FIRST DIVISION

[G.R. No. 47800. December 2, 1940.]

MAXIMO CALALANG, Petitioner, v. A. D. WILLIAMS, ET AL., Respondents.

Maximo Calalang in his own behalf.

Solicitor General Ozaeta and Assistant Solicitor General Amparo for respondents
Williams, Fragante and Bayan

City Fiscal Mabanag for the other respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF COMMONWEALTH ACT No. 648; DELEGATION

OF LEGISLATIVE POWER; AUTHORITY OF DIRECTOR OF PUBLIC WORKS AND SECRETARY OF
PUBLIC WORKS AND COMMUNICATIONS TO PROMULGATE RULES AND REGULATIONS. — The
provisions of section 1 of Commonwealth Act No. 648 do not confer legislative power upon the
Director of Public Works and the Secretary of Public Works and Communications. The authority
therein conferred upon them and under which they promulgated the rules and regulations now
complained of is not to determine what public policy demands but merely to carry out the
legislative policy laid down by the National Assembly in said Act, to wit, "to promote safe transit
upon, and avoid obstructions on, roads and streets designated as national roads by acts of the
National Assembly or by executive orders of the President of the Philippines" and to close them
temporarily to any or all classes of traffic "whenever the condition of the road or the traffic
thereon makes such action necessary or advisable in the public convenience and interest." The
delegated power, if at all, therefore, is not the determination of what the law shall be, but merely
the ascertainment of the facts and circumstances upon which the application of said law is to be
predicated. To promulgate rules and regulations on the use of national roads and to determine
when and how long a national road should be closed to traffic, in view of the condition of the road
or the traffic thereon and the requirements of public convenience and interest, is an
administrative function which cannot be directly discharged by the National Assembly. It must
depend on the discretion of some other government official to whom is confided the duty of
determining whether the proper occasion exists for executing the law. But it cannot be said that
the exercise of such discretion is the making of the law.

2. ID.; ID.; POLICE POWER; PERSONAL LIBERTY; GOVERNMENTAL AUTHORITY. —

Commonwealth Act No. 548 was passed by the National Assembly in the exercise of the
paramount police power of the state. Said Act, by virtue of which the rules and regulations
complained of were promulgated, aims to promote safe transit upon and avoid obstructions on
national roads, in the interest and convenience of the public. In enacting said law, therefore, the
National Assembly was prompted by considerations of public convenience and welfare. It was
inspired by a desire to relieve congestion of traffic, which is, to say the least, a menace to public
safety. Public welfare, then, lies at the bottom of the enactment of said law, and the state in order
to promote the general welfare may interfere with personal liberty, with property, and with
business and occupations. Persons and property may be subjected to all kinds of restraints and
burdens, in order to secure the general comfort, health, and prosperity of the state (U.S. v.
Gomer Jesus, 31 Phil., 218). To this fundamental aim of our Government the rights of the
individual are subordinated. Liberty is a blessing without which life is a misery, but liberty should
not be made to prevail over authority because then society will fall into anarchy. Neither should
authority be made to prevail over liberty because then the individual will fall into slavery. The
citizen should achieve the required balance of liberty and authority in his mind through education
and, personal discipline, so that there may be established the resultant equilibrium, which means
peace and order and happiness for all. The moment greater authority is conferred upon the
government, logically so much is withdrawn from the residuum of liberty which resides in the
people. The paradox lies in the fact that the apparent curtailment of liberty is precisely the very
means of insuring its preservation.

3. ID.; ID.; SOCIAL JUSTICE. — Social justice is "neither communism, nor despotism, nor
atomism, nor anarchy," but the humanization of laws and the equalization of social and economic
forces by the State so that justice in its rational and objectively secular conception may at least
be approximated. Social justice means the promotion of the welfare of all the people, the adoption
by the Government of measures calculated to insure economic stability of all the competent
elements of society, through the maintenance of a proper economic and social equilibrium in the
interrelations of the members of the community, constitutionally, through the adoption of
measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying
the existence of all governments on the time-honored principle of salus populi est suprema lex.
Social justice, therefore, must be founded on the recognition of the necessity of interdependence
among divers and diverse units of a society and of the protection that should be equally and
evenly extended to all groups as a combined force in our social and economic life, consistent with
the fundamental and paramount objective of the state of promoting the health, comfort, and quiet
of all persons, and of bringing about "the greatest good to the greatest number."

DECISION

LAUREL, J.:

Maximo Calalang, in his capacity as a private citizen and as a taxpayer of Manila, brought before
this court this petition for a writ of prohibition against the respondents, A. D. Williams, as
Chairman of the National Traffic Commission; Vicente Fragante, as Director of Public Works;
Sergio Bayan, as Acting Secretary of Public Works and Communications; Eulogio Rodriguez, as
Mayor of the City of Manila; and Juan Dominguez, as Acting Chief of Police of Manila.

It is alleged in the petition that the National Traffic Commission, in its resolution of July 17, 1940,
resolved to recommend to the Director of Public Works and to the Secretary of Public Works and
Communications that animal-drawn vehicles be prohibited from passing along Rosario Street
extending from Plaza Calderon de la Barca to Dasmariñas Street, from 7:30 a.m. to 12:30 p.m.
and from 1:30 p.m. to 5:30 p.m.; and along Rizal Avenue extending from the railroad crossing at
Antipolo Street to Echague Street, from 7 a.m. to 11 p.m., from a period of one year from the
date of the opening of the Colgante Bridge to traffic; that the Chairman of the National Traffic
Commission, on July 18, 1940 recommended to the Director of Public Works the adoption of the
measure proposed in the resolution aforementioned, in pursuance of the provisions of
Commonwealth Act No. 548 which authorizes said Director of Public Works, with the approval of
the Secretary of Public Works and Communications, to promulgate rules and regulations to
regulate and control the use of and traffic on national roads; that on August 2, 1940, the Director
of Public Works, in his first indorsement to the Secretary of Public Works and Communications,
recommended to the latter the approval of the recommendation made by the Chairman of the
National Traffic Commission as aforesaid, with the modification that the closing of Rizal Avenue to
traffic to animal-drawn vehicles be limited to the portion thereof extending from the railroad
crossing at Antipolo Street to Azcarraga Street; that on August 10, 1940, the Secretary of Public
Works and Communications, in his second indorsement addressed to the Director of Public Works,
approved the recommendation of the latter that Rosario Street and Rizal Avenue be closed to
traffic of animal-drawn vehicles, between the points and during the hours as above indicated, for
a period of one year from the date of the opening of the Colgante Bridge to traffic; that the Mayor
of Manila and the Acting Chief of Police of Manila have enforced and caused to be enforced the
rules and regulations thus adopted; that as a consequence of such enforcement, all animal-drawn
vehicles are not allowed to pass and pick up passengers in the places above-mentioned to the
detriment not only of their owners but of the riding public as well.

It is contended by the petitioner that Commonwealth Act No. 548 by which the Director of Public
Works, with the approval of the Secretary of Public Works and Communications, is authorized to
promulgate rules and regulations for the regulation and control of the use of and traffic on
national roads and streets is unconstitutional because it constitutes an undue delegation of
legislative power. This contention is untenable. As was observed by this court in Rubi v. Provincial
Board of Mindoro (39 Phil, 660, 700), "The rule has nowhere been better stated than in the early
Ohio case decided by Judge Ranney, and since followed in a multitude of cases, namely: ’The true
distinction therefore is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring an authority or discretion as to its
execution, to be exercised under and in pursuance of the law. The first cannot be done; to the
latter no valid objection can be made.’ (Cincinnati, W. & Z. R. Co. v. Comm’rs. Clinton County, 1
Ohio St., 88.) Discretion, as held by Chief Justice Marshall in Wayman v. Southard (10 Wheat., 1)
may be committed by the Legislature to an executive department or official. The Legislature may
make decisions of executive departments or subordinate officials thereof, to whom it has
committed the execution of certain acts, final on questions of fact. (U.S. v. Kinkead, 248 Fed.,
141.) The growing tendency in the decisions is to give prominence to the ’necessity’ of the case."
virtua 1aw lib rary
cralaw

