not just once acknowledged that the provisions of the First
Amendment of the U.S. Constitution had the same objectives and
intended to afford the same protection against government interference
with religious liberty as the Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that government
had no power to legislate in the area of religion by restricting its free
exercise or establishing it was implicit in the Constitution of 1787. This
could be deduced from the prohibition of any religious test for federal
office in Article VI of the Constitution and the assumed lack of power of
Congress to act on any subject not expressly mentioned in the
Constitution.105 However, omission of an express guaranty of religious
freedom and other natural rights nearly prevented the ratification of the
Constitution.106 In the ratifying conventions of almost every state, some
objection was expressed to the absence of a restriction on the Federal
Government as regards legislation on religion.107 Thus, in 1791, this
restriction was made explicit with the adoption of the religion clauses in
the First Amendment as they are worded to this day, with the first part
usually referred to as the Establishment Clause and the second part, the
Free Exercise Clause, viz:
 Congress shall make no law respecting an establishment of
religion or prohibiting the free exercise thereof.
VI. Religion Clauses in the United States:
Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the First
Amendment religion clauses comes an equally broad disagreement as to
what these clauses specifically require, permit and forbid. No agreement
has been reached by those who have studied the religion clauses as
regards its exact meaning and the paucity of records in Congress renders
it difficult to ascertain its meaning.108 Consequently, the jurisprudence in
this area is volatile and fraught with inconsistencies whether within a
Court decision or across decisions.
One source of difficulty is the difference in the context in which the First
Amendment was adopted and in which it is applied today. In the 1780s,
religion played a primary role in social life - i.e., family responsibilities,
education, health care, poor relief, and other aspects of social life with
significant moral dimension - while government played a supportive and
indirect role by maintaining conditions in which these activities may be
carried out by religious or religiously-motivated associations. Today,
government plays this primary role and religion plays the supportive
role.109 Government runs even family planning, sex education, adoption
and foster care programs.110 Stated otherwise and with some
exaggeration, "(w)hereas two centuries ago, in matters of social life which
have a significant moral dimension, government was the handmaid of
religion, today religion, in its social responsibilities, as contrasted with
personal faith and collective worship, is the handmaid of
government."111 With government regulation of individual conduct having
become more pervasive, inevitably some of those regulations would
reach conduct that for some individuals are religious. As a result,
increasingly, there may be inadvertent collisions between purely secular
government actions and religion clause values. 112
Parallel to this expansion of government has been the expansion of
religious organizations in population, physical institutions, types of
activities undertaken, and sheer variety of denominations, sects and
cults. Churches run day-care centers, retirement homes, hospitals,
schools at all levels, research centers, settlement houses, halfway
houses for prisoners, sports facilities, theme parks, publishing houses
and mass media programs. In these activities, religious organizations
complement and compete with commercial enterprises, thus blurring the
line between many types of activities undertaken by religious groups and
secular activities. Churches have also concerned themselves with social
and political issues as a necessary outgrowth of religious faith as
witnessed in pastoral letters on war and peace, economic justice, and
human life, or in ringing affirmations for racial equality on religious
foundations. Inevitably, these developments have brought about
substantial entanglement of religion and government. Likewise, the
growth in population density, mobility and diversity has significantly
changed the environment in which religious organizations and activities
exist and the laws affecting them are made. It is no longer easy for
individuals to live solely among their own kind or to shelter their children
from exposure to competing values. The result is disagreement over what
laws should require, permit or prohibit;113 and agreement that if the rights
of believers as well as non-believers are all to be respected and given
their just due, a rigid, wooden interpretation of the religion clauses that is
blind to societal and political realities must be avoided. 114
Religion cases arise from different circumstances. The more obvious
ones arise from a government action which purposely aids or inhibits
religion. These cases are easier to resolve as, in general, these actions
are plainly unconstitutional. Still, this kind of cases poses difficulty in
ascertaining proof of intent to aid or inhibit religion. 115 The more difficult
religion clause cases involve government action with a secular purpose
and general applicability which incidentally or inadvertently aids or
burdens religious exercise. In Free Exercise Clause cases, these
government actions are referred to as those with "burdensome effect" on
religious exercise even if the government action is not religiously
motivated.116 Ideally, the legislature would recognize the religions and
their practices and would consider them, when practical, in enacting laws
of general application. But when the legislature fails to do so, religions
that are threatened and burdened turn to the courts for protection.117 Most
of these free exercise claims brought to the Court are for exemption, not
invalidation of the facially neutral law that has a "burdensome" effect. 118
With the change in political and social context and the increasing
inadvertent collisions between law and religious exercise, the definition of
religion for purposes of interpreting the religion clauses has also been
modified to suit current realities. Defining religion is a difficult task for
even theologians, philosophers and moralists cannot agree on a
comprehensive definition. Nevertheless, courts must define religion for
constitutional and other legal purposes. 119 It was in the 1890 case of
Davis v. Beason120 that the United States Supreme Court first had
occasion to define religion, viz:
 The term 'religion' has reference to one's views of his relations to
his Creator, and to the obligations they impose of reverence for
his being and character, and of obedience to his will. It is often
confounded with the cultus or form of worship of a particular sect,
but is distinguishable from the latter. The First Amendment to the
Constitution, in declaring that Congress shall make no law
respecting the establishment of religion, or forbidding the free
exercise thereof, was intended to allow everyone under the
jurisdiction of the United States to entertain such notions
respecting his relations to his Maker and the duties they impose
as may be approved by his judgment and conscience, and to
exhibit his sentiments in such form of worship as he may think
proper, not injurious to the equal rights of others, and to prohibit
legislation for the support of any religious tenets, or the modes of
worship of any sect.121
The definition was clearly theistic which was reflective of the popular
attitudes in 1890.
In 1944, the Court stated in United States v. Ballard122 that the free
exercise of religion "embraces the right to maintain theories of life and of
death and of the hereafter which are rank heresy to followers of the
orthodox faiths."123 By the 1960s, American pluralism in religion had
flourished to include non-theistic creeds from Asia such as Buddhism and
Taoism.124 In 1961, the Court, in Torcaso v. Watkins,125 expanded the
term "religion" to non-theistic beliefs such as Buddhism, Taoism, Ethical
Culture, and Secular Humanism. Four years later, the Court faced a
definitional problem in United States v. Seeger 126 which involved four men
who claimed "conscientious objector" status in refusing to serve in the
Vietnam War. One of the four, Seeger, was not a member of any
organized religion opposed to war, but when specifically asked about his
belief in a Supreme Being, Seeger stated that "you could call (it) a belief
in a Supreme Being or God. These just do not happen to be the words
that I use." Forest Peter, another one of the four claimed that after
considerable meditation and reflection "on values derived from the
Western religious and philosophical tradition," he determined that it would
be "a violation of his moral code to take human life and that he
considered this belief superior to any obligation to the state." The Court
avoided a constitutional question by broadly interpreting not the Free
Exercise Clause, but the statutory definition of religion in the Universal
Military Training and Service Act of 1940 which exempt from combat
anyone "who, by reason of religious training and belief, is conscientiously
opposed to participation in war in any form." Speaking for the Court,
Justice Clark ruled, viz:
Congress, in using the expression 'Supreme Being' rather than
the designation 'God,' was merely clarifying the meaning of
religious tradition and belief so as to embrace all religions and to
exclude essentially political, sociological, or philosophical views
(and) the test of belief 'in relation to a Supreme Being' is whether
a given belief that is sincere and meaningful occupies a place in
the life of its possessor parallel to the orthodox belief in God.
(emphasis supplied)
The Court was convinced that Seeger, Peter and the others were
conscientious objectors possessed of such religious belief and training.
Federal and state courts have expanded the definition of religion in
Seeger to include even non-theistic beliefs such as Taoism or Zen
Buddhism. It has been proposed that basically, a creed must meet four
criteria to qualify as religion under the First Amendment. First, there must
be belief in God or some parallel belief that occupies a central place in
the believer's life. Second, the religion must involve a moral code
transcending individual belief, i.e., it cannot be purely subjective. Third, a
demonstrable sincerity in belief is necessary, but the court must not
inquire into the truth or reasonableness of the belief. 127 Fourth, there must
be some associational ties,128 although there is also a view that religious
beliefs held by a single person rather than being part of the teachings of
any kind of group or sect are entitled to the protection of the Free
Exercise Clause.129
Defining religion is only the beginning of the difficult task of deciding
religion clause cases. Having hurdled the issue of definition, the court
then has to draw lines to determine what is or is not permissible under
the religion clauses. In this task, the purpose of the clauses is the
yardstick. Their purpose is singular; they are two sides of the same
coin.130 In devoting two clauses to religion, the Founders were stating not
two opposing thoughts that would cancel each other out, but two
complementary thoughts that apply in different ways in different
circumstances.131 The purpose of the religion clauses - both in the
restriction it imposes on the power of the government to interfere with the
free exercise of religion and the limitation on the power of government to
establish, aid, and support religion - is the protection and promotion of
religious liberty.132 The end, the goal, and the rationale of the religion
clauses is this liberty.133 Both clauses were adopted to prevent
government imposition of religious orthodoxy; the great evil against which
they are directed is government-induced homogeneity.134 The Free
Exercise Clause directly articulates the common objective of the two
clauses and the Establishment Clause specifically addresses a form of
interference with religious liberty with which the Framers were most
familiar and for which government historically had demonstrated a
propensity.135 In other words, free exercise is the end, proscribing
establishment is a necessary means to this end to protect the rights of
those who might dissent from whatever religion is established.136 It has
even been suggested that the sense of the First Amendment is captured
if it were to read as "Congress shall make no law respecting an
establishment of religion or otherwise prohibiting the free exercise
thereof" because the fundamental and single purpose of the two religious
clauses is to "avoid any infringement on the free exercise of
religions"137 Thus, the Establishment Clause mandates separation of
church and state to protect each from the other, in service of the larger
goal of preserving religious liberty. The effect of the separation is to limit
the opportunities for any religious group to capture the state apparatus to
the disadvantage of those of other faiths, or of no faith at all 138 because
history has shown that religious fervor conjoined with state power is likely
to tolerate far less religious disagreement and disobedience from those
who hold different beliefs than an enlightened secular state. 139 In the
words of the U.S. Supreme Court, the two clauses are interrelated, viz:
"(t)he structure of our government has, for the preservation of civil liberty,
rescued the temporal institutions from religious interference. On the other
hand, it has secured religious liberty from the invasion of the civil
authority."140
In upholding religious liberty as the end goal in religious clause cases,
the line the court draws to ensure that government does not establish
and instead remains neutral toward religion is not absolutely straight.
Chief Justice Burger explains, viz:
The course of constitutional neutrality in this area cannot be an
absolutely straight line; rigidity could well defeat the basic
purpose of these provisions, which is to insure that no religion be
sponsored or favored, none commanded and none
inhibited.141 (emphasis supplied)
Consequently, U.S. jurisprudence has produced two identifiably
different,142 even opposing, strains of jurisprudence on the religion
clauses: separation (in the form of strict separation or the tamer version
of strict neutrality or separation) and benevolent neutrality or
accommodation. A view of the landscape of U.S. religion clause cases
would be useful in understanding these two strains, the scope of
protection of each clause, and the tests used in religious clause cases.
Most of these cases are cited as authorities in Philippine religion clause
cases.
A. Free Exercise Clause
The Court first interpreted the Free Exercise Clause in the 1878 case of
Reynolds v. United States.143 This landmark case involved Reynolds, a
Mormon who proved that it was his religious duty to have several wives
and that the failure to practice polygamy by male members of his religion
when circumstances would permit would be punished with damnation in
the life to come. Reynolds' act of contracting a second marriage violated
Section 5352, Revised Statutes prohibiting and penalizing bigamy, for
which he was convicted. The Court affirmed Reynolds' conviction, using
what in jurisprudence would be called the belief-action test which allows
absolute protection to belief but not to action. It cited Jefferson's Bill
Establishing Religious Freedom which, according to the Court, declares
"the true distinction between what properly belongs to the Church and
what to the State."144 The bill, making a distinction between belief and
action, states in relevant part, viz:
That to suffer the civil magistrate to intrude his powers into the
field of opinion, and to restrain the profession or propagation of
principles on supposition of their ill tendency, is a dangerous
fallacy which at once destroys all religious liberty;
that it is time enough for the rightful purposes of civil government
for its officers to interfere when principles break out into overt acts
against peace and good order.145 (emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion,
but was left free to reach actions which were in violation of social
duties or subversive of good order. . .
Laws are made for the government of actions, and while they
cannot interfere with mere religious belief and opinions, they may
with practices. Suppose one believed that human sacrifice were a
necessary part of religious worship, would it be seriously
contended that the civil government under which he lived could
not interfere to prevent a sacrifice? Or if a wife religiously
believed it was her duty to burn herself upon the funeral pile of
her dead husband, would it be beyond the power of the civil
government to prevent her carrying her belief into practice?
 So here, as a law of the organization of society under the
exclusive dominion of the United States, it is provided that plural
marriages shall not be allowed. Can a man excuse his practices
to the contrary because of his religious belief? To permit this
would be to make the professed doctrines of religious belief
superior to the law of the land, and in effect to permit every citizen
to become a law unto himself. Government could exist only in
name under such circumstances.146
The construct was thus simple: the state was absolutely prohibited by the
Free Exercise Clause from regulating individual religious beliefs, but
placed no restriction on the ability of the state to regulate religiously
motivated conduct. It was logical for belief to be accorded absolute
protection because any statute designed to prohibit a particular religious
belief unaccompanied by any conduct would most certainly be motivated
only by the legislature's preference of a competing religious belief. Thus,
all cases of regulation of belief would amount to regulation of religion for
religious reasons violative of the Free Exercise Clause. On the other
hand, most state regulations of conduct are for public welfare purposes
and have nothing to do with the legislature's religious preferences. Any
burden on religion that results from state regulation of conduct arises only
when particular individuals are engaging in the generally regulated
conduct because of their particular religious beliefs. These burdens are
thus usually inadvertent and did not figure in the belief-action test. As
long as the Court found that regulation address action rather than belief,
the Free Exercise Clause did not pose any problem. 147 The Free Exercise
Clause thus gave no protection against the proscription of actions even if
considered central to a religion unless the legislature formally outlawed
the belief itself.148
This belief-action distinction was held by the Court for some years as
shown by cases where the Court upheld other laws which burdened the
practice of the Mormon religion by imposing various penalties on
polygamy such as the Davis case and Church of Latter Day Saints v.
United States.149 However, more than a century since Reynolds was
decided, the Court has expanded the scope of protection from belief to
speech and conduct. But while the belief-action test has been
abandoned, the rulings in the earlier Free Exercise cases have gone
unchallenged. The belief-action distinction is still of some importance
though as there remains an absolute prohibition of governmental
proscription of beliefs.150
The Free Exercise Clause accords absolute protection to individual
religious convictions and beliefs 151 and proscribes government from
questioning a person's beliefs or imposing penalties or disabilities based
solely on those beliefs. The Clause extends protection to both beliefs and
unbelief. Thus, in Torcaso v. Watkins,152 a unanimous Court struck
down a state law requiring as a qualification for public office an oath
declaring belief in the existence of God. The protection also allows courts
to look into the good faith of a person in his belief, but prohibits inquiry
into the truth of a person's religious beliefs. As held in United States v.
Ballard,153 "(h)eresy trials are foreign to the Constitution. Men may
believe what they cannot prove. They may not be put to the proof of their
religious doctrines or beliefs."
Next to belief which enjoys virtually absolute protection, religious speech
and expressive religious conduct are accorded the highest degree of
protection. Thus, in the 1940 case of Cantwell v. Connecticut,154 the
Court struck down a state law prohibiting door-to-door solicitation for any
religious or charitable cause without prior approval of a state agency. The
law was challenged by Cantwell, a member of the Jehovah's Witnesses
which is committed to active proselytizing. The Court invalidated the state
statute as the prior approval necessary was held to be a censorship of
religion prohibited by the Free Exercise Clause. The Court held, viz:
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields the tenets of one may seem the
rankest error to his neighbor. To persuade others to his point of
view, the pleader, as we know, resorts to exaggeration, to
vilification of men who have been, or are, prominent in church or
state, and even to false statement. But the people of this nation
have ordained in the light of history, that, in spite of the probability
of excesses and abuses, these liberties are, in the long view,
essential to enlightened opinion and right conduct on the part of
citizens of a democracy.155
Cantwell took a step forward from the protection afforded by the
Reynolds case in that it not only affirmed protection of belief but also
freedom to act for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to
believe and freedom to act. The first is absolute but, in the nature
of things, the second cannot be. Conduct remains subject to
regulation for the protection of society. . . In every case, the
power to regulate must be so exercised as not, in attaining a
permissible end, unduly to infringe the protected freedom.
(emphasis supplied)156
The Court stated, however, that government had the power to regulate
the times, places, and manner of solicitation on the streets and assure
the peace and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of
Jeanette,157 ruled that police could not prohibit members of the Jehovah's
Witnesses from peaceably and orderly proselytizing on Sundays merely
because other citizens complained. In another case likewise involving the
Jehovah's Witnesses, Niemotko v. Maryland,158 the Court unanimously
held unconstitutional a city council's denial of a permit to the Jehovah's
Witnesses to use the city park for a public meeting. The city council's
refusal was because of the "unsatisfactory" answers of the Jehovah's
Witnesses to questions about Catholicism, military service, and other
issues. The denial of the public forum was considered blatant censorship.
While protected, religious speech in the public forum is still subject to
reasonable time, place and manner regulations similar to non-religious
speech. Religious proselytizing in congested areas, for example, may be
limited to certain areas to maintain the safe and orderly flow of
pedestrians and vehicular traffic as held in the case of Heffron v.
International Society for Krishna Consciousness.159
The least protected under the Free Exercise Clause is religious conduct,
usually in the form of unconventional religious practices. Protection in this
realm depends on the character of the action and the government
rationale for regulating the action.160 The Mormons' religious conduct of
polygamy is an example of unconventional religious practice. As
discussed in the Reynolds case above, the Court did not afford protection
to the practice. Reynolds was reiterated in the 1890 case of Davis again
involving Mormons, where the Court held, viz: "(c)rime is not the less
odious because sanctioned by what any particular sect may designate as
religion."161
The belief-action test in Reynolds and Davis proved unsatisfactory.
Under this test, regulation of religiously dictated conduct would be upheld
no matter how central the conduct was to the exercise of religion and no
matter how insignificant was the government's non-religious regulatory
interest so long as the government is proscribing action and not belief.
Thus, the Court abandoned the simplistic belief-action distinction and
instead recognized the deliberate-inadvertent distinction, i.e., the
distinction between deliberate state interference of religious exercise for
religious reasons which was plainly unconstitutional and government's
inadvertent interference with religion in pursuing some secular
objective.162 In the 1940 case of Minersville School District v.
Gobitis,163 the Court upheld a local school board requirement that all
public school students participate in a daily flag salute program, including
the Jehovah's Witnesses who were forced to salute the American flag in
violation of their religious training, which considered flag salute to be
worship of a "graven image." The Court recognized that the general
requirement of compulsory flag salute inadvertently burdened the
Jehovah Witnesses' practice of their religion, but justified the government
regulation as an appropriate means of attaining national unity, which was
the "basis of national security." Thus, although the Court was already
aware of the deliberate-inadvertent distinction in government interference
with religion, it continued to hold that the Free Exercise Clause presented
no problem to interference with religion that was inadvertent no matter
how serious the interference, no matter how trivial the state's non-
religious objectives, and no matter how many alternative approaches
were available to the state to pursue its objectives with less impact on
religion, so long as government was acting in pursuit of a secular
objective.
Three years later, the Gobitis decision was overturned in West Virginia
v. Barnette164 which involved a similar set of facts and issue. The Court
recognized that saluting the flag, in connection with the pledges, was a
form of utterance and the flag salute program was a compulsion of
students to declare a belief. The Court ruled that "compulsory unification
of opinions leads only to the unanimity of the graveyard" and exempt the
students who were members of the Jehovah's Witnesses from saluting
the flag. A close scrutiny of the case, however, would show that it was
decided not on the issue of religious conduct as the Court said, "(n)or
does the issue as we see it turn on one's possession of particular
religious views or the sincerity with which they are held. While religion
supplies appellees' motive for enduring the discomforts of making the
issue in this case, many citizens who do not share these religious views
hold such a compulsory rite to infringe constitutional liberty of the
individual." (emphasis supplied)165 The Court pronounced, however, that,
"freedoms of speech and of press, of assembly, and of worship . . . are
susceptible only of restriction only to prevent grave and immediate
danger to interests which the state may lawfully protect." 166 The Court
seemed to recognize the extent to which its approach in Gobitis
subordinated the religious liberty of political minorities - a specially
protected constitutional value - to the common everyday economic and
public welfare objectives of the majority in the legislature. This time, even
inadvertent interference with religion must pass judicial scrutiny under the
Free Exercise Clause with only grave and immediate danger sufficing to
override religious liberty. But the seeds of this heightened scrutiny would
only grow to a full flower in the 1960s. 167
Nearly a century after Reynolds employed the belief-action test, the
Warren Court began the modern free exercise jurisprudence. 168 A two-
part balancing test was established in Braunfeld v. Brown169 where the
Court considered the constitutionality of applying Sunday closing laws to
Orthodox Jews whose beliefs required them to observe another day as
the Sabbath and abstain from commercial activity on Saturday. Chief
Justice Warren, writing for the Court, found that the law placed a severe
burden on Sabattarian retailers. He noted, however, that since the
burden was the indirect effect of a law with a secular purpose, it would
violate the Free Exercise Clause only if there were alternative ways of
achieving the state's interest. He employed a two-part balancing test of
validity where the first step was for plaintiff to show that the regulation
placed a real burden on his religious exercise. Next, the burden would be
upheld only if the state showed that it was pursuing an overriding secular
goal by the means which imposed the least burden on religious
practices.170 The Court found that the state had an overriding secular
interest in setting aside a single day for rest, recreation and tranquility
and there was no alternative means of pursuing this interest but to
require Sunday as a uniform rest day.
Two years after came the stricter compelling state interest test in the
1963 case of Sherbert v. Verner.171 This test was similar to the two-part
balancing test in Braunfeld,172 but this latter test stressed that the state
interest was not merely any colorable state interest, but must be
paramount and compelling to override the free exercise claim. In this
case, Sherbert, a Seventh Day Adventist, claimed unemployment
compensation under the law as her employment was terminated for
refusal to work on Saturdays on religious grounds. Her claim was denied.
She sought recourse in the Supreme Court. In laying down the standard
for determining whether the denial of benefits could withstand
constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellee's conscientious objection to Saturday
work constitutes no conduct prompted by religious principles of a
kind within the reach of state legislation. If, therefore, the decision
of the South Carolina Supreme Court is to withstand appellant's
constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the
State of her constitutional rights of free exercise, or because any
incidental burden on the free exercise of appellant's religion may
be justified by a 'compelling state interest in the regulation of a
subject within the State's constitutional power to regulate. .
.' NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S
Ct 328.173 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is
not sufficient to merely show a rational relationship of the substantial
infringement to the religious right and a colorable state interest. "(I)n this
highly sensitive constitutional area, '[o]nly the gravest abuses,
endangering paramount interests, give occasion for permissible
limitation.' Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S
Ct 315."174 The Court found that there was no such compelling state
interest to override Sherbert's religious liberty. It added that even if the
state could show that Sherbert's exemption would pose serious
detrimental effects to the unemployment compensation fund and
scheduling of work, it was incumbent upon the state to show that no
alternative means of regulations would address such detrimental effects
without infringing religious liberty. The state, however, did not discharge
this burden. The Court thus carved out for Sherbert an exemption from
the Saturday work requirement that caused her disqualification from
claiming the unemployment benefits. The Court reasoned that upholding
the denial of Sherbert's benefits would force her to choose between
receiving benefits and following her religion. This choice placed "the
same kind of burden upon the free exercise of religion as would a fine
imposed against (her) for her Saturday worship." This germinal case of
Sherbert firmly established the exemption doctrine, 175 viz:
It is certain that not every conscience can be accommodated by
all the laws of the land; but when general laws conflict with
scruples of conscience, exemptions ought to be granted unless
some 'compelling state interest' intervenes.
Thus, in a short period of twenty-three years from Gobitis to Sherbert (or
even as early as Braunfeld), the Court moved from the doctrine that
inadvertent or incidental interferences with religion raise no problem
under the Free Exercise Clause to the doctrine that such interferences
violate the Free Exercise Clause in the absence of a compelling state
interest - the highest level of constitutional scrutiny short of a holding of a
per se violation. Thus, the problem posed by the belief-action test and the
deliberate-inadvertent distinction was addressed. 176
Throughout the 1970s and 1980s under the Warren, and afterwards, the
Burger Court, the rationale in Sherbert continued to be applied.
In Thomas v. Review Board177 and Hobbie v. Unemployment Appeals
Division,178 for example, the Court reiterated the exemption doctrine and
held that in the absence of a compelling justification, a state could not
withhold unemployment compensation from an employee who resigned
or was discharged due to unwillingness to depart from religious practices
and beliefs that conflicted with job requirements. But not every
governmental refusal to allow an exemption from a regulation which
burdens a sincerely held religious belief has been invalidated, even
though strict or heightened scrutiny is applied. In United States v.
Lee,179 for instance, the Court using strict scrutiny and referring to
Thomas, upheld the federal government's refusal to exempt Amish
employers who requested for exemption from paying social security taxes
on wages on the ground of religious beliefs. The Court held that
"(b)ecause the broad public interest in maintaining a sound tax system is
of such a high order, religious belief in conflict with the payment of taxes
affords no basis for resisting the tax." 180 It reasoned that unlike in
Sherbert, an exemption would significantly impair government's
achievement of its objective - "the fiscal vitality of the social security
system;" mandatory participation is indispensable to attain this objective.
The Court noted that if an exemption were made, it would be hard to
justify not allowing a similar exemption from general federal taxes where
the taxpayer argues that his religious beliefs require him to reduce or
eliminate his payments so that he will not contribute to the government's
war-related activities, for example.
The strict scrutiny and compelling state interest test significantly
increased the degree of protection afforded to religiously motivated
conduct. While not affording absolute immunity to religious activity, a
compelling secular justification was necessary to uphold public policies
that collided with religious practices. Although the members of the Court
often disagreed over which governmental interests should be considered
compelling, thereby producing dissenting and separate opinions in
religious conduct cases, this general test established a strong
presumption in favor of the free exercise of religion. 181
Heightened scrutiny was also used in the 1972 case of Wisconsin v.
Yoder182 where the Court upheld the religious practice of the Old Order
Amish faith over the state's compulsory high school attendance law. The
Amish parents in this case did not permit secular education of their
children beyond the eighth grade. Chief Justice Burger, writing for the
majority, held, viz:
It follows that in order for Wisconsin to compel school attendance
beyond the eighth grade against a claim that such attendance
interferes with the practice of a legitimate religious belief, it must
appear either that the State does not deny the free exercise of
religious belief by its requirement, or that there is a state interest
of sufficient magnitude to override the interest claiming protection
under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the
Religion Clauses had specially and firmly fixed the right of free
exercise of religious beliefs, and buttressing this fundamental
right was an equally firm, even if less explicit, prohibition against
the establishment of any religion. The values underlying these
two provisions relating to religion have been zealously protected,
sometimes even at the expense of other interests of admittedly
high social importance. . .
The essence of all that has been said and written on the subject
is that only those interests of the highest order and those not
otherwise served can overbalance legitimate claims to the free
exercise of religion. . .
. . . our decisions have rejected the idea that that religiously
grounded conduct is always outside the protection of the Free
Exercise Clause. It is true that activities of individuals, even when
religiously based, are often subject to regulation by the States in
the exercise of their undoubted power to promote the health,
safety, and general welfare, or the Federal government in the
exercise of its delegated powers . . . But to agree that religiously
grounded conduct must often be subject to the broad police
power of the State is not to deny that there are areas of conduct
protected by the Free Exercise Clause of the First Amendment
and thus beyond the power of the State to control, even under
regulations of general applicability. . . .This case, therefore, does
not become easier because respondents were convicted for their
"actions" in refusing to send their children to the public high
school; in this context belief and action cannot be neatly confined
in logic-tight compartments. . .183
The onset of the 1990s, however, saw a major setback in the protection
afforded by the Free Exercise Clause. In Employment Division, Oregon
Department of Human Resources v. Smith,184 the sharply divided
Rehnquist Court dramatically departed from the heightened scrutiny and
compelling justification approach and imposed serious limits on the scope
of protection of religious freedom afforded by the First Amendment. In
this case, the well-established practice of the Native American Church, a
sect outside the Judeo-Christian mainstream of American religion, came
in conflict with the state's interest in prohibiting the use of illicit drugs.
Oregon's controlled substances statute made the possession of peyote a
criminal offense. Two members of the church, Smith and Black, worked
as drug rehabilitation counselors for a private social service agency in
Oregon. Along with other church members, Smith and Black ingested
peyote, a hallucinogenic drug, at a sacramental ceremony practiced by
Native Americans for hundreds of years. The social service agency fired
Smith and Black citing their use of peyote as "job-related misconduct".
They applied for unemployment compensation, but the Oregon
Employment Appeals Board denied their application as they were
discharged for job-related misconduct. Justice Scalia, writing for the
majority, ruled that "if prohibiting the exercise of religion . . . is . . . merely
the incidental effect of a generally applicable and otherwise valid law, the
First Amendment has not been offended." In other words, the Free
Exercise Clause would be offended only if a particular religious practice
were singled out for proscription. The majority opinion relied heavily on
the Reynolds case and in effect, equated Oregon's drug prohibition law
with the anti-polygamy statute in Reynolds. The relevant portion of the
majority opinion held, viz:
We have never invalidated any governmental action on the basis
of the Sherbert test except the denial of unemployment
compensation.
Even if we were inclined to breathe into Sherbert some life
beyond the unemployment compensation field, we would not
apply it to require exemptions from a generally applicable criminal
law. . .
We conclude today that the sounder approach, and the approach in
accord with the vast majority of our precedents, is to hold the test
inapplicable to such challenges. The government's ability to enforce
generally applicable prohibitions of socially harmful conduct, like its ability
to carry out other aspects of public policy, "cannot depend on measuring
the effects of a governmental action on a religious objector's spiritual
development." . . .To make an individual's obligation to obey such a law
contingent upon the law's coincidence with his religious beliefs except
where the State's interest is "compelling" - permitting him, by virtue of his
beliefs, "to become a law unto himself," . . . - contradicts both
constitutional tradition and common sense.
Justice O'Connor wrote a concurring opinion pointing out that the
majority's rejection of the compelling governmental interest test was the
most controversial part of the decision. Although she concurred in the
result that the Free Exercise Clause had not been offended, she sharply
criticized the majority opinion as a dramatic departure "from well-settled
First Amendment jurisprudence. . . and . . . (as) incompatible with our
Nation's fundamental commitment to religious liberty." This portion of her
concurring opinion was supported by Justices Brennan, Marshall and
Blackmun who dissented from the Court's decision. Justice O'Connor
asserted that "(t)he compelling state interest test effectuates the First
Amendment's command that religious liberty is an independent liberty,
that it occupies a preferred position, and that the Court will not permit
encroachments upon this liberty, whether direct or indirect, unless
required by clear and compelling government interest 'of the highest
order'." Justice Blackmun registered a separate dissenting opinion, joined
by Justices Brennan and Marshall. He charged the majority with
"mischaracterizing" precedents and "overturning. . . settled law
concerning the Religion Clauses of our Constitution." He pointed out that
the Native American Church restricted and supervised the sacramental
use of peyote. Thus, the state had no significant health or safety
justification for regulating the sacramental drug use. He also observed
that Oregon had not attempted to prosecute Smith or Black, or any
Native Americans, for that matter, for the sacramental use of peyote. In
conclusion, he said that "Oregon's interest in enforcing its drug laws
against religious use of peyote (was) not sufficiently compelling to
outweigh respondents' right to the free exercise of their religion."
The Court went back to the Reynolds and Gobitis doctrine in Smith. The
Court's standard in Smith virtually eliminated the requirement that the
government justify with a compelling state interest the burdens on
religious exercise imposed by laws neutral toward religion. The Smith
doctrine is highly unsatisfactory in several respects and has been
criticized as exhibiting a shallow understanding of free exercise
jurisprudence.185 First, the First amendment was intended to protect
minority religions from the tyranny of the religious and political majority. A
deliberate regulatory interference with minority religious freedom is the
worst form of this tyranny. But regulatory interference with a minority
religion as a result of ignorance or sensitivity of the religious and political
majority is no less an interference with the minority's religious freedom. If
the regulation had instead restricted the majority's religious practice, the
majoritarian legislative process would in all probability have modified or
rejected the regulation. Thus, the imposition of the political majority's non-
religious objectives at the expense of the minority's religious interests
implements the majority's religious viewpoint at the expense of the
minority's. Second, government impairment of religious liberty would
most often be of the inadvertent kind as in Smith considering the political
culture where direct and deliberate regulatory imposition of religious
orthodoxy is nearly inconceivable. If the Free Exercise Clause could not
afford protection to inadvertent interference, it would be left almost
meaningless. Third, the Reynolds-Gobitis-Smith doctrine simply defies
common sense. The state should not be allowed to interfere with the
most deeply held fundamental religious convictions of an individual in
order to pursue some trivial state economic or bureaucratic objective.
This is especially true when there are alternative approaches for the state
to effectively pursue its objective without serious inadvertent impact on
religion.186
Thus, the Smith decision has been criticized not only for increasing the
power of the state over religion but as discriminating in favor of
mainstream religious groups against smaller, more peripheral groups who
lack legislative clout,187 contrary to the original theory of the First
Amendment.188 Undeniably, claims for judicial exemption emanate almost
invariably from relatively politically powerless minority religions and Smith
virtually wiped out their judicial recourse for exemption. 189 Thus, the Smith
decision elicited much negative public reaction especially from the
religious community, and commentaries insisted that the Court was
allowing the Free Exercise Clause to disappear. 190 So much was the
uproar that a majority in Congress was convinced to enact the Religious
Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited
government at all levels from substantially burdening a person's free
exercise of religion, even if such burden resulted from a generally
applicable rule, unless the government could demonstrate a compelling
state interest and the rule constituted the least restrictive means of
furthering that interest.191 RFRA, in effect, sought to overturn the
substance of the Smith ruling and restore the status quo prior to Smith.
Three years after the RFRA was enacted, however, the Court, dividing 6
to 3, declared the RFRA unconstitutional in City of Boerne v.
Flores.192 The Court ruled that "RFRA contradicts vital principles
necessary to maintain separation of powers and the federal balance." It
emphasized the primacy of its role as interpreter of the Constitution and
unequivocally rejected, on broad institutional grounds, a direct
congressional challenge of final judicial authority on a question of
constitutional interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah193 which was ruled consistent with the Smith doctrine. This case
involved animal sacrifice of the Santeria, a blend of Roman Catholicism
and West African religions brought to the Carribean by East African
slaves. An ordinance made it a crime to "unnecessarily kill, torment,
torture, or mutilate an animal in public or private ritual or ceremony not for
the primary purpose of food consumption." The ordinance came as a
response to the local concern over the sacrificial practices of the
Santeria. Justice Kennedy, writing for the majority, carefully pointed out
that the questioned ordinance was not a generally applicable criminal
prohibition, but instead singled out practitioners of the Santeria in that it
forbade animal slaughter only insofar as it took place within the context of
religious rituals.
It may be seen from the foregoing cases that under the Free Exercise
Clause, religious belief is absolutely protected, religious speech and
proselytizing are highly protected but subject to restraints applicable to
non-religious speech, and unconventional religious practice receives less
protection; nevertheless conduct, even if its violates a law, could be
accorded protection as shown in Wisconsin. 194
B. Establishment Clause
The Court's first encounter with the Establishment Clause was in the
1947 case of Everson v. Board of Education.195 Prior cases had made
passing reference to the Establishment Clause196 and raised
establishment questions but were decided on other grounds. 197 It was in
the Everson case that the U.S. Supreme Court adopted Jefferson's
metaphor of "a wall of separation between church and state" as
encapsulating the meaning of the Establishment Clause. The often and
loosely used phrase "separation of church and state" does not appear in
the U.S. Constitution. It became part of U.S. jurisprudence when the
Court in the 1878 case of Reynolds v. United States198 quoted
Jefferson's famous letter of 1802 to the Danbury Baptist Association in
narrating the history of the religion clauses, viz:
Believing with you that religion is a matter which lies solely
between man and his God; that he owes account to none other
for his faith or his worship; that the legislative powers of the
Government reach actions only, and not opinions, I contemplate
with sovereign reverence that act of the whole American people
which declared that their Legislature should 'make no law
respecting an establishment of religion or prohibiting the free
exercise thereof,' thus building a wall of separation between
Church and State.199 (emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, "(c)oming as
this does from an acknowledged leader of the advocates of the measure,
it may be accepted almost as an authoritative declaration of the scope
and effect of the amendment thus secured." 200
The interpretation of the Establishment Clause has in large part been in
cases involving education, notably state aid to private religious schools
and prayer in public schools.201 In Everson v. Board of Education, for
example, the issue was whether a New Jersey local school board could
reimburse parents for expenses incurred in transporting their children to
and from Catholic schools. The reimbursement was part of a general
program under which all parents of children in public schools and
nonprofit private schools, regardless of religion, were entitled to
reimbursement for transportation costs. Justice Hugo Black, writing for a
sharply divided Court, justified the reimbursements on the child benefit
theory, i.e., that the school board was merely furthering the state's
legitimate interest in getting children "regardless of their religion, safely
and expeditiously to and from accredited schools." The Court, after
narrating the history of the First Amendment in Virginia, interpreted the
Establishment Clause, viz:
The 'establishment of religion' clause of the First Amendment
means at least this: Neither a state nor the Federal Government
can set up a church. Neither can pass laws which aid one
religion, aid all religions, or prefer one religion over another.