Section 1 of Commonwealth Act No. 548 reads as follows: jgc:chanroble s.com.p h

"SECTION 1. To promote safe transit upon, and avoid obstructions on, roads and streets
designated as national roads by acts of the National Assembly or by executive orders of the
President of the Philippines, the Director of Public Works, with the approval of the Secretary of
Public Works and Communications, shall promulgate the necessary rules and regulations to
regulate and control the use of and traffic on such roads and streets. Such rules and regulations,
with the approval of the President, may contain provisions controlling or regulating the
construction of buildings or other structures within a reasonable distance from along the national
roads. Such roads may be temporarily closed to any or all classes of traffic by the Director of
Public Works and his duly authorized representatives whenever the condition of the road or the
traffic thereon makes such action necessary or advisable in the public convenience and interest,
or for a specified period, with the approval of the Secretary of Public Works and
Communications." cralaw virtua 1aw lib rary

The above provisions of law do not confer legislative power upon the Director of Public Works and
the Secretary of Public Works and Communications. The authority therein conferred upon them
and under which they promulgated the rules and regulations now complained of is not to
determine what public policy demands but merely to carry out the legislative policy laid down by
the National Assembly in said Act, to wit, "to promote safe transit upon and avoid obstructions on,
roads and streets designated as national roads by acts of the National Assembly or by executive
orders of the President of the Philippines" and to close them temporarily to any or all classes of
traffic "whenever the condition of the road or the traffic makes such action necessary or advisable
in the public convenience and interest." The delegated power, if at all, therefore, is not the
determination of what the law shall be, but merely the ascertainment of the facts and
circumstances upon which the application of said law is to be predicated. To promulgate rules and
regulations on the use of national roads and to determine when and how long a national road
should be closed to traffic, in view of the condition of the road or the traffic thereon and the
requirements of public convenience and interest, is an administrative function which cannot be
directly discharged by the National Assembly. It must depend on the discretion of some other
government official to whom is confided the duty of determining whether the proper occasion
exists for executing the law. But it cannot be said that the exercise of such discretion is the
making of the law. As was said in Locke’s Appeal (72 Pa. 491): "To assert that a law is less than a
law, because it is made to depend on a future event or act, is to rob the Legislature of the power
to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet
developed, or to things future and impossible to fully know." The proper distinction the court said
was this: "The Legislature cannot delegate its power to make the law; but it can make a law to
delegate a power to determine some fact or state of things upon which the law makes, or intends
to make, its own action depend. To deny this would be to stop the wheels of government. There
are many things upon which wise and useful legislation must depend which cannot be known to
the law-making power, and, must, therefore, be a subject of inquiry and determination outside of
the halls of legislation." (Field v. Clark, 143 U. S. 649, 694; 36 L. Ed. 294.)

In the case of People v. Rosenthal and Osmeña, G.R. Nos. 46076 and 46077, promulgated June
12, 1939, and in Pangasinan Transportation v. The Public Service Commission, G.R. No. 47065,
promulgated June 26, 1940, this Court had occasion to observe that the principle of separation of
powers has been made to adapt itself to the complexities of modern governments, giving rise to
the adoption, within certain limits, of the principle of "subordinate legislation," not only in the
United States and England but in practically all modern governments. Accordingly, with the
growing complexity of modern life, the multiplication of the subjects of governmental regulations,
and the increased difficulty of administering the laws, the rigidity of the theory of separation of
governmental powers has, to a large extent, been relaxed by permitting the delegation of greater
powers by the legislative and vesting a larger amount of discretion in administrative and executive
officials, not only in the execution of the laws, but also in the promulgation of certain rules and
regulations calculated to promote public interest.

The petitioner further contends that the rules and regulations promulgated by the respondents
pursuant to the provisions of Commonwealth Act No. 548 constitute an unlawful interference with
legitimate business or trade and abridge the right to personal liberty and freedom of locomotion.
Commonwealth Act No. 548 was passed by the National Assembly in the exercise of the
paramount police power of the state.

Said Act, by virtue of which the rules and regulations complained of were promulgated, aims to
promote safe transit upon and avoid obstructions on national roads, in the interest and
convenience of the public. In enacting said law, therefore, the National Assembly was prompted
by considerations of public convenience and welfare. It was inspired by a desire to relieve
congestion of traffic. which is, to say the least, a menace to public safety. Public welfare, then,
lies at the bottom of the enactment of said law, and the state in order to promote the general
welfare may interfere with personal liberty, with property, and with business and occupations.
Persons and property may be subjected to all kinds of restraints and burdens, in order to secure
the general comfort, health, and prosperity of the state (U.S. v. Gomez Jesus, 31 Phil., 218). To
this fundamental aim of our Government the rights of the individual are subordinated. Liberty is a
blessing without which life is a misery, but liberty should not be made to prevail over authority
because then society will fall into anarchy. Neither should authority be made to prevail over
liberty because then the individual will fall into slavery. The citizen should achieve the required
balance of liberty and authority in his mind through education and personal discipline, so that
there may be established the resultant equilibrium, which means peace and order and happiness
for all. The moment greater authority is conferred upon the government, logically so much is
withdrawn from the residuum of liberty which resides in the people. The paradox lies in the fact
that the apparent curtailment of liberty is precisely the very means of insuring its preservation.

The scope of police power keeps expanding as civilization advances. As was said in the case of
Dobbins v. Los Angeles (195 U.S. 223, 238; 49 L. ed. 169), "the right to exercise the police power
is a continuing one, and a business lawful today may in the future, because of the changed
situation, the growth of population or other causes, become a menace to the public health and
welfare, and be required to yield to the public good." And in People v. Pomar (46 Phil., 440), it
was observed that "advancing civilization is bringing within the police power of the state today
things which were not thought of as being within such power yesterday. The development of
civilization, the rapidly increasing population, the growth of public opinion, with an increasing
desire on the part of the masses and of the government to look after and care for the interests of
the individuals of the state, have brought within the police power many questions for regulation
which formerly were not so considered." cralaw virtua 1aw lib rary

The petitioner finally avers that the rules and regulations complained of infringe upon the
constitutional precept regarding the promotion of social justice to insure the well-being and
economic security of all the people. The promotion of social justice, however, is to be achieved not
through a mistaken sympathy towards any given group. Social justice is "neither communism, nor
despotism, nor atomism, nor anarchy," but the humanization of laws and the equalization of social
and economic forces by the State so that justice in its rational and objectively secular conception
may at least be approximated. Social justice means the promotion of the welfare of all the people,
the adoption by the Government of measures calculated to insure economic stability of all the
competent elements of society, through the maintenance of a proper economic and social
equilibrium in the interrelations of the members of the community, constitutionally, through the
adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers
underlying the existence of all governments on the time-honored principle of salus populi est
suprema lex.

Social justice, therefore, must be founded on the recognition of the necessity of interdependence
among divers and diverse units of a society and of the protection that should be equally and
evenly extended to all groups as a combined force in our social and economic life, consistent with
the fundamental and paramount objective of the state of promoting the health, comfort, and quiet
of all persons, and of bringing about "the greatest good to the greatest number." cralaw virtua1aw l ibra ry

In view of the foregoing, the writ of prohibition prayed for is hereby denied, with costs against the
petitioner. So ordered.

Avanceña, C.J., Imperial, Diaz. and Horrilleno. JJ. concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-1800 January 27, 1948

CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced Minority Parties, petitioner,

vs.
VALERIANO E. FUGOSO, Mayor of City of Manila, respondent.

Ramon Diokno for petitioner.

City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio Villamor for respondent.

FERIA, J.:

This is an action of mandamus instituted by the petitoner, Cipriano Primicias, a campaig manager of the
Coalesced Minority Parties against Valeraino Fugoso, as Mayor of the City of Manila, to compel the latter to
issue a permit for the holding of a public meeting at Plaza Miranda on Sunday afternoon, November 16, 1947,
for the purpose of petitioning the government for redress to grievances on the groun that the respondent refused
to grant such permit. Due to urgency of the case, this Court, after mature deliberation, issued a writ
of mandamus, as prayed for in the petition of November 15, 1947, without prejudice to writing later an extended
and reasoned decision.

The right of freedom of speech and to peacefully assemble and petition the government for redress of
grievances, are fundamental personal rights of the people recognized and guaranteed by the Constitutions of
democratic countries. But it a casettled principle growing out of the nature of well-ordered civil societies that the
exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal
enjoyment of others having equal rights, not injurious to the rights of the community or society. The power to
regulate the exercise of such and other constitutional rights is termed the sovereign "police power" which is the
power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and
general welfare of the people. This sovereign police power is exercised by the government through its legislative
branch by the enactment of laws regulating those and other constitutional and civil rights, and it may be
delegated to political subdivisions, such as towns, municipalities, and cities authorizing their legislative bodies,
called municipal and city councils to enact ordinances for the purpose.

The Philippine legislature has delegated the exercise of the police power to the Municipal Board of the City of
Manila, which according to section 2439 of the Administrative Code is the legislative body of the City. Section
2444 of the same Code grants the Municipal Board, among others, the following legislative power, to wit: "(p) to
provide for the prohibition and suppression of riots, affrays, disturbances, and disorderly assemblies, (u) to
regulate the use of streets, avenues ... parks, cemeteries and other public places" and "for the abatement of
nuances in the same," and "(ee) to enact all ordinances it may deem necessary and proper for sanitation and
safety, the furtherance of prosperity and the promotion of morality, peace, good order, comfort, convenience,
and general welfare of the city and its inhabitants."

Under the above delegated power, the Municipal Board of the City of Manila, enacted sections 844 and 1119.
Section of the Revised Ordinances of 1927 prohibits as an offense against public peace, and section 1262 of the
same Revised Ordinance penalizes as a misdemeanor, "any act, in any public place, meeting, or procession,
tending to disturb the peace or excite a riot; or collect with other persons in a body or crowd for any unlawful
purpose; or disturb or disquiet any congregation engaged in any lawful assembly." And section 1119 provides
the following:

"SEC. 1119 Free for use of public — The streets and public places of the city shall be kept free and clear
for the use of the public, and the sidewalks and crossings for the pedestrians, and the same shall only be
used or occupied for other purposes as provided by ordinance or regulation: Provided, that the holding of
athletic games, sports, or exercise during the celebration of national holidays in any streets or public
places of the city and on the patron saint day of any district in question, may be permitted by means of a
permit issued by the Mayor, who shall determine the streets or public places or portions thereof, where
such athletic games, sports, or exercises may be held: And provided, further, That the holding of any
parade or procession in any streets or public places is prohibited unless a permit therefor is first secured
from the Mayor who shall, on every such ocassion, determine or specify the streets or public places for
 the formation, route, and dismissal of such parade or procession: And provided, finally, That all
applications to hold a parade or procession shall be submitted to the Mayor not less than twenty-four
hours prior to the holding of such parade or procession."

As there is no express and separate provision in the Revised Ordinance of the City regulating the holding of
public meeting or assembly at any street or public places, the provisions of saif section 1119 regarding the
holding of any parade or procession in any street or public paces may be applied by analogy to meeting and
assembly in any street or public places.

Said provision is susceptible to two constructions: one is that the Mayor of the City of Manila is vested with
unregulated discretion to grant or refuse, to grant permit for the holding of a lawful assembly or meeting, parade,
or procession in the streets and other public places of the City of Manila; and the other is that the applicant has
the right to a permit which shall be granted by the Mayor, subject only to the latter's reasonable discretion to
determine or specify the streets or public places to be used for the purpose, with the view to prevent confusion
by overlapping, to secure convenient use of the streets and public places by others, and to provide adequate
and proper policing to minimize the risk of disorder.

After a mature deliberation, we have arrived at the conclusion that we must adopt the second construction, that
is construe the provisions of the said ordinance to mean that it does not confer upon the Mayor the power to
refuse to grant the permit, but only the discretion, in issuing the permit, to determine or specify the streets or
public places where the parade or procession may pass or the meeting may be held.

Our conclusions find support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S.,
569. In that case, the statute of New Hampshire P.L. Chap. 145, section 2, providing that "no parade or
procession upon any ground abutting thereon, shall be permitted unless a special license therefor shall first be
obtained from the select men of the town or from licensing committee," was construed by the Supreme Court of
New Hampshire as not conferring upon the licensing board unfetted discretion to refuse to grant the license, and
held valid. And the Supreme Court of the United States in its decision (1941) penned by Chief Justice Hughes
firming the judgement of the State Supreme Court, held that " a statute requiring pewrsons using the public
streets for a parade or procession to procure a special license therefor from the local authorities is not an
unconstitutional abridgement of the rights of assembly or a freedom of speech and press, where, as the statute
is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a
consideration, the time, place, and manner of the parade and procession, with a view to conserving the public
convenience and of affording an opportunity to provide proper policing and are not invested with arbitrary
discretion to issue or refuse license, ... ."

We can not adopt the alternative construction or constru the ordinance under consideration as conferring upon
the Mayor power to grant or refuse to grant the permit, which would be tantamount to authorizing him to prohibit
the use of the streets and other public places for holding of meetings, parades or processions, because such a
construction would make the ordinance invalid and void or violative of the constitutional limitations. As the
Municipal Boards is empowered only to regulate the use of streets, parks, and the other public places, and the
word "regulate," as used in section 2444 of the Revised Administrative Code, means and includes the power to
control, to govern, and to restrain, but can not be construed a synonimous with construed "suppressed" or
"prohibit" (Kwong Sing vs. City of Manila, 41 Phil., 103), the Municipal Board can not grant the Mayor a power
that it does not have. Besides, the powers and duties of the Mayor as the Chief Executive of the City are
executive and one of them is "to comply with and enforce and give the necessary orders for the faithful
performance and execution of laws and ordinances" (section 2434 [b] of the Revised Administrative Code), the
ligislative police power of the Municipal Board to enact ordinances regulating reasonably the excercise of the
fundamental personal rights of the citizens in the streets and other public places, can not be delgated to the
Mayor or any other officer by conferring upon him unregulated discretion or without laying down rules to guide
and control his action by which its impartial execution can be secured or partiality and oppression prevented.

In City of Chicago vs. Trotter, 136 Ill., 430, it was held by the Supreme Court of Illinois that, under Rev. ST. Ill. c.
24, article 5 section 1, which empowers city councils to regulate the use of public streets, the council has no
power to ordain that no processions shall be allowed upon the streets until a permit shall be obtained from the
superintendent of police, leaving the issuance of such permits to his discretion, since the powers conferred on
the council cannot be delegated by them.

The Supreme COurt of Wisconsin in State ex rel. Garrabad vs. Dering, 84 Wis., 585; 54 N.W., 1104, held the
following:
 "The objections urged in the case of City of Baltimore vs. Radecke, 49 Md., 217, were also, in
substance, the same, for the ordinance in that case upon its face committed to the unrestrained will of a
single public officer the power to determine the rights of parties under it, when there was nothing in the
ordinance to guide or cintrol his action, and it was held void because "it lays down no rules by which its
impartial execution can be secured, or partiality and oppression prevented." and that "when we
remember that action or nonaction may proceed from enmity or prejudice, from partisan zeal or
animosity, from favoritism and other improper influences and motives easy of concealment and difficult
to be detected and exposed, it becomes unnecessary to suggest or to comment upon the injustice
capable of being wrought under cover of such a power, for that becomes apparent to every one who
gives to the subject a moment's consideration. In fact, an ordinance which clothes a single individual with
such power hardly falls within the domain of law, and we are constrained to pronounce it inoperative and
void." ... In the exercise of police power, the council may, in its discretion, regulate the exercise of such
rights in a reasonable manner, but can not suppress them, directly or indirectly, by attempting to commit
the power of doing so to the mayor or any other officer. The discretion with which the council is vested is
a legal discretion, to be exercised within the limits of the law, and not a discretion to transcend it or to
confer upon any city officer and arbitrary authority, making him in its exercise a petty tyrant."