Neither can force nor influence a person to go to or remain away
from church against his will or force him to profess a belief or
disbelief in any religion. No person can be punished for
entertaining or professing religious beliefs or disbeliefs, for church
attendance or non-attendance. No tax in any amount, large or
small, can be levied to support any religious activities or
institutions, whatever they may be called, or whatever form they
may adopt to teach or practice religion. Neither a state nor the
Federal Government can, openly or secretly participate in the
affairs of any religious organizations or groups and vice versa. In
the words of Jefferson, the clause against establishment of
religion by law was intended to erect "a wall of separation
between Church and State."202
The Court then ended the opinion, viz:
The First Amendment has erected a wall between church and
state. That wall must be kept high and impregnable. We could not
approve the slightest breach. New Jersey has not breached it
here.203
By 1971, the Court integrated the different elements of the Court's
Establishment Clause jurisprudence that evolved in the 1950s and 1960s
and laid down a three-pronged test in Lemon v. Kurtzman204 in
determining the constitutionality of policies challenged under the
Establishment Clause. This case involved a Pennsylvania statutory
program providing publicly funded reimbursement for the cost of
teachers' salaries, textbooks, and instructional materials in secular
subjects and a Rhode Island statute providing salary supplements to
teachers in parochial schools. The Lemon test requires a challenged
policy to meet the following criteria to pass scrutiny under the
Establishment Clause. "First, the statute must have a secular legislative
purpose; second, its primary or principal effect must be one that neither
advances nor inhibits religion (Board of Education v. Allen, 392 US 236,
243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute
must not foster 'an excessive entanglement with religion.' (Walz v.Tax
Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409
[1970])" (emphasis supplied)205 Using this test, the Court held that the
Pennsylvania statutory program and Rhode Island statute were
unconstitutional as fostering excessive entanglement between
government and religion.
The most controversial of the education cases involving the
Establishment Clause are the school prayer decisions. "Few decisions of
the modern Supreme Court have been criticized more intensely than the
school prayer decisions of the early 1960s." 206 In the 1962 case of Engel
v. Vitale,207 the Court invalidated a New York Board of Regents policy
that established the voluntary recitation of a brief generic prayer by
children in the public schools at the start of each school day. The majority
opinion written by Justice Black stated that "in this country it is no part of
the business of government to compose official prayers for any group of
the American people to recite as part of a religious program carried on by
government." In fact, history shows that this very practice of establishing
governmentally composed prayers for religious services was one of the
reasons that caused many of the early colonists to leave England and
seek religious freedom in America. The Court called to mind that the first
and most immediate purpose of the Establishment Clause rested on the
belief that a union of government and religion tends to destroy
government and to degrade religion. The following year, the Engel
decision was reinforced in Abington School District v.
Schempp208 and Murray v. Curlett209 where the Court struck down the
practice of Bible reading and the recitation of the Lord's prayer in the
Pennsylvania and Maryland schools. The Court held that to withstand the
strictures of the Establishment Clause, a statute must have a secular
legislative purpose and a primary effect that neither advances nor inhibits
religion. It reiterated, viz:
The wholesome 'neutrality' of which this Court's cases speak thus
stems from a recognition of the teachings of history that powerful
sects or groups might bring about a fusion of governmental and
religious functions or a concert or dependency of one upon the
other to the end that official support of the State of Federal
Government would be placed behind the tenets of one or of all
orthodoxies. This the Establishment Clause prohibits. And a
 further reason for neutrality is found in the Free Exercise Clause,
which recognizes the value of religious training, teaching and
observance and, more particularly, the right of every person to
freely choose his own course with reference thereto, free of any
compulsion from the state.210
The school prayer decisions drew furious reactions. Religious leaders
and conservative members of Congress and resolutions passed by
several state legislatures condemned these decisions. 211 On several
occasions, constitutional amendments have been introduced in Congress
to overturn the school prayer decisions. Still, the Court has maintained its
position and has in fact reinforced it in the 1985 case of Wallace v.
Jaffree212 where the Court struck down an Alabama law that required
public school students to observe a moment of silence "for the purpose of
meditation or voluntary prayer" at the start of each school day.
Religious instruction in public schools has also pressed the Court to
interpret the Establishment Clause. Optional religious instruction within
public school premises and instructional time were declared offensive of
the Establishment Clause in the 1948 case of McCollum v. Board of
Education,213 decided just a year after the seminal Everson case. In this
case, interested members of the Jewish, Roman Catholic and a few
Protestant faiths obtained permission from the Board of Education to
offer classes in religious instruction to public school students in grades
four to nine. Religion classes were attended by pupils whose parents
signed printed cards requesting that their children be permitted to attend.
The classes were taught in three separate groups by Protestant teachers,
Catholic priests and a Jewish rabbi and were held weekly from thirty to
forty minutes during regular class hours in the regular classrooms of the
school building. The religious teachers were employed at no expense to
the school authorities but they were subject to the approval and
supervision of the superintendent of schools. Students who did not
choose to take religious instruction were required to leave their
classrooms and go to some other place in the school building for their
secular studies while those who were released from their secular study
for religious instruction were required to attend the religious classes. The
Court held that the use of tax-supported property for religious instruction
and the close cooperation between the school authorities and the
religious council in promoting religious education amounted to a
prohibited use of tax-established and tax-supported public school system
to aid religious groups spread their faith. The Court rejected the claim
that the Establishment Clause only prohibited government preference of
one religion over another and not an impartial governmental assistance
of all religions. In Zorach v. Clauson,214 however, the Court upheld
released time programs allowing students in public schools to leave
campus upon parental permission to attend religious services while other
students attended study hall. Justice Douglas, the writer of the opinion,
stressed that "(t)he First Amendment does not require that in every and
all respects there shall be a separation of Church and State." The Court
distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for religious
instruction and the force of the public school was used to promote
that instruction. . . We follow the McCollum case. But we cannot
expand it to cover the present released time program unless
separation of Church and State means that public institutions can
make no adjustments of their schedules to accommodate the
religious needs of the people. We cannot read into the Bill of
Rights such a philosophy of hostility to religion. 215
In the area of government displays or affirmations of belief, the Court has
given leeway to religious beliefs and practices which have acquired a
secular meaning and have become deeply entrenched in history. For
instance, in McGowan v. Maryland,216 the Court upheld laws that
prohibited certain businesses from operating on Sunday despite the
obvious religious underpinnings of the restrictions. Citing the secular
purpose of the Sunday closing laws and treating as incidental the fact
that this day of rest happened to be the day of worship for most
Christians, the Court held, viz:
It is common knowledge that the first day of the week has come
to have special significance as a rest day in this country. People
of all religions and people with no religion regard Sunday as a
time for family activity, for visiting friends and relatives, for later
sleeping, for passive and active entertainments, for dining out,
and the like.217
In the 1983 case of Marsh v. Chambers,218 the Court refused to
invalidate Nebraska's policy of beginning legislative sessions with prayers
offered by a Protestant chaplain retained at the taxpayers' expense. The
majority opinion did not rely on the Lemon test and instead drew heavily
from history and the need for accommodation of popular religious
beliefs, viz:
In light of the unambiguous and unbroken history of more than
200 years, there can be no doubt that the practice of opening
legislative sessions with prayer has become the fabric of our
 society. To invoke Divine guidance on a public body entrusted
with making the laws is not, in these circumstances, an
"establishment" of religion or a step toward establishment; it is
simply a tolerable acknowledgement of beliefs widely held among
the people of this country. As Justice Douglas observed, "(w)e
are a religious people whose institutions presuppose a Supreme
Being." (Zorach c. Clauson, 343 US 306, 313
[1952])219 (emphasis supplied)
Some view the Marsh ruling as a mere aberration as the Court would
"inevitably be embarrassed if it were to attempt to strike down a practice
that occurs in nearly every legislature in the United States, including the
U.S. Congress."220 That Marsh was not an aberration is suggested by
subsequent cases. In the 1984 case of Lynch v. Donnelly,221 the Court
upheld a city-sponsored nativity scene in Rhode Island. By a 5-4
decision, the majority opinion hardly employed the Lemon test and again
relied on history and the fact that the creche had become a "neutral
harbinger of the holiday season" for many, rather than a symbol of
Christianity.
The Establishment Clause has also been interpreted in the area of tax
exemption. By tradition, church and charitable institutions have been
exempt from local property taxes and their income exempt from federal
and state income taxes. In the 1970 case of Walz v. Tax
Commission,222 the New York City Tax Commission's grant of property
tax exemptions to churches as allowed by state law was challenged by
Walz on the theory that this required him to subsidize those churches
indirectly. The Court upheld the law stressing its neutrality, viz:
It has not singled out one particular church or religious group or
even churches as such; rather, it has granted exemptions to all
houses of religious worship within a broad class of property
owned by non-profit, quasi-public corporations . . . The State has
an affirmative policy that considers these groups as beneficial
and stabilizing influences in community life and finds this
classification useful, desirable, and in the public interest. 223
The Court added that the exemption was not establishing religion but
"sparing the exercise of religion from the burden of property taxation
levied on private profit institutions"224 and preventing excessive
entanglement between state and religion. At the same time, the Court
acknowledged the long-standing practice of religious tax exemption and
the Court's traditional deference to legislative bodies with respect to the
taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our
national life, beginning with pre-Revolutionary colonial times, than
for the government to exercise . . . this kind of benevolent
neutrality toward churches and religious exercise generally so
long as none was favored over others and none suffered
interference.225 (emphasis supplied)
C. Strict Neutrality v. Benevolent Neutrality
To be sure, the cases discussed above, while citing many landmark
decisions in the religious clauses area, are but a small fraction of the
hundreds of religion clauses cases that the U.S. Supreme Court has
passed upon. Court rulings contrary to or making nuances of the above
cases may be cited. Professor McConnell poignantly recognizes this, viz:
Thus, as of today, it is constitutional for a state to hire a
Presbyterian minister to lead the legislature in daily prayers
(Marsh v. Chambers, 463 US783, 792-93[1983]), but
unconstitutional for a state to set aside a moment of silence in the
schools for children to pray if they want to (Wallace v. Jaffree,
472 US 38, 56 [1985]). It is unconstitutional for a state to require
employers to accommodate their employees' work schedules to
their sabbath observances (Estate of Thornton v. Caldor, Inc.,
472 US 703, 709-10 [1985]) but constitutionally mandatory for a
state to require employers to pay workers compensation when
the resulting inconsistency between work and sabbath leads to
discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is
constitutional for the government to give money to religiously-
affiliated organizations to teach adolescents about proper sexual
behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not to
teach them science or history (Lemon v. Kurtzman, 403 US 602,
618-619 [1971]). It is constitutional for the government to provide
religious school pupils with books (Board of Education v. Allen,
392 US 236, 238 [1968]), but not with maps (Wolman v. Walter,
433 US 229, 249-51 [1977]); with bus rides to religious schools
(Everson v. Board of Education, 330 US 1, 17 [1947]), but not
from school to a museum on a field trip (Wolman v. Walter, 433
US 229, 252-55 [1977]); with cash to pay for state-mandated
standardized tests (Committee for Pub. Educ. and Religious
Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to pay for
safety-related maintenance (Committee for Pub. Educ v. Nyquist,
413 US 756, 774-80 [1973]). It is a mess.226
But the purpose of the overview is not to review the entirety of the U.S.
religion clause jurisprudence nor to extract the prevailing case law
regarding particular religious beliefs or conduct colliding with particular
government regulations. Rather, the cases discussed above suffice to
show that, as legal scholars observe, this area of jurisprudence has
demonstrated two main standards used by the Court in deciding religion
clause cases: separation (in the form of strict separation or the tamer
version of strict neutrality or separation) and benevolent neutrality or
accommodation. The weight of current authority, judicial and in terms of
sheer volume, appears to lie with the separationists, strict or tame.227 But
the accommodationists have also attracted a number of influential
scholars and jurists.228 The two standards producing two streams of
jurisprudence branch out respectively from the history of the First
Amendment in England and the American colonies and climaxing in
Virginia as narrated in this opinion and officially acknowledged by the
Court in Everson, and from American societal life which reveres religion
and practices age-old religious traditions. Stated otherwise, separation -
strict or tame - protects the principle of church-state separation with a
rigid reading of the principle while benevolent neutrality protects religious
realities, tradition and established practice with a flexible reading of the
principle.229 The latter also appeals to history in support of its position, viz:
The opposing school of thought argues that the First Congress
intended to allow government support of religion, at least as long
as that support did not discriminate in favor of one particular
religion. . . the Supreme Court has overlooked many important
pieces of history. Madison, for example, was on the
congressional committee that appointed a chaplain, he declared
several national days of prayer and fasting during his presidency,
and he sponsored Jefferson's bill for punishing Sabbath breakers;
moreover, while president, Jefferson allowed federal support of
religious missions to the Indians. . . And so, concludes one recent
book, 'there is no support in the Congressional records that either
the First Congress, which framed the First Amendment, or its
principal author and sponsor, James Madison, intended that
Amendment to create a state of complete independence between
religion and government. In fact, the evidence in the public
documents goes the other way.230 (emphasis supplied)
To succinctly and poignantly illustrate the historical basis of benevolent
neutrality that gives room for accommodation, less than twenty-four hours
after Congress adopted the First Amendment's prohibition on laws
respecting an establishment of religion, Congress decided to express its
thanks to God Almighty for the many blessings enjoyed by the nation with
a resolution in favor of a presidential proclamation declaring a national
day of Thanksgiving and Prayer. Only two members of Congress
opposed the resolution, one on the ground that the move was a
"mimicking of European customs, where they made a mere mockery of
thanksgivings", the other on establishment clause concerns.
Nevertheless, the salutary effect of thanksgivings throughout Western
history was acknowledged and the motion was passed without further
recorded discussion.231 Thus, accommodationists also go back to the
framers to ascertain the meaning of the First Amendment, but prefer to
focus on acts rather than words. Contrary to the claim of separationists
that rationalism pervaded America in the late 19th century and that
America was less specifically Christian during those years than at any
other time before or since,232 accommodationaists claim that American
citizens at the time of the Constitution's origins were a remarkably
religious people in particularly Christian terms.233
The two streams of jurisprudence - separationist or accommodationist -
are anchored on a different reading of the "wall of separation." The strict
separtionist view holds that Jefferson meant the "wall of separation" to
protect the state from the church. Jefferson was a man of the
Enlightenment Era of the eighteenth century, characterized by the
rationalism and anticlericalism of that philosophic bent. 234 He has often
been regarded as espousing Deism or the rationalistic belief in a natural
religion and natural law divorced from its medieval connection with divine
law, and instead adhering to a secular belief in a universal
harmony.235 Thus, according to this Jeffersonian view, the Establishment
Clause being meant to protect the state from the church, the state's
hostility towards religion allows no interaction between the two. 236 In fact,
when Jefferson became President, he refused to proclaim fast or
thanksgiving days on the ground that these are religious exercises and
the Constitution prohibited the government from intermeddling with
religion.237 This approach erects an absolute barrier to formal
interdependence of religion and state. Religious institutions could not
receive aid, whether direct or indirect, from the state. Nor could the state
adjust its secular programs to alleviate burdens the programs placed on
believers.238 Only the complete separation of religion from politics would
eliminate the formal influence of religious institutions and provide for a
free choice among political views thus a strict "wall of separation" is
necessary.239 Strict separation faces difficulties, however, as it is deeply
embedded in history and contemporary practice that enormous amounts
of aid, both direct and indirect, flow to religion from government in return
for huge amounts of mostly indirect aid from religion. Thus, strict
separationists are caught in an awkward position of claiming a
constitutional principle that has never existed and is never likely to. 240
A tamer version of the strict separationist view, the strict neutrality or
separationist view is largely used by the Court, showing the Court's
tendency to press relentlessly towards a more secular society. 241 It finds
basis in the Everson case where the Court declared that Jefferson's "wall
of separation" encapsulated the meaning of the First Amendment but at
the same time held that the First Amendment "requires the state to be
neutral in its relations with groups of religious believers and non-
believers; it does not require the state to be their adversary. State power
is no more to be used so as to handicap religions than it is to favor them."
(emphasis supplied)242 While the strict neutrality approach is not hostile to
religion, it is strict in holding that religion may not be used as a basis for
classification for purposes of governmental action, whether the action
confers rights or privileges or imposes duties or obligations. Only secular
criteria may be the basis of government action. It does not permit, much
less require, accommodation of secular programs to religious
belief.243 Professor Kurland wrote, viz:
The thesis proposed here as the proper construction of the
religion clauses of the first amendment is that the freedom and
separation clauses should be read as a single precept that
government cannot utilize religion as a standard for action or
inaction because these clauses prohibit classification in terms of
religion either to confer a benefit or to impose a burden. 244
The Court has repeatedly declared that religious freedom means
government neutrality in religious matters and the Court has also
repeatedly interpreted this policy of neutrality to prohibit government from
acting except for secular purposes and in ways that have primarily
secular effects.245
Prayer in public schools is an area where the Court has applied strict
neutrality and refused to allow any form of prayer, spoken or silent, in the
public schools as in Engel and Schempp.246 The McCollum case
prohibiting optional religious instruction within public school premises
during regular class hours also demonstrates strict neutrality. In these
education cases, the Court refused to uphold the government action as
they were based not on a secular but on a religious purpose. Strict
neutrality was also used in Reynolds and Smith which both held that if
government acts in pursuit of a generally applicable law with a secular
purpose that merely incidentally burdens religious exercise, the First
Amendment has not been offended. However, if the strict neutrality
standard is applied in interpreting the Establishment Clause, it could de
facto void religious expression in the Free Exercise Clause. As pointed
out by Justice Goldberg in his concurring opinion in Schempp, strict
neutrality could lead to "a brooding and pervasive devotion to the secular
and a passive, or even active, hostility to the religious" which is prohibited
by the Constitution.247 Professor Laurence Tribe commented in his
authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible
with the very idea of a free exercise clause. The Framers,
whatever specific applications they may have intended, clearly
envisioned religion as something special; they enacted that vision
into law by guaranteeing the free exercise of religion but not, say,
of philosophy or science. The strict neutrality approach all but
erases this distinction. Thus it is not surprising that the Supreme
Court has rejected strict neutrality, permitting and sometimes
mandating religious classifications.248
The separationist approach, whether strict or tame, is caught in a
dilemma because while the Jeffersonian wall of separation "captures the
spirit of the American ideal of church-state separation", in real life church
and state are not and cannot be totally separate.249 This is all the more
true in contemporary times when both the government and religion are
growing and expanding their spheres of involvement and activity,
resulting in the intersection of government and religion at many points.250
Consequently, the Court has also decided cases employing benevolent
neutrality. Benevolent neutrality which gives room for accommodation is
buttressed by a different view of the "wall of separation" associated with
Williams, founder of the Rhode Island colony. In Mark DeWolfe Howe's
classic, The Garden and the Wilderness, he asserts that to the extent the
Founders had a wall of separation in mind, it was unlike the Jeffersonian
wall that is meant to protect the state from the church; instead, the wall is
meant to protect the church from the state, 251 i.e., the "garden" of the
church must be walled in for its own protection from the "wilderness" of
the world252 with its potential for corrupting those values so necessary to
religious commitment.253 Howe called this the "theological" or
"evangelical" rationale for church-state separation while the wall
espoused by "enlightened" statesmen such as Jefferson and Madison,
was a "political" rationale seeking to protect politics from intrusions by the
church.254 But it has been asserted that this contrast between the
Williams and Jeffersonian positions is more accurately described as a
difference in kinds or styles of religious thinking, not as a conflict between
"religious" and "secular (political)"; the religious style was biblical and
evangelical in character while the secular style was grounded in natural
religion, more generic and philosophical in its religious orientation. 255
The Williams wall is, however, breached for the church is in the state and
so the remaining purpose of the wall is to safeguard religious liberty.
Williams' view would therefore allow for interaction between church and
state, but is strict with regard to state action which would threaten the
integrity of religious commitment.256 His conception of separation is not
total such that it provides basis for certain interactions between church
and state dictated by apparent necessity or practicality. 257 This
"theological" view of separation is found in Williams' writings, viz:
. . . when they have opened a gap in the hedge or wall of
separation between the garden of the church and the wilderness
of the world, God hath ever broke down the wall itself, removed
the candlestick, and made his garden a wilderness, as this day.
And that therefore if He will eer please to restore His garden and
paradise again, it must of necessity be walled in peculiarly unto
Himself from the world. . .258
Chief Justice Burger spoke of benevolent neutrality in Walz, viz:
The general principle deducible from the First Amendment and all
that has been said by the Court is this: that we will not tolerate
either governmentally established religion or governmental
interference with religion. Short of those expressly proscribed
governmental acts there is room for play in the joints productive
of a benevolent neutrality which will permit religious exercise to
exist without sponsorship and without interference. 259 (emphasis
supplied)
The Zorach case expressed the doctrine of accommodation, 260 viz:
The First Amendment, however, does not say that in every and all
respects there shall be a separation of Church and State. Rather,
it studiously defines the manner, the specific ways, in which there
shall be no concert or union or dependency one or the other. That
is the common sense of the matter. Otherwise, the state and
religion would be aliens to each other - hostile, suspicious, and
even unfriendly. Churches could not be required to pay even
property taxes. Municipalities would not be permitted to render
police or fire protection to religious groups. Policemen who
helped parishioners into their places of worship would violate the
Constitution. Prayers in our legislative halls; the appeals to the
Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; "so help me
God" in our courtroom oaths- these and all other references to
the Almighty that run through our laws, our public rituals, our
ceremonies would be flouting the First Amendment. A fastidious
atheist or agnostic could even object to the supplication with
which the Court opens each session: 'God save the United States
and this Honorable Court.
xxx xxx xxx
We are a religious people whose institutions presuppose a
Supreme Being. We guarantee the freedom to worship as one
chooses. . . When the state encourages religious instruction or
cooperates with religious authorities by adjusting the schedule of
public events, it follows the best of our traditions. For it then
respects the religious nature of our people and accommodates
the public service to their spiritual needs. To hold that it may not
would be to find in the Constitution a requirement that the
government show a callous indifference to religious groups. . .
But we find no constitutional requirement which makes it
necessary for government to be hostile to religion and to throw its
weight against efforts to widen their effective scope of religious
influence.261 (emphases supplied)
Benevolent neutrality is congruent with the sociological proposition that
religion serves a function essential to the survival of society itself, thus
there is no human society without one or more ways of performing the
essential function of religion. Although for some individuals there may be
no felt need for religion and thus it is optional or even dispensable, for
society it is not, which is why there is no human society without one or
more ways of performing the essential function of religion. Even in
ostensibly atheistic societies, there are vigorous underground religion(s)
and surrogate religion(s) in their ideology.262 As one sociologist wrote:
It is widely held by students of society that there are certain
functional prerequisites without which society would not continue
to exist. At first glance, this seems to be obvious - scarcely more
than to say that an automobile could not exist, as a going system,
without a carburetor. . . Most writers list religion among the
functional prerequisites.263
Another noted sociologist, Talcott Parsons, wrote: "There is no known
human society without something which modern social scientists would
classify as a religion…Religion is as much a human universal as
language."264
Benevolent neutrality thus recognizes that religion plays an important role
in the public life of the United States as shown by many traditional
government practices which, to strict neutrality, pose Establishment
Clause questions. Among these are the inscription of "In God We Trust"
on American currency, the recognition of America as "one nation under
God" in the official pledge of allegiance to the flag, the Supreme Court's
time-honored practice of opening oral argument with the invocation "God
save the United States and this honorable Court," and the practice of
Congress and every state legislature of paying a chaplain, usually of a
particular Protestant denomination to lead representatives in
prayer.265 These practices clearly show the preference for one theological
viewpoint -the existence of and potential for intervention by a god - over
the contrary theological viewpoint of atheism. Church and government
agencies also cooperate in the building of 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.266 The persistence of these de facto establishments are in
large part explained by the fact that throughout history, the evangelical
theory of separation, i.e., Williams' wall, has demanded respect for these
de facto establishments.267 But the separationists have a different
explanation. To characterize these as de jure establishments according
to the principle of the Jeffersonian wall, the U.S. Supreme Court, the
many dissenting and concurring opinions explain some of these practices
as "'de minimis' instances of government endorsement or as historic
governmental practices that have largely lost their religious significance
or at least have proven not to lead the government into further
involvement with religion.268
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically
into account not to promote the government's favored form of religion, but
to allow individuals and groups to exercise their religion without
hindrance. Their purpose or effect therefore is to remove a burden on, or
facilitate the exercise of, a person's or institution's religion. As Justice
Brennan explained, the "government [may] take religion into 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."269 (emphasis supplied) Accommodation is forbearance and not
alliance. it does not reflect agreement with the minority, but respect for
the conflict between the temporal and spiritual authority in which the
minority finds itself.270
Accommodation is distinguished from strict neutrality in that the latter
holds that government should base public policy solely on secular
considerations, without regard to the religious consequences of its
actions. The debate between accommodation and strict neutrality is at
base a question of means: "Is the freedom of religion best achieved when
the government is conscious of the effects of its action on the various
religious practices of its people, and seeks to minimize interferences with
those practices? Or is it best advanced through a policy of 'religious
blindness' - keeping government aloof from religious practices and
issues?" An accommodationist holds that it is good public policy, and
sometimes constitutionally required, for the state to make conscious and
deliberate efforts to avoid interference with religious freedom. On the
other hand, the strict neutrality adherent believes that it is good public
policy, and also constitutionally required, for the government to avoid
religion-specific policy even at the cost of inhibiting religious exercise. 271
There are strong and compelling reasons, however, to take the
accommodationist position rather than the strict neutrality position. First,
the accommodationist interpretation is most consistent with the language
of the First Amendment. The religion clauses contain two parallel
provisions, both specifically directed at "religion." The government may
not "establish" religion and neither may government "prohibit" it. Taken
together, the religion clauses can be read most plausibly as warding off
two equal and opposite threats to religious freedom - government action
that promotes the (political) majority's favored brand of religion and
government action that impedes religious practices not favored by the
majority. The substantive end in view is the preservation of the autonomy
of religious life and not just the formal process value of ensuring that
government does not act on the basis of religious bias. On the other
hand, strict neutrality interprets the religion clauses as allowing
government to do whatever it desires to or for religion, as long as it does
the same to or for comparable secular entities. Thus, for example, if
government prohibits all alcoholic consumption by minors, it can prohibit
minors from taking part in communion. Paradoxically, this view would
make the religion clauses violate the religion clauses, so to speak, since
the religion clauses single out religion by name for special protection.
Second, the accommodationist position best achieves the purposes of
the First Amendment. The principle underlying the First Amendment is
that freedom to carry out one's duties to a Supreme Being is an
inalienable right, not one dependent on the grace of legislature. Although
inalienable, it is necessarily limited by the rights of others, including the
public right of peace and good order. Nevertheless it is a substantive
right and not merely a privilege against discriminatory legislation. The
accomplishment of the purpose of the First Amendment requires more
than the "religion blindness" of strict neutrality. With the pervasiveness of
government regulation, conflicts with religious practices become frequent
and intense. Laws that are suitable for secular entities are sometimes
inappropriate for religious entities, thus the government must make
special provisions to preserve a degree of independence for religious
entities for them to carry out their religious missions according to their
religious beliefs. Otherwise, religion will become just like other secular
entities subject to pervasive regulation by majoritarian institutions. Third,
the accommodationist interpretation is particularly necessary to protect
adherents of minority religions from the inevitable effects of
majoritarianism, which include ignorance and indifference and overt
hostility to the minority. In a democratic republic, laws are inevitably
based on the presuppositions of the majority, thus not infrequently, they
come into conflict with the religious scruples of those holding different
world views, even in the absence of a deliberate intent to interfere with
religious practice. At times, this effect is unavoidable as a practical matter
because some laws are so necessary to the common good that
exceptions are intolerable. But in other instances, the injury to religious
conscience is so great and the advancement of public purposes so small
or incomparable that only indifference or hostility could explain a refusal
to make exemptions. Because of plural traditions, legislators and
executive officials are frequently willing to make such exemptions when
the need is brought to their attention, but this may not always be the case
when the religious practice is either unknown at the time of enactment or
is for some reason unpopular. In these cases, a constitutional
interpretation that allows accommodations prevents needless injury to the
religious consciences of those who can have an influence in the
legislature; while a constitutional interpretation that requires
accommodations extends this treatment to religious faiths that are less
able to protect themselves in the political arena. Fourth, the
accommodationist position is practical as it is a commonsensical way to
deal with the various needs and beliefs of different faiths in a pluralistic
nation. Without accommodation, many otherwise beneficial laws would
interfere severely with religious freedom. Aside from laws against serving
alcoholic beverages to minors conflicting with celebration of communion,
regulations requiring hard hats in construction areas can effectively
exclude Amish and Sikhs from the workplace, or employment anti-
discrimination laws can conflict with the Roman Catholic male priesthood,
among others. Exemptions from such laws are easy to craft and
administer and contribute much to promoting religious freedom at little
cost to public policy. Without exemptions, legislature would be frequently
forced to choose between violating religious conscience of a segment of
the population or dispensing with legislation it considers beneficial to
society as a whole. Exemption seems manifestly more reasonable than
either of the alternative: no exemption or no law. 272
Benevolent neutrality gives room for different kinds of accommodation:
those which are constitutionally compelled, i.e., required by the Free
Exercise Clause; and those which are discretionary or legislative, i.e.,
and those not required by the Free Exercise Clause but nonetheless
permitted by the Establishment Clause.273 Some Justices of the Supreme
Court have also used the term accommodation to describe government
actions that acknowledge or express prevailing religious sentiments of
the community such as display of a religious symbol on public property or
the delivery of a prayer at public ceremonial events. 274 Stated otherwise,
using benevolent neutrality as a standard could result to three situations
of accommodation: those where accommodation is required, those where
it is permissible, and those where it is prohibited. In the first situation,
accommodation is required to preserve free exercise protections and not
unconstitutionally infringe on religious liberty or create penalties for
religious freedom. Contrary to the Smith declaration that free exercise
exemptions are "intentional government advancement", these
exemptions merely relieve the prohibition on the free exercise thus
allowing the burdened religious adherent to be left alone. The state must
create exceptions to laws of general applicability when these laws
threaten religious convictions or practices in the absence of a compelling
state interest.275 By allowing such exemptions, the Free Exercise Clause
does not give believers the right or privilege to choose for themselves to
override socially-prescribed decision; it allows them to obey spiritual
rather than temporal authority276 for those who seriously invoke the Free
Exercise Clause claim to be fulfilling a solemn duty. Religious freedom is
a matter less of rights than duties; more precisely, it is a matter of rights
derived from duties. To deny a person or a community the right to act
upon such a duty can be justified only by appeal to a yet more compelling
duty. Of course, those denied will usually not find the reason for the
denial compelling. "Because they may turn out to be right about the duty
in question, and because, even if they are wrong, religion bears witness
to that which transcends the political order, such denials should be rare
and painfully reluctant."277
The Yoder case is an example where the Court held that the state must
accommodate the religious beliefs of the Amish who objected to enrolling
their children in high school as required by law. The Sherbert case is
another example where the Court held that the state unemployment
compensation plan must accommodate the religious convictions of
Sherbert.278 In these cases of "burdensome effect", the modern approach
of the Court has been to apply strict scrutiny, i.e., to declare the burden
as permissible, the Court requires the state to demonstrate that the
regulation which burdens the religious exercise pursues a particularly
important or compelling government goal through the least restrictive
means. If the state's objective could be served as well or almost as well
by granting an exemption to those whose religious beliefs are burdened
by the regulation, such an exemption must be given.279 This approach of
the Court on "burdensome effect" was only applied since the 1960s. Prior
to this time, the Court took the separationist view that as long as the state
was acting in pursuit of non-religious ends and regulating conduct rather
than pure religious beliefs, the Free Exercise Clause did not pose a
hindrance such as in Reynolds.280 In the second situation where
accommodation is permissible, the state may, but is not required to,
accommodate religious interests. The Walz case illustrates this situation
where the Court upheld the constitutionality of tax exemption given by
New York to church properties, but did not rule that the state was
required to provide tax exemptions. The Court declared that "(t)he limits
of permissible state accommodation to religion are by no means co-
extensive with the noninterference mandated by the Free Exercise
Clause."281 The Court held that New York could have an interest in
encouraging religious values and avoiding threats to those values
through the burden of property taxes. Other examples are the Zorach
case allowing released time in public schools and Marsh allowing
payment of legislative chaplains from public funds. Finally, in the situation
where accommodation is prohibited, establishment concerns prevail over
potential accommodation interests. To say that there are valid
exemptions buttressed by the Free Exercise Clause does not mean that
all claims for free exercise exemptions are valid. 282 An example where
accommodation was prohibited is McCollum where the Court ruled
against optional religious instruction in the public school premises. 283 In
effect, the last situation would arrive at a strict neutrality conclusion.
In the first situation where accommodation is required, the approach
follows this basic framework:
If the plaintiff can show that a law or government practice inhibits
the free exercise of his religious beliefs, the burden shifts to the
government to demonstrate that the law or practice is necessary
to the accomplishment of some important (or 'compelling') secular
objective and that it is the least restrictive means of achieving that
objective. If the plaintiff meets this burden and the government
does not, the plaintiff is entitled to exemption from the law or
practice at issue. In order to be protected, the claimant's beliefs
must be 'sincere', but they need not necessarily be consistent,
coherent, clearly articulated, or congruent with those of the
claimant's religious denomination. 'Only beliefs rooted in religion
are protected by the Free Exercise Clause'; secular beliefs,
however sincere and conscientious, do not suffice. 284
In other words, a three-step process (also referred to as the "two-step
balancing process" supra when the second and third steps are combined)
as in Sherbert is followed in weighing the state's interest and religious
freedom when these collide. Three questions are answered in this
process. First, "(h)as the statute or government action created a burden
on the free exercise of religion?" The courts often look into the sincerity of
the religious belief, but without inquiring into the truth of the belief
because the Free Exercise Clause prohibits inquiring about its truth as
held in Ballard and Cantwell. The sincerity of the claimant's belief is
ascertained to avoid the mere claim of religious beliefs to escape a
mandatory regulation. As evidence of sincerity, the U.S. Supreme Court
has considered historical evidence as in Wisconsin where the Amish
people had held a long-standing objection to enrolling their children in
ninth and tenth grades in public high schools. In another case, Dobkin v.
District of Columbia,285 the Court denied the claim of a party who
refused to appear in court on Saturday alleging he was a Sabbatarian,
but the Court noted that he regularly conducted business on Saturday.
Although it is true that the Court might erroneously deny some claims
because of a misjudgment of sincerity, this is not as argument to reject all
claims by not allowing accommodation as a rule. There might be injury to
the particular claimant or to his religious community, but for the most part,
the injustice is done only in the particular case. 286 Aside from the
sincerity, the court may look into the centrality of those beliefs, assessing
them not on an objective basis but in terms of the opinion and belief of
the person seeking exemption. In Wisconsin, for example, the Court
noted that the Amish people's convictions against becoming involved in
public high schools were central to their way of life and faith. Similarly, in
Sherbert, the Court concluded that the prohibition against Saturday work
was a "cardinal principle."287 Professor Lupu puts to task the person
claiming exemption, viz:
On the claimant's side, the meaning and significance of the
relevant religious practice must be demonstrated. Religious
command should outweigh custom, individual conscience should
count for more than personal convenience, and theological
principle should be of greater significance than institutional ease.
Sincerity matters, (footnote omitted) and longevity of practice -
 both by the individual and within the individual's religious tradition
- reinforces sincerity. Most importantly, the law of free exercise
must be inclusive and expansive, recognizing non-Christian
religions - eastern, Western, aboriginal and otherwise - as
constitutionally equal to their Christian counterparts, and
accepting of the intensity and scope of fundamentalist creed.288
Second, the court asks: "(i)s there a sufficiently compelling state interest
to justify this infringement of religious liberty?" In this step, the
government has to establish that its purposes are legitimate for the state
and that they are compelling. Government must do more than assert the
objectives at risk if exemption is given; it must precisely show how and to
what extent those objectives will be undermined if exemptions are
granted.289 The person claiming religious freedom, on the other hand, will
endeavor to show that the interest is not legitimate or that the purpose,
although legitimate, is not compelling compared to infringement of
religious liberty. This step involves balancing, i.e., weighing the interest of
the state against religious liberty to determine which is more compelling
under the particular set of facts. The greater the state's interests, the
more central the religious belief would have to be to overcome it. In
assessing the state interest, the court will have to determine the
importance of the secular interest and the extent to which that interest will
be impaired by an exemption for the religious practice. Should the court
find the interest truly compelling, there will be no requirement that the
state diminish the effectiveness of its regulation by granting the
exemption.290
Third, the court asks: "(h)as the state in achieving its legitimate purposes
used the least intrusive means possible so that the free exercise is not
infringed any more than necessary to achieve the legitimate goal of the
state?"291 The analysis requires the state to show that the means in which
it is achieving its legitimate state objective is the least intrusive means,
i.e., it has chosen a way to achieve its legitimate state end that imposes
as little as possible on religious liberties. In Cantwell, for example, the
Court invalidated the license requirement for the door-to-door solicitation
as it was a forbidden burden on religious liberty, noting that less drastic
means of insuring peace and tranquility existed. As a whole, in carrying
out the compelling state interest test, the Court should give careful
attention to context, both religious and regulatory, to achieve refined
judgment.292
In sum, as shown by U.S. jurisprudence on religion clause cases, the
competing values of secular government and religious freedom create
tensions that make constitutional law on the subject of religious liberty
unsettled, mirroring the evolving views of a dynamic society. 293
VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket of Catholicism
covered the archipelago. There was a union of church and state and
Catholicism was the state religion under the Spanish Constitution of
1876. Civil authorities exercised religious functions and the friars
exercised civil powers.294 Catholics alone enjoyed the right of engaging in
public ceremonies of worship.295 Although the Spanish Constitution itself
was not extended to the Philippines, Catholicism was also the
established church in our country under the Spanish rule. Catholicism
was in fact protected by the Spanish Penal Code of 1884 which was in
effect in the Philippines. Some of the offenses in chapter six of the Penal
Code entitled "Crimes against Religion and Worship" referred to crimes
against the state religion.296 The coming of the Americans to our country,
however, changed this state-church scheme for with the advent of this
regime, the unique American experiment of "separation of church and
state" was transported to Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the United
States and Spain on December 10, 1898, the American guarantee of
religious freedom had been extended to the Philippines. The Treaty
provided that "the inhabitants of the territories over which Spain
relinquishes or cedes her sovereignty shall be secured in the free
exercise of religion."297 Even the Filipinos themselves guaranteed
religious freedom a month later or on January 22, 1899 upon the
adoption of the Malolos Constitution of the Philippine Republic under
General Emilio Aguinaldo. It provided that "the State recognizes the
liberty and equality of all religion (de todos los cultos) in the same
manner as the separation of the Church and State." But the Malolos
Constitution and government was short-lived as the Americans took over
the reigns of government.298
With the Philippines under the American regime, President McKinley
issued Instructions to the Second Philippine Commission, the body
created to take over the civil government in the Philippines in 1900. The
Instructions guaranteed religious freedom, viz:
 That no law shall be made respecting the establishment of
religion or prohibiting the free exercise thereof, and that the free
exercise and enjoyment of religious profession and worship
without discrimination or preference shall forever be allowed ...
that no form of religion and no minister of religion shall be forced
upon the community or upon any citizen of the Islands, that, on
the other hand, no minister of religion shall be interfered with or
molested in following his calling.299
This provision was based on the First Amendment of the United States
Constitution. Likewise, the Instructions declared that "(t)he separation
between State and Church shall be real, entire and absolute." 300
Thereafter, every organic act of the Philippines contained a provision on
freedom of religion. Similar to the religious freedom clause in the
Instructions, the Philippine Bill of 1902 provided that:
No law shall be made respecting an establishment of religion or
prohibiting the free exercise thereof, and that free exercise and
enjoyment of religious worship, without discrimination or preference, shall
forever be allowed.