In re Frazee, 63 Michigan 399, 30 N.W., 72, a city or ordinance providing that "no person or persons, or
associations or organizations shall march, parade, ride or drive, in ou upon or through the public streets of the
City of Grand Rapids with musical instrument, banners, flags, ... without first having obtained the consent of the
mayor or common council of said city;" was held by the Supreme Court of Michigan to be unreasonable and
void. Said Supreme Court in the course of the decision held:

". . . We must therefore construe this charter, and the powers it assumes to grant, so far as it is not
plainly unconstitutional, as only conferring such power over the subjects referred to as will enable the city
to keep order, and suppress mischief, in accordance with the limitations and conditions required by the
rights of the people themselves, as secured by the principles of law, which cannot be less careful of
private rights under the constitution than under the common law."

"It is quite possible that some things have a greater tendency to produce danger and disorder in cities
than in smaller towns or in rural places. This may justify reasonable precautionary measures, but nothing
further; and no inference can extend beyond the fair scope of powers granted for such a purpose, and no
grant of absolute discretion to suppress lawful action altogther can be granted at all. . . . ."

"It has been customary, from time immemorial, in all free countries, and in most civilized countries, for
people who are assembled for common purposes to parade together, by day or reasonable hours at
night, with banners and other paraphernalia, and with music of various kinds. These processions for
political, religious, and social demonstrations are resorted to for the express purpose of keeping unity of
feeling and enthusiasm, and frequently to produce some effect on the public mind by the spectacle of
union and numbers. They are a natural product and exponent of common aims, and valuable factors in
furthering them. ... When people assemble in riotous mobs, and move for purposes opposed to private or
public security, they become unlawful, and their members and abettors become punishable. . . ."

"It is only when political, religious, social, or other demonstrations create public disturbances, or operate
as a nuisance, or create or manifestly threaten some tangible public or private mischief, that the law
interferes."

"This by-law is unreasonable, because it suppresses what is in general perfectly lawful, and because it
leaves the power of permitting or restraining processions, and thier courses, to an unregulated official
discretion, when the whole matter, if regualted at all, must be permanent, legal provisions, operating
generally and impartially."

In Rich vs. Napervill, 42 Ill., App. 222, the question was raised as to the validity of the city ordinance which made
it unlawful for any person, society or club, or association of any kind, to parade any of the streets, with flags,
banners, or transparencies, drums, horns, or other musical instruments, without the permission of the city
council first had and obtained. The appellants were members of the Salvation Army, and were prosecuted for a
violation of the ordinance, and the court in holding the ordinance invalid said, "Ordinances to be valid must be
reasonable; they must not be oppressive; they must be fair and impartial; they must not be so framed as to allow
their enforcement to rest on official discretion ... Ever since the landing of the Pilgrims from the Mayflower the
right to assemble and worship accordingto the dictates of one's conscience, and the right to parade in a
peaceable manner and for a lawful purpose, have been fostered and regarded as among the fundamental rights
of a free people. The spirit of our free institutions allows great latitude in public parades and emonstrations
whether religious or political ... If this ordinance is held valid, then may the city council shut off the parades of
those whose nations do not suit their views and tastes in politics or religion, and permit like parades of those
whose nations do. When men in authority are permitted in their discretion to exercise power so arbitrary, liberty
is subverted, and the spirit of of our free institutions violated. ... Where the granting of the permit is left to the
unregulated discretion of a small body of city eldermen, the ordinance cannot be other than partial and
discriminating in its practical operation. The law abhors partiality and discrimination. ... (19 L.R.A., p. 861)

In the case of Trujillo vs. City of Walsenburg, 108 Col., 427; 118 P. [2d], 1081, the Supreme Court of Colorado,
in construing the provision of section 1 of Ordinance No. 273 of the City of Walsenburg, which provides: "That it
shall be unlawful for any person or persons or association to use the street of the City of Walsenburg, Colorado
for any parade, procession or assemblage without first obtaining a permit from the Chief of Police of the City of
Walsenburg so to do," held the following:

"[1] The power of municipalities, under our state law, to regulate the use of public streets is conceded.
"35 C.S.A., chapter 163, section 10, subparagraph 7. "The privilege of a citizen of the United States to
use the streets ... may be regulated in the interest of all; it is not absolute, but relative, and must be
excercised in subordination to the general, be abridged or denied." Hague, Mayor vs. Committee for
Industrial Organization, 307 U.S., 496, 516; 59 S. Ct., 954, 964; 83 Law, ed., 1423.

[2, 3] An excellent statement of the power of a municipality to impose regulations in the use of public
streets is found in the recent case of Cox vs. New Hampshire, 312 U.S., 569; 61 S. Ct., 762, 765; 85
Law, ed. 1049; 133 A.L.R., 1936, in which the following appears; "The authority of a municipality to
impose regulations in order to assure the safety and convenience of the people in the use of public
highways has never been regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control of travel on the streets of
cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of
highways in that relation is designed to promote the public convenience in the interest of all, it cannot be
disregarded by the attempted excercise of some civil right which in other circumstances would be
entitled to protection. One would not be justified in ignoring the familiar red traffic light because he
thought it his religious duty to disobey the municipal command or sought by that means to direct public
attention to an announcement of his opinions. As regulation of the use of the streets for parades and
processions is a traditional excercise of control by local government, the question in a particular case is
whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the
opportunities for the communication of thought and the discussion of public questions immemorially
associated with resort to public places. Lovell vs. Criffin, 303 U.S., 444, 451;58 S. Ct., 666, 668, 82 Law.
ed., 949 [953]; Hague vs. Committee for Industrial Organization, 307 U. S., 496, 515, 516; 59 S. Ct., 954,
963, 964; 83 Law. ed., 1423 [1436, 1437]; Scheneider vs. State of New Jersey [Town of Irvington]; 308
U.S., 147, 160; 60 S. Ct., 146, 150; 84 Law. ed., 155 [164]; Cantwell vs. Connecticut, 310 U. S., 296,
306, 307; 60 S. Ct., 900, 904; 84 Law. ed., 1213 [1219, 1220]; 128 A.L.R. 1352."

[4] Our concern here is the validity or nonvalidity of an ordinance which leaves to the uncontrolled official
discretion of the chief of police of the municipal corporation to say who shall, who shall not, be accorded
the privilege of parading on its public streets. No standard of regulation is even remotely suggested.
Moreover, under the ordinance as drawn, the chief of police may for any reason which he may entertain
arbitrarily deny this privelege to any group. in Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed.,
1049, 1054, said:

"In the instant case the uncontrolled official suppression of the privilege of using the public streets in a
lawful manner clearly is apparent from the face of the ordinance before us, and we therefore hold it null
and void."

The Supreme Court of the United States in Hague vs. Committee for Industrial Organization, 307 U. S., 496,
515, 516; 83 Law. ed., 1423, declared that a municipal ordinance requiring the obtaining of a permit for a public
assembly in or upon the public streets, highways, public parks, or public buildings of the city and authorizing the
director of public safety, for the purpose of preventing riots, disturbances, or disorderly assemblage, to refuse to
issue a permit when after investigation of all the facts and circumstances pertinent to the application he believes
it to be proper to refuse to issue a permit, is not a valid exercise of the police power. Said Court in the course of
its opinion in support of the conclusion said:

". . . Wherever the title of streets and parks may rest, they have immemorially been held in trust for the
use of the public and, time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. Such use of the streets and public places
 has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The
privilege of a citizen of the United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and convenience, and in consonance with peace and
good order; but it must not, in the guise of regulation, be abridged or denied.

"We think the court below was right in holding the ordinance quoted in Note 1 void upon its face. It does
not make comfort or convenience in the use of streets or parks the standard of official action. It enables
the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots,
disturbances or disorderly assemblage.' It can thus, as the record discloses, be made the instrument of
arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will
undoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot be
made a substitute for the duty to maintain order in connection with the exercise of the right."