In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of 1902
"caused the complete separation of church and state, and the abolition of
all special privileges and all restrictions theretofor conferred or imposed
upon any particular religious sect."302
The Jones Law of 1916 carried the same provision, but expanded it with
a restriction against using public money or property for religious
purposes, viz:
That no law shall be made respecting an establishment of religion
or prohibiting the free exercise thereof, and that the free exercise
and enjoyment of religious profession and worship without
discrimination or preference, shall forever be allowed; and no
religious test shall be required for the exercise of civil or political
rights. No public money or property shall ever be appropriated,
applied, donated, or used, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or for the use, benefit or support
of any priest, preacher, minister, or other religious teachers or
dignitary as such.
This was followed by the Philippine Independence Law or
Tydings-McDuffie Law of 1934 which guaranteed independence
to the Philippines and authorized the drafting of a Philippine
constitution. It enjoined Filipinos to include freedom of religion in
drafting their constitution preparatory to the grant of
independence. The law prescribed that "(a)bsolute toleration of
religious sentiment shall be secured and no inhabitant or religious
organization shall be molested in person or property on account
of religious belief or mode of worship."303
The Constitutional Convention then began working on the 1935
Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman
of the Committee on Bill of Rights acknowledged that "(i)t was the Treaty
of Paris of December 10, 1898, which first introduced religious toleration
in our country. President McKinley's Instructions to the Second Philippine
Commission reasserted this right which later was incorporated into the
Philippine Bill of 1902 and in the Jones Law." 304 In accordance with the
Tydings-McDuffie Law, the 1935 Constitution provided in the Bill of
Rights, Article IV, Section 7, viz:
Sec. 7. No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof, and the free
exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political
rights.
This provision, borrowed from the Jones Law, was readily
approved by the Convention.305 In his speech as Chairman of the
Committee on Bill of Rights, Delegate Laurel said that
modifications in phraseology of the Bill of Rights in the Jones Law
were avoided whenever possible because "the principles must
remain couched in a language expressive of their historical
background, nature, extent and limitations as construed and
interpreted by the great statesmen and jurists that vitalized
them."306
The 1973 Constitution which superseded the 1935 Constitution contained
an almost identical provision on religious freedom in the Bill of Rights in
Article IV, Section 8, viz:
Sec. 8. No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. The free exercise
 and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political
rights.
This time, however, the General Provisions in Article XV added in Section
15 that "(t)he separation of church and state shall be inviolable."
Without discussion by the 1986 Constitutional Commission, the 1973
religious clauses were reproduced in the 1987 Constitution under the Bill
of Rights in Article III, Section 5.307 Likewise, the provision on separation
of church and state was included verbatim in the 1987 Constitution, but
this time as a principle in Section 6, Article II entitled Declaration of
Principles and State Policies.
Considering the American origin of the Philippine religion clauses and the
intent to adopt the historical background, nature, extent and limitations of
the First Amendment of the U.S. Constitution when it was included in the
1935 Bill of Rights, it is not surprising that nearly all the major Philippine
cases involving the religion clauses turn to U.S. jurisprudence in
explaining the nature, extent and limitations of these clauses. However, a
close scrutiny of these cases would also reveal that while U.S.
jurisprudence on religion clauses flows into two main streams of
interpretation - separation and benevolent neutrality - the well-spring of
Philippine jurisprudence on this subject is for the most part, benevolent
neutrality which gives room for accommodation.
B. Jurisprudence
In revisiting the landscape of Philippine jurisprudence on the religion
clauses, we begin with the definition of "religion". "Religion" is derived
from the Middle English religioun, from Old French religion, from Latin
religio, vaguely referring to a "bond between man and the gods." 308 This
pre-Christian term for the cult and rituals of pagan Rome was first
Christianized in the Latin translation of the Bible.309 While the U.S.
Supreme Court has had to take up the challenge of defining the
parameters and contours of "religion" to determine whether a non-theistic
belief or act is covered by the religion clauses, this Court has not been
confronted with the same issue. In Philippine jurisprudence, religion, for
purposes of the religion clauses, has thus far been interpreted as theistic.
In 1937, the Philippine case of Aglipay v. Ruiz310 involving the
Establishment Clause, defined "religion" as a "profession of faith to an
active power that binds and elevates man to his Creator." Twenty years
later, the Court cited the Aglipay definition in American Bible Society v.
City of Manila,311 a case involving the Free Exercise clause. The latter
also cited the American case of Davis in defining religion, viz: "(i)t has
reference to one's views of his relations to His Creator and to the
obligations they impose of reverence to His being and character and
obedience to His Will." The Beason definition, however, has been
expanded in U.S. jurisprudence to include non-theistic beliefs.
1. Free Exercise Clause
Freedom of choice guarantees the liberty of the religious conscience and
prohibits any degree of compulsion or burden, whether direct or indirect,
in the practice of one's religion. The Free Exercise Clause principally
guarantees voluntarism, although the Establishment Clause also assures
voluntarism by placing the burden of the advancement of religious groups
on their intrinsic merits and not on the support of the state.312
In interpreting the Free Exercise Clause, the realm of belief poses no
difficulty. The early case of Gerona v. Secretary of Education313 is
instructive on the matter, viz:
The realm of belief and creed is infinite and limitless bounded
only by one's imagination and thought. So is the freedom of
belief, including religious belief, limitless and without bounds. One
may believe in most anything, however strange, bizarre and
unreasonable the same may appear to others, even heretical
when weighed in the scales of orthodoxy or doctrinal standards.
But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel. 314
The difficulty in interpretation sets in when belief is externalized into
speech and action.
Religious speech comes within the pale of the Free Exercise Clause as
illustrated in the American Bible Society case. In that case, plaintiff
American Bible Society was a foreign, non-stock, non-profit, religious
missionary corporation which sold bibles and gospel portions of the bible
in the course of its ministry. The defendant City of Manila required plaintiff
to secure a mayor's permit and a municipal license as ordinarily required
of those engaged in the business of general merchandise under the city's
ordinances. Plaintiff argued that this amounted to "religious censorship
and restrained the free exercise and enjoyment of religious profession, to
wit: the distribution and sale of bibles and other religious literature to the
people of the Philippines."
After defining religion, the Court, citing Tanada and Fernando, made this
statement, viz:
The constitutional guaranty of the free exercise and enjoyment of
religious profession and worship carries with it the right to
disseminate religious information. Any restraint of such right can
only be justified like other restraints of freedom of expression on
the grounds that there is a clear and present danger of any
substantive evil which the State has the right to prevent. (Tanada
and Fernando on the Constitution of the Philippines, vol. 1, 4th
ed., p. 297) (emphasis supplied)
This was the Court's maiden unequivocal affirmation of the "clear and
present danger" rule in the religious freedom area, and in Philippine
jurisprudence, for that matter.315 The case did not clearly show, however,
whether the Court proceeded to apply the test to the facts and issues of
the case, i.e., it did not identify the secular value the government
regulation sought to protect, whether the religious speech posed a clear
and present danger to this or other secular value protected by
government, or whether there was danger but it could not be
characterized as clear and present. It is one thing to apply the test and
find that there is no clear and present danger, and quite another not to
apply the test altogether.
Instead, the Court categorically held that the questioned ordinances were
not applicable to plaintiff as it was not engaged in the business or
occupation of selling said "merchandise" for profit. To add, the Court,
citing Murdock v. Pennsylvania,316 ruled that applying the ordinance
requiring it to secure a license and pay a license fee or tax would impair
its free exercise of religious profession and worship and its right of
dissemination of religious beliefs "as the power to tax the exercise of a
privilege is the power to control or suppress its enjoyment." Thus, in
American Bible Society, the "clear and present danger" rule was laid
down but it was not clearly applied.
In the much later case of Tolentino v. Secretary of Finance,317 also
involving the sale of religious books, the Court distinguished the
American Bible Society case from the facts and issues in Tolentino and
did not apply the American Bible Society ruling. In Tolentino, the
Philippine Bible Society challenged the validity of the registration
provisions of the Value Added Tax (VAT) Law as a prior restraint. The
Court held, however, that the fixed amount of registration fee was not
imposed for the exercise of a privilege like a license tax which American
Bible Society ruled was violative of religious freedom. Rather, the
registration fee was merely an administrative fee to defray part of the cost
of registration which was a central feature of the VAT system.
Citing Jimmy Swaggart Ministries v. Board of Equalization,318 the
Court also declared prefatorily that "the Free Exercise of Religion Clause
does not prohibit imposing a generally applicable sales and use tax on
the sale of religious materials by a religious organization." In the Court's
resolution of the motion for reconsideration of the Tolentino decision, the
Court noted that the burden on religious freedom caused by the tax was
just similar to any other economic imposition that might make the right to
disseminate religious doctrines costly.
Two years after American Bible Society came the 1959 case of Gerona
v. Secretary of Education,319 this time involving conduct expressive of
religious belief colliding with a rule prescribed in accordance with law. In
this case, petitioners were members of the Jehovah's Witnesses. They
challenged a Department Order issued by the Secretary of Education
implementing Republic Act No. 1265 which prescribed compulsory flag
ceremonies in all public schools. In violation of the Order, petitioner's
children refused to salute the Philippine flag, sing the national anthem, or
recite the patriotic pledge, hence they were expelled from school.
Seeking protection under the Free Exercise Clause, petitioners claimed
that their refusal was on account of their religious belief that the
Philippine flag is an image and saluting the same is contrary to their
religious belief. The Court stated, viz:
. . . If the exercise of religious belief clashes with the established
institutions of society and with the law, then the former must yield
to the latter. The Government steps in and either restrains said
exercise or even prosecutes the one exercising it. (emphasis
supplied)320
The Court then proceeded to determine if the acts involved constituted a
religious ceremony in conflict with the beliefs of the petitioners with the
following justification:
After all, the determination of whether a certain ritual is or is not a
religious ceremony must rest with the courts. It cannot be left to a
religious group or sect, much less to a follower of said group or sect;
otherwise, there would be confusion and misunderstanding for there
might be as many interpretations and meaning to be given to a certain
ritual or ceremony as there are religious groups or sects or followers, all
depending upon the meaning which they, though in all sincerity and good
faith, may want to give to such ritual or ceremony. 321
It was held that the flag was not an image, the flag salute was not a
religious ceremony, and there was nothing objectionable about the
singing of the national anthem as it speaks only of love of country,
patriotism, liberty and the glory of suffering and dying for it. The Court
upheld the questioned Order and the expulsion of petitioner's children,
stressing that:
Men may differ and do differ on religious beliefs and creeds,
government policies, the wisdom and legality of laws, even the
correctness of judicial decisions and decrees; but in the field of
love of country, reverence for the flag, national unity and
patriotism, they can hardly afford to differ, for these are matters in
which they are mutually and vitally interested, for to them, they
mean national existence and survival as a nation or national
extinction.322
In support of its ruling, the Court cited Justice Frankfurter's dissent in the
Barnette case, viz:
The constitutional protection of religious freedom x x x gave
religious equality, not civil immunity. Its essence is freedom from
conformity to religious dogma, not freedom from conformity to law
because of religious dogma.323
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the Constitution does not
and cannot mean exemption from or non-compliance with reasonable
and non-discriminatory laws, rules and regulations promulgated by
competent authority.324
Thus, the religious freedom doctrines one can derive from Gerona are:
(1) it is incumbent upon the Court to determine whether a certain ritual is
religious or not; (2) religious freedom will not be upheld if it clashes with
the established institutions of society and with the law such that when a
law of general applicability (in this case the Department Order)
incidentally burdens the exercise of one's religion, one's right to religious
freedom cannot justify exemption from compliance with the law. The
Gerona ruling was reiterated in Balbuna, et al. v. Secretary of
Education, et al.325
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde
Rope Workers Union.[326] In this unanimously decided en banc case,
Victoriano was a member of the Iglesia ni Cristo which prohibits the
affiliation of its members with any labor organization. He worked in the
Elizalde Rope Factory, Inc. and was a member of the Elizalde Rope
Workers Union which had with the company a closed shop provision
pursuant to Republic Act No. 875 allowing closed shop arrangements.
Subsequently, Republic Act No. 3350 was enacted exempting from the
application and coverage of a closed shop agreement employees
belonging to any religious sect which prohibits affiliation of their members
with any labor organization. Victoriano resigned from the union after
Republic Act No. 3350 took effect. The union notified the company of
Victoriano's resignation, which in turn notified Victoriano that unless he
could make a satisfactory arrangement with the union, the company
would be constrained to dismiss him from the service. Victoriano sought
to enjoin the company and the union from dismissing him. The court
having granted the injunction, the union came to this Court on questions
of law, among which was whether Republic Act No. 3350 was
unconstitutional for impairing the obligation of contracts and for granting
an exemption offensive of the Establishment Clause. With respect to the
first issue, the Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental
personal right and liberty (Schneider v. Irgington, 308 U.S. 147,
161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a preferred position
in the hierarchy of values. Contractual rights, therefore, must yield
to freedom of religion. It is only where unavoidably necessary to
prevent an immediate and grave danger to the security and
welfare of the community that infringement of religious freedom
may be justified, and only to the smallest extent
necessary.327 (emphasis supplied)
As regards the Establishment Clause issue, the Court after citing the
constitutional provision on establishment and free exercise of religion,
declared, viz:
The constitutional provisions not only prohibits legislation for the
support of any religious tenets or the modes of worship of any
sect, thus forestalling compulsion by law of the acceptance of any
creed or the practice of any form of worship (U.S. Ballard, 322
U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise
 of one's chosen form of religion within limits of utmost amplitude.
It has been said that the religion clauses of the Constitution are
all designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he ought
to live, consistent with the liberty of others and with the common
good. (footnote omitted). Any legislation whose effect or purpose
is to impede the observance of one or all religions, or to
discriminate invidiously between the religions, is invalid, even
though the burden may be characterized as being only indirect.
(Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct.
1970) But if the state regulates conduct by enacting, within its
power, a general law which has for its purpose and effect to
advance the state's secular goals, the statute is valid despite its
indirect burden on religious observance, unless the state can
accomplish its purpose without imposing such burden. (Braunfeld
v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan
v. Maryland, 366 U.S. 420, 444-5 and 449)328 (emphasis supplied)
Quoting Aglipay v. Ruiz,329 the Court held that "government is not
precluded from pursuing valid objectives secular in character even if the
incidental result would be favorable to a religion or sect." It also
cited Board of Education v. Allen,330 which held that in order to
withstand the strictures of constitutional prohibition, a statute must have a
secular legislative purpose and a primary effect that neither advances nor
inhibits religion. Using these criteria in upholding Republic Act No. 3350,
the Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular
purpose of advancing the constitutional right to the free exercise
of religion, by averting that certain persons be refused work, or be
dismissed from work, or be dispossessed of their right to work
and of being impeded to pursue a modest means of livelihood, by
reason of union security agreements. . . . The primary effects of
the exemption from closed shop agreements in favor of members
of religious sects that prohibit their members from affiliating with a
labor organization, is the protection of said employees against the
aggregate force of the collective bargaining agreement, and
relieving certain citizens of a burden on their religious beliefs, and
. . . eliminating to a certain extent economic insecurity due to
unemployment.331
The Court stressed that "(a)lthough the exemption may benefit those who
are members of religious sects that prohibit their members from joining
labor unions, the benefit upon the religious sects is merely incidental and
indirect."332 In enacting Republic Act No. 3350, Congress merely relieved
the exercise of religion by certain persons of a burden imposed by union
security agreements which Congress itself also imposed through the
Industrial Peace Act. The Court concluded the issue of exemption by
citing Sherbert which laid down the rule that when general laws conflict
with scruples of conscience, exemptions ought to be granted unless
some "compelling state interest" intervenes. The Court then abruptly
added that "(i)n the instant case, We see no compelling state interest to
withhold exemption."333
A close look at Victoriano would show that the Court mentioned several
tests in determining when religious freedom may be validly limited. First,
the Court mentioned the test of "immediate and grave danger to the
security and welfare of the community" and "infringement of religious
freedom only to the smallest extent necessary" to justify limitation of
religious freedom. Second, religious exercise may be indirectly burdened
by a general law which has for its purpose and effect the advancement of
the state's secular goals, provided that there is no other means by which
the state can accomplish this purpose without imposing such burden.
Third, the Court referred to the "compelling state interest" test which
grants exemptions when general laws conflict with religious exercise,
unless a compelling state interest intervenes.
It is worth noting, however, that the first two tests were mentioned only for
the purpose of highlighting the importance of the protection of religious
freedom as the secular purpose of Republic Act No. 3350. Upholding
religious freedom was a secular purpose insofar as it relieved the burden
on religious freedom caused by another law, i.e, the Industrial Peace Act
providing for union shop agreements. The first two tests were only
mentioned in Victoriano but were not applied by the Court to the facts
and issues of the case. The third, the "compelling state interest" test was
employed by the Court to determine whether the exemption provided by
Republic Act No. 3350 was not unconstitutional. It upheld the exemption,
stating that there was no "compelling state interest" to strike it down.
However, after careful consideration of the Sherbert case from which
Victoriano borrowed this test, the inevitable conclusion is that the
"compelling state interest" test was not appropriate and could not find
application in the Victoriano case. In Sherbert, appellant Sherbert
invoked religious freedom in seeking exemption from the provisions of
the South Carolina Unemployment Compensation Act which disqualified
her from claiming unemployment benefits. It was the appellees, members
of the South Carolina Employment Commission, a government agency,
who propounded the state interest to justify overriding Sherbert's claim of
religious freedom. The U.S. Supreme Court, considering Sherbert's and
the Commission's arguments, found that the state interest was not
sufficiently compelling to prevail over Sherbert's free exercise claim. This
situation did not obtain in the Victoriano case where it was the
government itself, through Congress, which provided the exemption in
Republic Act No. 3350 to allow Victoriano's exercise of religion. Thus, the
government could not argue against the exemption on the basis of a
compelling state interest as it would be arguing against itself; while
Victoriano would not seek exemption from the questioned law to allow the
free exercose of religion as the law in fact provides such an exemption. In
sum, although Victoriano involved a religious belief and conduct, it did not
involve a free exercise issue where the Free Exercise Clause is invoked
to exempt him from the burden imposed by a law on his religious
freedom.
Victoriano was reiterated in several cases involving the Iglesia ni Cristo,
namely Basa, et al. v. Federacion Obrera de la Industria Tabaquera y
Otros Trabajadores de Filipinas,334 Anucension v. National Labor
Union, et al.,335 and Gonzales, et al. v. Central Azucarera de Tarlac
Labor Union.336
Then came German v. Barangan in 1985 at the height of the anti-
administration rallies. Petitioners were walking to St. Jude Church within
the Malacanang security area to pray for "an end to violence" when they
were barred by the police. Invoking their constitutional freedom of
religious worship and locomotion, they came to the Court on a petition for
mandamus to allow them to enter and pray inside the St. Jude Chapel.
The Court was divided on the issue. The slim majority of six recognized
their freedom of religion but noted their absence of good faith and
concluded that they were using their religious liberty to express their
opposition to the government. Citing Cantwell, the Court distinguished
between freedom to believe and freedom to act on matters of
religion, viz:
. . . Thus the (First) amendment embraces two concepts -
freedom to believe and freedom to act. The first is absolute, but in
the nature of things, the second cannot be. 337
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their
freedom of belief or choice of their religion, but only in the manner
by which they had attempted to translate the same to action. This
curtailment is in accord with the pronouncement of this Court in
Gerona v. Secretary of Education (106 Phil. 2), thus:
. . . But between the freedom of belief and the exercise of said
belief, there is quite a stretch of road to travel. If the exercise of
said religious belief clashes with the established institutions of
society and with the law, then the former must yield and give way
to the latter. The government steps in and either restrains said
exercise or even prosecutes the one exercising it. (italics
supplied)
The majority found that the restriction imposed upon petitioners was
"necessary to maintain the smooth functioning of the executive branch of
the government, which petitioners' mass action would certainly
disrupt"338 and denied the petition. Thus, without considering the tests
mentioned in Victoriano, German went back to the Gerona rule that
religious freedom will not be upheld if it clashes with the established
institutions of society and the law.
Then Associate Justice Teehankee registered a dissent which in
subsequent jurisprudence would be cited as a test in religious freedom
cases. His dissent stated in relevant part, viz:
A brief restatement of the applicable constitutional principles as
set forth in the landmark case of J.B.L. Reyes v. Bagatsing (125
SCRA 553[1983]) should guide us in resolving the issues.
1. The right to freely exercise one's religion is guaranteed in
Section 8 of our Bill of Rights. (footnote omitted) Freedom of
worship, alongside with freedom of expression and speech and
peaceable assembly "along with the other intellectual freedoms,
are highly ranked in our scheme of constitutional values. It cannot
be too strongly stressed that on the judiciary - even more so than
on the other departments - rests the grave and delicate
responsibility of assuring respect for and deference to such
preferred rights. No verbal formula, no sanctifying phrase can, of
course, dispense with what has been so felicitously termed by
Justice Holmes 'as the sovereign prerogative of judgment.'
Nonetheless, the presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as they do
precedence and primacy.' (J.B.L. Reyes, 125 SCRA at pp. 569-
570)
 2. In the free exercise of such preferred rights, there is to be no
prior restraint although there may be subsequent punishment of
any illegal acts committed during the exercise of such basic
rights. The sole justification for a prior restraint or limitation on the
exercise of these basic rights is the existence of a grave and
present danger of a character both grave and imminent, of a
serious evil to public safety, public morals, public health or any
other legitimate public interest, that the State has a right (and
duty) to prevent (Idem, at pp. 560-561).339 (emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice
Teehankee's dissent was taken involved the rights to free speech and
assembly, and not the exercise of religious freedom. At issue in that case
was a permit sought by retired Justice J.B.L. Reyes, on behalf of the Anti-
Bases Coalition, from the City of Manila to hold a peaceful march and
rally from the Luneta to the gates of the U.S. Embassy. Nevertheless
Bagatsing was used by Justice Teehankee in his dissent which had
overtones of petitioner German and his companions' right to assemble
and petition the government for redress of grievances. 340
In 1993, the issue on the Jehovah's Witnesses' participation in the flag
ceremony again came before the Court in Ebralinag v. The Division
Superintendent of Schools.341 A unanimous Court overturned the
Gerona ruling after three decades. Similar to Gerona, this case involved
several Jehovah's Witnesses who were expelled from school for refusing
to salute the flag, sing the national anthem and recite the patriotic pledge,
in violation of the Administrative Code of 1987. In resolving the same
religious freedom issue as in Gerona, the Court this time transported the
"grave and imminent danger" test laid down in Justice Teehankee's
dissent in German, viz:
The sole justification for a prior restraint or limitation on the
exercise of religious freedom (according to the late Chief Justice
Claudio Teehankee in his dissenting opinion in German v.
Barangan, 135 SCRA 514, 517) is the existence of a grave and
present danger of a character both grave and imminent, of a
serious evil to public safety, public morals, public health or any
other legitimate public interest, that the State has a right (and
duty) to prevent. Absent such a threat to public safety, the
expulsion of the petitioners from the schools is not
justified.342 (emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovah's
Witnesses from saluting the flag, singing the national anthem and
reciting the patriotic pledge, this religious group which admittedly
comprises a 'small portion of the school population' will shake up
our part of the globe and suddenly produce a nation 'untaught
and uninculcated in and unimbued with reverence for the flag,
patriotism, love of country and admiration for national heroes'
(Gerona v. Secretary of Education, 106 Phil. 224). After all, what
the petitioners seek only is exemption from the flag ceremony, not
exclusion from the public schools where they may study the
Constitution, the democratic way of life and form of government,
and learn not only the arts, sciences, Philippine history and
culture but also receive training for a vocation or profession and
be taught the virtues of 'patriotism, respect for human rights,
appreciation of national heroes, the rights and duties of
citizenship, and moral and spiritual values' (Sec. 3[2], Art. XIV,
1987 Constitution) as part of the curricula. Expelling or banning
the petitioners from Philippine schools will bring about the very
situation that this Court has feared in Gerona. Forcing a small
religious group, through the iron hand of the law, to participate in
a ceremony that violates their religious beliefs, will hardly be
conducive to love of country or respect for duly constituted
authorities.343
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to
the country, x x x- assuming that such unity and loyalty can be
attained through coercion- is not a goal that is constitutionally
obtainable at the expense of religious liberty. A desirable end
cannot be promoted by prohibited means. (Meyer vs. Nebraska,
262 U.S. 390, 67 L. ed. 1042, 1046).344
Towards the end of the decision, the Court also cited the Victoriano case
and its use of the "compelling state interest" test in according exemption
to the Jehovah's Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-
75, we upheld the exemption of members of the Iglesia ni Cristo,
from the coverage of a closed shop agreement between their
employer and a union because it would violate the teaching of
their church not to join any group:
 'x x x It is certain that not every conscience can be
accommodated by all the laws of the land; but when
general laws conflict with scruples of conscience,
exemptions ought to be granted unless some 'compelling
state interest' intervenes.' (Sherbert vs. Verner, 374 U.S.
398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)'
We hold that a similar exemption may be accorded to the
Jehovah's Witnesses with regard to the observance of the flag
ceremony out of respect for their religious beliefs, however
'bizarre' those beliefs may seem to others.345
The Court annulled the orders expelling petitioners from school.
Thus, the "grave and imminent danger" test laid down in a dissenting
opinion in German which involved prior restraint of religious worship with
overtones of the right to free speech and assembly, was transported to
Ebralinag which did not involve prior restraint of religious worship, speech
or assembly. Although, it might be observed that the Court faintly implied
that Ebralinag also involved the right to free speech when in its
preliminary remarks, the Court stated that compelling petitioners to
participate in the flag ceremony "is alien to the conscience of the present
generation of Filipinos who cut their teeth on the Bill of Rights which
guarantees their rights to free speech and the free exercise of religious
profession and worship;" the Court then stated in a footnote that the "flag
salute, singing the national anthem and reciting the patriotic pledge are
all forms of utterances."346
The "compelling state interest" test was not fully applied by the Court in
Ebralinag. In the Solicitor General's consolidated comment, one of the
grounds cited to defend the expulsion orders issued by the public
respondents was that "(t)he State's compelling interests being pursued by
the DEC's lawful regulations in question do not warrant exemption of the
school children of the Jehovah's Witnesses from the flag salute
ceremonies on the basis of their own self-perceived religious
convictions."347 The Court, however, referred to the test only towards the
end of the decision and did not even mention what the Solicitor General
argued as the compelling state interest, much less did the Court explain
why the interest was not sufficiently compelling to override petitioners'
religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of Iglesia
ni Cristo v. Court of Appeals, et al.348 Although there was a dissent with
respect to the applicability of the "clear and present danger" test in this
case, the majority opinion in unequivocal terms applied the "clear and
present danger" test to religious speech. This case involved the television
program, "Ang Iglesia ni Cristo," regularly aired over the television. Upon
petitioner Iglesia ni Cristo's submission of the VTR tapes of some of its
episodes, respondent Board of Review for Motion Pictures and Television
classified these as "X" or not for public viewing on the ground that they
"offend and constitute an attack against other religions which is expressly
prohibited by law." Invoking religious freedom, petitioner alleged that the
Board acted without jurisdiction or with grave abuse of discretion in
requiring it to submit the VTR tapes of its television program and x-rating
them. While upholding the Board's power to review the Iglesia television
show, the Court was emphatic about the preferred status of religious
freedom. Quoting Justice Cruz' commentary on the constitution, the Court
held that freedom to believe is absolute but freedom to act on one's
belief, where it affects the public, is subject to the authority of the state.
The commentary quoted Justice Frankfurter's dissent in Barnette which
was quoted in Gerona, viz: "(t)he constitutional provision on religious
freedom terminated disabilities, it did not create new privileges. It gave
religious liberty, not civil immunity. Its essence is freedom from conformity
to religious dogma, not freedom from conformity to law because of
religious dogma."349 Nevertheless, the Court was quick to add the criteria
by which the state can regulate the exercise of religious freedom, that is,
when the exercise will bring about the "clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e., serious
detriment to the more overriding interest of public health, public morals,
or public welfare."350
In annulling the x-rating of the shows, the Court stressed that the
Constitution is hostile to all prior restraints on speech, including religious
speech and the x-rating was a suppression of petitioner's freedom of
speech as much as it was an interference with its right to free exercise of
religion. Citing Cantwell, the Court recognized that the different religions
may criticize one another and their tenets may collide, but the
Establishment Clause prohibits the state from protecting any religion from
this kind of attack.
The Court then called to mind the "clear and present danger" test first laid
down in the American Bible Society case and the test of "immediate and
grave danger" with "infringement only to the smallest extent necessary to
avoid danger" in Victoriano and pointed out that the reviewing board
failed to apply the "clear and present danger" test. Applying the test, the
Court noted, viz:
 The records show that the decision of the respondent Board,
affirmed by the respondent appellate court, is completely bereft of
findings of facts to justify the conclusion that the subject video
tapes constitute impermissible attacks against another religion.
There is no showing whatsoever of the type of harm the tapes will
bring about especially the gravity and imminence of the
threatened harm. Prior restraint on speech, including religious
speech, cannot be justified by hypothetical fears but only by the
showing of a substantive and imminent evil which has taken the
life of a reality already on ground.
Replying to the challenge on the applicability of the "clear and present
danger" test to the case, the Court acknowledged the permutations that
the test has undergone, but stressed that the test is still applied to four
types of speech: "speech that advocates dangerous ideas, speech that
provokes a hostile audience reaction, out of court contempt and release
of information that endangers a fair trial"351 and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is
reason to apply the clear and present danger test to the case at
bar which concerns speech that attacks other religions and could
readily provoke hostile audience reaction. It cannot be doubted
that religious truths disturb and disturb terribly. 352
In Iglesia therefore, the Court went back to Gerona insofar as holding that
religious freedom cannot be invoked to seek exemption from compliance
with a law that burdens one's religious exercise. It also reiterated the
"clear and present danger" test in American Bible Society and the "grave
and imminent danger" in Victoriano, but this time clearly justifying its
applicability and showing how the test was applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of not
invalidating a law offensive to religious freedom, but carving out an
exception or upholding an exception to accommodate religious exercise
where it is justified.353
2. Establishment Clause
In Philippine jurisdiction, there is substantial agreement on the values
sought to be protected by the Establishment Clause, namely, voluntarism
and insulation of the political process from interfaith dissension. The first,
voluntarism, has both a personal and a social dimension. As a personal
value, it refers to the inviolability of the human conscience which, as
discussed above, is also protected by the free exercise clause. From the
religious perspective, religion requires voluntarism because compulsory
faith lacks religious efficacy. Compelled religion is a contradiction in
terms.354 As a social value, it means that the "growth of a religious sect as
a social force must come from the voluntary support of its members
because of the belief that both spiritual and secular society will benefit if
religions are allowed to compete on their own intrinsic merit without
benefit of official patronage. Such voluntarism cannot be achieved unless
the political process is insulated from religion and unless religion is
insulated from politics."355 Non-establishment thus calls for government
neutrality in religious matters to uphold voluntarism and avoid breeding
interfaith dissension.356
The neutrality principle was applied in the first significant non-
establishment case under the 1935 Constitution. In the 1937 case
of Aglipay v. Ruiz,357 the Philippine Independent Church challenged the
issuance and sale of postage stamps commemorating the Thirty-Third
International Eucharistic Congress of the Catholic Church on the ground
that the constitutional prohibition against the use of public money for
religious purposes has been violated. It appears that the Director of Posts
issued the questioned stamps under the provisions of Act No.
4052358 which appropriated a sum for the cost of plates and printing of
postage stamps with new designs and authorized the Director of Posts to
dispose of the sum in a manner and frequency "advantageous to the
Government." The printing and issuance of the postage stamps in
question appears to have been approved by authority of the President.
Justice Laurel, speaking for the Court, took pains explaining religious
freedom and the role of religion in society, and in conclusion, found no
constitutional infirmity in the issuance and sale of the stamps, viz:
The prohibition herein expressed is a direct corollary of the
principle of separation of church and state. Without the necessity
of adverting to the historical background of this principle in our
country, it is sufficient to say that our history, not to speak of the
history of mankind, has taught us that the union of church and
state is prejudicial to both, for occasions might arise when the
state will use the church, and the church the state, as a weapon
in the furtherance of their respective ends and aims . . . It is
almost trite to say now that in this country we enjoy both religious
and civil freedom. All the officers of the Government, from the
highest to the lowest, in taking their oath to support and defend
the Constitution, bind themselves to recognize and respect the
constitutional guarantee of religious freedom, with its inherent
limitations and recognized implications. It should be stated that
 what is guaranteed by our Constitution is religious liberty, not
mere toleration.
Religious freedom, however, as a constitutional mandate is not an
inhibition of profound reverence for religion and is not a denial of its
influence in human affairs. Religion as a profession of faith to an active
power that binds and elevates man to his Creator is recognized. And, in
so far as it instills into the minds the purest principles of morality, its
influence is deeply felt and highly appreciated. When the Filipino people,
in the preamble of their Constitution, implored "the aid of Divine
Providence, in order to establish a government that shall embody their
ideals, conserve and develop the patrimony of the nation, promote the
general welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty and
democracy," they thereby manifested their intense religious nature and
placed unfaltering reliance upon Him who guides the destinies of men
and nations. The elevating influence of religion in human society is
recognized here as elsewhere. In fact, certain general concessions are
indiscriminately accorded to religious sects and denominations. . . 359
xxx xxx xxx
It is obvious that while the issuance and sale of the stamps in
question may be said to be inseparably linked with an event of a
religious character, the resulting propaganda, if any, received by
the Roman Catholic Church, was not the aim and purpose of the
Government. We are of the opinion that the Government should
not be embarrassed in its activities simply because of incidental
results, more or less religious in character, if the purpose had in
view is one which could legitimately be undertaken by appropriate
legislation. The main purpose should not be frustrated by its
subordination to mere incidental results not contemplated. (Vide
Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44
Law. ed., 168)360 (emphases supplied)
In so deciding the case, the Court, citing U.S. jurisprudence, laid down
the doctrine that a law or government action with a legitimate secular
purpose does not offend the Establishment Clause even if it incidentally
aids a particular religion.
Almost forty-five years after Aglipay came Garces v.
Estenzo.361 Although the Court found that the separation of church and
state was not at issue as the controversy was over who should have
custody of a saint's image, it nevertheless made pronouncements on the
separation of church and state along the same line as the Aglipay ruling.
The Court held that there was nothing unconstitutional or illegal in holding
a fiesta and having a patron saint for the barrio. It adhered to the barrio
resolutions of the barangay involved in the case stating that the barrio
fiesta is a socio-religious affair, the celebration of which is an "ingrained
tradition in rural communities" that "relieves the monotony and drudgery
of the lives of the masses." Corollarily, the Court found nothing illegal
about any activity intended to facilitate the worship of the patron saint
such as the acquisition and display of his image bought with funds
obtained through solicitation from the barrio residents. The Court pointed
out that the image of the patron saint was "purchased in connection with
the celebration of the barrio fiesta honoring the patron saint, San Vicente
Ferrer, and not for the purpose of favoring any religion nor interfering with
religious matters or the religious beliefs of the barrio residents." Citing the
Aglipay ruling, the Court declared, viz:
Not every governmental activity which involves the expenditure of
public funds and which has some religious tint is violative of the
constitutional provisions regarding separation of church and state,
freedom of worship and banning the use of public money or
property.
Then came the 1978 case of Pamil v. Teleron, et al.362 which presented
a novel issue involving the religion clauses. In this case, Section 2175 of
the Revised Administrative Code of 1917 disqualifying ecclesiastics from
appointment or election as municipal officer was challenged. After
protracted deliberation, the Court was sharply divided on the issue.
Seven members of the Court, one short of the number necessary to
declare a law unconstitutional, approached the problem from a free
exercise perspective and considered the law a religious test offensive of
the constitution. They were Justices Fernando, Teehankee, Muñoz-
Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero. Then
Associate Justice Fernando, the ponente, stated, viz: "The challenged
Administrative Code provision, certainly insofar as it declares ineligible
ecclesiastics to any elective or appointive office, is, on its face,
inconsistent with the religious freedom guaranteed by the Constitution."
Citing Torcaso v. Watkins,363 the ponencia held, viz:
Torcaso v. Watkins, an American Supreme Court decision, has
persuasive weight. What was there involved was the validity of a
provision in the Maryland Constitution prescribing that 'no
religious test ought ever to be required as a disqualification for
any office or profit or trust in this State, other than a declaration of
 belief in the existence of God ***.' Such a constitutional
requirement was assailed as contrary to the First Amendment of
the United States Constitution by an appointee to the office of
notary public in Maryland, who was refused a commission as he
would not declare a belief in God. He failed in the Maryland Court
of Appeals but prevailed in the United States Supreme Court,
which reversed the state court decision. It could not have been
otherwise. As emphatically declared by Justice Black: 'this
Maryland religious test for public office unconstitutionally invades
the appellant's freedom of belief and religion and therefore cannot
be enforced against him.