Section 2434 of the Administrative Code, a part of the Charter of the City of Manila, which provides that the
Mayor shall have the power to grant and refuse municipal licenses or permits of all classes, cannot be cited as
an authority for the Mayor to deny the application of the petitioner, for the simple reason that said general power
is predicated upon the ordinances enacted by the Municipal Board requiring licenses or permits to be issued by
the Mayor, such as those found in Chapters 40 to 87 of the Revised Ordinances of the City of Manila. It is not a
specific or substantive power independent from the corresponding municipal ordinances which the Mayor, as
Chief Executive of the City, is required to enforce under the same section 2434. Moreover "one of the settled
maxims in constitutional law is that the power conferred upon the Legislature to make laws cannot be delegated
by that department to any other body or authority," except certain powers of local government, specially of police
regulation which are conferred upon the legislative body of a municipal corporation. Taking this into
consideration, and that the police power to regulate the use of streets and other public places has been
delegated or rather conferred by the Legislature upon the Municipal Board of the City (section 2444 [u] of the
Administrative Code) it is to be presumed that the Legislature has not, in the same breath, conferred upon the
Mayor in section 2434 (m) the same power, specially if we take into account that its exercise may be in conflict
with the exercise of the same power by the Municipal Board.

Besides, assuming arguendo that the Legislature has the power to confer, and in fact has conferred, upon the
Mayor the power to grant or refuse licenses and permits of all classes, independent from ordinances enacted by
the Municipal Board on the matter, and the provisions of section 2444 (u) of the same Code and of section 1119
of the Revised Ordinances to the contrary notwithstanding, such grant of unregulated and unlimited power to
grant or refuse a permit for the use of streets and other public places for processions, parades, or meetings,
would be null and void, for the same reasons stated in the decisions in the cases above quoted, specially in
Willis Cox vs. New Hampshire, supra, wherein the question involved was also the validity of a similar statute of
New Hamsphire. Because the same constitutional limitations applicable to ordinances apply to statutes, and the
same objections to a municipal ordinance which grants unrestrained discretion upon a city officer are applicable
to a law or statute that confers unlimited power to any officer either of the municipal or state governments. Under
our democratic system of government no such unlimited power may be validly granted to any officer of the
government, except perhaps in cases of national emergency. As stated in State ex rel. Garrabad vs. Dering,
supra, "The discretion with which the council is vested is a legal discretion to be exercised within the limits of the
law, and not a discretion to transcend it or to confer upon any city officer an arbitrary authority making in its
exercise a petty tyrant."

It is true that Mr. Justice Ostrand cited said provision of article 2434 (m) of the Administrative Code apparently in
support of the decision in the case of Evangelista vs. Earnshaw, 57 Phil., 255- 261, but evidently the quotation of
said provision was made by the writer of the decision under a mistaken conception of its purview and is an obiter
dictum, for it was not necessary for the decision rendered. The popular meeting or assemblage intended to be
held therein by the Communist Party of the Philippines was clearly an unlawful one, and therefore the Mayor of
the City of Manila had no power to grant the permit applied for. On the contrary, had the meeting been held, it
was his duty to have the promoters thereof prosecuted for violation of section 844, which is punishable as
misdemeanor by section 1262 of the Revised Ordinances of the City of Manila. For, according to the decision,
"the doctrine and principles advocated and urged in the Constitution and by-laws of the said Communist Party of
the Philippines, and the speeches uttered, delivered, and made by its members in the public meetings or
gatherings, as above stated, are highly seditious, in that they suggest and incite rebelious conspiracies and
disturb and obstruct the lawful authorities in their duty."

The reason alleged by the respondent in his defense for refusing the permit is, "that there is a reasonable
ground to believe, basing upon previous utterances and upon the fact that passions, specially on the part of the
losing groups, remains bitter and high, that similar speeches will be delivered tending to undermine the faith and
confidence of the people in their government, and in the duly constituted authorities, which might threaten
breaches of the peace and a disruption of public order." As the request of the petition was for a permit "to hold a
peaceful public meeting," and there is no denial of that fact or any doubt that it was to be a lawful assemblage,
the reason given for the refusal of the permit can not be given any consideration. As stated in the portion of the
decision in Hague vs. Committee on Industrial Organization, supra, "It does not make comfort and convenience
in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse the permit
on his mere opinion that such refusal will prevent riots, disturbances or disorderly assemblage. It can thus, as
the record discloses, be made the instrument of arbitrary suppression of free expression of views on national
affairs, for the prohibition of all speaking will undoubtedly 'prevent' such eventualities." To this we may add the
following, which we make our own, said by Mr. Justice Brandeis in his concurring opinion in Whitney vs.
California, 71 U. S. (Law. ed.), 1105-1107:

"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared
witches and burned women. It is the function of speech to free men from the bondage of irrational fears.
To justify suppression of free speech there must be reasonable ground to fear that serious evil will result
if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is
imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one . . .

"Those who won our independence by revolution were not cowards. They did not fear political change.
They did not exalt order at the cost of liberty. . . .

"Moreover, even imminent danger cannot justify resort to prohibition of these functions essential effective
democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is
a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to
a society. . . . The fact that speech is likely to result in some violence or in destruction of property is not
enough to justify its suppression. There must be the probability of serious injury to the state. Among
freemen, the deterrents ordinarily to be applied to prevent crimes are education and punishment for
violations of the law, not abridgment of the rights of free speech and assembly." Whitney vs. California,
U. S. Sup. Ct. Rep., 71 Law., ed., pp. 1106-1107.)

In view of all the foregoing, the petition for mandamus is granted and, there appearing no reasonable objection
to the use of the Plaza Miranda, Quiapo, for the meeting applied for, the respondent is ordered to issue the
corresponding permit, as requested. So ordered.

Moran, C. J., Pablo, Perfecto, Bengzon and Briones, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.

City Fiscal Diaz for respondents.

MALCOLM, J.:

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

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

The vessels reached their destination at Davao on October 29. The women were landed and receipted for as
laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yñigo and Rafael Castillo. The
governor and the hacendero Yñigo, who appear as parties in the case, had no previous notification that the
women were prostitutes who had been expelled from the city of Manila. The further happenings to these women
and the serious charges growing out of alleged ill-treatment are of public interest, but are not essential to the
disposition of this case. Suffice it to say, generally, that some of the women married, others assumed more or
less clandestine relations with men, others went to work in different capacities, others assumed a life unknown
and disappeared, and a goodly portion found means to return to Manila.

To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao, the
attorney for the relatives and friends of a considerable number of the deportees presented an application
for habeas corpus to a member of the Supreme Court. Subsequently, the application, through stipulation of the
parties, was made to include all of the women who were sent away from Manila to Davao and, as the same
questions concerned them all, the application will be considered as including them. The application set forth the
salient facts, which need not be repeated, and alleged that the women were illegally restrained of their liberty by
Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain
unknown parties. The writ was made returnable before the full court. The city fiscal appeared for the
respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and deportation, and prayed
that the writ should not be granted because the petitioners were not proper parties, because the action should
have been begun in the Court of First Instance for Davao, Department of Mindanao and Sulu, because the
respondents did not have any of the women under their custody or control, and because their jurisdiction did not
extend beyond the boundaries of the city of Manila. According to an exhibit attached to the answer of the fiscal,
the 170 women were destined to be laborers, at good salaries, on the haciendas of Yñigo and Governor Sales.
In open court, the fiscal admitted, in answer to question of a member of the court, that these women had been
sent out of Manila without their consent. The court awarded the writ, in an order of November 4, that directed
Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Francisco Sales,
governor of the province of Davao, and Feliciano Yñigo, an hacendero of Davao, to bring before the court the
persons therein named, alleged to be deprived of their liberty, on December 2, 1918.

Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion of
counsel for petitioners, their testimony was taken before the clerk of the Supreme Court sitting as
commissioners. On the day named in the order, December 2nd, 1918, none of the persons in whose behalf the
writ was issued were produced in court by the respondents. It has been shown that three of those who had been
able to come back to Manila through their own efforts, were notified by the police and the secret service to
appear before the court. The fiscal appeared, repeated the facts more comprehensively, reiterated the stand
taken by him when pleading to the original petition copied a telegram from the Mayor of the city of Manila to the
provincial governor of Davao and the answer thereto, and telegrams that had passed between the Director of
Labor and the attorney for that Bureau then in Davao, and offered certain affidavits showing that the women
were contained with their life in Mindanao and did not wish to return to Manila. Respondents Sales answered
alleging that it was not possible to fulfill the order of the Supreme Court because the women had never been
under his control, because they were at liberty in the Province of Davao, and because they had married or
signed contracts as laborers. Respondent Yñigo answered alleging that he did not have any of the women under
his control and that therefore it was impossible for him to obey the mandate. The court, after due deliberation, on
December 10, 1918, promulgated a second order, which related that the respondents had not complied with the
original order to the satisfaction of the court nor explained their failure to do so, and therefore directed that those
of the women not in Manila be brought before the court by respondents Lukban, Hohmann, Sales, and Yñigo on
January 13, 1919, unless the women should, in written statements voluntarily made before the judge of first
instance of Davao or the clerk of that court, renounce the right, or unless the respondents should demonstrate
some other legal motives that made compliance impossible. It was further stated that the question of whether the
respondents were in contempt of court would later be decided and the reasons for the order announced in the
final decision.

Before January 13, 1919, further testimony including that of a number of the women, of certain detectives and
policemen, and of the provincial governor of Davao, was taken before the clerk of the Supreme Court sitting as
commissioner and the clerk of the Court of First Instance of Davao acting in the same capacity. On January 13,
1919, the respondents technically presented before the Court the women who had returned to the city through
their own efforts and eight others who had been brought to Manila by the respondents. Attorneys for the
respondents, by their returns, once again recounted the facts and further endeavored to account for all of the
persons involved in the habeas corpus. In substance, it was stated that the respondents, through their
representatives and agents, had succeeded in bringing from Davao with their consent eight women; that eighty-
one women were found in Davao who, on notice that if they desired they could return to Manila, transportation
fee, renounced the right through sworn statements; that fifty-nine had already returned to Manila by other
means, and that despite all efforts to find them twenty-six could not be located. Both counsel for petitioners and
the city fiscal were permitted to submit memoranda. The first formally asked the court to find Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and Fernando
Ordax, members of the police force of the city of Manila, Feliciano Yñigo, an hacendero of Davao, Modesto
Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of
court. The city fiscal requested that the replica al memorandum de los recurridos, (reply to respondents'
memorandum) dated January 25, 1919, be struck from the record.

In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the final
decision. We will now proceed to do so.

One fact, and one fact only, need be recalled — these one hundred and seventy women were isolated from
society, and then at night, without their consent and without any opportunity to consult with friends or to defend
their rights, were forcibly hustled on board steamers for transportation to regions unknown. Despite the feeble
attempt to prove that the women left voluntarily and gladly, that such was not the case is shown by the mere fact
that the presence of the police and the constabulary was deemed necessary and that these officers of the law
chose the shades of night to cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and
practically admitted by the respondents.
With this situation, a court would next expect to resolve the question — By authority of what law did the Mayor
and the Chief of Police presume to act in deporting by duress these persons from Manila to another distant
locality within the Philippine Islands? We turn to the statutes and we find —

Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The
Governor-General can order the eviction of undesirable aliens after a hearing from the Islands. Act No. 519 of
the Philippine Commission and section 733 of the Revised Ordinances of the city of Manila provide for the
conviction and punishment by a court of justice of any person who is a common prostitute. Act No. 899
authorizes the return of any citizen of the United States, who may have been convicted of vagrancy, to the
homeland. New York and other States have statutes providing for the commitment to the House of Refuge of
women convicted of being common prostitutes. Always a law! Even when the health authorities compel
vaccination, or establish a quarantine, or place a leprous person in the Culion leper colony, it is done pursuant to
some law or order. But one can search in vain for any law, order, or regulation, which even hints at the right of
the Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine Islands — and
these women despite their being in a sense lepers of society are nevertheless not chattels but Philippine citizens
protected by the same constitutional guaranties as are other citizens — to change their domicile from Manila to
another locality. On the contrary, Philippine penal law specifically punishes any public officer who, not being
expressly authorized by law or regulation, compels any person to change his residence.

In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found in the
Bill of Rights of the Constitution. Under the American constitutional system, liberty of abode is a principle so
deeply imbedded in jurisprudence and considered so elementary in nature as not even to require a constitutional
sanction. Even the Governor-General of the Philippine Islands, even the President of the United States, who has
often been said to exercise more power than any king or potentate, has no such arbitrary prerogative, either
inherent or express. Much less, therefore, has the executive of a municipality, who acts within a sphere of
delegated powers. If the mayor and the chief of police could, at their mere behest or even for the most
praiseworthy of motives, render the liberty of the citizen so insecure, then the presidents and chiefs of police of
one thousand other municipalities of the Philippines have the same privilege. If these officials can take to
themselves such power, then any other official can do the same. And if any official can exercise the power, then
all persons would have just as much right to do so. And if a prostitute could be sent against her wishes and
under no law from one locality to another within the country, then officialdom can hold the same club over the
head of any citizen.

Law defines power. Centuries ago Magna Charta decreed that — "No freeman shall be taken, or imprisoned, or
be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed;
nor will we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We
will sell to no man, we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111,
1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is above the law. The courts are the
forum which functionate to safeguard individual liberty and to punish official transgressors. "The law," said
Justice Miller, delivering the opinion of the Supreme Court of the United States, "is the only supreme power in
our system of government, and every man who by accepting office participates in its functions is only the more
strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of
the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice Matthews of
the same high tribunal in another case, "that one man may be compelled to hold his life, or the means of living,
or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any
country where freedom prevails, as being the essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S.,
356, 370.) All this explains the motive in issuing the writ of habeas corpus, and makes clear why we said in the
very beginning that the primary question was whether the courts should permit a government of men or a
government of laws to be established in the Philippine Islands.

What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are three: (1)
Civil action; (2) criminal action, and (3) habeas corpus.

The first is an optional but rather slow process by which the aggrieved party may recoup money damages. It
may still rest with the parties in interest to pursue such an action, but it was never intended effectively and
promptly to meet any such situation as that now before us.

As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:

Any public officer not thereunto authorized by law or by regulations of a general character in force in the
Philippines who shall banish any person to a place more than two hundred kilometers distant from his
 domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not less than
three hundred and twenty-five and not more than three thousand two hundred and fifty pesetas.

Any public officer not thereunto expressly authorized by law or by regulation of a general character in
force in the Philippines who shall compel any person to change his domicile or residence shall suffer the
penalty of destierro and a fine of not less than six hundred and twenty-five and not more than six
thousand two hundred and fifty pesetas. (Art. 211.)

We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any public
officer has violated this provision of law, these prosecutors will institute and press a criminal prosecution just as
vigorously as they have defended the same official in this action. Nevertheless, that the act may be a crime and
that the persons guilty thereof can be proceeded against, is no bar to the instant proceedings. To quote the
words of Judge Cooley in a case which will later be referred to — "It would be a monstrous anomaly in the law if
to an application by one unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the
confinement was a crime, and therefore might be continued indefinitely until the guilty party was tried and
punished therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416,
434.) The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons
from unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights of the
parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty.

Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its
issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the
Supreme Court should not a assume jurisdiction, and (3) that the person in question are not restrained of their
liberty by respondents. It was finally suggested that the jurisdiction of the Mayor and the chief of police of the city
of Manila only extends to the city limits and that perforce they could not bring the women from Davao.

The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends of the
deportees. The way the expulsion was conducted by the city officials made it impossible for the women to sign a
petition for habeas corpus. It was consequently proper for the writ to be submitted by persons in their behalf.
(Code of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous regard for
personal liberty, even makes it the duty of a court or judge to grant a writ of habeas corpus if there is evidence
that within the court's jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no
application be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.