The analogy appears to be obvious. In that case, it was lack of
belief in God that was a disqualification. Here being an
ecclesiastic and therefore professing a religious faith suffices to
disqualify for a public office. There is thus an incompatibility
between the Administrative Code provision relied upon by
petitioner and an express constitutional mandate. 364
On the other hand, the prevailing five other members of the Court - Chief
Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino -
approached the case from a non-establishment perspective and upheld
the law as a safeguard against the constant threat of union of church and
state that has marked Philippine history. Justice Makasiar stated: "To
allow an ecclesiastic to head the executive department of a municipality
is to permit the erosion of the principle of separation of Church and State
and thus open the floodgates for the violation of the cherished liberty of
religion which the constitutional provision seeks to enforce and protect."
Consequently, the Court upheld the validity of Section 2175 of the
Revised Administrative Code and declared respondent priest ineligible for
the office of municipal mayor.
Another type of cases interpreting the establishment clause deals with
intramural religious disputes. Fonacier v. Court of Appeals365 is the
leading case. The issue therein was the right of control over certain
properties of the Philippine Independent Church, the resolution of which
necessitated the determination of who was the legitimate bishop of the
church. The Court cited American Jurisprudence, 366 viz:
Where, however, a decision of an ecclesiastical court plainly
violates the law it professes to administer, or is in conflict with the
law of the land, it will not be followed by the civil courts. . . In
some instances, not only have the civil courts the right to inquire
into the jurisdiction of the religious tribunals and the regularity of
their procedure, but they have subjected their decisions to the
test of fairness or to the test furnished by the constitution and the
law of the church. . .367
The Court then ruled that petitioner Fonacier was legitimately ousted and
respondent de los Reyes was the duly elected head of the Church, based
on their internal laws. To finally dispose of the property issue, the Court,
citing Watson v. Jones,368 declared that the rule in property
controversies within religious congregations strictly independent of any
other superior ecclesiastical association (such as the Philippine
Independent Church) is that the rules for resolving such controversies
should be those of any voluntary association. If the congregation adopts
the majority rule then the majority should prevail; if it adopts adherence to
duly constituted authorities within the congregation, then that should be
followed. Applying these rules, Fonacier lost the case. While the Court
exercised jurisdiction over the case, it nevertheless refused to touch
doctrinal and disciplinary differences raised, viz:
The amendments of the constitution, restatement of articles of
religion and abandonment of faith or abjuration alleged by
appellant, having to do with faith, practice, doctrine, form of
worship, ecclesiastical law, custom and rule of a church and
having reference to the power of excluding from the church those
allegedly unworthy of membership, are unquestionably
ecclesiastical matters which are outside the province of the civil
courts.369
VIII. Free Exercise Clause vis-à-vis Establishment Clause
In both Philippine and U.S. jurisdiction, it is recognized that there is a
tension between the Free Exercise Clause and the Establishment Clause
in their application. There is a natural antagonism between a command
not to establish religion and a command not to inhibit its practice; this
tension between the religion clauses often leaves the courts with a choice
between competing values in religion cases. 370
One set of facts, for instance, can be differently viewed from the
Establishment Clause perspective and the Free Exercise Clause point of
view, and decided in opposite directions. In Pamil, the majority gave
more weight to the religious liberty of the priest in holding that the
prohibition of ecclesiastics to assume elective or appointive government
positions was violative of the Free Exercise Clause. On the other hand,
the prevailing five justices gave importance to the Establishment Clause
in stating that the principle of separation of church and state justified the
prohibition.
Tension is also apparent when a case is decided to uphold the Free
Exercise Clause and consequently exemptions from a law of general
applicability are afforded by the Court to the person claiming religious
freedom; the question arises whether the exemption does not amount to
support of the religion in violation of the Establishment Clause. This was
the case in the Free Exercise Clause case of Sherbert where the U.S.
Supreme Court ruled, viz:
In holding as we do, plainly we are not fostering the
"establishment" of the Seventh-day Adventist religion in South
Carolina, for the extension of unemployment benefits to
Sabbatarians in common with Sunday worshippers reflects
nothing more than the governmental obligation of neutrality in the
face of religious differences, and does not represent that
involvement of religious with secular institutions which it is the
object of the Establishment Clause to forestall. 371 (emphasis
supplied)
Tension also exists when a law of general application provides exemption
in order to uphold free exercise as in the Walz case where the appellant
argued that the exemption granted to religious organizations, in effect,
required him to contribute to religious bodies in violation of the
Establishment Clause. But the Court held that the exemption was not a
case of establishing religion but merely upholding the Free Exercise
Clause by "sparing the exercise of religion from the burden of property
taxation levied on private profit institutions." Justice Burger wrote, viz:
(t)he Court has struggled to find a neutral course between the two
religion clauses, both of which are cast in absolute terms, and
either of which, if expanded to a logical extreme, would tend to
clash with the other.372
Similarly, the Philippine Supreme Court in the Victoriano case held that
the exemption afforded by law to religious sects who prohibit their
members from joining unions did not offend the Establishment Clause.
We ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress
acted consistently with the spirit of the constitutional provision. It
acted merely to relieve the exercise of religion, by certain
persons, of a burden that is imposed by union security
agreements.373 (emphasis supplied)
Finally, in some cases, a practice is obviously violative of the
Establishment Clause but the Court nevertheless upholds it. In Schempp,
Justice Brennan stated: "(t)here are certain practices, conceivably
violative of the Establishment Clause, the striking down of which might
seriously interfere with certain religious liberties also protected by the
First Amendment."
How the tension between the Establishment Clause and the Free
Exercise Clause will be resolved is a question for determination in the
actual cases that come to the Court. In cases involving both the
Establishment Clause and the Free Exercise Clause, the two clauses
should be balanced against each other. The courts must review all the
relevant facts and determine whether there is a sufficiently strong free
exercise right that should prevail over the Establishment Clause problem.
In the United States, it has been proposed that in balancing, the free
exercise claim must be given an edge not only because of abundant
historical evidence in the colonial and early national period of the United
States that the free exercise principle long antedated any broad-based
support of disestablishment, but also because an Establishment Clause
concern raised by merely accommodating a citizen's free exercise of
religion seems far less dangerous to the republic than pure establishment
cases. Each time the courts side with the Establishment Clause in cases
involving tension between the two religion clauses, the courts convey a
message of hostility to the religion that in that case cannot be freely
exercised.374 American professor of constitutional law, Laurence Tribe,
similarly suggests that the free exercise principle "should be dominant in
any conflict with the anti-establishment principle." This dominance would
be the result of commitment to religious tolerance instead of "thwarting at
all costs even the faintest appearance of establishment." 375 In our
jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of
the religion clauses does not suffice. Modern society is characterized by
the expanding regulatory arm of government that reaches a variety of
areas of human conduct and an expanding concept of religion. To
adequately meet the demands of this modern society, the societal values
the religion clauses are intended to protect must be considered in their
interpretation and resolution of the tension. This, in fact, has been the
approach followed by the Philippine Court. 376
IX. Philippine Religion Clauses: Nature, Purpose, Tests Based on
Philippine and American Religion Clause History, Law and
Jurisprudence
The history of the religion clauses in the 1987 Constitution shows that
these clauses were largely adopted from the First Amendment of the U.S.
Constitution. The religion clauses in the First Amendment were contained
in every organic Act of the Philippines under the American regime. When
the delegates of the 1934 Constitutional Convention adopted a Bill of
Rights in the 1935 Constitution, they purposely retained the phraseology
of the religion clauses in the First Amendment as contained in the Jones
Law in order to adopt its historical background, nature, extent and
limitations. At that time, there were not too many religion clause cases in
the United States as the U.S. Supreme Court decided an Establishment
Clause issue only in the 1947 Everson case. The Free Exercise Clause
cases were also scarce then. Over the years, however, with the
expanding reach of government regulation to a whole gamut of human
actions and the growing plurality and activities of religions, the number of
religion clause cases in the U.S. exponentially increased. With this
increase came an expansion of the interpretation of the religion clauses,
at times reinforcing prevailing case law, at other times modifying it, and
still at other times creating contradictions so that two main streams of
jurisprudence had become identifiable. The first stream employs
separation while the second employs benevolent neutrality in interpreting
the religious clauses. Alongside this change in the landscape of U.S.
religion clause jurisprudence, the Philippines continued to adopt the 1935
Constitution religion clauses in the 1973 Constitution and later, the 1987
Constitution. Philippine jurisprudence and commentaries on the religious
clauses also continued to borrow authorities from U.S. jurisprudence
without articulating the stark distinction between the two streams of U.S.
jurisprudence. One might simply conclude that the Philippine
Constitutions and jurisprudence also inherited the disarray of U.S.
religion clause jurisprudence and the two identifiable streams; thus, when
a religion clause case comes before the Court, a separationist approach
or a benevolent neutrality approach might be adopted and each will have
U.S. authorities to support it. Or, one might conclude that as the history of
the First Amendment as narrated by the Court in Everson supports the
separationist approach, Philippine jurisprudence should also follow this
approach in light of the Philippine religion clauses' history. As a result, in
a case where the party claims religious liberty in the face of a general law
that inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation
would not be breached if the Court grants him an exemption. These
conclusions, however, are not and were never warranted by the 1987,
1973 and 1935 Constitutions as shown by other provisions on religion in
all three constitutions. It is a cardinal rule in constitutional construction
that the constitution must be interpreted as a whole and apparently
conflicting provisions should be reconciled and harmonized in a manner
that will give to all of them full force and effect. 377 From this construction,
it will be ascertained that the intent of the framers was to adopt a
benevolent neutrality approach in interpreting the religious clauses in the
Philippine constitutions, and the enforcement of this intent is the goal of
construing the constitution.378
We first apply the hermeneutical scalpel to dissect the 1935 Constitution.
At the same time that the 1935 Constitution provided for an
Establishment Clause, it also provided for tax exemption of church
property in Article VI, Section 22, par. 3(b), viz:
(3) Cemeteries, churches, and parsonages or convents,
appurtenant thereto, and all lands, buildings, and improvements
used exclusively for religious, charitable, or educational purposes
shall be exempt from taxation.
Before the advent of the 1935 Constitution, Section 344 of the
Administrative Code provided for a similar exemption. To the same effect,
the Tydings-McDuffie Law contained a limitation on the taxing power of
the Philippine government during the Commonwealth period. 379 The
original draft of the Constitution placed this provision in an ordinance to
be appended to the Constitution because this was among the provisions
prescribed by the Tydings-McDuffie Law. However, in order to have a
constitutional guarantee for such an exemption even beyond the
Commonwealth period, the provision was introduced in the body of the
Constitution on the rationale that "if churches, convents [rectories or
parsonages] and their accessories are always necessary for facilitating
the exercise of such [religious] freedom, it would also be natural that their
existence be also guaranteed by exempting them from taxation."380 The
amendment was readily approved with 83 affirmative votes against 15
negative votes.381
The Philippine constitutional provision on tax exemption is not found in
the U.S. Constitution. In the U.S. case of Walz, the Court struggled to
justify this kind of exemption to withstand Establishment Clause scrutiny
by stating that church property was not singled out but was exempt along
with property owned by non-profit, quasi-public corporations because the
state upheld the secular policy "that considers these groups as beneficial
and stabilizing influences in community life and finds this classification
useful, desirable, and in the public interest." The Court also stated that
the exemption was meant to relieve the burden on free exercise imposed
by property taxation. At the same time, however, the Court acknowledged
that the exemption was an exercise of benevolent neutrality to
accommodate a long-standing tradition of exemption. With the inclusion
of the church property tax exemption in the body of the 1935 Constitution
and not merely as an ordinance appended to the Constitution, the
benevolent neutrality referred to in the Walz case was given
constitutional imprimatur under the regime of the 1935 Constitution. The
provision, as stated in the deliberations, was an acknowledgment of the
necessity of the exempt institutions to the exercise of religious liberty,
thereby evincing benevolence towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:
(3) No public money, or property shall ever be appropriated,
applied, or used, directly or indirectly, for the use, benefit, or
support of any sect, church, denomination, sectarian institution or
system of religion, for the use, benefit or support of any priest,
preacher, ministers or other religious teacher or dignitary as such,
except when such priest, preacher, minister, or dignitary is
assigned to the armed forces or to any penal institution,
orphanage, or leprosarium. (emphasis supplied)
The original draft of this provision was a reproduction of a portion of
section 3 of the Jones Law which did not contain the above
exception, viz:
No public money or property shall ever be appropriated, applied,
or used, directly or indirectly, for the use, benefit, or support of
any sect, church denomination, sectarian institution, or system of
religion, or for the use, benefit or support of any priest, preacher,
minister, or dignitary as such…382
In the deliberations of this draft provision, an amendment was proposed
to strike down everything after "church denomination." 383 The proposal
intended to imitate the silence of the U.S. Constitution on the subject of
support for priests and ministers. It was also an imitation of the silence of
the Malolos Constitution to restore the situation under the Malolos
Constitution and prior to the Jones Law, when chaplains of the
revolutionary army received pay from public funds with no doubt about its
legality. It was pointed out, however, that even with the prohibition under
the Jones Law, appropriations were made to chaplains of the national
penitentiary and the Auditor General upheld its validity on the basis of a
similar United States practice. But it was also pointed out that the U.S.
Constitution did not contain a prohibition on appropriations similar to the
Jones Law.384 To settle the question on the constitutionality of payment of
salaries of religious officers in certain government institutions and to
avoid the feared situation where the enumerated government institutions
could not employ religious officials with compensation, the exception in
the 1935 provision was introduced and approved. The provision garnered
74 affirmative votes against 34 negative votes. 385 As pointed out in the
deliberations, the U.S. Constitution does not provide for this exemption.
However, the U.S. Supreme Court in Cruz v. Beto, apparently taking a
benevolent neutrality approach, implicitly approved the state of Texas'
payment of prison chaplains' salaries as reasonably necessary to permit
inmates to practice their religion. Also, in the Marsh case, the U.S.
Supreme Court upheld the long-standing tradition of beginning legislative
sessions with prayers offered by legislative chaplains retained at
taxpayers' expense. The constitutional provision exempting religious
officers in government institutions affirms the departure of the Philippine
Constitution from the U.S. Constitution in its adoption of benevolent
neutrality in Philippine jurisdiction. While the provision prohibiting aid to
religion protects the wall of separation between church and state, the
provision at the same time gives constitutional sanction to a breach in the
wall.
To further buttress the thesis that benevolent neutrality is contemplated in
the Philippine Establishment Clause, the 1935 Constitution provides for
optional religious instruction in public schools in Article XIII, Section
5, viz:
. . . Optional religious instruction shall be maintained in the public
schools as now authorized by law. . .
The law then applicable was Section 928 of the Administrative Code, viz:
It shall be lawful, however, for the priest or minister of any church
established in the town where a public school is situated, either in
person or by a designated teacher of religion, to teach religion for
one-half hour three times a week, in the school building, to those
public-school pupils whose parents or guardians desire it and
express their desire therefor in writing filed with the principal of
the school . . .
During the debates of the Constitutional Convention, there were three
positions on the issue of religious instruction in public schools. The first
held that the teaching of religion in public schools should be prohibited as
this was a violation of the principle of separation of church and state and
the prohibition against the use of public funds for religious purposes. The
second favored the proposed optional religious instruction as authorized
by the Administrative Code and recognized that the actual practice of
allowing religious instruction in the public schools was sufficient proof that
religious instruction was not and would not be a source of religious
discord in the schools.386 The third wanted religion to be included as a
course in the curriculum of the public schools but would only be taken by
pupils at the option of their parents or guardians. After several rounds of
debate, the second camp prevailed, thus raising to constitutional stature
the optional teaching of religion in public schools, despite the opposition
to the provision on the ground of separation of church and state.387 As in
the provisions on church property tax exemption and compensation of
religious officers in government institutions, the U.S. Constitution does
not provide for optional religious instruction in public schools. In fact, in
the McCollum case, the Court, using strict neutrality, prohibited this kind
of religious instruction where the religion teachers would conduct class
within the school premises. The constitutional provision on optional
religious instruction shows that Philippine jurisdiction rejects the strict
neutrality approach which does not allow such accommodation of
religion.
Finally, to make certain the Constitution's benevolence to religion, the
Filipino people "implored (ing) the aid of Divine Providence (,) in order to
establish a government that shall embody their ideals, conserve and
develop the patrimony of the nation, promote the general welfare, and
secure to themselves and their posterity the blessings of independence
under a regime of justice, liberty, and democracy, (in) ordain(ing) and
promulgat(ing) this Constitution." A preamble is a "key to open the mind
of the authors of the constitution as to the evil sought to be prevented
and the objects sought to be accomplished by the provisions
thereof."388 There was no debate on the inclusion of a "Divine
Providence" in the preamble. In Aglipay, Justice Laurel noted that when
the Filipino people implored the aid of Divine Providence, "(t)hey thereby
manifested their intense religious nature and placed unfaltering reliance
upon Him who guides the destinies of men and nations." 389 The 1935
Constitution's religion clauses, understood alongside the other provisions
on religion in the Constitution, indubitably shows not hostility, but
benevolence, to religion.390
The 1973 Constitution contained in Article VI, Section 22(3) a provision
similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on
exemption of church property from taxation, with the modification that the
property should not only be used directly, but also actually and
exclusively for religious or charitable purposes. Parallel to Article VI,
Section 23(3) of the 1935 Constitution, the 1973 Constitution also
contained a similar provision on salaries of religious officials employed in
the enumerated government institutions. Article XIII, Section 5 of the
1935 Constitution on optional religious instruction was also carried to the
1973 Constitution in Article XV, Section 8(8) with the modification that
optional religious instruction shall be conducted "as may be provided by
law" and not "as now authorized by law" as stated in the 1935
Constitution. The 1973 counterpart, however, made explicit in the
constitution that the religious instruction in public elementary and high
schools shall be done "(a)t the option expressed in writing by the parents
or guardians, and without cost to them and the government." With the
adoption of these provisions in the 1973 Constitution, the benevolent
neutrality approach continued to enjoy constitutional sanction. In Article
XV, Section 15 of the General Provisions of the 1973 Constitution this
provision made its maiden appearance: "(t)he separation of church and
state shall be inviolable." The 1973 Constitution retained the portion of
the preamble "imploring the aid of Divine Providence."
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and
Problems of the Committee on Church and State of the 1971
Constitutional Convention, the question arose as to whether the
"absolute" separation of Church and State as enunciated in the Everson
case and reiterated in Schempp - i.e., neutrality not only as between one
religion and another but even as between religion and non-religion - is
embodied in the Philippine Constitution. The sub-committee's answer
was that it did not seem so. Citing the Aglipay case where Justice Laurel
recognized the "elevating influence of religion in human society" and the
Filipinos' imploring of Divine Providence in the 1935 Constitution, the
sub-committee asserted that the state may not prefer or aid one religion
over another, but may aid all religions equally or the cause of religion in
general.391 Among the position papers submitted to the Committee on
Church on State was a background paper for reconsideration of the
religion provisions of the constitution by Fr. Bernas, S.J. He stated
therein that the Philippine Constitution is not hostile to religion and in fact
recognizes the value of religion and accommodates religious
values.392 Stated otherwise, the Establishment Clause contemplates not a
strict neutrality but benevolent neutrality. While the Committee introduced
the provision on separation of church and state in the General Provisions
of the 1973 Constitution, this was nothing new as according to it, this
principle was implied in the 1935 Constitution even in the absence of a
similar provision.393
Then came the 1987 Constitution. The 1973 Constitutional provision on
tax exemption of church property was retained with minor modification in
Article VI, Section 28(3) of the 1987 Constitution. The same is true with
respect to the prohibition on the use of public money and property for
religious purposes and the salaries of religious officers serving in the
enumerated government institutions, now contained in Article VI, Section
29(2). Commissioner Bacani, however, probed into the possibility of
allowing the government to spend public money for purposes which might
have religious connections but which would benefit the public generally.
Citing the Aglipay case, Commissioner Rodrigo explained that if a public
expenditure would benefit the government directly, such expense would
be constitutional even if it results to an incidental benefit to religion. With
that explanation, Commissioner Bacani no longer pursued his
proposal.394
The provision on optional religious instruction was also adopted in the
1987 Constitution in Article XIV, Section 3(3) with the modification that it
was expressly provided that optional instruction shall be conducted
"within the regular class hours" and "without additional cost to the
government". There were protracted debates on what additional cost
meant, i.e., cost over and above what is needed for normal operations
such as wear and tear, electricity, janitorial services, 395 and when during
the day instruction would be conducted. 396 In deliberating on the phrase
"within the regular class hours," Commissioner Aquino expressed her
reservations to this proposal as this would violate the time-honored
principle of separation of church and state. She cited the McCullom case
where religious instruction during regular school hours was stricken down
as unconstitutional and also cited what she considered the most liberal
interpretation of separation of church and state in Surach v. Clauson
where the U.S. Supreme Court allowed only release time for religious
instruction. Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to provide for an
exception to the rule on non-establishment of religion, because if
it were not necessary to make this exception for purposes of
allowing religious instruction, then we could just drop the
amendment. But, as a matter of fact, this is necessary because
we are trying to introduce something here which is contrary to
American practices.397 (emphasis supplied)
"(W)ithin regular class hours" was approved.
he provision on the separation of church and state was retained but
placed under the Principles in the Declaration of Principles and State
Policies in Article II, Section 6. In opting to retain the wording of the
provision, Fr. Bernas stated, viz:
. . . It is true, I maintain, that as a legal statement the sentence
'The separation of Church and State is inviolable,' is almost a
useless statement; but at the same time it is a harmless
statement. Hence, I am willing to tolerate it there, because, in the
end, if we look at the jurisprudence on Church and State,
arguments are based not on the statement of separation of
church and state but on the non-establishment clause in the Bill
of Rights.398
The preamble changed "Divine Providence" in the 1935 and 1973
Constitutions to "Almighty God." There was considerable debate on
whether to use "Almighty God" which Commissioner Bacani said was
more reflective of Filipino religiosity, but Commissioner Rodrigo recalled
that a number of atheistic delegates in the 1971 Constitutional
Convention objected to reference to a personal God. 399 "God of History",
"Lord of History" and "God" were also proposed, but the phrase "Almighty
God" prevailed. Similar to the 1935 and 1971 Constitutions, it is obvious
that the 1987 Constitution is not hostile nor indifferent to religion; 400 its
wall of separation is not a wall of hostility or indifference. 401
The provisions of the 1935, 1973 and 1987 constitutions on tax
exemption of church property, salary of religious officers in government
institutions, optional religious instruction and the preamble all reveal
without doubt that the Filipino people, in adopting these constitutions, did
not intend to erect a high and impregnable wall of separation between the
church and state.402 The strict neutrality approach which examines only
whether government action is for a secular purpose and does not
consider inadvertent burden on religious exercise protects such a rigid
barrier. By adopting the above constitutional provisions on religion, the
Filipinos manifested their adherence to the benevolent neutrality
approach in interpreting the religion clauses, an approach that looks
further than the secular purposes of government action and examines the
effect of these actions on religious exercise. Benevolent neutrality
recognizes the religious nature of the Filipino people and the elevating
influence of religion in society; at the same time, it acknowledges that
government must pursue its secular goals. In pursuing these goals,
however, government might adopt laws or actions of general applicability
which inadvertently burden religious exercise. Benevolent neutrality gives
room for accommodation of these religious exercises as required by the
Free Exercise Clause. It allows these breaches in the wall of separation
to uphold religious liberty, which after all is the integral purpose of the
religion clauses. The case at bar involves this first type of
accommodation where an exemption is sought from a law of general
applicability that inadvertently burdens religious exercise.
Although our constitutional history and interpretation mandate benevolent
neutrality, benevolent neutrality does not mean that the Court ought to
grant exemptions every time a free exercise claim comes before it. But it
does mean that the Court will not look with hostility or act indifferently
towards religious beliefs and practices and that it will strive to
accommodate them when it can within flexible constitutional limits; it does
mean that the Court will not simply dismiss a claim under the Free
Exercise Clause because the conduct in question offends a law or the
orthodox view for this precisely is the protection afforded by the religion
clauses of the Constitution, i.e., that in the absence of legislation granting
exemption from a law of general applicability, the Court can carve out an
exception when the religion clauses justify it. While the Court cannot
adopt a doctrinal formulation that can eliminate the difficult questions of
judgment in determining the degree of burden on religious practice or
importance of the state interest or the sufficiency of the means adopted
by the state to pursue its interest, the Court can set a doctrine on the
ideal towards which religious clause jurisprudence should be
directed.403 We here lay down the doctrine that in Philippine jurisdiction,
we adopt the benevolent neutrality approach not only because of its
merits as discussed above, but more importantly, because our
constitutional history and interpretation indubitably show that benevolent
neutrality is the launching pad from which the Court should take off in
interpreting religion clause cases. The ideal towards which this approach
is directed is the protection of religious liberty "not only for a minority,
however small- not only for a majority, however large- but for each of us"
to the greatest extent possible within flexible constitutional limits.
Benevolent neutrality is manifest not only in the Constitution but has also
been recognized in Philippine jurisprudence, albeit not expressly called
"benevolent neutrality" or "accommodation". In Aglipay, the Court not only
stressed the "elevating influence of religion in human society" but
acknowledged the Constitutional provisions on exemption from tax of
church property, salary of religious officers in government institutions,
and optional religious instruction as well as the provisions of the
Administrative Code making Thursday and Friday of the Holy Week,
Christmas Day and Sundays legal holidays. In Garces, the Court not only
recognized the Constitutional provisions indiscriminately granting
concessions to religious sects and denominations, but also
acknowledged that government participation in long-standing traditions
which have acquired a social character - "the barrio fiesta is a socio-
religious affair" - does not offend the Establishment Clause. In Victoriano,
the Court upheld the exemption from closed shop provisions of members
of religious sects who prohibited their members from joining unions upon
the justification that the exemption was not a violation of the
Establishment Clause but was only meant to relieve the burden on free
exercise of religion. In Ebralinag, members of the Jehovah's Witnesses
were exempt from saluting the flag as required by law, on the basis not of
a statute granting exemption but of the Free Exercise Clause without
offending the Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form and
origin, Philippine constitutional law has departed from the U.S.
jurisprudence of employing a separationist or strict neutrality approach.
The Philippine religion clauses have taken a life of their own, breathing
the air of benevolent neutrality and accommodation. Thus, the wall of
separation in Philippine jurisdiction is not as high and impregnable as the
wall created by the U.S. Supreme Court in Everson. 404 While the religion
clauses are a unique American experiment which understandably came
about as a result of America's English background and colonization, the
life that these clauses have taken in this jurisdiction is the Philippines'
own experiment, reflective of the Filipinos' own national soul, history and
tradition. After all, "the life of the law. . . has been experience."
But while history, constitutional construction, and earlier jurisprudence
unmistakably show that benevolent neutrality is the lens with which the
Court ought to view religion clause cases, it must be stressed that the
interest of the state should also be afforded utmost protection. To do this,
a test must be applied to draw the line between permissible and
forbidden religious exercise. It is quite paradoxical that in order for the
members of a society to exercise their freedoms, including their religious
liberty, the law must set a limit when their exercise offends the higher
interest of the state. To do otherwise is self-defeating for unlimited
freedom would erode order in the state and foment anarchy, eventually
destroying the very state its members established to protect their
freedoms. The very purpose of the social contract by which people
establish the state is for the state to protect their liberties; for this
purpose, they give up a portion of these freedoms - including the natural
right to free exercise - to the state. It was certainly not the intention of the
authors of the constitution that free exercise could be used to
countenance actions that would undo the constitutional order that
guarantees free exercise.405
The all important question then is the test that should be used in
ascertaining the limits of the exercise of religious freedom. Philippine
jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American
Bible Society, the Court mentioned the "clear and present danger" test
but did not employ it. Nevertheless, this test continued to be cited in
subsequent cases on religious liberty. The Gerona case then pronounced
that the test of permissibility of religious freedom is whether it violates the
established institutions of society and law. The Victoriano case
mentioned the "immediate and grave danger" test as well as the doctrine
that a law of general applicability may burden religious exercise provided
the law is the least restrictive means to accomplish the goal of the law.
The case also used, albeit inappropriately, the "compelling state interest"
test. After Victoriano, German went back to the Gerona rule. Ebralinag
then employed the "grave and immediate danger" test and overruled the
Gerona test. The fairly recent case of Iglesia ni Cristo went back to the
"clear and present danger" test in the maiden case of American Bible
Society. Not surprisingly, all the cases which employed the "clear and
present danger" or "grave and immediate danger" test involved, in one
form or another, religious speech as this test is often used in cases on
freedom of expression. On the other hand, the Gerona and German
cases set the rule that religious freedom will not prevail over established
institutions of society and law. Gerona, however, which was the authority
cited by German has been overruled by Ebralinag which employed the
"grave and immediate danger" test. Victoriano was the only case that
employed the "compelling state interest" test, but as explained previously,
the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society,
Ebralinag and Iglesia ni Cristo where the "clear and present danger" and
"grave and immediate danger" tests were appropriate as speech has
easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with the
benevolent neutrality approach, thus not appropriate in this jurisdiction.
Similar to Victoriano, the present case involves purely conduct arising
from religious belief. The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human conduct has different
effects on the state's interests: some effects may be immediate and
short-term while others delayed and far-reaching. A test that would
protect the interests of the state in preventing a substantive evil, whether
immediate or delayed, is therefore necessary. However, not any interest
of the state would suffice to prevail over the right to religious freedom as
this is a fundamental right that enjoys a preferred position in the hierarchy
of rights - "the most inalienable and sacred of all human rights", in the
words of Jefferson.406 This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, 407 thus the Filipinos implore
the "aid of Almighty God in order to build a just and humane society and
establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere
balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of
the state can prevail over the fundamental right to religious liberty. The
test requires the state to carry a heavy burden, a compelling one, for to
do otherwise would allow the state to batter religion, especially the less
powerful ones until they are destroyed.408 In determining which shall
prevail between the state's interest and religious liberty, reasonableness
shall be the guide.409 The "compelling state interest" serves the purpose
of revering religious liberty while at the same time affording protection to
the paramount interests of the state. This was the test used in Sherbert
which involved conduct, i.e. refusal to work on Saturdays. In the end, the
"compelling state interest" test, by upholding the paramount interests of
the state, seeks to protect the very state, without which, religious liberty
will not be preserved.
X. Application of the Religion Clauses to the Case at Bar
A. The Religion Clauses and Morality
In a catena of cases, the Court has ruled that government employees
engaged in illicit relations are guilty of "disgraceful and immoral conduct"
for which he/she may be held administratively liable. 410 In these cases,
there was not one dissent to the majority's ruling that their conduct was
immoral. The respondents themselves did not foist the defense that their
conduct was not immoral, but instead sought to prove that they did not
commit the alleged act or have abated from committing the act. The facts
of the 1975 case of De Dios v. Alejo411 and the 1999 case of Maguad v.
De Guzman,412 are similar to the case at bar - i.e., the complainant is a
mere stranger and the legal wife has not registered any objection to the
illicit relation, there is no proof of scandal or offense to the moral
sensibilities of the community in which the respondent and the partner
live and work, and the government employee is capacitated to marry
while the partner is not capacitated but has long been separated in fact.
Still, the Court found the government employees administratively liable
for "disgraceful and immoral conduct" and only considered the foregoing
circumstances to mitigate the penalty. Respondent Escritor does not
claim that there is error in the settled jurisprudence that an illicit relation
constitutes disgraceful and immoral conduct for which a government
employee is held liable. Nor is there an allegation that the norms of
morality with respect to illicit relations have shifted towards leniency from
the time these precedent cases were decided. The Court finds that there
is no such error or shift, thus we find no reason to deviate from these
rulings that such illicit relationship constitutes "disgraceful and immoral
conduct" punishable under the Civil Service Law. Respondent having
admitted the alleged immoral conduct, she, like the respondents in the
above-cited cases, could be held administratively liable. However, there
is a distinguishing factor that sets the case at bar apart from the cited
precedents, i.e., as a defense, respondent invokes religious freedom
since her religion, the Jehovah's Witnesses, has, after thorough
investigation, allowed her conjugal arrangement with Quilapio based on
the church's religious beliefs and practices. This distinguishing factor
compels the Court to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar,
both the dissenting opinion of Mme. Justice Ynares-Santiago and the
separate opinion of Mr. Justice Vitug dwell more on the standards of
morality than on the religion clauses in deciding the instant case. A
discussion on morality is in order.
At base, morality refers to, in Socrates' words, "how we ought to live" and
why. Any definition of morality beyond Socrates' simple formulation is
bound to offend one or another of the many rival theories regarding what
it means to live morally.413 The answer to the question of how we ought to
live necessarily considers that man does not live in isolation, but in
society. Devlin posits that a society is held together by a community of
ideas, made up not only of political ideas but also of ideas about the
manner its members should behave and govern their lives. The latter are
their morals; they constitute the public morality. Each member of society
has ideas about what is good and what is evil. If people try to create a
society wherein there is no fundamental agreement about good and evil,
they will fail; if having established the society on common agreement, the
agreement collapses, the society will disintegrate. Society is kept
together by the invisible bonds of common thought so that if the bonds
are too loose, the members would drift apart. A common morality is part
of the bondage and the bondage is part of the price of society; and
mankind, which needs society, must pay its price. 414 This design is
parallel with the social contract in the realm of politics: people give up a
portion of their liberties to the state to allow the state to protect their
liberties. In a constitutional order, people make a fundamental agreement
about the powers of government and their liberties and embody this
agreement in a constitution, hence referred to as the fundamental law of
the land. A complete break of this fundamental agreement such as by
revolution destroys the old order and creates a new one. 415 Similarly, in
the realm of morality, the breakdown of the fundamental agreement
about the manner a society's members should behave and govern their
lives would disintegrate society. Thus, society is justified in taking steps
to preserve its moral code by law as it does to preserve its government
and other essential institutions.416 From these propositions of Devlin, one
cannot conclude that Devlin negates diversity in society for he is merely
saying that in the midst of this diversity, there should nevertheless be a
"fundamental agreement about good and evil" that will govern how
people in a society ought to live. His propositions, in fact, presuppose
diversity hence the need to come to an agreement; his position also
allows for change of morality from time to time which may be brought
about by this diversity. In the same vein, a pluralistic society lays down
fundamental rights and principles in their constitution in establishing and
maintaining their society, and these fundamental values and principles
are translated into legislation that governs the order of society, laws that
may be amended from time to time. Hart's argument propounded in Mr.
Justice Vitug's separate opinion that, "Devlin's view of people living in a
single society as having common moral foundation (is) overly simplistic"
because "societies have always been diverse" fails to recognize the
necessity of Devlin's proposition in a democracy. Without fundamental
agreement on political and moral ideas, society will fall into anarchy; the
agreement is necessary to the existence and progress of society.
In a democracy, this common agreement on political and moral ideas is
distilled in the public square. Where citizens are free, every opinion,
every prejudice, every aspiration, and every moral discernment has
access to the public square where people deliberate the order of their life
together. Citizens are the bearers of opinion, including opinion shaped
by, or espousing religious belief, and these citizens have equal access to
the public square. In this representative democracy, the state is
prohibited from determining which convictions and moral judgments may
be proposed for public deliberation. Through a constitutionally designed
process, the people deliberate and decide. Majority rule is a necessary
principle in this democratic governance.417 Thus, when public deliberation
on moral judgments is finally crystallized into law, the laws will largely
reflect the beliefs and preferences of the majority, i.e., the mainstream or
median groups.418 Nevertheless, in the very act of adopting and accepting
a constitution and the limits it specifies -- including protection of religious
freedom "not only for a minority, however small- not only for a majority,
however large- but for each of us" -- the majority imposes upon itself a
self-denying ordinance. It promises not to do what it otherwise could do:
to ride roughshod over the dissenting minorities. 419 In the realm of
religious exercise, benevolent neutrality that gives room for
accommodation carries out this promise, provided the compelling
interests of the state are not eroded for the preservation of the state is
necessary to the preservation of religious liberty. That is why benevolent
neutrality is necessary in a pluralistic society such as the United States
and the Philippines to accommodate those minority religions which are
politically powerless. It is not surprising that Smith is much criticized for it
blocks the judicial recourse of the minority for religious accommodations.
The laws enacted become expressions of public morality. As Justice
Holmes put it, "(t)he law is the witness and deposit of our moral life." 420 "In
a liberal democracy, the law reflects social morality over a period of
time."421 Occasionally though, a disproportionate political influence might
cause a law to be enacted at odds with public morality or legislature
might fail to repeal laws embodying outdated traditional moral
views.422 Law has also been defined as "something men create in their
best moments to protect themselves in their worst moments."423 Even
then, laws are subject to amendment or repeal just as judicial
pronouncements are subject to modification and reversal to better reflect
the public morals of a society at a given time. After all, "the life of the
law...has been experience," in the words of Justice Holmes. This is not to
say though that law is all of morality. Law deals with the minimum
standards of human conduct while morality is concerned with the
maximum. A person who regulates his conduct with the sole object of
avoiding punishment under the law does not meet the higher moral
standards set by society for him to be called a morally upright
person.424 Law also serves as "a helpful starting point for thinking about a
proper or ideal public morality for a society"425 in pursuit of moral
progress.