The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao or
should have been made returnable before that court. It is a general rule of good practice that, to avoid
unnecessary expense and inconvenience, petitions for habeas corpus should be presented to the nearest judge
of the court of first instance. But this is not a hard and fast rule. The writ of habeas corpus may be granted by the
Supreme Court or any judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure,
sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the Supreme
Court or before an inferior court rests in the discretion of the Supreme Court and is dependent on the particular
circumstances. In this instance it was not shown that the Court of First Instance of Davao was in session, or that
the women had any means by which to advance their plea before that court. On the other hand, it was shown
that the petitioners with their attorneys, and the two original respondents with their attorney, were in Manila; it
was shown that the case involved parties situated in different parts of the Islands; it was shown that the women
might still be imprisoned or restrained of their liberty; and it was shown that if the writ was to accomplish its
purpose, it must be taken cognizance of and decided immediately by the appellate court. The failure of the
superior court to consider the application and then to grant the writ would have amounted to a denial of the
benefits of the writ.

The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for, says
counsel, the parties in whose behalf it was asked were under no restraint; the women, it is claimed, were free in
Davao, and the jurisdiction of the mayor and the chief of police did not extend beyond the city limits. At first
blush, this is a tenable position. On closer examination, acceptance of such dictum is found to be perversive of
the first principles of the writ of habeas corpus.

A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and
purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom
of action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them
over to other parties, who deposited them in a distant region, deprived these women of freedom of locomotion
just as effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings,
they were prevented from exercising the liberty of going when and where they pleased. The restraint of liberty
which began in Manila continued until the aggrieved parties were returned to Manila and released or until they
freely and truly waived his right.

Consider for a moment what an agreement with such a defense would mean. The chief executive of any
municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the
boundaries of the municipality, and then, when called upon to defend his official action, could calmly fold his
hands and claim that the person was under no restraint and that he, the official, had no jurisdiction over this
other municipality. We believe the true principle should be that, if the respondent is within the jurisdiction of the
court and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he
should be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the
custody of a person before the application for the writ is no reason why the writ should not issue. If the mayor
and the chief of police, acting under no authority of law, could deport these women from the city of Manila to
Davao, the same officials must necessarily have the same means to return them from Davao to Manila. The
respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her liberty by forcing
her to change her domicile and to avow the act with impunity in the courts, while the person who has lost her
birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily evaded.

It must be that some such question has heretofore been presented to the courts for decision. Nevertheless,
strange as it may seem, a close examination of the authorities fails to reveal any analogous case. Certain
decisions of respectable courts are however very persuasive in nature.

A question came before the Supreme Court of the State of Michigan at an early date as to whether or not a writ
of habeas corpus would issue from the Supreme Court to a person within the jurisdiction of the State to bring
into the State a minor child under guardianship in the State, who has been and continues to be detained in
another State. The membership of the Michigan Supreme Court at this time was notable. It was composed of
Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On the question presented the court was
equally divided. Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed. Cooley,
J., one of the most distinguished American judges and law-writers, with whom concurred Christiancy, J., held
that the writ should issue. Since the opinion of Justice Campbell was predicated to a large extent on his
conception of the English decisions, and since, as will hereafter appear, the English courts have taken a contrary
view, only the following eloquent passages from the opinion of Justice Cooley are quoted:

I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the
petition which was laid before us. . . .

It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been
expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many
confirmations, until Coke could declare in his speech on the petition of right that "Magna Charta was
such a fellow that he will have no sovereign," and after the extension of its benefits and securities by the
petition of right, bill of rights and habeas corpus acts, it should now be discovered that evasion of that
great clause for the protection of personal liberty, which is the life and soul of the whole instrument, is so
easy as is claimed here. If it is so, it is important that it be determined without delay, that the legislature
may apply the proper remedy, as I can not doubt they would, on the subject being brought to their notice.
...

The second proposition — that the statutory provisions are confined to the case of imprisonment within
the state — seems to me to be based upon a misconception as to the source of our jurisdiction. It was
never the case in England that the court of king's bench derived its jurisdiction to issue and enforce this
writ from the statute. Statutes were not passed to give the right, but to compel the observance of rights
which existed. . . .

The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed
to and served upon, not the person confined, but his jailor. It does not reach the former except through
the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free,
but the court relieves him by compelling the oppressor to release his constraint. The whole force of the
writ is spent upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes
of compulsion are fine and imprisonment. This is the ordinary mode of affording relief, and if any other
means are resorted to, they are only auxiliary to those which are usual. The place of confinement is,
therefore, not important to the relief, if the guilty party is within reach of process, so that by the power of
the court he can be compelled to release his grasp. The difficulty of affording redress is not increased by
the confinement being beyond the limits of the state, except as greater distance may affect it. The
 important question is, where the power of control exercised? And I am aware of no other remedy. (In the
matter of Jackson [1867], 15 Mich., 416.)

The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell
[1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed.,
526.)

The English courts have given careful consideration to the subject. Thus, a child had been taken out of English
by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the application of
the mother and her husband directing the defendant to produce the child. The judge at chambers gave
defendant until a certain date to produce the child, but he did not do so. His return stated that the child before
the issuance of the writ had been handed over by him to another; that it was no longer in his custody or control,
and that it was impossible for him to obey the writ. He was found in contempt of court. On appeal, the court,
through Lord Esher, M. R., said:

A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the
defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice
immediately after the receipt of the writ, together with the cause of her being taken and detained. That is
a command to bring the child before the judge and must be obeyed, unless some lawful reason can be
shown to excuse the nonproduction of the child. If it could be shown that by reason of his having lawfully
parted with the possession of the child before the issuing of the writ, the defendant had no longer power
to produce the child, that might be an answer; but in the absence of any lawful reason he is bound to
produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ without
lawful excuse. Many efforts have been made in argument to shift the question of contempt to some
anterior period for the purpose of showing that what was done at some time prior to the writ cannot be a
contempt. But the question is not as to what was done before the issue of the writ. The question is
whether there has been a contempt in disobeying the writ it was issued by not producing the child in
obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same
effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo,
Gossage's Case [1890], 24 Q. B. D., 283.)

A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the defendant to
have before the circuit court of the District of Columbia three colored persons, with the cause of their detention.
Davis, in his return to the writ, stated on oath that he had purchased the negroes as slaves in the city of
Washington; that, as he believed, they were removed beyond the District of Columbia before the service of the
writ of habeas corpus, and that they were then beyond his control and out of his custody. The evidence tended
to show that Davis had removed the negroes because he suspected they would apply for a writ of habeas
corpus. The court held the return to be evasive and insufficient, and that Davis was bound to produce the
negroes, and Davis being present in court, and refusing to produce them, ordered that he be committed to the
custody of the marshall until he should produce the negroes, or be otherwise discharged in due course of law.
The court afterwards ordered that Davis be released upon the production of two of the negroes, for one of the
negroes had run away and been lodged in jail in Maryland. Davis produced the two negroes on the last day of
the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly
[1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the defense offered by the respondents
constituted a legitimate bar to the granting of the writ of habeas corpus.

There remains to be considered whether the respondent complied with the two orders of the Supreme Court
awarding the writ of habeas corpus, and if it be found that they did not, whether the contempt should be
punished or be taken as purged.

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yñigo
to present the persons named in the writ before the court on December 2, 1918. The order was dated November
4, 1918. The respondents were thus given ample time, practically one month, to comply with the writ. As far as
the record discloses, the Mayor of the city of Manila waited until the 21st of November before sending a telegram
to the provincial governor of Davao. According to the response of the attorney for the Bureau of Labor to the
telegram of his chief, there were then in Davao women who desired to return to Manila, but who should not be
permitted to do so because of having contracted debts. The half-hearted effort naturally resulted in none of the
parties in question being brought before the court on the day named.
For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could have
produced the bodies of the persons according to the command of the writ; or (2) they could have shown by
affidavit that on account of sickness or infirmity those persons could not safely be brought before the court; or (3)
they could have presented affidavits to show that the parties in question or their attorney waived the right to be
present. (Code of Criminal Procedure, sec. 87.) They did not produce the bodies of the persons in whose behalf
the writ was granted; they did not show impossibility of performance; and they did not present writings that
waived the right to be present by those interested. Instead a few stereotyped affidavits purporting to show that
the women were contended with their life in Davao, some of which have since been repudiated by the signers,
were appended to the return. That through ordinary diligence a considerable number of the women, at least
sixty, could have been brought back to Manila is demonstrated to be found in the municipality of Davao, and that
about this number either returned at their own expense or were produced at the second hearing by the
respondents.