In Magno v. Court of Appeals, et al.,426 we articulated the relationship
between law and public morality. We held that under the utilitarian theory,
the "protective theory" in criminal law, "criminal law is founded upon the
moral disapprobation x x x of actions which are immoral, i.e., which are
detrimental (or dangerous) to those conditions upon which depend the
existence and progress of human society. This disapprobation is
inevitable to the extent that morality is generally founded and built upon a
certain concurrence in the moral opinions of all. x x x That which we call
punishment is only an external means of emphasizing moral
disapprobation: the method of punishment is in reality the amount of
punishment."427 Stated otherwise, there are certain standards of behavior
or moral principles which society requires to be observed and these form
the bases of criminal law. Their breach is an offense not only against the
person injured but against society as a whole. 428 Thus, even if all involved
in the misdeed are consenting parties, such as in the case at bar, the
injury done is to the public morals and the public interest in the moral
order.429 Mr. Justice Vitug expresses concern on this point in his separate
opinion. He observes that certain immoral acts which appear private and
not harmful to society such as sexual congress "between a man and a
prostitute, though consensual and private, and with no injured third party,
remains illegal in this country." His opinion asks whether these laws on
private morality are justified or they constitute impingement on one's
freedom of belief. Discussion on private morality, however, is not material
to the case at bar for whether respondent's conduct, which constitutes
concubinage,430 is private in the sense that there is no injured party or the
offended spouse consents to the concubinage, the inescapable fact is
that the legislature has taken concubinage out of the sphere of private
morals. The legislature included concubinage as a crime under the
Revised Penal Code and the constitutionality of this law is not being
raised in the case at bar. In the definition of the crime of concubinage,
consent of the injured party, i.e., the legal spouse, does not alter or
negate the crime unlike in rape431 where consent of the supposed victim
negates the crime. If at all, the consent or pardon of the offended spouse
in concubinage negates the prosecution of the action, 432 but does not
alter the legislature's characterization of the act as a moral
disapprobation punishable by law. The separate opinion states that,
"(t)he ponencia has taken pains to distinguish between secular and
private morality, and reached the conclusion that the law, as an
instrument of the secular State should only concern itself with secular
morality." The Court does not draw this distinction in the case at bar. The
distinction relevant to the case is not, as averred and discussed by the
separate opinion, "between secular and private morality," but between
public and secular morality on the one hand, and religious morality on the
other, which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or
otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the
Philippine Islands, et al., where we explained that for those wrongs which
are not punishable by law, Articles 19 and 21 in Chapter 2 of the
Preliminary Title of the New Civil Code, dealing with Human Relations,
provide for the recognition of the wrong and the concomitant punishment
in the form of damages. Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due
and observe honesty and good faith.
xxx xxx xxx
Art. 21. Any person who willfully causes loss or injury to another
in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage. (emphasis
supplied)
We then cited in Velayo the Code Commission's comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved
(as it was approved), would vouchsafe adequate legal remedy for
that untold numbers of moral wrongs which is impossible for
human foresight to provide for specifically in the statutes.
But, it may be asked, would this proposed article obliterate the
boundary line between morality and law? The answer is that, in
the last analysis, every good law draws its breath of life from
morals, from those principles which are written with words of fire
in the conscience of man. If this premise is admitted, then the
proposed rule is a prudent earnest of justice in the face of the
impossibility of enumerating, one by one, all wrongs which cause
damages. When it is reflected that while codes of law and
statutes have changed from age to age, the conscience of man
has remained fixed to its ancient moorings, one can not but feel
that it is safe and salutary to transmute, as far as may be, moral
norms into legal rules, thus imparting to every legal system that
enduring quality which ought to be one of its superlative
attributes.
Furthermore, there is no belief of more baneful consequence
upon the social order than that a person may with impunity cause
damage to his fellow-men so long as he does not break any law
of the State, though he may be defying the most sacred
postulates of morality. What is more, the victim loses faith in the
ability of the government to afford him protection or relief.
A provision similar to the one under consideration is embodied in
article 826 of the German Civil Code.433 (emphases supplied)
The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from
establishing a religion, including the morality it sanctions. Religious
morality proceeds from a person's "views of his relations to His Creator
and to the obligations they impose of reverence to His being and
character and obedience to His Will," in accordance with this Court's
definition of religion in American Bible Society citing Davis. Religion also
dictates "how we ought to live" for the nature of religion is not just to
know, but often, to act in accordance with man's "views of his relations to
His Creator."434 But the Establishment Clause puts a negative bar against
establishment of this morality arising from one religion or the other, and
implies the affirmative "establishment" of a civil order for the resolution of
public moral disputes. This agreement on a secular mechanism is the
price of ending the "war of all sects against all"; the establishment of a
secular public moral order is the social contract produced by religious
truce.435
Thus, when the law speaks of "immorality" in the Civil Service Law or
"immoral" in the Code of Professional Responsibility for lawyers436, or
"public morals" in the Revised Penal Code,437 or "morals" in the New Civil
Code,438 or "moral character" in the Constitution, 439 the distinction
between public and secular morality on the one hand, and religious
morality, on the other, should be kept in mind.440 The morality referred to
in the law is public and necessarily secular, not religious as the dissent of
Mr. Justice Carpio holds. "Religious teachings as expressed in public
debate may influence the civil public order but public moral disputes may
be resolved only on grounds articulable in secular terms." 441 Otherwise, if
government relies upon religious beliefs in formulating public policies and
morals, the resulting policies and morals would require conformity to what
some might regard as religious programs or agenda. The non-believers
would therefore be compelled to conform to a standard of conduct
buttressed by a religious belief, i.e., to a "compelled religion," anathema
to religious freedom. Likewise, if government based its actions upon
religious beliefs, it would tacitly approve or endorse that belief and
thereby also tacitly disapprove contrary religious or non-religious views
that would not support the policy. As a result, government will not provide
full religious freedom for all its citizens, or even make it appear that those
whose beliefs are disapproved are second-class citizens. Expansive
religious freedom therefore requires that government be neutral in
matters of religion; governmental reliance upon religious justification is
inconsistent with this policy of neutrality. 442
In other words, government action, including its proscription of immorality
as expressed in criminal law like concubinage, must have a secular
purpose. That is, the government proscribes this conduct because it is
"detrimental (or dangerous) to those conditions upon which depend the
existence and progress of human society" and not because the conduct
is proscribed by the beliefs of one religion or the other. Although
admittedly, moral judgments based on religion might have a compelling
influence on those engaged in public deliberations over what actions
would be considered a moral disapprobation punishable by law. After all,
they might also be adherents of a religion and thus have religious
opinions and moral codes with a compelling influence on them; the
human mind endeavors to regulate the temporal and spiritual institutions
of society in a uniform manner, harmonizing earth with
heaven.443 Succinctly put, a law could be religious or Kantian or Aquinian
or utilitarian in its deepest roots, but it must have an articulable and
discernible secular purpose and justification to pass scrutiny of the
religion clauses. Otherwise, if a law has an apparent secular purpose but
upon closer examination shows a discriminatory and prohibitory religious
purpose, the law will be struck down for being offensive of the religion
clauses as in Church of the Lukumi Babalu Aye, Inc. where the U.S.
Supreme Court invalidated an ordinance prohibiting animal sacrifice of
the Santeria. Recognizing the religious nature of the Filipinos and the
elevating influence of religion in society, however, the Philippine
constitution's religion clauses prescribe not a strict but a benevolent
neutrality. Benevolent neutrality recognizes that government must pursue
its secular goals and interests but at the same time strives to uphold
religious liberty to the greatest extent possible within flexible
constitutional limits. Thus, although the morality contemplated by laws is
secular, benevolent neutrality could allow for accommodation of morality
based on religion, provided it does not offend compelling state interests.
Mr. Justice Vitug's separate opinion embraces the benevolent neutrality
approach when it states that in deciding the case at bar, the approach
should consider that, "(a)s a rule . . . moral laws are justified only to the
extent that they directly or indirectly serve to protect the interests of the
larger society. It is only where their rigid application would serve to
obliterate the value which society seeks to uphold, or defeat the purpose
for which they are enacted would, a departure be justified." In religion
clause parlance, the separate opinion holds that laws of general
applicability governing morals should have a secular purpose of directly
or indirectly protecting the interests of the state. If the strict application of
these laws (which are the Civil Service Law and the laws on marriage)
would erode the secular purposes of the law (which the separate opinion
identifies as upholding the sanctity of marriage and the family), then in a
benevolent neutrality framework, an accommodation of the
unconventional religious belief and practice (which the separate opinion
holds should be respected on the ground of freedom of belief) that would
promote the very same secular purpose of upholding the sanctity of
marriage and family through the Declaration Pledging Faithfulness that
makes the union binding and honorable before God and men, is required
by the Free Exercise Clause. The separate opinion then makes a
preliminary discussion of the values society seeks to protect in adhering
to monogamous marriage, but concludes that these values and the
purposes of the applicable laws should be thoroughly examined and
evidence in relation thereto presented in the OCA. The accommodation
approach in the case at bar would also require a similar discussion of
these values and presentation of evidence before the OCA by the state
that seeks to protect its interest on marriage and opposes the
accommodation of the unconventional religious belief and practice
regarding marriage.
The distinction between public and secular morality as expressed - albeit
not exclusively - in the law, on the one hand, and religious morality, on
the other, is important because the jurisdiction of the Court extends only
to public and secular morality. Whatever pronouncement the Court
makes in the case at bar should be understood only in this realm where it
has authority. More concretely, should the Court declare respondent's
conduct as immoral and hold her administratively liable, the Court will be
holding that in the realm of public morality, her conduct is reprehensible
or there are state interests overriding her religious freedom. For as long
as her conduct is being judged within this realm, she will be accountable
to the state. But in so ruling, the Court does not and cannot say that her
conduct should be made reprehensible in the realm of her church where
it is presently sanctioned and that she is answerable for her immorality to
her Jehovah God nor that other religions prohibiting her conduct are
correct. On the other hand, should the Court declare her conduct
permissible, the Court will be holding that under her unique
circumstances, public morality is not offended or that upholding her
religious freedom is an interest higher than upholding public morality thus
her conduct should not be penalized. But the Court is not ruling that the
tenets and practice of her religion are correct nor that other churches
which do not allow respondent's conjugal arrangement should likewise
allow such conjugal arrangement or should not find anything immoral
about it and therefore members of these churches are not answerable for
immorality to their Supreme Being. The Court cannot speak more than
what it has authority to say. In Ballard, the U.S. Supreme Court held that
courts cannot inquire about the truth of religious beliefs. Similarly, in
Fonacier, this Court declared that matters dealing with "faith, practice,
doctrine, form of worship, ecclesiastical law, custom and rule of a
church…are unquestionably ecclesiastical matters which are outside the
province of the civil courts."444 But while the state, including the Court,
accords such deference to religious belief and exercise which enjoy
protection under the religious clauses, the social contract and the
constitutional order are designed in such a way that when religious belief
flows into speech and conduct that step out of the religious sphere and
overlap with the secular and public realm, the state has the power to
regulate, prohibit and penalize these expressions and embodiments of
belief insofar as they affect the interests of the state. The state's inroad
on religion exercise in excess of this constitutional design is prohibited by
the religion clauses; the Old World, European and American history
narrated above bears out the wisdom of this proscription.
Having distinguished between public and secular morality and religious
morality, the more difficult task is determining which immoral acts under
this public and secular morality fall under the phrase "disgraceful and
immoral conduct" for which a government employee may be held
administratively liable. The line is not easy to draw for it is like "a line that
divides land and sea, a coastline of irregularities and indentations."445 But
the case at bar does not require us to comprehensively delineate
between those immoral acts for which one may be held administratively
liable and those to which administrative liability does not attach. We need
not concern ourselves in this case therefore whether "laziness, gluttony,
vanity, selfishness, avarice and cowardice" are immoral acts which
constitute grounds for administrative liability. Nor need we expend too
much energy grappling with the propositions that not all immoral acts are
illegal or not all illegal acts are immoral, or different jurisdictions have
different standards of morality as discussed by the dissents and separate
opinions, although these observations and propositions are true and
correct. It is certainly a fallacious argument that because there are
exceptions to the general rule that the "law is the witness and deposit of
our moral life," then the rule is not true; in fact, that there are exceptions
only affirms the truth of the rule. Likewise, the observation that morality is
relative in different jurisdictions only affirms the truth that there is morality
in a particular jurisdiction; without, however, discounting the truth that
underneath the moral relativism are certain moral absolutes such as
respect for life and truth-telling, without which no society will survive. Only
one conduct is in question before this Court, i.e., the conjugal
arrangement of a government employee whose partner is legally married
to another which Philippine law and jurisprudence consider both immoral
and illegal. Lest the Court inappropriately engage in the impossible task
of prescribing comprehensively how one ought to live, the Court must
focus its attention upon the sole conduct in question before us.
In interpreting "disgraceful and immoral conduct," the dissenting opinion
of Mme. Justice Ynares-Santiago groped for standards of morality and
stated that the "ascertainment of what is moral or immoral calls for the
discovery of contemporary community standards" but did not articulate
how these standards are to be ascertained. Instead, it held that, "(f)or
those in the service of the Government, provisions of law and court
precedents . . . have to be considered." It identified the Civil Service Law
and the laws on adultery and concubinage as laws which respondent's
conduct has offended and cited a string of precedents where a
government employee was found guilty of committing a "disgraceful and
immoral conduct" for maintaining illicit relations and was thereby
penalized. As stated above, there is no dispute that under settled
jurisprudence, respondent's conduct constitutes "disgraceful and immoral
conduct." However, the cases cited by the dissent do not involve the
defense of religious freedom which respondent in the case at bar
invokes. Those cited cases cannot therefore serve as precedents in
settling the issue in the case at bar.
Mme. Justice Ynares-Santiago's dissent also cites Cleveland v. United
States446 in laying down the standard of morality, viz: "(w)hether an act is
immoral within the meaning of the statute is not to be determined by
respondent's concept of morality. The law provides the standard; the
offense is complete if respondent intended to perform, and did in fact
perform, the act which it condemns." The Mann Act under consideration
in the Cleveland case declares as an offense the transportation in
interstate commerce of "any woman or girl for the purpose of prostitution
or debauchery, or for any other immoral purpose." 447 The resolution of
that case hinged on the interpretation of the phrase "immoral purpose."
The U.S. Supreme Court held that the petitioner Mormons' act of
transporting at least one plural wife whether for the purpose of cohabiting
with her, or for the purpose of aiding another member of their Mormon
church in such a project, was covered by the phrase "immoral purpose."
In so ruling, the Court relied on Reynolds which held that the Mormons'
practice of polygamy, in spite of their defense of religious freedom, was
"odious among the northern and western nations of Europe,"448 "a return
to barbarism,"449 "contrary to the spirit of Christianity and of the civilization
which Christianity has produced in the Western world," 450 and thus
punishable by law.
The Cleveland standard, however, does not throw light to the issue in the
case at bar. The pronouncements of the U.S. Supreme Court that
polygamy is intrinsically "odious" or "barbaric" do not apply in the
Philippines where Muslims, by law, are allowed to practice polygamy.
Unlike in Cleveland, there is no jurisprudence in Philippine jurisdiction
holding that the defense of religious freedom of a member of the
Jehovah's Witnesses under the same circumstances as respondent will
not prevail over the laws on adultery, concubinage or some other law. We
cannot summarily conclude therefore that her conduct is likewise so
"odious" and "barbaric" as to be immoral and punishable by law.
While positing the view that the resolution of the case at bar lies more on
determining the applicable moral standards and less on religious
freedom, Mme. Justice Ynares-Santiago's dissent nevertheless
discussed respondent's plea of religious freedom and disposed of this
defense by stating that "(a) clear and present danger of a substantive
evil, destructive to public morals, is a ground for the reasonable
regulation of the free exercise and enjoyment of religious profession.
(American Bible Society v. City of Manila, 101 Phil. 386 [1957]). In
addition to the destruction of public morals, the substantive evil in this
case is the tearing down of morality, good order, and discipline in the
judiciary." However, the foregoing discussion has shown that the "clear
and present danger" test that is usually employed in cases involving
freedom of expression is not appropriate to the case at bar which
involves purely religious conduct. The dissent also cites Reynolds in
supporting its conclusion that respondent is guilty of "disgraceful and
immoral conduct." The Reynolds ruling, however, was reached with a
strict neutrality approach, which is not the approach contemplated by the
Philippine constitution. As discussed above, Philippine jurisdiction adopts
benevolent neutrality in interpreting the religion clauses.
In the same vein, Mr. Justice Carpio's dissent which employs strict
neutrality does not reflect the constitutional intent of employing
benevolent neutrality in interpreting the Philippine religion clauses. His
dissent avers that respondent should be held administratively liable not
for "disgraceful and immoral conduct" but "conduct prejudicial to the best
interest of the service" as she is a necessary co-accused of her partner in
concubinage. The dissent stresses that being a court employee, her open
violation of the law is prejudicial to the administration of justice. Firstly,
the dissent offends due process as respondent was not given an
opportunity to defend herself against the charge of "conduct prejudicial to
the best interest of the service." In addition, there is no evidence of the
alleged prejudice to the best interest of the service. Most importantly, the
dissent concludes that respondent's plea of religious freedom cannot
prevail without so much as employing a test that would balance
respondent's religious freedom and the state's interest at stake in the
case at bar. The foregoing discussion on the doctrine of religious
freedom, however, shows that with benevolent neutrality as a framework,
the Court cannot simply reject respondent's plea of religious freedom
without even subjecting it to the "compelling state interest" test that would
balance her freedom with the paramount interests of the state. The strict
neutrality employed in the cases the dissent cites -Reynolds, Smith and
People v. Bitdu decided before the 1935 Constitution which unmistakably
shows adherence to benevolent neutrality - is not contemplated by our
constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge
Nabdar J. Malik451 cited in Mr. Justice Carpio's dissent decisive of the
immorality issue in the case at bar. In that case, the Court dismissed the
charge of immorality against a Tausug judge for engaging in an
adulterous relationship with another woman with whom he had three
children because "it (was) not 'immoral' by Muslim standards for Judge
Malik to marry a second time while his first marriage (existed)." Putting
the quoted portion in its proper context would readily show that the Sulu
Islamic case does not provide a precedent to the case at bar.
Immediately prior to the portion quoted by the dissent, the Court
stressed, viz: "(s)ince Art. 180 of P.D. No. 1083, otherwise known as the
Code of Muslim Personal Laws of the Philippines, provides that the penal
laws relative to the crime of bigamy 'shall not apply to a person married x
x x under Muslim Law,' it is not 'immoral' by Muslim standards for Judge
Malik to marry a second time while his first marriage exists." 452 It was by
law, therefore, that the Muslim conduct in question was classified as an
exception to the crime of bigamy and thus an exception to the general
standards of morality. The constitutionality of P.D. No. 1083 when
measured against the Establishment Clause was not raised as an issue
in the Sulu Islamic case. Thus, the Court did not determine whether P.D.
No. 1083 suffered from a constitutional infirmity and instead relied on the
provision excepting the challenged Muslim conduct from the crime of
bigamy in holding that the challenged act is not immoral by Muslim
standards. In contradistinction, in the case at bar, there is no similar law
which the Court can apply as basis for treating respondent's conduct as
an exception to the prevailing jurisprudence on illicit relations of civil
servants. Instead, the Free Exercise Clause is being invoked to justify
exemption.
B. Application of Benevolent Neutrality and the Compelling State
Interest Test to the Case at Bar
The case at bar being one of first impression, we now subject the
respondent's claim of religious freedom to the "compelling state interest"
test from a benevolent neutrality stance - i.e. entertaining the possibility
that respondent's claim to religious freedom would warrant carving out an
exception from the Civil Service Law; necessarily, her defense of
religious freedom will be unavailing should the government succeed in
demonstrating a more compelling state interest.
In applying the test, the first inquiry is whether respondent's right to
religious freedom has been burdened. There is no doubt that choosing
between keeping her employment and abandoning her religious belief
and practice and family on the one hand, and giving up her employment
and keeping her religious practice and family on the other hand, puts a
burden on her free exercise of religion. In Sherbert, the Court found that
Sherbert's religious exercise was burdened as the denial of
unemployment benefits "forces her to choose between following the
precepts of her religion and forfeiting benefits, on the one hand, and
abandoning one of the precepts of her religion in order to accept work, on
the other hand." The burden on respondent in the case at bar is even
greater as the price she has to pay for her employment is not only her
religious precept but also her family which, by the Declaration Pledging
Faithfulness, stands "honorable before God and men."
The second step is to ascertain respondent's sincerity in her religious
belief. Respondent appears to be sincere in her religious belief and
practice and is not merely using the "Declaration of Pledging
Faithfulness" to avoid punishment for immorality. She did not secure the
Declaration only after entering the judiciary where the moral standards
are strict and defined, much less only after an administrative case for
immorality was filed against her. The Declaration was issued to her by
her congregation after ten years of living together with her partner,
Quilapio, and ten years before she entered the judiciary. Ministers from
her congregation testified on the authenticity of the Jehovah's Witnesses'
practice of securing a Declaration and their doctrinal or scriptural basis
for such a practice. As the ministers testified, the Declaration is not
whimsically issued to avoid legal punishment for illicit conduct but to
make the "union" of their members under respondent's circumstances
"honorable before God and men." It is also worthy of notice that the
Report and Recommendation of the investigating judge annexed
letters453 of the OCA to the respondent regarding her request to be
exempt from attending the flag ceremony after Circular No. 62-2001 was
issued requiring attendance in the flag ceremony. The OCA's letters were
not submitted by respondent as evidence but annexed by the
investigating judge in explaining that he was caught in a dilemma
whether to find respondent guilty of immorality because the Court
Administrator and Deputy Court Administrator had different positions
regarding respondent's request for exemption from the flag ceremony on
the ground of the Jehovah's Witnesses' contrary belief and practice.
Respondent's request for exemption from the flag ceremony shows her
sincerity in practicing the Jehovah's Witnesses' beliefs and not using
them merely to escape punishment. She is a practicing member of the
Jehovah's Witnesses and the Jehovah ministers testified that she is a
member in good standing. Nevertheless, should the government, thru the
Solicitor General, want to further question the respondent's sincerity and
the centrality of her practice in her faith, it should be given the opportunity
to do so. The government has not been represented in the case at bar
from its incipience until this point.
In any event, even if the Court deems sufficient respondent's evidence on
the sincerity of her religious belief and its centrality in her faith, the case
at bar cannot still be decided using the "compelling state interest" test.
The case at bar is one of first impression, thus the parties were not aware
of the burdens of proof they should discharge in the Court's use of the
"compelling state interest" test. We note that the OCA found respondent's
defense of religious freedom unavailing in the face of the Court's ruling in
Dicdican v. Fernan, et al., viz:
It bears emphasis that the image of a court of justice is mirrored
in the conduct, official and otherwise, of the personnel who work
thereat, from the judge to the lowest of its personnel. Court
personnel have been enjoined to adhere to the exacting
standards of morality and decency in their professional and
private conduct in order to preserve the good name and integrity
of the courts of justice.
It is apparent from the OCA's reliance upon this ruling that the state
interest it upholds is the preservation of the integrity of the judiciary by
maintaining among its ranks a high standard of morality and decency.
However, there is nothing in the OCA's memorandum to the Court that
demonstrates how this interest is so compelling that it should override
respondent's plea of religious freedom nor is it shown that the means
employed by the government in pursuing its interest is the least restrictive
to respondent's religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to
present evidence on the compelling interest of the state. The burden of
evidence should be discharged by the proper agency of the government
which is the Office of the Solicitor General. To properly settle the issue in
the case at bar, the government should be given the opportunity to
demonstrate the compelling state interest it seeks to uphold in opposing
the respondent's stance that her conjugal arrangement is not immoral
and punishable as it comes within the scope of free exercise protection.
Should the Court prohibit and punish her conduct where it is protected by
the Free Exercise Clause, the Court's action would be an unconstitutional
encroachment of her right to religious freedom.454 We cannot therefore
simply take a passing look at respondent's claim of religious freedom, but
must instead apply the "compelling state interest" test. The government
must be heard on the issue as it has not been given an opportunity to
discharge its burden of demonstrating the state's compelling interest
which can override respondent's religious belief and practice. To repeat,
this is a case of first impression where we are applying the "compelling
state interest" test in a case involving purely religious conduct. The
careful application of the test is indispensable as how we will decide the
case will make a decisive difference in the life of the respondent who
stands not only before the Court but before her Jehovah God.
IN VIEW WHEREOF, the case is REMANDED to the Office of the Court
Administrator. The Solicitor General is ordered to intervene in the case
where it will be given the opportunity (a) to examine the sincerity and
centrality of respondent's claimed religious belief and practice; (b) to
present evidence on the state's "compelling interest" to override
respondent's religious belief and practice; and (c) to show that the means
the state adopts in pursuing its interest is the least restrictive to
respondent's religious freedom. The rehearing should be concluded thirty
(30) days from the Office of the Court Administrator's receipt of this
Decision.

SO ORDERED.

Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga,

JJ., concur.
Bellosillo and Vitug, JJ., please see separate opinion.
Ynares-Santiago, and Carpio, JJ., see dissenting opinion.
Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting
opinion of J. Carpio.
Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all
surnamed OPOSA, minors, and represented by their parents
ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA,
minor, represented by her parents CALVIN and ROBERTA SADIUA,
CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES,
minors and represented by their parents ENRICO and NIDA
FLORES, GIANINA DITA R. FORTUN, minor, represented by her
parents SIGRID and DOLORES FORTUN, GEORGE II and MA.
CONCEPCION, all surnamed MISA, minors and represented by their
parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
minor, represented by his parents ANTONIO and ALICE PESIGAN,
JOVIE MARIE ALFARO, minor, represented by her parents JOSE
and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO,
minor, represented by her parents FREDENIL and JANE CASTRO,
JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA
DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor, represented
by his parents GREGORIO II and CRISTINE CHARITY NARVASA,
MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE
GABRIELLE, all surnamed SAENZ, minors, represented by their
parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN,
MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors,
represented by their parents MARIO and HAYDEE KING, DAVID,
FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA,
minors, represented by their parents BALTAZAR and TERESITA
ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA,
minors, represented by their parents ANTONIO and MARICA
ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed
CARDAMA, minors, represented by their parents MARIO and LINA
CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all
surnamed OPOSA, minors and represented by their parents
RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN
and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by
their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO,
CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL,
minors, represented by their parents FRANCISCO, JR. and
MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK,
INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity
as the Secretary of the Department of Environment and Natural
Resources, and THE HONORABLE ERIBERTO U. ROSARIO,
Presiding Judge of the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a
balanced and healthful ecology which the petitioners dramatically
associate with the twin concepts of "inter-generational responsibility" and
"inter-generational justice." Specifically, it touches on the issue of
whether the said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests and "arrest the
unabated hemorrhage of the country's vital life support systems and
continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed
before Branch 66 (Makati, Metro Manila) of the Regional Trial Court
(RTC), National Capital Judicial Region. The principal plaintiffs therein,
now the principal petitioners, are all minors duly represented and joined
by their respective parents. Impleaded as an additional plaintiff is the
Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and
non-profit corporation organized for the purpose of, inter alia, engaging in
concerted action geared for the protection of our environment and natural
resources. The original defendant was the Honorable Fulgencio S.
Factoran, Jr., then Secretary of the Department of Environment and
Natural Resources (DENR). His substitution in this petition by the new
Secretary, the Honorable Angel C. Alcala, was subsequently ordered
upon proper motion by the petitioners.1 The complaint2 was instituted as a
taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the
Republic of the Philippines, taxpayers, and entitled to the full benefit, use
and enjoyment of the natural resource treasure that is the country's virgin
tropical forests." The same was filed for themselves and others who are
equally concerned about the preservation of said resource but are "so
numerous that it is impracticable to bring them all before the Court." The
minors further asseverate that they "represent their generation as well as
generations yet unborn."4 Consequently, it is prayed for that judgment be
rendered:
 . . . ordering defendant, his agents, representatives and
other persons acting in his behalf to —
(1) Cancel all existing timber license agreements in the
country;
(2) Cease and desist from receiving, accepting,
processing, renewing or approving new timber license
agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under
the premises."5
The complaint starts off with the general averments that the Philippine
archipelago of 7,100 islands has a land area of thirty million (30,000,000)
hectares and is endowed with rich, lush and verdant rainforests in which
varied, rare and unique species of flora and fauna may be found; these
rainforests contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous Philippine cultures
which have existed, endured and flourished since time immemorial;
scientific evidence reveals that in order to maintain a balanced and
healthful ecology, the country's land area should be utilized on the basis
of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent
(46%) for agricultural, residential, industrial, commercial and other uses;
the distortion and disturbance of this balance as a consequence of
deforestation have resulted in a host of environmental tragedies, such as
(a) water shortages resulting from drying up of the water table, otherwise
known as the "aquifer," as well as of rivers, brooks and streams, (b)
salinization of the water table as a result of the intrusion therein of salt
water, incontrovertible examples of which may be found in the island of
Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the
consequential loss of soil fertility and agricultural productivity, with the
volume of soil eroded estimated at one billion (1,000,000,000) cubic
meters per annum — approximately the size of the entire island of
Catanduanes, (d) the endangering and extinction of the country's unique,
rare and varied flora and fauna, (e) the disturbance and dislocation of
cultural communities, including the disappearance of the Filipino's
indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a
critical reduction in marine resource productivity, (g) recurrent spells of
drought as is presently experienced by the entire country, (h) increasing
velocity of typhoon winds which result from the absence of windbreakers,
(i) the floodings of lowlands and agricultural plains arising from the
absence of the absorbent mechanism of forests, (j) the siltation and
shortening of the lifespan of multi-billion peso dams constructed and
operated for the purpose of supplying water for domestic uses, irrigation
and the generation of electric power, and (k) the reduction of the earth's
capacity to process carbon dioxide gases which has led to perplexing
and catastrophic climatic changes such as the phenomenon of global
warming, otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of
continued and deforestation are so capable of unquestionable
demonstration that the same may be submitted as a matter of judicial
notice. This notwithstanding, they expressed their intention to present
expert witnesses as well as documentary, photographic and film
evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing
allegations.
8. Twenty-five (25) years ago, the Philippines had some
sixteen (16) million hectares of rainforests constituting
roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there
remained no more than 1.2 million hectares of said
rainforests or four per cent (4.0%) of the country's land
area.
10. More recent surveys reveal that a mere 850,000
hectares of virgin old-growth rainforests are left, barely
2.8% of the entire land mass of the Philippine archipelago
and about 3.0 million hectares of immature and
uneconomical secondary growth forests.
11. Public records reveal that the defendant's,
predecessors have granted timber license agreements
('TLA's') to various corporations to cut the aggregate area
of 3.89 million hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas
covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000
hectares per annum or 25 hectares per hour — nighttime,
Saturdays, Sundays and holidays included — the
Philippines will be bereft of forest resources after the end
of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences,
serious injury and irreparable damage of this continued
trend of deforestation to the plaintiff minor's generation
and to generations yet unborn are evident and
incontrovertible. As a matter of fact, the environmental
damages enumerated in paragraph 6 hereof are already
being felt, experienced and suffered by the generation of
plaintiff adults.
14. The continued allowance by defendant of TLA holders
to cut and deforest the remaining forest stands will work
great damage and irreparable injury to plaintiffs —
especially plaintiff minors and their successors — who
may never see, use, benefit from and enjoy this rare and
unique natural resource treasure.
This act of defendant constitutes a misappropriation
and/or impairment of the natural resource property he
holds in trust for the benefit of plaintiff minors and
succeeding generations.
15. Plaintiffs have a clear and constitutional right to a
balanced and healthful ecology and are entitled to
protection by the State in its capacity as the parens
patriae.
16. Plaintiff have exhausted all administrative remedies
with the defendant's office. On March 2, 1990, plaintiffs
served upon defendant a final demand to cancel all
logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is
hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the
existing TLA's to the continuing serious damage and
extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to
cancel the TLA's is an act violative of the rights of
plaintiffs, especially plaintiff minors who may be left with a
country that is desertified (sic), bare, barren and devoid of
the wonderful flora, fauna and indigenous cultures which
the Philippines had been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned
TLA's is manifestly contrary to the public policy
enunciated in the Philippine Environmental Policy which,
in pertinent part, states that it is the policy of the State —
(a) to create, develop, maintain and improve conditions
under which man and nature can thrive in productive and
enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of
present and future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality
that is conductive to a life of dignity and well-being. (P.D.
1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel
the aforementioned TLA's is contradictory to the
Constitutional policy of the State to —
a. effect "a more equitable distribution of opportunities,
income and wealth" and "make full and efficient use of
natural resources (sic)." (Section 1, Article XII of the
Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage
and resources (sic)" (Section 14, Article XIV, id.);
d. "protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm
and harmony of nature." (Section 16, Article II, id.)
 21. Finally, defendant's act is contrary to the highest law
of humankind — the natural law — and violative of
plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy
in law other than the instant action to arrest the unabated
hemorrhage of the country's vital life support systems and
continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a
Motion to Dismiss the complaint based on two (2) grounds, namely: (1)
the plaintiffs have no cause of action against him and (2) the issue raised
by the plaintiffs is a political question which properly pertains to the
legislative or executive branches of Government. In their 12 July 1990
Opposition to the Motion, the petitioners maintain that (1) the complaint
shows a clear and unmistakable cause of action, (2) the motion is dilatory
and (3) the action presents a justiciable question as it involves the
defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the
aforementioned motion to dismiss.7 In the said order, not only was the
defendant's claim — that the complaint states no cause of action against
him and that it raises a political question — sustained, the respondent
Judge further ruled that the granting of the relief prayed for would result
in the impairment of contracts which is prohibited by the fundamental law
of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule
65 of the Revised Rules of Court and ask this Court to rescind and set
aside the dismissal order on the ground that the respondent Judge
gravely abused his discretion in dismissing the action. Again, the parents
of the plaintiffs-minors not only represent their children, but have also
joined the latter in this case.8
On 14 May 1992, We resolved to give due course to the petition and
required the parties to submit their respective Memoranda after the Office
of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a
cause of action as it contains sufficient allegations concerning their right
to a sound environment based on Articles 19, 20 and 21 of the Civil Code
(Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating
the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine
Environmental Policy), Section 16, Article II of the 1987 Constitution
recognizing the right of the people to a balanced and healthful ecology,
the concept of generational genocide in Criminal Law and the concept of
man's inalienable right to self-preservation and self-perpetuation
embodied in natural law. Petitioners likewise rely on the respondent's
correlative obligation per Section 4 of E.O. No. 192, to safeguard the
people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged
grave abuse of discretion in granting Timber License Agreements (TLAs)
to cover more areas for logging than what is available involves a judicial
question.
Anent the invocation by the respondent Judge of the Constitution's non-
impairment clause, petitioners maintain that the same does not apply in
this case because TLAs are not contracts. They likewise submit that even
if TLAs may be considered protected by the said clause, it is well settled
that they may still be revoked by the State when the public interest so
requires.
On the other hand, the respondents aver that the petitioners failed to
allege in their complaint a specific legal right violated by the respondent
Secretary for which any relief is provided by law. They see nothing in the
complaint but vague and nebulous allegations concerning an
"environmental right" which supposedly entitles the petitioners to the
"protection by the state in its capacity as parens patriae." Such
allegations, according to them, do not reveal a valid cause of action.
They then reiterate the theory that the question of whether logging should
be permitted in the country is a political question which should be
properly addressed to the executive or legislative branches of
Government. They therefore assert that the petitioners' resources is not
to file an action to court, but to lobby before Congress for the passage of
a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that
the same cannot be done by the State without due process of law. Once
issued, a TLA remains effective for a certain period of time — usually for
twenty-five (25) years. During its effectivity, the same can neither be
revised nor cancelled unless the holder has been found, after due notice
and hearing, to have violated the terms of the agreement or other forestry
laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative
of the requirements of due process.
Before going any further, We must first focus on some procedural
matters. Petitioners instituted Civil Case No. 90-777 as a class suit. The
original defendant and the present respondents did not take issue with
this matter. Nevertheless, We hereby rule that the said civil case is
indeed a class suit. The subject matter of the complaint is of common
and general interest not just to several, but to all citizens of the
Philippines. Consequently, since the parties are so numerous, it,
becomes impracticable, if not totally impossible, to bring all of them
before the court. We likewise declare that the plaintiffs therein are
numerous and representative enough to ensure the full protection of all
concerned interests. Hence, all the requisites for the filing of a valid class
suit under Section 12, Rule 3 of the Revised Rules of Court are present
both in the said civil case and in the instant petition, the latter being but
an incident to the former.
This case, however, has a special and novel element. Petitioners minors
assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for
others of their generation and for the succeeding generations, file a class
suit. Their personality to sue in behalf of the succeeding generations can
only be based on the concept of intergenerational responsibility insofar
as the right to a balanced and healthful ecology is concerned. Such a
right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in
its entirety.9 Such rhythm and harmony indispensably include, inter alia,
the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources to the end that their
exploration, development and utilization be equitably accessible to the
present as well as future generations. 10 Needless to say, every
generation has a responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful ecology. Put a
little differently, the minors' assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to
ensure the protection of that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall
now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous
consideration and evaluation of the issues raised and arguments
adduced by the parties, We do not hesitate to find for the petitioners and
rule against the respondent Judge's challenged order for having been
issued with grave abuse of discretion amounting to lack of jurisdiction.
The pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the
Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have but
the noblest of all intentions, it (sic) fell short of alleging,
with sufficient definiteness, a specific legal right they are
seeking to enforce and protect, or a specific legal wrong
they are seeking to prevent and redress (Sec. 1, Rule 2,
RRC). Furthermore, the Court notes that the Complaint is
replete with vague assumptions and vague conclusions
based on unverified data. In fine, plaintiffs fail to state a
cause of action in its Complaint against the herein
defendant.
Furthermore, the Court firmly believes that the matter
before it, being impressed with political color and
involving a matter of public policy, may not be taken
cognizance of by this Court without doing violence to the
sacred principle of "Separation of Powers" of the three (3)
co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs
prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease
and desist from receiving, accepting, processing,
renewing or approving new timber license agreements.
For to do otherwise would amount to "impairment of
contracts" abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed
to allege with sufficient definiteness a specific legal right involved or a
specific legal wrong committed, and that the complaint is replete with
vague assumptions and conclusions based on unverified data. A reading
of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right — the right
to a balanced and healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in the fundamental law.
Section 16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of
the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature.
This right unites with the right to health which is provided
for in the preceding section of the same article:
Sec. 15. The State shall protect and promote the right to
health of the people and instill health consciousness
among them.
While the right to a balanced and healthful ecology is to be found under
the Declaration of Principles and State Policies and not under the Bill of
Rights, it does not follow that it is less important than any of the civil and
political rights enumerated in the latter. Such a right belongs to a different
category of rights altogether for it concerns nothing less than self-
preservation and self-perpetuation — aptly and fittingly stressed by the
petitioners — the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic rights
need not even be written in the Constitution for they are assumed to exist
from the inception of humankind. If they are now explicitly mentioned in
the fundamental charter, it is because of the well-founded fear of its
framers that unless the rights to a balanced and healthful ecology and to
health are mandated as state policies by the Constitution itself, thereby
highlighting their continuing importance and imposing upon the state a
solemn obligation to preserve the first and protect and advance the
second, the day would not be too far when all else would be lost not only
for the present generation, but also for those to come — generations
which stand to inherit nothing but parched earth incapable of sustaining
life.
The right to a balanced and healthful ecology carries with it the
correlative duty to refrain from impairing the environment. During the
debates on this right in one of the plenary sessions of the 1986
Constitutional Commission, the following exchange transpired between
Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who
sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to
provide sanctions against all forms of
pollution — air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to
healthful (sic) environment necessarily
carries with it the correlative duty of not
impairing the same and, therefore,
sanctions may be provided for impairment
of environmental balance. 12
The said right implies, among many other things, the judicious
management and conservation of the country's forests.
Without such forests, the ecological or environmental balance
would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful
ecology and the right to health, as well as the other related provisions of
the Constitution concerning the conservation, development and utilization
of the country's natural resources, 13 then President Corazon C. Aquino
promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which
expressly mandates that the Department of Environment and Natural
Resources "shall be the primary government agency responsible for the
conservation, management, development and proper use of the country's
environment and natural resources, specifically forest and grazing lands,
mineral, resources, including those in reservation and watershed areas,
and lands of the public domain, as well as the licensing and regulation of
all natural resources as may be provided for by law in order to ensure
equitable sharing of the benefits derived therefrom for the welfare of the
present and future generations of Filipinos." Section 3 thereof makes the
following statement of policy:
Sec. 3. Declaration of Policy. — It is hereby declared the
policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of
the country's forest, mineral, land, off-shore areas and
other natural resources, including the protection and
enhancement of the quality of the environment, and
equitable access of the different segments of the
population to the development and the use of the
 country's natural resources, not only for the present
generation but for future generations as well. It is also the
policy of the state to recognize and apply a true value
system including social and environmental cost
implications relative to their utilization, development and
conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987,15 specifically in Section 1 thereof which
reads:
Sec. 1. Declaration of Policy. — (1) The State shall
ensure, for the benefit of the Filipino people, the full
exploration and development as well as the judicious
disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural
resources, consistent with the necessity of maintaining a
sound ecological balance and protecting and enhancing
the quality of the environment and the objective of making
the exploration, development and utilization of such
natural resources equitably accessible to the different
segments of the present as well as future generations.
(2) The State shall likewise recognize and apply a true
value system that takes into account social and
environmental cost implications relative to the utilization,
development and conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound
ecological balance and protecting and enhancing the quality of the
environment." Section 2 of the same Title, on the other hand, specifically
speaks of the mandate of the DENR; however, it makes particular
reference to the fact of the agency's being subject to law and higher
authority. Said section provides:
Sec. 2. Mandate. — (1) The Department of Environment
and Natural Resources shall be primarily responsible for
the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in
charge of carrying out the State's constitutional mandate
to control and supervise the exploration, development,
utilization, and conservation of the country's natural
resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the
objectives which will serve as the bases for policy formulation, and have
defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987
Constitution, specific statutes already paid special attention to the
"environmental right" of the present and future generations. On 6 June
1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152
(Philippine Environment Code) were issued. The former "declared a
continuing policy of the State (a) to create, develop, maintain and
improve conditions under which man and nature can thrive in productive
and enjoyable harmony with each other, (b) to fulfill the social, economic
and other requirements of present and future generations of Filipinos,
and (c) to insure the attainment of an environmental quality that is
conducive to a life of dignity and well-being." 16 As its goal, it speaks of
the "responsibilities of each generation as trustee and guardian of the
environment for succeeding generations." 17 The latter statute, on the
other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a
balanced and healthful ecology is as clear as the DENR's duty — under
its mandate and by virtue of its powers and functions under E.O. No. 192
and the Administrative Code of 1987 — to protect and advance the said
right.
A denial or violation of that right by the other who has the corelative duty
or obligation to respect or protect the same gives rise to a cause of
action. Petitioners maintain that the granting of the TLAs, which they
claim was done with grave abuse of discretion, violated their right to a
balanced and healthful ecology; hence, the full protection thereof requires
that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal
right or rights of the other; and its essential elements are
legal right of the plaintiff, correlative obligation of the
defendant, and act or omission of the defendant in
violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the
ground that the complaint fails to state a cause of action, 19 the question
submitted to the court for resolution involves the sufficiency of the facts
alleged in the complaint itself. No other matter should be considered;
furthermore, the truth of falsity of the said allegations is beside the point
for the truth thereof is deemed hypothetically admitted. The only issue to
be resolved in such a case is: admitting such alleged facts to be true,
may the court render a valid judgment in accordance with the prayer in
the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the
rule that the judiciary should "exercise the utmost care and
circumspection in passing upon a motion to dismiss on the ground of the
absence thereof [cause of action] lest, by its failure to manifest a correct
appreciation of the facts alleged and deemed hypothetically admitted,
what the law grants or recognizes is effectively nullified. If that happens,
there is a blot on the legal order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the
statements under the introductory affirmative allegations, as well as the
specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their
rights. On the basis thereof, they may thus be granted, wholly or partly,
the reliefs prayed for. It bears stressing, however, that insofar as the
cancellation of the TLAs is concerned, there is the need to implead, as
party defendants, the grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a
political question. Policy formulation or determination by the executive or
legislative branches of Government is not squarely put in issue. What is
principally involved is the enforcement of a right vis-a-vis policies already
formulated and expressed in legislation. It must, nonetheless, be
emphasized that the political question doctrine is no longer, the
insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from
judicial inquiry or review. The second paragraph of section 1, Article VIII
of the Constitution states that:
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.
Commenting on this provision in his book, Philippine Political Law, 22 Mr.
Justice Isagani A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional
concept of judicial power, involving the settlement of
conflicting rights as conferred as law. The second part of
the authority represents a broadening of judicial power to
enable the courts of justice to review what was before
forbidden territory, to wit, the discretion of the political
departments of the government.
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon
even the wisdom of the decisions of the executive and the
legislature and to declare their acts invalid for lack or
excess of jurisdiction because tainted with grave abuse of
discretion. The catch, of course, is the meaning of "grave
abuse of discretion," which is a very elastic phrase that
can expand or contract according to the disposition of the
judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court,
noted:
In the case now before us, the jurisdictional objection
becomes even less tenable and decisive. The reason is
that, even if we were to assume that the issue presented
before us was political in nature, we would still not be
precluded from revolving it under the expanded
jurisdiction conferred upon us that now covers, in proper
cases, even the political question. Article VII, Section 1, of
the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is
the non-impairment of contracts clause found in the Constitution. The
court a quo declared that:
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs
prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease
and desist from receiving, accepting, processing,
renewing or approving new timber license agreements.
 For to do otherwise would amount to "impairment of
contracts" abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not
shocked, by such a sweeping pronouncement. In the first place, the
respondent Secretary did not, for obvious reasons, even invoke in his
motion to dismiss the non-impairment clause. If he had done so, he
would have acted with utmost infidelity to the Government by providing
undue and unwarranted benefits and advantages to the timber license
holders because he would have forever bound the Government to strictly
respect the said licenses according to their terms and conditions
regardless of changes in policy and the demands of public interest and
welfare. He was aware that as correctly pointed out by the petitioners,
into every timber license must be read Section 20 of the Forestry Reform
Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires,
the President may amend, modify, replace or rescind any
contract, concession, permit, licenses or any other form of
privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded
by executive action. It is not a contract, property or a property
right protested by the due process clause of the Constitution.
In Tan vs. Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State
regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. A
timber license is not a contract within the purview of the
due process clause; it is only a license or privilege, which
can be validly withdrawn whenever dictated by public
interest or public welfare as in this case.
A license is merely a permit or privilege to do what
otherwise would be unlawful, and is not a contract
between the authority, federal, state, or municipal,
granting it and the person to whom it is granted; neither is
it property or a property right, nor does it create a vested
right; nor is it taxation (37 C.J. 168). Thus, this Court held
that the granting of license does not create irrevocable
rights, neither is it property or property rights (People vs.
Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs.
Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are
the principal instruments by which the State regulates the
utilization and disposition of forest resources to the end
that public welfare is promoted. And it can hardly be
gainsaid that they merely evidence a privilege granted by
the State to qualified entities, and do not vest in the latter
a permanent or irrevocable right to the particular
concession area and the forest products therein. They
may be validly amended, modified, replaced or rescinded
by the Chief Executive when national interests so require.
Thus, they are not deemed contracts within the purview of
the due process of law clause [See Sections 3(ee) and 20
of Pres. Decree No. 705, as amended. Also, Tan v.
Director of Forestry, G.R. No. L-24548, October 27, 1983,
125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause,
which reads:
Sec. 10. No law impairing, the obligation of contracts shall
be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are
contracts, the instant case does not involve a law or even an executive
issuance declaring the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as yet be invoked.
Nevertheless, granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot still be
stigmatized as a violation of the non-impairment clause. This is because
by its very nature and purpose, such as law could have only been passed
in the exercise of the police power of the state for the purpose of
advancing the right of the people to a balanced and healthful ecology,
promoting their health and enhancing the general welfare. In Abe vs.
Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of
government, is not meant to be absolute. The same is
 understood to be subject to reasonable legislative
regulation aimed at the promotion of public health, moral,
safety and welfare. In other words, the constitutional
guaranty of non-impairment of obligations of contract is
limited by the exercise of the police power of the State, in
the interest of public health, safety, moral and general
welfare.
The reason for this is emphatically set forth in Nebia vs. New
York, 29 quoted in Philippine American Life Insurance Co. vs. Auditor
General,30 to wit:
Under our form of government the use of property and the
making of contracts are normally matters of private and
not of public concern. The general rule is that both shall
be free of governmental interference. But neither property
rights nor contract rights are absolute; for government
cannot exist if the citizen may at will use his property to
the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the
private right is that of the public to regulate it in the
common interest.
In short, the non-impairment clause must yield to the police power of the
state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-
impairment clause could apply with respect to the prayer to enjoin the
respondent Secretary from receiving, accepting, processing, renewing or
approving new timber licenses for, save in cases of renewal, no contract
would have as of yet existed in the other instances. Moreover, with
respect to renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby
GRANTED, and the challenged Order of respondent Judge of 18 July
1991 dismissing Civil Case No. 90-777 is hereby set aside. The
petitioners may therefore amend their complaint to implead as
defendants the holders or grantees of the questioned timber license
agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo,
Melo and Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.
Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court,
Davide, Jr., J., in this case which, to my mind, is one of the most
important cases decided by this Court in the last few years. The seminal
principles laid down in this decision are likely to influence profoundly the
direction and course of the protection and management of the
environment, which of course embraces the utilization of all the natural
resources in the territorial base of our polity. I have therefore sought to
clarify, basically to myself, what the Court appears to be saying.
The Court explicitly states that petitioners have the locus
standi necessary to sustain the bringing and, maintenance of this suit
(Decision, pp. 11-12). Locus standi is not a function of petitioners' claim
that their suit is properly regarded as a class suit. I understand locus
standi to refer to the legal interest which a plaintiff must have in the
subject matter of the suit. Because of the very broadness of the concept
of "class" here involved — membership in this "class" appears to
embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit
from the course of action petitioners seek to require public respondents
to take, is vested with the necessary locus standi. The Court may be
seen therefore to be recognizing a beneficiaries' right of action in the field
of environmental protection, as against both the public administrative
agency directly concerned and the private persons or entities operating in
the field or sector of activity involved. Whether such beneficiaries' right of
action may be found under any and all circumstances, or whether some
failure to act, in the first instance, on the part of the governmental agency
concerned must be shown ("prior exhaustion of administrative
remedies"), is not discussed in the decision and presumably is left for
future determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused
upon "one specific fundamental legal right — the right to a balanced and
healthful ecology" (Decision, p. 14). There is no question that "the right to
a balanced and healthful ecology" is "fundamental" and that, accordingly,
it has been "constitutionalized." But although it is fundamental in
character, I suggest, with very great respect, that it cannot be
characterized as "specific," without doing excessive violence to language.
It is in fact very difficult to fashion language more comprehensive in
scope and generalized in character than a right to "a balanced and
healthful ecology." The list of particular claims which can be subsumed
under this rubic appears to be entirely open-ended: prevention and
control of emission of toxic fumes and smoke from factories and motor
vehicles; of discharge of oil, chemical effluents, garbage and raw sewage
into rivers, inland and coastal waters by vessels, oil rigs, factories, mines
and whole communities; of dumping of organic and inorganic wastes on
open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming;
destruction of fisheries, coral reefs and other living sea resources through
the use of dynamite or cyanide and other chemicals; contamination of
ground water resources; loss of certain species of fauna and flora; and so
on. The other statements pointed out by the Court: Section 3, Executive
Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the
1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all
appear to be formulations of policy, as general and abstract as the
constitutional statements of basic policy in Article II, Section 16 ("the right
— to a balanced and healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine
Environment Code," is, upon the other hand, a compendious collection of
more "specific environment management policies" and "environment
quality standards" (fourth "Whereas" clause, Preamble) relating to an
extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation
embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground
water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither
petitioners nor the Court has identified the particular provision or
provisions (if any) of the Philippine Environment Code which give rise to
a specific legal right which petitioners are seeking to enforce. Secondly,
the Philippine Environment Code identifies with notable care the
particular government agency charged with the formulation and
implementation of guidelines and programs dealing with each of the
headings and sub-headings mentioned above. The Philippine
Environment Code does not, in other words, appear to contemplate
action on the part of private persons who are beneficiaries of
implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored
on a legal right comprised in the constitutional statements above noted,
the Court is in effect saying that Section 15 (and Section 16) of Article II
of the Constitution are self-executing and judicially enforceable even in
their present form. The implications of this doctrine will have to be
explored in future cases; those implications are too large and far-
reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show
a more specific legal right — a right cast in language of a significantly
lower order of generality than Article II (15) of the Constitution — that is
or may be violated by the actions, or failures to act, imputed to the public
respondent by petitioners so that the trial court can validly render
judgment granting all or part of the relief prayed for. To my mind, the
Court should be understood as simply saying that such a more specific
legal right or rights may well exist in our corpus of law, considering the
general policy principles found in the Constitution and the existence of
the Philippine Environment Code, and that the trial court should have
given petitioners an effective opportunity so to demonstrate, instead of
aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential
component of a cause of action be a specific, operable legal right, rather
than a constitutional or statutory policy, for at least two (2) reasons. One
is that unless the legal right claimed to have been violated or disregarded
is given specification in operational terms, defendants may well be
unable to defend themselves intelligently and effectively; in other words,
there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a specific
violation of law or applicable regulation is not alleged or proved,
petitioners can be expected to fall back on the expanded conception of
judicial power in the second paragraph of Section 1 of Article VIII of the
Constitution which reads:
Section 1. . . .
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. (Emphasis supplied)
When substantive standards as general as "the right to a
balanced and healthy ecology" and "the right to health" are
combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction,"
the result will be, it is respectfully submitted, to propel courts into
the uncharted ocean of social and economic policy making. At
least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical
competence and experience and professional qualification.
Where no specific, operable norms and standards are shown to
exist, then the policy making departments — the legislative and
executive departments — must be given a real and effective
opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should
intervene.
My learned brother Davide, Jr., J., rightly insists that the timber
companies, whose concession agreements or TLA's petitioners demand
public respondents should cancel, must be impleaded in the proceedings
below. It might be asked that, if petitioners' entitlement to the relief
demanded is not dependent upon proof of breach by the timber
companies of one or more of the specific terms and conditions of their
concession agreements (and this, petitioners implicitly assume), what will
those companies litigate about? The answer I suggest is that they may
seek to dispute the existence of the specific legal right petitioners should
allege, as well as the reality of the claimed factual nexus between
petitioners' specific legal rights and the claimed wrongful acts or failures
to act of public respondent administrative agency. They may also
controvert the appropriateness of the remedy or remedies demanded by
petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the
environment, including the forest cover of our territory, is of extreme
importance for the country. The doctrines set out in the Court's decision
issued today should, however, be subjected to closer examination.
# Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court,
Davide, Jr., J., in this case which, to my mind, is one of the most
important cases decided by this Court in the last few years. The seminal
principles laid down in this decision are likely to influence profoundly the
direction and course of the protection and management of the
environment, which of course embraces the utilization of all the natural
resources in the territorial base of our polity. I have therefore sought to
clarify, basically to myself, what the Court appears to be saying.
The Court explicitly states that petitioners have the locus
standi necessary to sustain the bringing and, maintenance of this suit
(Decision, pp. 11-12). Locus standi is not a function of petitioners' claim
that their suit is properly regarded as a class suit. I understand locus
standi to refer to the legal interest which a plaintiff must have in the
subject matter of the suit. Because of the very broadness of the concept
of "class" here involved — membership in this "class" appears to
embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit
from the course of action petitioners seek to require public respondents
to take, is vested with the necessary locus standi. The Court may be
seen therefore to be recognizing a beneficiaries' right of action in the field
of environmental protection, as against both the public administrative
agency directly concerned and the private persons or entities operating in
the field or sector of activity involved. Whether such beneficiaries' right of
action may be found under any and all circumstances, or whether some
failure to act, in the first instance, on the part of the governmental agency
concerned must be shown ("prior exhaustion of administrative
remedies"), is not discussed in the decision and presumably is left for
future determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused
upon "one specific fundamental legal right — the right to a balanced and
healthful ecology" (Decision, p. 14). There is no question that "the right to
a balanced and healthful ecology" is "fundamental" and that, accordingly,
it has been "constitutionalized." But although it is fundamental in
character, I suggest, with very great respect, that it cannot be
characterized as "specific," without doing excessive violence to language.
It is in fact very difficult to fashion language more comprehensive in
scope and generalized in character than a right to "a balanced and
healthful ecology." The list of particular claims which can be subsumed
under this rubic appears to be entirely open-ended: prevention and
control of emission of toxic fumes and smoke from factories and motor
vehicles; of discharge of oil, chemical effluents, garbage and raw sewage
into rivers, inland and coastal waters by vessels, oil rigs, factories, mines
and whole communities; of dumping of organic and inorganic wastes on
open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming;
destruction of fisheries, coral reefs and other living sea resources through
the use of dynamite or cyanide and other chemicals; contamination of
ground water resources; loss of certain species of fauna and flora; and so
on. The other statements pointed out by the Court: Section 3, Executive
Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the
1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all
appear to be formulations of policy, as general and abstract as the
constitutional statements of basic policy in Article II, Section 16 ("the right
— to a balanced and healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine
Environment Code," is, upon the other hand, a compendious collection of
more "specific environment management policies" and "environment
quality standards" (fourth "Whereas" clause, Preamble) relating to an
extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation
embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground
water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither
petitioners nor the Court has identified the particular provision or
provisions (if any) of the Philippine Environment Code which give rise to
a specific legal right which petitioners are seeking to enforce. Secondly,
the Philippine Environment Code identifies with notable care the
particular government agency charged with the formulation and
implementation of guidelines and programs dealing with each of the
headings and sub-headings mentioned above. The Philippine
Environment Code does not, in other words, appear to contemplate
action on the part of private persons who are beneficiaries of
implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored
on a legal right comprised in the constitutional statements above noted,
the Court is in effect saying that Section 15 (and Section 16) of Article II
of the Constitution are self-executing and judicially enforceable even in
their present form. The implications of this doctrine will have to be
explored in future cases; those implications are too large and far-
reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show
a more specific legal right — a right cast in language of a significantly
lower order of generality than Article II (15) of the Constitution — that is
or may be violated by the actions, or failures to act, imputed to the public
respondent by petitioners so that the trial court can validly render
judgment granting all or part of the relief prayed for. To my mind, the
Court should be understood as simply saying that such a more specific
legal right or rights may well exist in our corpus of law, considering the
general policy principles found in the Constitution and the existence of
the Philippine Environment Code, and that the trial court should have
given petitioners an effective opportunity so to demonstrate, instead of
aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential
component of a cause of action be a specific, operable legal right, rather
than a constitutional or statutory policy, for at least two (2) reasons. One
is that unless the legal right claimed to have been violated or disregarded
is given specification in operational terms, defendants may well be
unable to defend themselves intelligently and effectively; in other words,
there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a specific
violation of law or applicable regulation is not alleged or proved,
petitioners can be expected to fall back on the expanded conception of
judicial power in the second paragraph of Section 1 of Article VIII of the
Constitution which reads:
Section 1. . . .
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. (Emphasis supplied)
When substantive standards as general as "the right to a
balanced and healthy ecology" and "the right to health" are
combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction,"
the result will be, it is respectfully submitted, to propel courts into
the uncharted ocean of social and economic policy making. At
least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical
competence and experience and professional qualification.
Where no specific, operable norms and standards are shown to
exist, then the policy making departments — the legislative and
executive departments — must be given a real and effective
opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should
intervene.
My learned brother Davide, Jr., J., rightly insists that the timber
companies, whose concession agreements or TLA's petitioners demand
public respondents should cancel, must be impleaded in the proceedings
below. It might be asked that, if petitioners' entitlement to the relief
demanded is not dependent upon proof of breach by the timber
companies of one or more of the specific terms and conditions of their
concession agreements (and this, petitioners implicitly assume), what will
those companies litigate about? The answer I suggest is that they may
seek to dispute the existence of the specific legal right petitioners should
allege, as well as the reality of the claimed factual nexus between
petitioners' specific legal rights and the claimed wrongful acts or failures
to act of public respondent administrative agency. They may also
controvert the appropriateness of the remedy or remedies demanded by
petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the
environment, including the forest cover of our territory, is of extreme
importance for the country. The doctrines set out in the Court's decision
issued today should, however, be subjected to closer examination.
 [G.R. NO. 161824 - March 3, 2004]
VICTORINO X. FORNIER, Petitioner, v. HON. COMMISSION
ON ELECTIONS and RONALD ALLAN KELLEY POE, ALSO
KNOWN AS FERNANDO POE JR., Respondents.
DECISION
VITUG, J.:
Citizenship is a treasured right conferred on those whom the
state believes are deserving of the privilege. It is a "precious
heritage, as well as an inestimable acquisition,"1 that cannot be
taken lightly by anyone - either by those who enjoy it or by
those who dispute it.
Before the Court are three consolidated cases, all of which raise
a single question of profound importance to the nation. The
issue of citizenship is brought up to challenge the qualifications
of a presidential candidate to hold the highest office of the land.
Our people are waiting for the judgment of the Court with bated
breath. Is Fernando Poe, Jr., the hero of silver screen, and now
one of the main contenders for the presidency, a natural-born
Filipino or is he not?
chanroblesvirtualawlib rary
The moment of introspection takes us face to face with Spanish
and American colonial roots and reminds us of the rich heritage
of civil law and common law traditions, the fusion resulting in a
hybrid of laws and jurisprudence that could be no less than
distinctly Filipino.
Antecedent Case Settings
On 31 December 2003, respondent Ronald Allan Kelly Poe, also
known as Fernando Poe, Jr. (hereinafter "FPJ"), filed his
certificate of candidacy for the position of President of the
Republic of the Philippines under the Koalisyon ng Nagkakaisang
Pilipino (KNP) Party, in the forthcoming national elections. In his
certificate of candidacy, FPJ, representing himself to be a
natural-born citizen of the Philippines, stated his name to be
"Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20
August 1939 and his place of birth to be Manila.
Victorino X. Fornier, petitioner in G.R. No. 161824, entitled
"Victorino X. Fornier, Petitioner, v. Hon. Commission on
Elections and Ronald Allan Kelley Poe, also known as Fernando
Poe, Jr., Respondents," initiated, on 09 January 2004, a petition
docketed SPA No. 04-003 before the Commission on Elections
("COMELEC") to disqualify FPJ and to deny due course or to
cancel his certificate of candidacy upon the thesis that FPJ made
a material misrepresentation in his certificate of candidacy by
claiming to be a natural-born Filipino citizen when in truth,
according to Fornier, his parents were foreigners; his mother,
Bessie Kelley Poe, was an American, and his father, Allan Poe,
was a Spanish national, being the son of Lorenzo Pou, a
Spanish subject. Granting, petitioner asseverated, that Allan F.
Poe was a Filipino citizen, he could not have transmitted his
Filipino citizenship to FPJ, the latter being an illegitimate child of
an alien mother. Petitioner based the allegation of the
illegitimate birth of respondent on two assertions - first, Allan F.
Poe contracted a prior marriage to a certain Paulita Gomez
before his marriage to Bessie Kelley and, second, even if no
such prior marriage had existed, Allan F. Poe, married Bessie
Kelly only a year after the birth of respondent.
In the hearing before the Third Division of the COMELEC on 19
January 2004, petitioner, in support of his claim, presented
several documentary exhibits - 1) a copy of the certificate of
birth of FPJ, 2) a certified photocopy of an affidavit executed in
Spanish by Paulita Poe y Gomez attesting to her having filed a
case for bigamy and concubinage against the father of
respondent, Allan F. Poe, after discovering his bigamous
relationship with Bessie Kelley, 3) an English translation of the
affidavit aforesaid, 4) a certified photocopy of the certificate of
birth of Allan F. Poe, 5) a certification issued by the Director of
the Records Management and Archives Office, attesting to the
fact that there was no record in the National Archives that a
Lorenzo Poe or Lorenzo Pou resided or entered the Philippines
before 1907, and 6) a certification from the Officer-In-Charge of
the Archives Division of the National Archives to the effect that
no available information could be found in the files of the
National Archives regarding the birth of Allan F. Poe.
On his part, respondent, presented twenty-two documentary
pieces of evidence, the more significant ones being - a) a
certification issued by Estrella M. Domingo of the Archives
Division of the National Archives that there appeared to be no
available information regarding the birth of Allan F. Poe in the
registry of births for San Carlos, Pangasinan, b) a certification
issued by the Officer-In-Charge of the Archives Division of the
National Archives that no available information about the
marriage of Allan F. Poe and Paulita Gomez could be found, c) a
certificate of birth of Ronald Allan Poe, d) Original Certificate of
Title No. P-2247 of the Registry of Deeds for the Province of
Pangasinan, in the name of Lorenzo Pou, e) copies of Tax
Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in
the name of Lorenzo Pou, f) a copy of the certificate of death of
Lorenzo Pou, g) a copy of the purported marriage contract
between Fernando Pou and Bessie Kelley, and h) a certification
issued by the City Civil Registrar of San Carlos City, Pangasinan,
stating that the records of birth in the said office during the
period of from 1900 until May 1946 were totally destroyed
during World War II.
On 23 January 2004, the COMELEC dismissed SPA No. 04-003
for lack of merit. Three days later, or on 26 January 2004,
Fornier filed his motion for reconsideration. The motion was
denied on 06 February 2004 by the COMELEC en banc. On 10
February 2004, petitioner assailed the decision of the COMELEC
before this Court conformably with Rule 64, in relation to Rule
65, of the Revised Rules of Civil Procedure. The petition,
docketed G. R. No. 161824, likewise prayed for a temporary
restraining order, a writ of preliminary injunction or any other
resolution that would stay the finality and/or execution of the
COMELEC resolutions.
The other petitions, later consolidated with G. R. No. 161824,
would include G. R. No. 161434, entitled "Maria Jeanette C.
Tecson, and Felix B. Desiderio, Jr., v. The Commission on
Elections, Ronald Allan Kelley Poe (a.k.a. Fernando Poe, Jr.),
and Victorino X. Fornier," and the other, docketed G. R. No.
161634, entitled "Zoilo Antonio G. Velez, v. Ronald Allan Kelley
Poe, a.k.a. Fernando Poe, Jr.," both challenging the jurisdiction
of the COMELEC and asserting that, under Article VII, Section 4,
paragraph 7, of the 1987 Constitution, only the Supreme Court
had original and exclusive jurisdiction to resolve the basic issue
on the case.
Jurisdiction of the Court
In G. R. No. 161824
In seeking the disqualification of the candidacy of FPJ and to
have the COMELEC deny due course to or cancel FPJs certificate
of candidacy for alleged misrepresentation of a material fact
(i.e., that FPJ was a natural-born citizen) before the COMELEC,
petitioner Fornier invoked Section 78 of the Omnibus Election
Code
"Section 78. Petition to deny due course to or cancel a
certificate of candidacy. --- A verified petition seeking to deny
due course or to cancel a certificate of candidacy may be filed
by any person exclusively on the ground that any material
representation contained therein as required under Section 74
hereof is false"
in consonance with the general powers of COMELEC expressed
in Section 52 of the Omnibus Election Code -
"Section 52. Powers and functions of the Commission on
Elections. In addition to the powers and functions conferred
upon it by the Constitution, the Commission shall have
exclusive charge of the enforcement and administration of all
laws relative to the conduct of elections for the purpose of
ensuring free, orderly and honest elections" -
and in relation to Article 69 of the Omnibus Election Code which
would authorize "any interested party" to file a verified petition
to deny or cancel the certificate of candidacy of any nuisance
candidate.
Decisions of the COMELEC on disqualification cases may be
reviewed by the Supreme Court per Rule 642 in an action
for certiorari under Rule 653 of the Revised Rules of Civil
Procedure. Section 7, Article IX, of the 1987 Constitution also
reads
"Each Commission shall decide by a majority vote of all its
Members any case or matter brought before it within sixty days
from the date of its submission for decision or resolution. A case
or matter is deemed submitted for decision or resolution upon
the filing of the last pleading, brief, or memorandum, required
by the rules of the Commission or by the Commission itself.
Unless otherwise provided by this Constitution or by law, any
decision, order, or ruling of each Commission may be brought
to the Supreme Court on certiorari by the aggrieved party
within thirty days from receipt of a copy thereof."
Additionally, Section 1, Article VIII, of the same Constitution
provides that judicial power is vested in one Supreme Court and
in such lower courts as may be established by law which 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."
It is sufficiently clear that the petition brought up in G. R. No.
161824 was aptly elevated to, and could well be taken
cognizance of by, this Court. A contrary view could be a gross
denial to our people of their fundamental right to be fully
informed, and to make a proper choice, on who could or should
be elected to occupy the highest government post in the land.
In G. R. No. 161434 and G. R. No. 161634
Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G.
R. No. 161634, invoke the provisions of Article VII, Section 4,
paragraph 7, of the 1987 Constitution in assailing the
jurisdiction of the COMELEC when it took cognizance of SPA No.
04-003 and in urging the Supreme Court to instead take on the
petitions they directly instituted before it. The Constitutional
provision cited reads:
"The Supreme Court, sitting en banc, shall be the sole judge of
all contests relating to the election, returns, and qualifications
of the President or Vice-President, and may promulgate its rules
for the purpose."
The provision is an innovation of the 1987 Constitution. The
omission in the 1935 and the 1973 Constitution to designate
any tribunal to be the sole judge of presidential and vice-
presidential contests, has constrained this Court to declare, in
Lopez v. Roxas,4 as "not (being) justiciable" controversies or
disputes involving contests on the elections, returns and
qualifications of the President or Vice-President. The
constitutional lapse prompted Congress, on 21 June 1957, to
enact Republic Act No. 1793, "An Act Constituting an
Independent Presidential Electoral Tribunal to Try, Hear and
Decide Protests Contesting the Election of the President-Elect
and the Vice-President-Elect of the Philippines and Providing for
the Manner of Hearing the Same." Republic Act 1793 designated
the Chief Justice and the Associate Justices of the Supreme
Court to be the members of the tribunal. Although the
subsequent adoption of the parliamentary form of government
under the 1973 Constitution might have implicitly affected
Republic Act No. 1793, the statutory set-up, nonetheless, would
now be deemed revived under the present Section 4, paragraph
7, of the 1987 Constitution.
Ordinary usage would characterize a "contest" in reference to a
post-election scenario. Election contests consist of either an
election protest or a quo warranto which, although two distinct
remedies, would have one objective in view, i.e., to dislodge the
winning candidate from office. A perusal of the phraseology in
Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential
Electoral Tribunal," promulgated by the Supreme Court en banc
on 18 April 1992, would support this premise -
"Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of
all contests relating to the election, returns, and qualifications
of the President or Vice-President of the Philippines.
"Rule 13. How Initiated. - An election contest is initiated by the
filing of an election protest or a petition for quo warranto
against the President or Vice-President. An election protest shall
not include a petition for quo warranto. A petition for quo
warranto shall not include an election protest.
"Rule 14. Election Protest. - Only the registered candidate for
President or for Vice-President of the Philippines who received
the second or third highest number of votes may contest the
election of the President or the Vice-President, as the case may
be, by filing a verified petition with the Clerk of the Presidential
Electoral Tribunal within thirty (30) days after the proclamation
of the winner."
The rules categorically speak of the jurisdiction of the tribunal
over contests relating to the election, returns and qualifications
of the "President" or "Vice-President", of the Philippines, and
not of "candidates" for President or Vice-President. A quo
warranto proceeding is generally defined as being an action
against a person who usurps, intrudes into, or unlawfully holds
or exercises a public office.5 In such context, the election
contest can only contemplate a post-election scenario. In Rule
14, only a registered candidate who would have received either
the second or third highest number of votes could file an
election protest. This rule again presupposes a post-election
scenario.
It is fair to conclude that the jurisdiction of the Supreme Court,
defined by Section 4, paragraph 7, of the 1987 Constitution,
would not include cases directly brought before it, questioning
the qualifications of a candidate for the presidency or vice-
presidency before the elections are held.
Accordingly, G. R. No. 161434, entitled "Maria Jeanette C.
Tecson, et al., v. Commission on Elections et al.," and G. R. No.
161634, entitled "Zoilo Antonio Velez v. Ronald Allan Kelley Poe
a.k.a. Fernando Poe, Jr." would have to be dismissed for want
of jurisdiction.
The Citizenship Issue
Now, to the basic issue; it should be helpful to first give a brief
historical background on the concept of citizenship.
Perhaps, the earliest understanding of citizenship was that
given by Aristotle, who, sometime in 384 to 322 B.C., described
the "citizen" to refer to a man who shared in the administration
of justice and in the holding of an office.6 Aristotle saw its
significance if only to determine the constituency of the "State,"
which he described as being composed of such persons who
would be adequate in number to achieve a self-sufficient
existence.7 The concept grew to include one who would both
govern and be governed, for which qualifications like autonomy,
judgment and loyalty could be expected. Citizenship was seen
to deal with rights and entitlements, on the one hand, and with
concomitant obligations, on the other.8 In its ideal setting, a
citizen was active in public life and fundamentally willing to
submit his private interests to the general interest of society.
The concept of citizenship had undergone changes over the
centuries. In the 18th century, the concept was limited, by and
large, to civil citizenship, which established the rights necessary
for individual freedom, such as rights to property, personal
liberty and justice.9 Its meaning expanded during the 19th
century to include political citizenship, which encompassed the
right to participate in the exercise of political power.10 The 20th
century saw the next stage of the development of social
citizenship, which laid emphasis on the right of the citizen to
economic well-being and social security.11 The idea of
citizenship has gained expression in the modern welfare state
as it so developed in Western Europe. An ongoing and final
stage of development, in keeping with the rapidly shrinking
global village, might well be the internationalization of
citizenship.12
The Local Setting - from Spanish Times to the Present
There was no such term as "Philippine citizens" during the
Spanish regime but "subjects of Spain" or "Spanish
subjects."13 In church records, the natives were called 'indios',
denoting a low regard for the inhabitants of the archipelago.
Spanish laws on citizenship became highly codified during the
19th century but their sheer number made it difficult to point to
one comprehensive law. Not all of these citizenship laws of
Spain however, were made to apply to the Philippine Islands
except for those explicitly extended by Royal Decrees.14
Spanish laws on citizenship were traced back to the Novisima
Recopilacion, promulgated in Spain on 16 July 1805 but as to
whether the law was extended to the Philippines remained to be
the subject of differing views among experts;15 however, three
royal decrees were undisputably made applicable to Spaniards
in the Philippines - the Order de la Regencia of 14 August
1841,16 the Royal Decree of 23 August 1868 specifically defining
the political status of children born in the Philippine
Islands,17 and finally, the Ley Extranjera de Ultramar of 04 July
1870, which was expressly made applicable to the Philippines
by the Royal Decree of 13 July 1870.18
The Spanish Constitution of 1876 was never extended to the
Philippine Islands because of the express mandate of its Article
89, according to which the provisions of the Ultramar among
which this country was included, would be governed by special
laws.19
It was only the Civil Code of Spain, made effective in this
jurisdiction on 18 December 1889, which came out with the first
categorical enumeration of who were Spanish citizens. -
"(a) Persons born in Spanish territory,
"(b) Children of a Spanish father or mother, even if they were
born outside of Spain,
"(c) Foreigners who have obtained naturalization papers,
"(d) Those who, without such papers, may have become
domiciled inhabitants of any town of the Monarchy."20
The year 1898 was another turning point in Philippine history.
Already in the state of decline as a superpower, Spain was
forced to so cede her sole colony in the East to an upcoming
world power, the United States. An accepted principle of
international law dictated that a change in sovereignty, while
resulting in an abrogation of all political laws then in force,
would have no effect on civil laws, which would remain virtually
intact.
The Treaty of Paris was entered into on 10 December 1898
between Spain and the United States.21 Under Article IX of the
treaty, the civil rights and political status of the native
inhabitants of the territories ceded to the United States would
be determined by its Congress -
"Spanish subjects, natives of the Peninsula, residing in the
territory over which Spain by the present treaty relinquishes or
cedes her sovereignty may remain in such territory or may
remove therefrom, retaining in either event all their rights of
property, including the right to sell or dispose of such property
or of its proceeds; and they shall also have the right to carry on
their industry, commerce, and professions, being subject in
respect thereof to such laws as are applicable to foreigners. In
case they remain in the territory they may preserve their
allegiance to the Crown of Spain by making, before a court of
record, within a year from the date of the exchange of
ratifications of this treaty, a declaration of their decision to
preserve such allegiance; in default of which declaration they
shall be held to have renounced it and to have adopted the
nationality of the territory in which they reside.
Thus
"The civil rights and political status of the native inhabitants of
the territories hereby ceded to the United States shall be
determined by the Congress."22
Upon the ratification of the treaty, and pending legislation by
the United States Congress on the subject, the native
inhabitants of the Philippines ceased to be Spanish subjects.
Although they did not become American citizens, they,
however, also ceased to be "aliens" under American laws and
were thus issued passports describing them to be citizens of the
Philippines entitled to the protection of the United States.
The term "citizens of the Philippine Islands" appeared for the
first time in the Philippine Bill of 1902, also commonly referred
to as the Philippine Organic Act of 1902, the first
comprehensive legislation of the Congress of the United States
on the Philippines -
".... that all inhabitants of the Philippine Islands continuing to
reside therein, who were Spanish subjects on the 11th day of
April, 1891, and then resided in said Islands, and their children
born subsequent thereto, shall be deemed and held to be
citizens of the Philippine Islands and as such entitled to the
protection of the United States, except such as shall have
elected to preserve their allegiance to the Crown of Spain in
accordance with the provisions of the treaty of peace between
the United States and Spain, signed at Paris, December tenth
eighteen hundred and ninety eight."23
Under the organic act, a "citizen of the Philippines" was one who
was an inhabitant of the Philippines, and a Spanish subject on
the 11th day of April 1899. The term "inhabitant" was taken to
include 1) a native-born inhabitant, 2) an inhabitant who was a
native of Peninsular Spain, and 3) an inhabitant who obtained
Spanish papers on or before 11 April 1899.24
Controversy arose on to the status of children born in the
Philippines from 11 April 1899 to 01 July 1902, during which
period no citizenship law was extant in the Philippines. Weight
was given to the view, articulated in jurisprudential writing at
the time, that the common law principle of jus soli, otherwise
also known as the principle of territoriality, operative in the
United States and England, governed those born in the
Philippine Archipelago within that period.25 More about this
later.
In 23 March 1912, the Congress of the United States made the
following amendment to the Philippine Bill of 1902 -
"Provided, That the Philippine Legislature is hereby authorized
to provide by law for the acquisition of Philippine citizenship by
those natives of the Philippine Islands who do not come within
the foregoing provisions, the natives of other insular possession
of the United States, and such other persons residing in the
Philippine Islands who would become citizens of the United
States, under the laws of the United States, if residing
therein."26
With the adoption of the Philippine Bill of 1902, the concept of
"Philippine citizens" had for the first time crystallized. The word
"Filipino" was used by William H. Taft, the first Civil Governor
General in the Philippines when he initially made mention of it in
his slogan, "The Philippines for the Filipinos." In 1916, the
Philippine Autonomy Act, also known as the Jones Law restated
virtually the provisions of the Philippine Bill of 1902, as so
amended by the Act of Congress in 1912 -
"That all inhabitants of the Philippine Islands who were Spanish
subjects on the eleventh day of April, eighteen hundred and
ninety-nine, and then resided in said Islands, and their children
born subsequently thereto, shall be deemed and held to be
citizens of the Philippine Islands, except such as shall have
elected to preserve their allegiance to the Crown of Spain in
accordance with the provisions of the treaty of peace between
the United States and Spain, signed at Paris December tenth,
eighteen hundred and ninety-eight and except such others as
have since become citizens of some other country; Provided,
That the Philippine Legislature, herein provided for, is hereby
authorized to provide for the acquisition of Philippine citizenship
by those natives of the Philippine Islands who do not come
within the foregoing provisions, the natives of the insular
possessions of the United States, and such other persons
residing in the Philippine Islands who are citizens of the United
States, or who could become citizens of the United States under
the laws of the United States, if residing therein."
Under the Jones Law, a native-born inhabitant of the Philippines
was deemed to be a citizen of the Philippines as of 11 April
1899 if he was 1) a subject of Spain on 11 April 1899, 2)
residing in the Philippines on said date, and, 3) since that date,
not a citizen of some other country.
While there was, at one brief time, divergent views on whether
or not jus soli was a mode of acquiring citizenship, the 1935
Constitution brought to an end to any such link with common
law, by adopting, once and for all, jus sanguinis or blood
relationship as being the basis of Filipino citizenship -
"Section 1, Article III, 1935 Constitution. The following are
citizens of the Philippines -
"(1) Those who are citizens of the Philippine Islands at the time
of the adoption of this Constitution
"(2) Those born in the Philippines Islands of foreign parents
who, before the adoption of this Constitution, had been elected
to public office in the Philippine Islands.
"(3) Those whose fathers are citizens of the Philippines.
"(4) Those whose mothers are citizens of the Philippines and
upon reaching the age of majority, elect Philippine citizenship.
"(5) Those who are naturalized in accordance with law."
Subsection (4), Article III, of the 1935 Constitution, taken
together with existing civil law provisions at the time, which
provided that women would automatically lose their Filipino
citizenship and acquire that of their foreign husbands, resulted
in discriminatory situations that effectively incapacitated the
women from transmitting their Filipino citizenship to their
legitimate children and required illegitimate children of Filipino
mothers to still elect Filipino citizenship upon reaching the age
of majority. Seeking to correct this anomaly, as well as fully
cognizant of the newly found status of Filipino women as equals
to men, the framers of the 1973 Constitution crafted the
provisions of the new Constitution on citizenship to reflect such
concerns -
"Section 1, Article III, 1973 Constitution - The following are
citizens of the Philippines:
chanroblesvirtua1awl ibrary
"(1) Those who are citizens of the Philippines at the time of the
adoption of this Constitution.
"(2) Those whose fathers or mothers are citizens of the
Philippines.
"(3) Those who elect Philippine citizenship pursuant to the
provisions of the Constitution of nineteen hundred and thirty-
five.
"(4) Those who are naturalized in accordance with law."
For good measure, Section 2 of the same article also further
provided that
"A female citizen of the Philippines who marries an alien retains
her Philippine citizenship, unless by her act or omission she is
deemed, under the law to have renounced her citizenship."
The 1987 Constitution generally adopted the provisions of the
1973 Constitution, except for subsection (3) thereof that aimed
to correct the irregular situation generated by the questionable
proviso in the 1935 Constitution.
Section I, Article IV, 1987 Constitution now provides:
"The following are citizens of the Philippines:
"(1) Those who are citizens of the Philippines at the time of the
adoption of this Constitution.
"(2) Those whose fathers or mothers are citizens of the
Philippines.
"(3) Those born before January 17, 1973 of Filipino mothers,
who elect Philippine citizenship upon reaching the age of
majority; and cralawlibrary
"(4) Those who are naturalized in accordance with law."
The Case Of FPJ
Section 2, Article VII, of the 1987 Constitution expresses:
"No person may be elected President unless he is a natural-born
citizen of the Philippines, a registered voter, able to read and
write, at least forty years of age on the day of the election, and
a resident of the Philippines for at least ten years immediately
preceding such election."
The term "natural-born citizens," is defined to include "those
who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine
citizenship."27
The date, month and year of birth of FPJ appeared to be 20
August 1939 during the regime of the 1935 Constitution.
Through its history, four modes of acquiring citizenship -
naturalization, jus soli, res judicata and jus sanguinis28 had
been in vogue. Only two, i.e., jus soli and jus sanguinis, could
qualify a person to being a "natural-born" citizen of the
Philippines. Jus soli, per Roa v. Collector of Customs 29 (1912),
did not last long. With the adoption of the 1935 Constitution
and the reversal of Roa in Tan Chong v. Secretary of
Labor30 (1947), jus sanguinis or blood relationship would now
become the primary basis of citizenship by birth.
Documentary evidence adduced by petitioner would tend to
indicate that the earliest established direct ascendant of FPJ was
his paternal grandfather Lorenzo Pou, married to Marta Reyes,
the father of Allan F. Poe. While the record of birth of Lorenzo
Pou had not been presented in evidence, his death certificate,
however, identified him to be a Filipino, a resident of San
Carlos, Pangasinan, and 84 years old at the time of his death on
11 September 1954. The certificate of birth of the father of FPJ,
Allan F. Poe, showed that he was born on 17 May 1915 to an
Español father, Lorenzo Pou, and a mestiza Español mother,
Marta Reyes. Introduced by petitioner was an "uncertified" copy
of a supposed certificate of the alleged marriage of Allan F. Poe
and Paulita Gomez on 05 July 1936. The marriage certificate of
Allan F. Poe and Bessie Kelley reflected the date of their
marriage to be on 16 September 1940. In the same certificate,
Allan F. Poe was stated to be twenty-five years old, unmarried,
and a Filipino citizen, and Bessie Kelley to be twenty-two years
old, unmarried, and an American citizen. The birth certificate of
FPJ, would disclose that he was born on 20 August 1939 to
Allan F. Poe, a Filipino, twenty-four years old, married to Bessie
Kelly, an American citizen, twenty-one years old and married.
Considering the reservations made by the parties on the
veracity of some of the entries on the birth certificate of
respondent and the marriage certificate of his parents, the only
conclusions that could be drawn with some degree of certainty
from the documents would be that -
1. The parents of FPJ were Allan F. Poe and Bessie Kelley; chanroblesvirtuallawl ibrary
2. FPJ was born to them on 20 August 1939; chanroblesvirtuallaw libra ry
3. Allan F. Poe and Bessie Kelley were married to each other on
16 September, 1940; chanroblesvirtuallawl ibrary
4. The father of Allan F. Poe was Lorenzo Poe; and cralawlibrary
5. At the time of his death on 11 September 1954, Lorenzo Poe
was 84 years old.
Would the above facts be sufficient or insufficient to establish
the fact that FPJ is a natural-born Filipino citizen? The marriage
certificate of Allan F. Poe and Bessie Kelley, the birth certificate
of FPJ, and the death certificate of Lorenzo Pou are documents
of public record in the custody of a public officer. The
documents have been submitted in evidence by both contending
parties during the proceedings before the COMELEC.
The birth certificate of FPJ was marked Exhibit "A" for petitioner
and Exhibit "3" for respondent. The marriage certificate of Allan
F. Poe to Bessie Kelley was submitted as Exhibit "21" for
respondent. The death certificate of Lorenzo Pou was submitted
by respondent as his Exhibit "5." While the last two documents
were submitted in evidence for respondent, the admissibility
thereof, particularly in reference to the facts which they
purported to show, i.e., the marriage certificate in relation to
the date of marriage of Allan F. Poe to Bessie Kelley and the
death certificate relative to the death of Lorenzo Pou on 11
September 1954 in San Carlos, Pangasinan, were all admitted
by petitioner, who had utilized those material statements in his
argument. All three documents were certified true copies of the
originals.
Section 3, Rule 130, Rules of Court states that -
"Original document must be produced; exceptions. - When the
subject of inquiry is the contents of a document, no evidence
shall be admissible other than the original document itself,
except in the following cases:
"x x x - x x x - x x x
"(d) When the original is a public record in the custody of a
public office or is recorded in a public office."
Being public documents, the death certificate of Lorenzo Pou,
the marriage certificate of Allan F. Poe and Bessie Kelly, and the
birth certificate of FPJ, constitute prima facie proof of their
contents. Section 44, Rule 130, of the Rules of Court provides:
"Entries in official records. Entries in official records made in the
performance of his duty by a public officer of the Philippines, or
by a person in the performance of a duty specially enjoined by
law, are prima facie evidence of the facts therein stated."
The trustworthiness of public documents and the value given to
the entries made therein could be grounded on 1) the sense of
official duty in the preparation of the statement made, 2) the
penalty which is usually affixed to a breach of that duty, 3) the
routine and disinterested origin of most such statements, and
4) the publicity of record which makes more likely the prior
exposure of such errors as might have occurred.31
The death certificate of Lorenzo Pou would indicate that he died
on 11 September 1954, at the age of 84 years, in San Carlos,
Pangasinan. It could thus be assumed that Lorenzo Pou was
born sometime in the year 1870 when the Philippines was still a
colony of Spain. Petitioner would argue that Lorenzo Pou was
not in the Philippines during the crucial period of from 1898 to
1902 considering that there was no existing record about such
fact in the Records Management and Archives Office. Petitioner,
however, likewise failed to show that Lorenzo Pou was at any
other place during the same period. In his death certificate, the
residence of Lorenzo Pou was stated to be San Carlos,
Pangasinan. In the absence of any evidence to the contrary, it
should be sound to conclude, or at least to presume, that the
place of residence of a person at the time of his death was also
his residence before death. It would be extremely doubtful if the
Records Management and Archives Office would have had
complete records of all residents of the Philippines from 1898 to
1902.
Proof of Paternity and Filiation
Under Civil Law.
Petitioner submits, in any case, that in establishing filiation
(relationship or civil status of the child to the father [or
mother]) or paternity (relationship or civil status of the father to
the child) of an illegitimate child, FPJ evidently being an
illegitimate son according to petitioner, the mandatory rules
under civil law must be used.
Under the Civil Code of Spain, which was in force in the
Philippines from 08 December 1889 up until the day prior to 30
August 1950 when the Civil Code of the Philippines took effect,
acknowledgment was required to establish filiation or paternity.
Acknowledgment was either judicial (compulsory) or voluntary.
Judicial or compulsory acknowledgment was possible only if
done during the lifetime of the putative parent; voluntary
acknowledgment could only be had in a record of birth, a will, or
a public document.32 Complementary to the new code was Act
No. 3753 or the Civil Registry Law expressing in Section 5
thereof, that -
"In case of an illegitimate child, the birth certificate shall be
signed and sworn to jointly by the parents of the infant or only
by the mother if the father refuses. In the latter case, it shall
not be permissible to state or reveal in the document the name
of the father who refuses to acknowledge the child, or to give
therein any information by which such father could be
identified."
In order that the birth certificate could then be utilized to prove
voluntary acknowledgment of filiation or paternity, the
certificate was required to be signed or sworn to by the father.
The failure of such requirement rendered the same useless as
being an authoritative document of recognition.33 In Mendoza v.
Mella,34 the Court ruled -
"Since Rodolfo was born in 1935, after the registry law was
enacted, the question here really is whether or not his birth
certificate (Exhibit 1), which is merely a certified copy of the
registry record, may be relied upon as sufficient proof of his
having been voluntarily recognized. No such reliance, in our
judgment, may be placed upon it. While it contains the names
of both parents, there is no showing that they signed the
original, let alone swore to its contents as required in Section 5
of Act No. 3753. For all that might have happened, it was not
even they or either of them who furnished the data to be
entered in the civil register. Petitioners say that in any event
the birth certificate is in the nature of a public document
wherein voluntary recognition of a natural child may also be
made, according to the same Article 131. True enough, but in
such a case, there must be a clear statement in the document
that the parent recognizes the child as his or her own."
In the birth certificate of respondent FPJ, presented by both
parties, nowhere in the document was the signature of Allan F.
Poe found. There being no will apparently executed, or at least
shown to have been executed, by decedent Allan F. Poe, the
only other proof of voluntary recognition remained to be "some
other public document." In Pareja v. Pareja,35 this Court defined
what could constitute such a document as proof of voluntary
acknowledgment:
"Under the Spanish Civil Code there are two classes of public
documents, those executed by private individuals which must
be authenticated by notaries, and those issued by competent
public officials by reason of their office. The public document
pointed out in Article 131 as one of the means by which
recognition may be made belongs to the first class."
Let us leave it at that for the moment.
The 1950 Civil Code categorized the acknowledgment or
recognition of illegitimate children into voluntary, legal or
compulsory. Voluntary recognition was required to be
expressedly made in a record of birth, a will, a statement before
a court of record or in any authentic writing. Legal
acknowledgment took place in favor of full blood brothers and
sisters of an illegitimate child who was recognized or judicially
declared as natural. Compulsory acknowledgment could be
demanded generally in cases when the child had in his favor
any evidence to prove filiation. Unlike an action to claim
legitimacy which would last during the lifetime of the child, and
might pass exceptionally to the heirs of the child, an action to
claim acknowledgment, however, could only be brought during
the lifetime of the presumed parent.
Amicus Curiae Ruben F. Balane defined, during the oral
argument, "authentic writing," so as to be an authentic writing
for purposes of voluntary recognition, simply as being a genuine
or indubitable writing of the father. The term would include a
public instrument (one duly acknowledged before a notary
public or other competent official) or a private writing admitted
by the father to be his.
The Family Code has further liberalized the rules; Article 172,
Article 173, and Article 175 provide:
"Art. 172. The filiation of legitimate children is established by
any of the following:chanroblesvirtua1awl ibrary
"(1) The record of birth appearing in the civil register or a final
judgment; or
"(2) An admission of legitimate filiation in a public document or
a private handwritten instrument and signed by the parent
concerned.
"In the absence of the foregoing evidence, the legitimate
filiation shall be proved by: chanroblesvirtua1awl ibrary
"(1) The open and continuous possession of the status of a
legitimate child; or
"(2) Any other means allowed by the Rules of Court and special
laws.
"Art. 173. The action to claim legitimacy may be brought by the
child during his or her lifetime and shall be transmitted to the
heirs should the child die during minority or in a state of
insanity. In these cases, the heirs shall have a period of five
years within which to institute the action.
"The action already commenced by the child shall survive
notwithstanding the death of either or both of the parties.
"x x x - x x x - x x x.
"Art. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same, evidence as
legitimate children.
"The action must be brought within the same period specified in
Article 173, except when the action is based on the second
paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent."
The provisions of the Family Code are retroactively applied;
Article 256 of the code reads:
"Art. 256. This Code shall have retroactive effect insofar as it
does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws."
Thus, in Vda. de Sy-Quia v. Court of Appeals,36 the Court has
ruled:
"We hold that whether Jose was a voluntarily recognized natural
child should be decided under Article 278 of the Civil Code of
the Philippines. Article 2260 of that Code provides that 'the
voluntary recognition of a natural child shall take place
according to this Code, even if the child was born before the
effectivity of this body of laws' or before August 30, 1950.
Hence, Article 278 may be given retroactive effect."
It should be apparent that the growing trend to liberalize the
acknowledgment or recognition of illegitimate children is an
attempt to break away from the traditional idea of keeping well
apart legitimate and non-legitimate relationships within the
family in favor of the greater interest and welfare of the child.
The provisions are intended to merely govern the private and
personal affairs of the family. There is little, if any, to indicate
that the legitimate or illegitimate civil status of the individual
would also affect his political rights or, in general, his
relationship to the State. While, indeed, provisions on
"citizenship" could be found in the Civil Code, such provisions
must be taken in the context of private relations, the domain of
civil law; particularly -
"Civil Law is that branch of law which has for its double purpose
the organization of the family and the regulation of property. It
has thus [been] defined as the mass of precepts which
determine and regulate the relations of assistance, authority
and obedience among members of a family, and those which
exist among members of a society for the protection of private
interests."37
In Yañez de Barnuevo v. Fuster,38 the Court has held:
"In accordance with Article 9 of the Civil Code of Spain, x x x
the laws relating to family rights and duties, or to the status,
condition and legal capacity of persons, govern Spaniards
although they reside in a foreign country; that, in consequence,
'all questions of a civil nature, such as those dealing with the
validity or nullity of the matrimonial bond, the domicile of the
husband and wife, their support, as between them, the
separation of their properties, the rules governing property,
marital authority, division of conjugal property, the classification
of their property, legal causes for divorce, the extent of the
latter, the authority to decree it, and, in general, the civil
effects of marriage and divorce upon the persons and properties
of the spouses, are questions that are governed exclusively by
the national law of the husband and wife."
The relevance of "citizenship" or "nationality" to Civil Law is
best exemplified in Article 15 of the Civil Code, stating that -
"Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens
of the Philippines, even though living abroad" -
that explains the need to incorporate in the code a reiteration of
the Constitutional provisions on citizenship. Similarly,
citizenship is significant in civil relationships found in different
parts of the Civil Code,39 such as on successional rights and
family relations.40 In adoption, for instance, an adopted child
would be considered the child of his adoptive parents and
accorded the same rights as their legitimate child but such legal
fiction extended only to define his rights under civil law41 and
not his political status.
Civil law provisions point to an obvious bias against illegitimacy.
This discriminatory attitude may be traced to the Spanish family
and property laws, which, while defining proprietary and
successional rights of members of the family, provided
distinctions in the rights of legitimate and illegitimate children.
In the monarchial set-up of old Spain, the distribution and
inheritance of titles and wealth were strictly according to
bloodlines and the concern to keep these bloodlines
uncontaminated by foreign blood was paramount.
These distinctions between legitimacy and illegitimacy were
codified in the Spanish Civil Code, and the invidious
discrimination survived when the Spanish Civil Code became the
primary source of our own Civil Code. Such distinction,
however, remains and should remain only in the sphere of civil
law and not unduly impede or impinge on the domain of political
law.
The proof of filiation or paternity for purposes of determining his
citizenship status should thus be deemed independent from and
not inextricably tied up with that prescribed for civil law
purposes. The Civil Code or Family Code provisions on proof of
filiation or paternity, although good law, do not have preclusive
effects on matters alien to personal and family relations. The
ordinary rules on evidence could well and should govern. For
instance, the matter about pedigree is not necessarily precluded
from being applicable by the Civil Code or Family Code
provisions.
Section 39, Rule 130, of the Rules of Court provides -
"Act or Declaration about pedigree. The act or declaration of a
person deceased, or unable to testify, in respect to the pedigree
of another person related to him by birth or marriage, may be
received in evidence where it occurred before the controversy,
and the relationship between the two persons is shown by
evidence other than such act or declaration. The word
`pedigree includes relationship, family genealogy, birth,
marriage, death, the dates when and the places where these
facts occurred, and the names of the relatives. It embraces also
facts of family history intimately connected with pedigree."
For the above rule to apply, it would be necessary that (a) the
declarant is already dead or unable to testify, (b) the pedigree
of a person must be at issue, (c) the declarant must be a
relative of the person whose pedigree is in question, (d)
declaration must be made before the controversy has occurred,
and (e) the relationship between the declarant and the person
whose pedigree is in question must be shown by evidence other
than such act or declaration.
Thus, the duly notarized declaration made by Ruby Kelley
Mangahas, sister of Bessie Kelley Poe submitted as Exhibit 20
before the COMELEC, might be accepted to prove the acts of
Allan F. Poe, recognizing his own paternal relationship with FPJ,
i.e, living together with Bessie Kelley and his children (including
respondent FPJ) in one house, and as one family -
"I, Ruby Kelley Mangahas, of legal age and sound mind,
presently residing in Stockton, California, U.S.A., after being
sworn in accordance with law do hereby declare that: chanroblesvirtua1awli brary
"1. I am the sister of the late Bessie Kelley Poe.
"2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.
"3. Fernando and Bessie Poe had a son by the name of Ronald
Allan Poe, more popularly known in the Philippines as
`Fernando Poe, Jr., or `FPJ.
"4. Ronald Allan Poe `FPJ was born on August 20, 1939 at St.
Luke's Hospital, Magdalena Street, Manila.
"x x x - x x x - x x x
"7. Fernando Poe Sr., and my sister Bessie, met and became
engaged while they were students at the University of the
Philippines in 1936. I was also introduced to Fernando Poe, Sr.,
by my sister that same year.
"8. Fernando Poe, Sr., and my sister Bessie had their first child
in 1938.
"9. Fernando Poe, Sr., my sister Bessie and their first three
children, Elizabeth, Ronald, Allan and Fernando II, and myself
lived together with our mother at our family's house on Dakota
St. (now Jorge Bocobo St.), Malate until the liberation of Manila
in 1945, except for some months between 1943-1944.
"10. Fernando Poe, Sr., and my sister, Bessie, were blessed
with four (4) more children after Ronald Allan Poe.
"x x x - x x x - x x x
"18. I am executing this Declaration to attest to the fact that
my nephew, Ronald Allan Poe is a natural born Filipino, and that
he is the legitimate child of Fernando Poe, Sr.
"Done in City of Stockton, California, U.S.A., this 12th day of
January 2004.
Ruby Kelley Mangahas Declarant DNA Testing
In case proof of filiation or paternity would be unlikely to
satisfactorily establish or would be difficult to obtain, DNA
testing, which examines genetic codes obtained from body cells
of the illegitimate child and any physical residue of the long
dead parent could be resorted to. A positive match would clear
up filiation or paternity. In Tijing v. Court of Appeals,42 this
Court has acknowledged the strong weight of DNA testing -
"Parentage will still be resolved using conventional methods
unless we adopt the modern and scientific ways available.
Fortunately, we have now the facility and expertise in using
DNA test for identification and parentage testing. The University
of the Philippines Natural Science Research Institute (UP-NSRI)
DNA Analysis Laboratory has now the capability to conduct DNA
typing using short tandem repeat (STR) analysis. The analysis is
based on the fact that the DNA of a child/person has two (2)
copies, one copy from the mother and the other from the
father. The DNA from the mother, the alleged father and the
child are analyzed to establish parentage. Of course, being a
novel scientific technique, the use of DNA test as evidence is
still open to challenge. Eventually, as the appropriate case
comes, courts should not hesitate to rule on the admissibility of
DNA evidence. For it was said, that courts should apply the
results of science when competently obtained in aid of
situations presented, since to reject said result is to deny
progress."
Petitioners Argument For Jurisprudential Conclusiveness
Petitioner would have it that even if Allan F. Poe were a Filipino
citizen, he could not have transmitted his citizenship to
respondent FPJ, the latter being an illegitimate child. According
to petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe,
on July 5, 1936, contracted marriage with a certain Paulita
Gomez, making his subsequent marriage to Bessie Kelley
bigamous and respondent FPJ an illegitimate child. The veracity
of the supposed certificate of marriage between Allan F. Poe
and Paulita Gomez could be most doubtful at best. But the
documentary evidence introduced by no less than respondent
himself, consisting of a birth certificate of respondent and a
marriage certificate of his parents showed that FPJ was born on
20 August 1939 to a Filipino father and an American mother
who were married to each other a year later, or on 16
September 1940. Birth to unmarried parents would make FPJ an
illegitimate child. Petitioner contended that as an illegitimate
child, FPJ so followed the citizenship of his mother, Bessie
Kelley, an American citizen, basing his stand on the ruling of
this Court in Morano v. Vivo,43 citing Chiongbian v. de Leo44 and
Serra v. Republic.45
On the above score, the disquisition made by amicus curiae
Joaquin G. Bernas, SJ, is most convincing; he states -
"We must analyze these cases and ask what the lis mota was in
each of them. If the pronouncement of the Court on jus
sanguinis was on the lis mota, the pronouncement would be a
decision constituting doctrine under the rule of stare decisis. But
if the pronouncement was irrelevant to the lis mota, the
pronouncement would not be a decision but a mere obiter
dictum which did not establish doctrine. I therefore invite the
Court to look closely into these cases.
"First, Morano v. Vivo. The case was not about an illegitimate
child of a Filipino father. It was about a stepson of a Filipino, a
stepson who was the child of a Chinese mother and a Chinese
father. The issue was whether the stepson followed the
naturalization of the stepfather. Nothing about jus sanguinis
there. The stepson did not have the blood of the naturalized
stepfather.
"Second, Chiongbian v. de Leon. This case was not about the
illegitimate son of a Filipino father. It was about a legitimate
son of a father who had become Filipino by election to public
office before the 1935 Constitution pursuant to Article IV,
Section 1(2) of the 1935 Constitution. No one was illegitimate
here.
"Third, Serra v. Republic. The case was not about the
illegitimate son of a Filipino father. Serra was an illegitimate
child of a Chinese father and a Filipino mother. The issue was
whether one who was already a Filipino because of his mother
who still needed to be naturalized. There is nothing there about
invidious jus sanguinis.
"Finally, Paa v. Chan.46 This is a more complicated case. The
case was about the citizenship of Quintin Chan who was the son
of Leoncio Chan. Quintin Chan claimed that his father, Leoncio,
was the illegitimate son of a Chinese father and a Filipino
mother. Quintin therefore argued that he got his citizenship
from Leoncio, his father. But the Supreme Court said that there
was no valid proof that Leoncio was in fact the son of a Filipina
mother. The Court therefore concluded that Leoncio was not
Filipino. If Leoncio was not Filipino, neither was his son Quintin.
Quintin therefore was not only not a natural-born Filipino but
was not even a Filipino.
"The Court should have stopped there. But instead it followed
with an obiter dictum. The Court said obiter that even if
Leoncio, Quintin's father, were Filipino, Quintin would not be
Filipino because Quintin was illegitimate. This statement about
Quintin, based on a contrary to fact assumption, was absolutely
unnecessary for the case. x x x It was obiter dictum, pure and
simple, simply repeating the obiter dictum in Morano v. Vivo.
"x x x - x x x - x x x
"Aside from the fact that such a pronouncement would have no
textual foundation in the Constitution, it would also violate the
equal protection clause of the Constitution not once but twice.
First, it would make an illegitimate distinction between a
legitimate child and an illegitimate child, and second, it would
make an illegitimate distinction between the illegitimate child of
a Filipino father and the illegitimate child of a Filipino mother.
"The doctrine on constitutionally allowable distinctions was
established long ago by People v. Cayat.47 I would grant that
the distinction between legitimate children and illegitimate
children rests on real differences. x x x But real differences
alone do not justify invidious distinction. Real differences may
justify distinction for one purpose but not for another purpose.
"x x x What is the relevance of legitimacy or illegitimacy to
elective public service? What possible state interest can there
be for disqualifying an illegitimate child from becoming a public
officer. It was not the fault of the child that his parents had
illicit liaison. Why deprive the child of the fullness of political
rights for no fault of his own? To disqualify an illegitimate child
from holding an important public office is to punish him for the
indiscretion of his parents. There is neither justice nor
rationality in that. And if there is neither justice nor rationality
in the distinction, then the distinction transgresses the equal
protection clause and must be reprobated."
The other amici curiae, Mr. Justice Vicente Mendoza (a former
member of this Court), Professor Ruben Balane and Dean Martin
Magallona, at bottom, have expressed similar views. The thesis
of petitioner, unfortunately hinging solely on pure obiter dicta,
should indeed fail.
Where jurisprudence regarded an illegitimate child as taking
after the citizenship of its mother, it did so for the benefit the
child. It was to ensure a Filipino nationality for the illegitimate
child of an alien father in line with the assumption that the
mother had custody, would exercise parental authority and had
the duty to support her illegitimate child. It was to help the
child, not to prejudice or discriminate against him.
The fact of the matter perhaps the most significant
consideration is that the 1935 Constitution, the fundamental law
prevailing on the day, month and year of birth of respondent
FPJ, can never be more explicit than it is. Providing neither
conditions nor distinctions, the Constitution states that among
the citizens of the Philippines are "those whose fathers are
citizens of the Philippines." There utterly is no cogent
justification to prescribe conditions or distinctions where there
clearly are none provided.
In Sum
(1) The Court, in the exercise of its power of judicial review,
possesses jurisdiction over the petition in G. R. No. 161824,
filed under Rule 64, in relation to Rule 65, of the Revised Rules
of Civil Procedure. G.R. No. 161824 assails the resolution of the
COMELEC for alleged grave abuse of discretion in dismissing, for
lack of merit, the petition in SPA No. 04-003 which has prayed
for the disqualification of respondent FPJ from running for the
position of President in the 10th May 2004 national elections on
the contention that FPJ has committed material representation
in his certificate of candidacy by representing himself to be a
natural-born citizen of the Philippines.
(2) The Court must dismiss, for lack of jurisdiction and
prematurity, the petitions in G. R. No. 161434 and No. 161634
both having been directly elevated to this Court in the latters
capacity as the only tribunal to resolve a presidential and vice-
presidential election contest under the Constitution. Evidently,
the primary jurisdiction of the Court can directly be invoked
only after, not before, the elections are held.
(3) In ascertaining, in G.R. No. 161824, whether grave abuse of
discretion has been committed by the COMELEC, it is necessary
to take on the matter of whether or not respondent FPJ is a
natural-born citizen, which, in turn, depended on whether or not
the father of respondent, Allan F. Poe, would have himself been
a Filipino citizen and, in the affirmative, whether or not the
alleged illegitimacy of respondent prevents him from taking
after the Filipino citizenship of his putative father. Any
conclusion on the Filipino citizenship of Lorenzo Pou could only
be drawn from the presumption that having died in 1954 at 84
years old, Lorenzo would have been born sometime in the year
1870, when the Philippines was under Spanish rule, and that
San Carlos, Pangasinan, his place of residence upon his death in
1954, in the absence of any other evidence, could have well
been his place of residence before death, such that Lorenzo Pou
would have benefited from the "en masse Filipinization" that the
Philippine Bill had effected in 1902. That citizenship (of Lorenzo
Pou), if acquired, would thereby extend to his son, Allan F. Poe,
father of respondent FPJ. The 1935 Constitution, during which
regime respondent FPJ has seen first light, confers citizenship to
all persons whose fathers are Filipino citizens regardless of
whether such children are legitimate or illegitimate.
(4) But while the totality of the evidence may not establish
conclusively that respondent FPJ is a natural-born citizen of the
Philippines, the evidence on hand still would preponderate in his
favor enough to hold that he cannot be held guilty of having
made a material misrepresentation in his certificate of
candidacy in violation of Section 78, in relation to Section 74, of
the Omnibus Election Code. Petitioner has utterly failed to
substantiate his case before the Court, notwithstanding the
ample opportunity given to the parties to present their position
and evidence, and to prove whether or not there has been
material misrepresentation, which, as so ruled in Romualdez-
Marcos v. COMELEC,48 must not only be material, but also
deliberate and willful.
WHEREFORE, the Court RESOLVES to DISMISS
1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and
Felix B. Desiderio, Jr., Petitioners, v. Commission on Elections,
Ronald Allan Kelley Poe (a.k.a. "Fernando Poe, Jr.,) and
Victorino X. Fornier, Respondents," and G. R. No. 161634,
entitled "Zoilo Antonio Velez, Petitioner, v. Ronald Allan Kelley
Poe, a.k.a. Fernando Poe, Jr., Respondent," for want of
jurisdiction.
2. G. R. No. 161824, entitled "Victorino X. Fornier, Petitioner, v.
Hon. Commission on Elections and Ronald Allan Kelley Poe, also
known as Fernando Poe, Jr.," for failure to show grave abuse of
discretion on the part of respondent Commission on Elections in
dismissing the petition in SPA No. 04-003.
No Costs.
SO ORDERED.
Davide, Jr., C.J., see separate opinion, concurring.
Puno, J., on leave but was allowed to vote; see separate
opinion.
Panganiban, J., on official leave; allowed to vote but did
not send his vote on the matter.
Quisumbing, J., joins the dissent of Justices Tinga and
Morales; case should have been remanded.
Ynares-Santiago, J., concurs and also with J. Punos
separate opinion.
Sandoval-Gutierrez, J., concurs, please see separate
opinion.
Carpio, J., see dissenting opinion.
Austria-Martinez, J., concurs, please see separate
opinion.
Corona, J., joins the dissenting opinion of Justice
Morales.
Carpio-Morales, J., see dissenting opinion.
Callejo, Sr., J., please see concurring opinion.
Azcuna, J., concurs in a separate opinion.
TINGA, J., dissents per separate opinion.
SEPARATE OPINION
DAVIDE, JR. C.J.:
chanrob lesvirtua1awlib rary
The procedural and factual antecedents of these consolidated
cases are as follows:chanroblesvirtua1awlib rary
On 9 January 2004, petitioner Victorino X. Fornier filed with
public respondent Commission on Elections (COMELEC) a
petition to disqualify private respondent Fernando Poe, Jr. (FPJ)
and to deny due course to or cancel his certificate of candidacy
for the position of President in the forthcoming 10 May 2004
presidential elections. As a ground therefore, he averred that
FPJ committed falsity in a material representation in his
certificate of candidacy in declaring that he is a natural-born
Filipino citizen when in truth and in fact he is not, since he is
the illegitimate son of Bessie Kelley, an American citizen, and
Allan Poe, a Spanish national. The case was docketed as
COMELEC Case SPA No. 04-003 and assigned to the COMELECs
First Division.
At the hearing before the First Division of the COMELEC,
petitioner Fornier offered FPJs record of birth to prove that FPJ
was born on 20 August 1939 to Bessie Kelley, an American
citizen, and Allan Poe, who was then married to Paulita Gomez.
Upon the other hand, FPJ tried to establish that his father was a
Filipino citizen whose parents, although Spanish nationals, were
Filipino citizens. He adduced in evidence a copy of the marriage
contract of Allan Poe and Bessie Kelley, showing that they were
married on 16 September 1940 in Manila.
In its Resolution of 23 January 2004, the First Division of the
COMELEC dismissed COMELEC Case SPA No. 04-003 for lack of
merit. It declared that COMELECs jurisdiction is limited to all
matters relating to election, returns and qualifications of all
elective regional, provincial and city officials, but not those of
national officials like the President. It has, however, jurisdiction
to pass upon the issue of citizenship of national officials under
Section 78 of the Omnibus Election Code on petitions to deny
due course or cancel certificates of candidacy on the ground
that any material representation contained therein is false. It
found that the evidence adduced by petitioner Fornier is not
substantial, and that FPJ did not commit any falsehood in
material representation when he stated in his certificate of
candidacy that he is a natural-born Filipino citizen.
His motion for reconsideration filed before the COMELEC en
banc having been denied, petitioner Fornier filed a petition with
this Court, which was docketed as G.R. No. 161824.
Meanwhile, petitioners Maria Jeanette C. Tecson and Felix B.
Desiderio, Jr. came to this Court via a special civil action
for certiorari under Rule 65 of the Rules of Court, docketed as
G.R. No. 161434, to challenge the jurisdiction of the COMELEC
over the issue of the citizenship of FPJ. They assert that only
this Court has jurisdiction over the issue in light of the last
paragraph of Section 4 of Article VII of the Constitution, which
provides: chanroblesvirtua1awli brary
The Supreme Court, sitting en banc, shall be the sole judge of
all contests relating to the election returns, and qualifications of
the President or Vice-President, and may promulgate its rules
for the purpose.
On 29 January 2004 petitioner Velez filed a similar petition,
which was docketed as G.R. No. 161634.
The core issues in these consolidated cases, as defined by the
Court during the oral argument, are as follows:
(1) Whether the COMELEC has jurisdiction over petitions to
deny due course to or cancel certificates of candidacy of
Presidential candidates; chanroblesvirtuallawl ibrary
(2) Whether the Supreme Court has jurisdiction over the
petitions of (a) Tecson, et al., (b) Velez, and (c) Fornier; and cralawlibrary
(3) Whether respondent FPJ is a Filipino citizen, and if so,
whether he is a natural-born Filipino citizen.
These consolidated petitions must be dismissed.
Both the petitions of Tecson and Velez invoke the jurisdiction of
this Court as provided for in the last paragraph of Section 4 of
Article VII of the Constitution, and raise the issue of the
ineligibility of a candidate for President on the ground that he is
not a natural-born citizen of the Philippines. The actions
contemplated in the said provision of the Constitution are post-
election remedies, namely, regular election contests and quo
warranto. The petitioner should have, instead, resorted to pre-
election remedies, such as those prescribed in Section 68
(Disqualifications), in relation to Section 72; Section 69
(Nuisance candidates); and Section 78 (Petition to deny course
to or cancel a certificate of candidacy), in relation to Section 74,
of the Omnibus Election Code, which are implemented in Rules
23, 24 and 25 of the COMELEC Rules of Procedure. These pre-
election remedies or actions do not, however, fall within the
original jurisdiction of this Court.
Under the Omnibus Election Code and the COMELEC Rules of
Procedure, the COMELEC has the original jurisdiction to
determine in an appropriate proceeding whether a candidate for
an elective office is eligible for the office for which he filed his
certificate of candidacy or is disqualified to be a candidate or to
continue such candidacy because of any of the recognized
grounds for disqualification. Its jurisdiction over COMELEC SPA
No. 04-003 is, therefore, beyond question.
Upon the other hand, this Court has jurisdiction over Forniers
petition (G.R. No. 161824) under Section 7 of Article IX-A of the
Constitution, which provides: chanroblesvirtua1awlibrary
Section 7. Each Commission shall decide by a majority vote of
all its Members any case or matter brought before it within sixty
days from the date of its submission for decision or resolution.
A case or matter is deemed submitted for decision or resolution
upon the filing of the last pleading, brief, or memorandum
required by the rules of the Commission or by the Commission
itself. Unless otherwise provided by this Constitution or by law,
any decision, order, or ruling of each Commission may be
brought to the Supreme Court on certiorari by the aggrieved
party within thirty days from receipt of a copy thereof.
This Court can also take cognizance of the issue of whether the
COMELEC committed grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing the challenged resolution
in COMELEC SPA No. 04-003 by virtue of Section 1 of Article
VIII of the Constitution, which reads as follows: chanroblesvirtua1awlibrary
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 nay branch or
instrumentality of the Government.
On the issue of whether private respondent FPJ is a natural-
born Filipino citizen, the following facts have been established
by a weighty preponderance of evidence either in the pleadings
and the documents attached thereto or from the admissions of
the parties, through their counsels, during the oral arguments:
1. FPJ was born on 20 August 1939 in Manila, Philippines.
2. FPJ was born to Allan Poe and Bessie Kelley.
3. Bessie Kelley and Allan Poe were married on 16 September
1940.
4. Allan Poe was a Filipino because his father, Lorenzo Poe,
albeit a Spanish subject, was not shown to have declared his
allegiance to Spain by virtue of the Treaty of Paris and the
Philippine Bill of 1902.
From the foregoing it is clear that respondent FPJ was born
before the marriage of his parents. Thus, pursuant to the Civil
Code then in force, he could either be (a) a natural child if both
his parents had no legal impediments to marry each other; or
(b) an illegitimate child if, indeed, Allan Poe was married to
another woman who was still alive at the time FPJ was born.
Petitioner Fornier never alleged that Allan Poe was not the
father of FPJ. By revolving his case around the illegitimacy of
FPJ, Fornier effectively conceded paternity or filiation as a non-
issue. For purposes of the citizenship of an illegitimate child
whose father is a Filipino and whose mother is an alien, proof of
paternity or filiation is enough for the child to follow the
citizenship of his putative father, as advanced by Fr. Joaquin
Bernas, one of the amici curiae. Since paternity or filiation is in
fact admitted by petitioner Fornier, the COMELEC committed no
grave abuse of discretion in holding that FPJ is a Filipino citizen,
pursuant to paragraph 3 of Section 1 of Article IV of the 1935
Constitution, which reads: chanroblesvirtua1awlib rary
Section 1. The following are citizens of the Philippines: chanroblesvirtua1awl ibrary
(3) Those whose fathers are citizens of the Philippines.
I agree with the amici curiae that this provision makes no
distinction between legitimate and illegitimate children of
Filipino fathers. It is enough that filiation is established or that
the child is acknowledged or recognized by the father.

G.R. No. 94723 August 21, 1997
KAREN E. SALVACION, minor, thru Federico N. Salvacion, Jr., father
and Natural Guardian, and Spouses FEDERICO N. SALVACION, JR.,
and EVELINA E. SALVACION, petitioners,
vs.
CENTRAL BANK OF THE PHILIPPINES, CHINA BANKING
CORPORATION and GREG BARTELLI y NORTHCOTT, respondents.
TORRES, JR., J.:
In our predisposition to discover the "original intent" of a statute, courts
become the unfeeling pillars of the status quo. Ligle do we realize that
statutes or even constitutions are bundles of compromises thrown our
way by their framers. Unless we exercise vigilance, the statute may
already be out of tune and irrelevant to our day.
The petition is for declaratory relief. It prays for the following reliefs:
a.) Immediately upon the filing of this petition, an Order be
issued restraining the respondents from applying and
enforcing Section 113 of Central Bank Circular No. 960;
b.) After hearing, judgment be rendered:
1.) Declaring the respective rights and duties of
petitioners and respondents;
2.) Adjudging Section 113 of Central Bank Circular No.
960 as contrary to the provisions of the Constitution,
hence void; because its provision that "Foreign currency
deposits shall be exempt from attachment, garnishment,
or any other order or process of any court, legislative
body, government agency or any administrative body
whatsoever
i.) has taken away the right of petitioners
to have the bank deposit of defendant
Greg Bartelli y Northcott garnished to
satisfy the judgment rendered in
petitioners' favor in violation of substantive
due process guaranteed by the
Constitution;
ii.) has given foreign currency depositors
an undue favor or a class privilege in
violation of the equal protection clause of
the Constitution;
iii.) has provided a safe haven for
criminals like the herein respondent Greg
Bartelli y Northcott since criminals could
escape civil liability for their wrongful acts
by merely converting their money to a
foreign currency and depositing it in a
foreign currency deposit account with an
authorized bank.
The antecedent facts:
On February 4, 1989, Greg Bartelli y Northcott, an American tourist,
coaxed and lured petitioner Karen Salvacion, then 12 years old to go with
him to his apartment. Therein, Greg Bartelli detained Karen Salvacion for
four days, or up to February 7, 1989 and was able to rape the child once
on February 4, and three times each day on February 5, 6, and 7, 1989.
On February 7, 1989, after policemen and people living nearby, rescued
Karen, Greg Bartelli was arrested and detained at the Makati Municipal
Jail. The policemen recovered from Bartelli the following items: 1.) Dollar
Check No. 368, Control No. 021000678-1166111303, US 3,903.20; 2.)
COCOBANK Bank Book No. 104-108758-8 (Peso Acct.); 3.) Dollar
Account — China Banking Corp., US$/A#54105028-2; 4.) ID-122-30-
8877; 5.) Philippine Money (P234.00) cash; 6.) Door Keys 6 pieces; 7.)
Stuffed Doll (Teddy Bear) used in seducing the complainant.
On February 16, 1989, Makati Investigating Fiscal Edwin G. Condaya
filed against Greg Bartelli, Criminal Case No. 801 for Serious Illegal
Detention and Criminal Cases Nos. 802, 803, 804, and 805 for four (4)
counts of Rape. On the same day, petitioners filed with the Regional Trial
Court of Makati Civil Case No. 89-3214 for damages with preliminary
attachment against Greg Bartelli. On February 24, 1989, the day there
was a scheduled hearing for Bartelli's petition for bail the latter escaped
from jail.
On February 28, 1989, the court granted the fiscal's Urgent Ex-Parte
Motion for the Issuance of Warrant of Arrest and Hold Departure Order.
Pending the arrest of the accused Greg Bartelli y Northcott, the criminal
cases were archived in an Order dated February 28, 1989.
Meanwhile, in Civil Case No. 89-3214, the Judge issued an Order dated
February 22, 1989 granting the application of herein petitioners, for the
issuance of the writ of preliminary attachment. After petitioners gave
Bond No. JCL (4) 1981 by FGU Insurance Corporation in the amount of
P100,000.00, a Writ of Preliminary Attachment was issued by the trial
court on February 28, 1989.
On March 1, 1989, the Deputy Sheriff of Makati served a Notice of
Garnishment on China Banking Corporation. In a letter dated March 13,
1989 to the Deputy Sheriff of Makati, China Banking Corporation invoked
Republic Act No. 1405 as its answer to the notice of garnishment served
on it. On March 15, 1989, Deputy Sheriff of Makati Armando de Guzman
sent his reply to China Banking Corporation saying that the garnishment
did not violate the secrecy of bank deposits since the disclosure is merely
incidental to a garnishment properly and legally made by virtue of a court
order which has placed the subject deposits in custodia legis. In answer
to this letter of the Deputy Sheriff of Makati, China Banking Corporation,
in a letter dated March 20, 1989, invoked Section 113 of Central Bank
Circular No. 960 to the effect that the dollar deposits or defendant Greg
Bartelli are exempt from attachment, garnishment, or any other order or
process of any court, legislative body, government agency or any
administrative body, whatsoever.
This prompted the counsel for petitioners to make an inquiry with the
Central Bank in a letter dated April 25, 1989 on whether Section 113 of
CB Circular No. 960 has any exception or whether said section has been
repealed or amended since said section has rendered nugatory the
substantive right of the plaintiff to have the claim sought to be enforced
by the civil action secured by way of the writ of preliminary attachment as
granted to the plaintiff under Rule 57 of the Revised Rules of Court. The
Central Bank responded as follows:
May 26, 1989
Ms. Erlinda S. Carolino
12 Pres. Osmena Avenue
South Admiral Village
Paranaque, Metro Manila
Dear Ms. Carolino:
This is in reply to your letter dated April 25, 1989
regarding your inquiry on Section 113, CB Circular No.
960 (1983).
The cited provision is absolute in application. It does not
admit of any exception, nor has the same been repealed
nor amended.
The purpose of the law is to encourage dollar accounts
within the country's banking system which would help in
the development of the economy. There is no intention to
render futile the basic rights of a person as was
suggested in your subject letter. The law may be harsh as
some perceive it, but it is still the law. Compliance is,
therefore, enjoined.
Very truly yours,
(SGD) AGAPITO S. FAJARDO
Director1
Meanwhile, on April 10, 1989, the trial court granted petitioners' motion
for leave to serve summons by publication in the Civil Case No. 89-3214
entitled "Karen Salvacion, et al. vs. Greg Bartelli y Northcott." Summons
with the complaint was a published in the Manila Times once a week for
three consecutive weeks. Greg Bartelli failed to file his answer to the
complaint and was declared in default on August 7, 1989. After hearing
the case ex-parte, the court rendered judgment in favor of petitioners on
March 29, 1990, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of
plaintiffs and against defendant, ordering the latter:
1. To pay plaintiff Karen E. Salvacion the amount of
P500,000.00 as moral damages;
 2. To pay her parents, plaintiffs spouses Federico N.
Salvacion, Jr., and Evelina E. Salvacion the amount of
P150,000.00 each or a total of P300,000.00 for both of
them;
3. To pay plaintiffs exemplary damages of P100,000.00;
and
4. To pay attorney's fees in an amount equivalent to 25%
of the total amount of damages herein awarded;
5. To pay litigation expenses of P10,000.00; plus
6. Costs of the suit.
SO ORDERED.
The heinous acts of respondent Greg Bartelli which gave rise to the
award were related in graphic detail by the trial court in its decision as
follows:
The defendant in this case was originally detained in the
municipal jail of Makati but was able to escape therefrom
on February 24, 1989 as per report of the Jail Warden of
Makati to the Presiding Judge, Honorable Manuel M.
Cosico of the Regional Trial Court of Makati, Branch 136,
where he was charged with four counts of Rape and
Serious Illegal Detention (Crim. Cases Nos. 802 to 805).
Accordingly, upon motion of plaintiffs, through counsel,
summons was served upon defendant by publication in
the Manila Times, a newspaper of general circulation as
attested by the Advertising Manager of the Metro Media
Times, Inc., the publisher of the said newspaper.
Defendant, however, failed to file his answer to the
complaint despite the lapse of the period of sixty (60)
days from the last publication; hence, upon motion of the
plaintiffs, through counsel, defendant was declared in
default and plaintiffs were authorized to present their
evidence ex parte.
In support of the complaint, plaintiffs presented as
witnesses the minor Karen E. Salvacion, her father,
Federico N. Salvacion, Jr., a certain Joseph Aguilar and a
certain Liberato Madulio, who gave the following
testimony:
Karen took her first year high school in St. Mary's
Academy in Pasay City but has recently transferred to
Arellano University for her second year.
In the afternoon of February 4, 1989, Karen was at the
Plaza Fair Makati Cinema Square, with her friend Edna
Tangile whiling away her free time. At about 3:30 p.m.
while she was finishing her snack on a concrete bench in
front of Plaza Fair, an American approached her. She
was then alone because Edna Tangile had already left,
and she was about to go home. (TSN, Aug. 15, 1989, pp.
2 to 5)
The American asked her name and introduced himself as
Greg Bartelli. He sat beside her when he talked to her. He
said he was a Math teacher and told her that he has a
sister who is a nurse in New York. His sister allegedly has
a daughter who is about Karen's age and who was with
him in his house along Kalayaan Avenue. (TSN, Aug. 15,
1989, pp. 4-5)
The American asked Karen what was her favorite subject
and she told him it's Pilipino. He then invited her to go
with him to his house where she could teach Pilipino to
his niece. He even gave her a stuffed toy to persuade her
to teach his niece. (Id., pp. 5-6)
They walked from Plaza Fair along Pasong Tamo, turning
right to reach the defendant's house along Kalayaan
Avenue. (Id., p. 6)
When they reached the apartment house, Karen noticed
that defendant's alleged niece was not outside the house
but defendant told her maybe his niece was inside. When
Karen did not see the alleged niece inside the house,
defendant told her maybe his niece was upstairs, and
invited Karen to go upstairs. (Id., p. 7)
Upon entering the bedroom defendant suddenly locked
the door. Karen became nervous because his niece was
not there. Defendant got a piece of cotton cord and tied
Karen's hands with it, and then he undressed her. Karen
cried for help but defendant strangled her. He took a
packing tape and he covered her mouth with it and he
circled it around her head. (Id., p. 7)
Then, defendant suddenly pushed Karen towards the bed
which was just near the door. He tied her feet and hands
spread apart to the bed posts. He knelt in front of her and
inserted his finger in her sex organ. She felt severe pain.
She tried to shout but no sound could come out because
there were tapes on her mouth. When defendant
withdrew his finger it was full of blood and Karen felt more
pain after the withdrawal of the finger. (Id., p. 8)
He then got a Johnson's Baby Oil and he applied it to his
sex organ as well as to her sex organ. After that he forced
his sex organ into her but he was not able to do so. While
he was doing it, Karen found it difficult to breathe and she
perspired a lot while feeling severe pain. She merely
presumed that he was able to insert his sex organ a little,
because she could not see. Karen could not recall how
long the defendant was in that position. (Id. pp. 8-9)
After that, he stood up and went to the bathroom to wash.
He also told Karen to take a shower and he untied her
hands. Karen could only hear the sound of the water
while the defendant, she presumed, was in the bathroom
washing his sex organ. When she took a shower more
blood came out from her. In the meantime, defendant
changed the mattress because it was full of blood. After
the shower, Karen was allowed by defendant to sleep.
She fell asleep because she got tired crying. The incident
happened at about 4:00 p.m. Karen had no way of
determining the exact time because defendant removed
her watch. Defendant did not care to give her food before
she went to sleep. Karen woke up at about 8:00 o'clock
the following morning. (Id., pp. 9-10)
The following day, February 5, 1989, a Sunday, after a
breakfast of biscuit and coke at about 8:30 to 9:00 a.m.
defendant raped Karen while she was still bleeding. For
lunch, they also took biscuit and coke. She was raped for
the second time at about 12:00 to 2:00 p.m. In the
evening, they had rice for dinner which defendant had
stored downstairs; it was he who cooked the rice that is
why it looks like "lugaw". For the third time, Karen was
raped again during the night. During those three times
defendant succeeded in inserting his sex organ but she
could not say whether the organ was inserted wholly.
Karen did not see any firearm or any bladed weapon. The
defendant did not tie her hands and feet nor put a tape on
her mouth anymore but she did not cry for help for fear
that she might be killed; besides, all the windows and
doors were closed. And even if she shouted for help,
nobody would hear her. She was so afraid that if
somebody would hear her and would be able to call the
police, it was still possible that as she was still inside the
house, defendant might kill her. Besides, the defendant
did not leave that Sunday, ruling out her chance to call for
help. At nighttime he slept with her again. (TSN, Aug. 15,
1989, pp. 12-14)
On February 6, 1989, Monday, Karen was raped three
times, once in the morning for thirty minutes after a
breakfast of biscuits; again in the afternoon; and again in
the evening. At first, Karen did not know that there was a
window because everything was covered by a carpet,
until defendant opened the window for around fifteen
minutes or less to let some air in, and she found that the
window was covered by styrofoam and plywood. After
that, he again closed the window with a hammer and he
put the styrofoam, plywood, and carpet back. (Id., pp. 14-
15)
That Monday evening, Karen had a chance to call for
help, although defendant left but kept the door closed.
She went to the bathroom and saw a small window
covered by styrofoam and she also spotted a small hole.
She stepped on the bowl and she cried for help through
the hole. She cried: "Maawa no po kayo so
akin. Tulungan n'yo akong makalabas dito. Kinidnap ako!"
Somebody heard her. It was a woman, probably a
neighbor, but she got angry and said she was "istorbo".
Karen pleaded for help and the woman told her to sleep
and she will call the police. She finally fell asleep but no
policeman came. (TSN, Aug. 15, 1989, pp. 15-16)
She woke up at 6:00 o'clock the following morning, and
she saw defendant in bed, this time sleeping. She waited
for him to wake up. When he woke up, he again got some
food but he always kept the door locked. As usual, she
was merely fed with biscuit and coke. On that day,
February 7, 1989, she was again raped three times. The
first at about 6:30 to 7:00 a.m., the second at about 8:30
— 9:00, and the third was after lunch at 12:00 noon. After
he had raped her for the second time he left but only for a
short while. Upon his return, he caught her shouting for
help but he did not understand what she was shouting
about. After she was raped the third time, he left the
house. (TSN, Aug. 15, 1989, pp. 16-17) She again went
to the bathroom and shouted for help. After shouting for
about five minutes, she heard many voices. The voices
were asking for her name and she gave her name as
Karen Salvacion. After a while, she heard a voice of a
woman saying they will just call the police. They were
also telling her to change her clothes. She went from the
bathroom to the room but she did not change her clothes
being afraid that should the neighbors call for the police
and the defendant see her in different clothes, he might
kill her. At that time she was wearing a T-shirt of the
American because the latter washed her dress. (Id., p.
16)
Afterwards, defendant arrived and he opened the door.
He asked her if she had asked for help because there
were many policemen outside and she denied it. He told
her to change her clothes, and she did change to the one
she was wearing on Saturday. He instructed her to tell the
police that she left home and willingly; then he went
downstairs but he locked the door. She could hear people
conversing but she could not understand what they were
saying. (Id., p. 19)
When she heard the voices of many people who were
conversing downstairs, she knocked repeatedly at the
door as hard as she could. She heard somebody going
upstairs and when the door was opened, she saw a
policeman. The policeman asked her name and the
reason why she was there. She told him she was
kidnapped. Downstairs, he saw about five policemen in
uniform and the defendant was talking to them.
"Nakikipag-areglo po sa mga pulis," Karen added. "The
policeman told him to just explain at the precinct. (Id., p.
20)
They went out of the house and she saw some of her
neighbors in front of the house. They rode the car of a
certain person she called Kuya Boy together with
defendant, the policeman, and two of her neighbors
whom she called Kuya Bong Lacson and one Ate Nita.
They were brought to Sub-Station I and there she was
investigated by a policeman. At about 2:00 a.m., her
father arrived, followed by her mother together with some
of their neighbors. Then they were brought to the second
floor of the police headquarters. (Id., p. 21)
At the headquarters, she was asked several questions by
the investigator. The written statement she gave to the
police was marked as Exhibit A. Then they proceeded to
the National Bureau of Investigation together with the
investigator and her parents. At the NBI, a doctor, a
medico-legal officer, examined her private parts. It was
already 3:00 in the early morning of the following day
when they reached the NBI. (TSN, Aug. 15, 1989, p. 22)
The findings of the medico-legal officer has been marked
as Exhibit B.
She was studying at the St. Mary's Academy in Pasay
City at the time of the incident but she subsequently
transferred to Apolinario Mabini, Arellano University,
situated along Taft Avenue, because she was ashamed to
be the subject of conversation in the school. She first
applied for transfer to Jose Abad Santos, Arellano
University along Taft Avenue near the Light Rail Transit
Station but she was denied admission after she told the
school the true reason for her transfer. The reason for
their denial was that they might be implicated in the case.
(TSN, Aug. 15, 1989, p. 46)
xxx xxx xxx
After the incident, Karen has changed a lot. She does not
play with her brother and sister anymore, and she is
always in a state of shock; she has been absent-minded
 and is ashamed even to go out of the house. (TSN, Sept.
12, 1989, p. 10) She appears to be restless or sad, (Id., p.
11) The father prays for P500,000.00 moral damages for
Karen for this shocking experience which probably, she
would always recall until she reaches old age, and he is
not sure if she could ever recover from this experience.
(TSN, Sept. 24, 1989, pp. 10-11)
Pursuant to an Order granting leave to publish notice of decision, said
notice was published in the Manila Bulletin once a week for three
consecutive weeks. After the lapse of fifteen (15) days from the date of
the last publication of the notice of judgment and the decision of the trial
court had become final, petitioners tried to execute on Bartelli's dollar
deposit with China Banking Corporation. Likewise, the bank invoked
Section 113 of Central Bank Circular No. 960.
Thus, petitioners decided to seek relief from this Court.
The issues raised and the arguments articulated by the parties boil down
to two:
May this Court entertain the instant petition despite the fact that original
jurisdiction in petitions for declaratory relief rests with the lower court?
Should Section 113 of Central Bank Circular No. 960 and Section 8 of
R.A. 6426, as amended by P.D. 1246, otherwise known as the Foreign
Currency Deposit Act be made applicable to a foreign transient?
Petitioners aver as heretofore stated that Section 113 of Central Bank
Circular No. 960 providing that "Foreign currency deposits shall be
exempt from attachment, garnishment, or any other order or process of
any court, legislative body, government agency or any administrative
body whatsoever." should be adjudged as unconstitutional on the
grounds that: 1.) it has taken away the right of petitioners to have the
bank deposit of defendant Greg Bartelli y Northcott garnished to satisfy
the judgment rendered in petitioners' favor in violation of substantive due
process guaranteed by the Constitution; 2.) it has given foreign currency
depositors an undue favor or a class privilege in violation of the equal
protection clause of the Constitution; 3.) it has provided a safe haven for
criminals like the herein respondent Greg Bartelli y Northcott since
criminals could escape civil liability for their wrongful acts by merely
converting their money to a foreign currency and depositing it in a foreign
currency deposit account with an authorized bank; and 4.) The Monetary
Board, in issuing Section 113 of Central Bank Circular No. 960 has
exceeded its delegated quasi-legislative power when it took away: a.) the
plaintiffs substantive right to have the claim sought to be enforced by the
civil action secured by way of the writ of preliminary attachment as
granted by Rule 57 of the Revised Rules of Court; b.) the plaintiffs
substantive right to have the judgment credit satisfied by way of the writ
of execution out of the bank deposit of the judgment debtor as granted to
the judgment creditor by Rule 39 of the Revised Rules of Court, which is
beyond its power to do so.
On the other hand, respondent Central Bank, in its Comment alleges that
the Monetary Board in issuing Section 113 of CB Circular No. 960 did not
exceed its power or authority because the subject Section is copied
verbatim from a portion of R.A. No. 6426 as amended by P.D. 1246.
Hence, it was not the Monetary Board that grants exemption from
attachment or garnishment to foreign currency deposits, but the law (R.A.
6426 as amended) itself; that it does not violate the substantive due
process guaranteed by the Constitution because a.) it was based on a
law; b.) the law seems to be reasonable; c.) it is enforced according to
regular methods of procedure; and d.) it applies to all members of a
class.
Expanding, the Central Bank said; that one reason for exempting the
foreign currency deposits from attachment, garnishment or any other
order or process of any court, is to assure the development and speedy
growth of the Foreign Currency Deposit System and the Offshore
Banking System in the Philippines; that another reason is to encourage
the inflow of foreign currency deposits into the banking institutions
thereby placing such institutions more in a position to properly channel
the same to loans and investments in the Philippines, thus directly
contributing to the economic development of the country; that the subject
section is being enforced according to the regular methods of procedure;
and that it applies to all foreign currency deposits made by any person
and therefore does not violate the equal protection clause of the
Constitution.
Respondent Central Bank further avers that the questioned provision is
needed to promote the public interest and the general welfare; that the
State cannot just stand idly by while a considerable segment of the
society suffers from economic distress; that the State had to take some
measures to encourage economic development; and that in so doing
persons and property may be subjected to some kinds of restraints or
burdens to secure the general welfare or public interest. Respondent
Central Bank also alleges that Rule 39 and Rule 57 of the Revised Rules
of Court provide that some properties are exempted from
execution/attachment especially provided by law and R.A. No. 6426 as
amended is such a law, in that it specifically provides, among others, that
foreign currency deposits shall be exempted from attachment,
garnishment, or any other order or process of any court, legislative body,
government agency or any administrative body whatsoever.
For its part, respondent China Banking Corporation, aside from giving
reasons similar to that of respondent Central Bank, also stated that
respondent China Bank is not unmindful of the inhuman sufferings
experienced by the minor Karen E. Salvacion from the beastly hands of
Greg Bartelli; that it is only too willing to release the dollar deposit of
Bartelli which may perhaps partly mitigate the sufferings petitioner has
undergone; but it is restrained from doing so in view of R.A. No. 6426 and
Section 113 of Central Bank Circular No. 960; and that despite the harsh
effect of these laws on petitioners, CBC has no other alternative but to
follow the same.
This Court finds the petition to be partly meritorious.
Petitioner deserves to receive the damages awarded to her by the court.
But this petition for declaratory relief can only be entertained and treated
as a petition for mandamus to require respondents to honor and comply
with the writ of execution in Civil Case No. 89-3214.
This Court has no original and exclusive jurisdiction over a petition for
declaratory relief.2 However, exceptions to this rule have been
recognized. Thus, where the petition has far-reaching implications and
raises questions that should be resolved, it may be treated as one
for mandamus.3
Here is a child, a 12-year old girl, who in her belief that all Americans are
good and in her gesture of kindness by teaching his alleged niece the
Filipino language as requested by the American, trustingly went with said
stranger to his apartment, and there she was raped by said American
tourist Greg Bartelli. Not once, but ten times. She was detained therein
for four (4) days. This American tourist was able to escape from the jail
and avoid punishment. On the other hand, the child, having received a
favorable judgment in the Civil Case for damages in the amount of more
than P1,000,000.00, which amount could alleviate the humiliation,
anxiety, and besmirched reputation she had suffered and may continue
to suffer for a long, long time; and knowing that this person who had
wronged her has the money, could not, however get the award of
damages because of this unreasonable law. This questioned law,
therefore makes futile the favorable judgment and award of damages that
she and her parents fully deserve. As stated by the trial court in its
decision,
Indeed, after hearing the testimony of Karen, the Court
believes that it was undoubtedly a shocking and traumatic
experience she had undergone which could haunt her
mind for a long, long time, the mere recall of which could
make her feel so humiliated, as in fact she had been
actually humiliated once when she was refused admission
at the Abad Santos High School, Arellano University,
where she sought to transfer from another school, simply
because the school authorities of the said High School
learned about what happened to her and allegedly feared
that they might be implicated in the case.
xxx xxx xxx
The reason for imposing exemplary or corrective
damages is due to the wanton and bestial manner
defendant had committed the acts of rape during a period
of serious illegal detention of his hapless victim, the minor
Karen Salvacion whose only fault was in her being so
naive and credulous to believe easily that defendant, an
American national, could not have such a bestial desire
on her nor capable of committing such a heinous crime.
Being only 12 years old when that unfortunate incident
happened, she has never heard of an old Filipino adage
that in every forest there is a
snake, . . . .4
If Karen's sad fate had happened to anybody's own kin, it would be
difficult for him to fathom how the incentive for foreign currency deposit
could be more important than his child's rights to said award of damages;
in this case, the victim's claim for damages from this alien who had the
gall to wrong a child of tender years of a country where he is a mere
visitor. This further illustrates the flaw in the questioned provisions.
It is worth mentioning that R.A. No. 6426 was enacted in 1983 or at a
time when the country's economy was in a shambles; when foreign
investments were minimal and presumably, this was the reason why said
statute was enacted. But the realities of the present times show that the
country has recovered economically; and even if not, the questioned law
still denies those entitled to due process of law for being unreasonable
and oppressive. The intention of the questioned law may be good when
enacted. The law failed to anticipate the iniquitous effects producing
outright injustice and inequality such as the case before us.
It has thus been said that —
But I also know,5 that laws and institutions must go hand
in hand with the progress of the human mind. As that
becomes more developed, more enlightened, as new
discoveries are made, new truths are disclosed and
manners and opinions change with the change of
circumstances, institutions must advance also, and keep
pace with the times. . . We might as well require a man to
wear still the coat which fitted him when a boy, as civilized
society to remain ever under the regimen of their
barbarous ancestors.
In his Comment, the Solicitor General correctly opined, thus:
The present petition has far-reaching implications on the
right of a national to obtain redress for a wrong committed
by an alien who takes refuge under a law and regulation
promulgated for a purpose which does not contemplate
the application thereof envisaged by the alien. More
specifically, the petition raises the question whether the
protection against attachment, garnishment or other court
process accorded to foreign currency deposits by PD No.
1246 and CB Circular No. 960 applies when the deposit
does not come from a lender or investor but from a mere
transient or tourist who is not expected to maintain the
deposit in the bank for long.
The resolution of this question is important for the
protection of nationals who are victimized in the forum by
foreigners who are merely passing through.
xxx xxx xxx
. . . Respondents China Banking Corporation and Central
Bank of the Philippines refused to honor the writ of
execution issued in Civil Case No. 89-3214 on the
strength of the following provision of Central Bank
Circular No. 960:
Sec. 113. Exemption from attachment. —
Foreign currency deposits shall be exempt
from attachment, garnishment, or any
other order or process of any court,
legislative body, government agency or
any administrative body whatsoever.
Central Bank Circular No. 960 was issued pursuant to
Section 7 of Republic Act No. 6426:
Sec. 7. Rules and Regulations. The
Monetary Board of the Central Bank shall
promulgate such rules and regulations as
may be necessary to carry out the
provisions of this Act which shall take
effect after the publication of such rules
and regulations in the Official Gazette and
in a newspaper of national circulation for
at least once a week for three consecutive
weeks. In case the Central Bank
promulgates new rules and regulations
decreasing the rights of depositors, the
rules and regulations at the time the
deposit was made shall govern.
The aforecited Section 113 was copied from Section 8 of
Republic Act NO. 6426, as amended by P.D. 1246, thus:
Sec. 8. Secrecy of Foreign Currency
Deposits. — All foreign currency deposits
authorized under this Act, as amended by
Presidential Decree No. 1035, as well as
foreign currency deposits authorized
under Presidential Decree No. 1034, are
hereby declared as and considered of an
absolutely confidential nature and, except
upon the written permission of the
depositor, in no instance shall such
foreign currency deposits be examined,
inquired or looked into by any person,
 government official, bureau or office
whether judicial or administrative or
legislative or any other entity whether
public or private: Provided, however, that
said foreign currency deposits shall be
exempt from attachment, garnishment, or
any other order or process of any court,
legislative body, government agency or
any administrative body whatsoever.
The purpose of PD 1246 in according protection against
attachment, garnishment and other court process to
foreign currency deposits is stated in its whereases, viz.:
WHEREAS, under Republic Act No. 6426,
as amended by Presidential Decree No.
1035, certain Philippine banking
institutions and branches of foreign banks
are authorized to accept deposits in
foreign currency;
WHEREAS, under the provisions of
Presidential Decree No. 1034 authorizing
the establishment of an offshore banking
system in the Philippines, offshore
banking units are also authorized to
receive foreign currency deposits in
certain cases;
WHEREAS, in order to assure the
development and speedy growth of the
Foreign Currency Deposit System and the
Offshore Banking System in the
Philippines, certain incentives were
provided for under the two Systems such
as confidentiality of deposits subject to
certain exceptions and tax exemptions on
the interest income of depositors who are
nonresidents and are not engaged in trade
or business in the Philippines;
WHEREAS, making absolute the
protective cloak of confidentiality over
such foreign currency deposits, exempting
such deposits from tax, and guaranteeing
the vested rights of depositors would
better encourage the inflow of foreign
currency deposits into the banking
institutions authorized to accept such
deposits in the Philippines thereby placing
such institutions more in a position to
properly channel the same to loans and
investments in the Philippines, thus
directly contributing to the economic
development of the country;
Thus, one of the principal purposes of the protection
accorded to foreign currency deposits is "to assure the
development and speedy growth of the Foreign Currency
Deposit system and the Offshore Banking in the
Philippines" (3rd Whereas).
The Offshore Banking System was established by PD No.
1034. In turn, the purposes of PD No. 1034 are as
follows:
WHEREAS, conditions conducive to the
establishment of an offshore banking
system, such as political stability, a
growing economy and adequate
communication facilities, among others,
exist in the Philippines;
WHEREAS, it is in the interest of
developing countries to have as wide
access as possible to the sources of
capital funds for economic development;
WHEREAS, an offshore banking system
based in the Philippines will be
advantageous and beneficial to the
country by increasing our links with foreign
lenders, facilitating the flow of desired
investments into the Philippines, creating
employment opportunities and expertise in
 international finance, and contributing to
the national development effort.
WHEREAS, the geographical location,
physical and human resources, and other
positive factors provide the Philippines
with the clear potential to develop as
another financial center in Asia;
On the other hand, the Foreign Currency Deposit system
was created by PD. No. 1035. Its purposes are as follows:
WHEREAS, the establishment of an
offshore banking system in the Philippines
has been authorized under a separate
decree;
WHEREAS, a number of local commercial
banks, as depository bank under the
Foreign Currency Deposit Act (RA No.
6426), have the resources and managerial
competence to more actively engage in
foreign exchange transactions and
participate in the grant of foreign currency
loans to resident corporations and firms;
WHEREAS, it is timely to expand the
foreign currency lending authority of the
said depository banks under RA 6426 and
apply to their transactions the same taxes
as would be applicable to transaction of
the proposed offshore banking units;
It is evident from the above [Whereas clauses] that the
Offshore Banking System and the Foreign Currency
Deposit System were designed to draw deposits from
foreign lenders and investors (Vide second Whereas of
PD No. 1034; third Whereas of PD No. 1035). It is these
deposits that are induced by the two laws and given
protection and incentives by them.
Obviously, the foreign currency deposit made by a
transient or a tourist is not the kind of deposit encouraged
by PD Nos. 1034 and 1035 and given incentives and
protection by said laws because such depositor stays only
for a few days in the country and, therefore, will maintain
his deposit in the bank only for a short time.
Respondent Greg Bartelli, as stated, is just a tourist or a
transient. He deposited his dollars with respondent China
Banking Corporation only for safekeeping during his
temporary stay in the Philippines.
For the reasons stated above, the Solicitor General thus
submits that the dollar deposit of respondent Greg Bartelli
is not entitled to the protection of Section 113 of Central
Bank Circular No. 960 and PD No. 1246 against
attachment, garnishment or other court processes.6
In fine, the application of the law depends on the extent of its justice.
Eventually, if we rule that the questioned Section 113 of Central Bank
Circular No. 960 which exempts from attachment, garnishment, or any
other order or process of any court, legislative body, government agency
or any administrative body whatsoever, is applicable to a foreign
transient, injustice would result especially to a citizen aggrieved by a
foreign guest like accused Greg Bartelli. This would negate Article 10 of
the New Civil Code which provides that "in case of doubt in the
interpretation or application of laws, it is presumed that the lawmaking
body intended right and justice to prevail. "Ninguno non deue
enriquecerse tortizeramente con dano de otro." Simply stated, when the
statute is silent or ambiguous, this is one of those fundamental solutions
that would respond to the vehement urge of conscience. (Padilla vs.
Padilla, 74 Phil. 377).
It would be unthinkable, that the questioned Section 113 of Central Bank
No. 960 would be used as a device by accused Greg Bartelli for
wrongdoing, and in so doing, acquitting the guilty at the expense of the
innocent.
Call it what it may — but is there no conflict of legal policy here? Dollar
against Peso? Upholding the final and executory judgment of the lower
court against the Central Bank Circular protecting the foreign depositor?
Shielding or protecting the dollar deposit of a transient alien depositor
against injustice to a national and victim of a crime? This situation calls
for fairness against legal tyranny.
We definitely cannot have both ways and rest in the belief that we have
served the ends of justice.

IN VIEW WHEREOF, the provisions of Section 113 of CB Circular No.

960 and PD No. 1246, insofar as it amends Section 8 of R.A. No. 6426
are hereby held to be INAPPLICABLE to this case because of its peculiar
circumstances. Respondents are hereby REQUIRED to COMPLY with
the writ of execution issued in Civil Case No. 89-3214, "Karen Salvacion,
et al. vs. Greg Bartelli y Northcott, by Branch CXLIV, RTC Makati and to
RELEASE to petitioners the dollar deposit of respondent Greg Bartelli y
Northcott in such amount as would satisfy the judgment.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,

Vitug, Kapunan, Francisco and Panganiban, JJ., concur.

Padilla, J., took no part.

Mendoza and Hermosisima, Jr., JJ., are on leave.