The court, at the time the return to its first order was made, would have been warranted summarily in finding the
respondents guilty of contempt of court, and in sending them to jail until they obeyed the order. Their excuses for
the non-production of the persons were far from sufficient. The, authorities cited herein pertaining to somewhat
similar facts all tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example, in
Gossage's case, supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought that,
having brought about that state of things by his own illegal act, he must take the consequences; and we said that
he was bound to use every effort to get the child back; that he must do much more than write letters for the
purpose; that he must advertise in America, and even if necessary himself go after the child, and do everything
that mortal man could do in the matter; and that the court would only accept clear proof of an absolute
impossibility by way of excuse." In other words, the return did not show that every possible effort to produce the
women was made by the respondents. That the court forebore at this time to take drastic action was because it
did not wish to see presented to the public gaze the spectacle of a clash between executive officials and the
judiciary, and because it desired to give the respondents another chance to demonstrate their good faith and to
mitigate their wrong.

In response to the second order of the court, the respondents appear to have become more zealous and to have
shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the
municipal police joined in rounding up the women, and a steamer with free transportation to Manila was
provided. While charges and counter-charges in such a bitterly contested case are to be expected, and while a
critical reading of the record might reveal a failure of literal fulfillment with our mandate, we come to conclude
that there is a substantial compliance with it. Our finding to this effect may be influenced somewhat by our
sincere desire to see this unhappy incident finally closed. If any wrong is now being perpetrated in Davao, it
should receive an executive investigation. If any particular individual is still restrained of her liberty, it can be
made the object of separate habeas corpus proceedings.

Since the writ has already been granted, and since we find a substantial compliance with it, nothing further in
this connection remains to be done.

The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax, members of the
police force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yñigo,
an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of Manila.

The power to punish for contempt of court should be exercised on the preservative and not on the vindictive
principle. Only occasionally should the court invoke its inherent power in order to retain that respect without
which the administration of justice must falter or fail. Nevertheless when one is commanded to produce a certain
person and does not do so, and does not offer a valid excuse, a court must, to vindicate its authority, adjudge
the respondent to be guilty of contempt, and must order him either imprisoned or fined. An officer's failure to
produce the body of a person in obedience to a writ of habeas corpus when he has power to do so, is a
contempt committed in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N.
C., 407.)

With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot say
that any of the respondents, with the possible exception of the first named, has flatly disobeyed the court by
acting in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the
orders of their chiefs, and while, under the law of public officers, this does not exonerate them entirely, it is
nevertheless a powerful mitigating circumstance. The hacendero Yñigo appears to have been drawn into the
case through a misconstruction by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would
seem to have done no more than to fulfill his duty as the legal representative of the city government. Finding him
innocent of any disrespect to the court, his counter-motion to strike from the record the memorandum of attorney
for the petitioners, which brings him into this undesirable position, must be granted. When all is said and done,
as far as this record discloses, the official who was primarily responsible for the unlawful deportation, who
ordered the police to accomplish the same, who made arrangements for the steamers and the constabulary,
who conducted the negotiations with the Bureau of Labor, and who later, as the head of the city government,
had it within his power to facilitate the return of the unfortunate women to Manila, was Justo Lukban, the Mayor
of the city of Manila. His intention to suppress the social evil was commendable. His methods were unlawful. His
regard for the writ of habeas corpus issued by the court was only tardily and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates to the
penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to the parties
aggrieved as much as P400 each, which would reach to many thousands of pesos, and in addition to deal with
him as for a contempt. Some members of the court are inclined to this stern view. It would also be possible to
find that since respondent Lukban did comply substantially with the second order of the court, he has purged his
contempt of the first order. Some members of the court are inclined to this merciful view. Between the two
extremes appears to lie the correct finding. The failure of respondent Lukban to obey the first mandate of the
court tended to belittle and embarrass the administration of justice to such an extent that his later activity may be
considered only as extenuating his conduct. A nominal fine will at once command such respect without being
unduly oppressive — such an amount is P100.

In resume — as before stated, no further action on the writ of habeas corpus is necessary. The respondents
Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in contempt of court. Respondent
Lukban is found in contempt of court and shall pay into the office of the clerk of the Supreme Court within five
days the sum of one hundred pesos (P100). The motion of the fiscal of the city of Manila to strike from the record
the Replica al Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed against
respondents. So ordered.

In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this decision
may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from
illegal encroachment.

Arellano, C.J., Avanceña and Moir, JJ., concur.

Johnson, and Street, JJ., concur in the result.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 49549 August 30, 1990

EVELYN CHUA-QUA, petitioner,

vs.
HON. JACOBO C. CLAVE, in his capacity as Presidential Executive Assistant, and TAY TUNG HIGH
SCHOOL, INC., respondents.

William C. Gunitang and Jaime Opinion for petitioner.

Laogan Law Offices for private respondent.

REGALADO, J.:

This would have been just another illegal dismissal case were it not for the controversial and unique situation that the marriage of herein petitioner, then a
classroom teacher, to her student who was fourteen (14) years her junior, was considered by the school authorities as sufficient basis for terminating her
services.

Private respondent Tay Tung High School, Inc. is an educational institution in Bacolod City. Petitioner had been
employed therein as a teacher since 1963 and, in 1976 when this dispute arose, was the class adviser in the
sixth grade where one Bobby Qua was enrolled. Since it was the policy of the school to extend remedial
instructions to its students, Bobby Qua was imparted such instructions in school by petitioner. 1 In the course
thereof, the couple fell in love and on December 24, 1975, they got married in a civil ceremony solemnized in
Iloilo City by Hon. Cornelio G. Lazaro, City Judge of Iloilo.2 Petitioner was then thirty (30) years of age but Bobby
Qua being sixteen (16) years old, consent and advice to the marriage was given by his mother, Mrs. Concepcion
Ong.3 Their marriage was ratified in accordance with the rites of their religion in a church wedding solemnized by
Fr. Nick Melicor at Bacolod City on January 10, 1976. 4

On February 4, 1976, private respondent filed with the sub-regional office of the Department of Labor at Bacolod
City an application for clearance to terminate the employment of petitioner on the following ground: "For abusive
and unethical conduct unbecoming of a dignified school teacher and that her continued employment is inimical
to the best interest, and would downgrade the high moral values, of the school." 5

Petitioner was placed under suspension without pay on March 12, 1976. 6 Executive Labor Arbiter Jose Y.
Aguirre, Jr. of the National Labor Relations Commission, Bacolod City, to whom the case was certified for
resolution, required the parties to submit their position papers and supporting evidence. Affidavits 7 were
submitted by private respondent to bolster its contention that petitioner, "defying all standards of decency,
recklessly took advantage of her position as school teacher, lured a Grade VI boy under her advisory section
and 15 years her junior into an amorous relation." 8 More specifically, private respondent raised issues on the
fact that petitioner stayed alone with Bobby Qua in the classroom after school hours when everybody had gone
home, with one door allegedly locked and the other slightly open.

On September 17, 1976, Executive Labor Arbiter Jose Y. Aguirre, Jr., without conducting any formal hearing,
rendered an "Award" in NLRC Case No. 956 in favor of private respondent granting the clearance to terminate
the employment of petitioner. It was held therein that —

The affidavits . . . although self-serving but were never disputed by the respondent pointed out
that before the marriage of respondent to Bobby Qua, fourteen (14) years her junior and during
her employment with petitioner, an amorous relationship existed between them. In the absence
of evidence to the contrary, the undisputed written testimonies of several witnesses convincingly
picture the circumstances under which such amorous relationship was manifested within the
premises of the school, inside the classroom, and within the sight of some employees. While no
direct evidences have been introduced to show that immoral acts were committed during these
times, it is however enough for a sane and credible mind to imagine and conclude what
transpired and took place during these times. . . . 9
Petitioner, however, denied having received any copy of the affidavits referred to. 10

On October 7, 1976, petitioner appealed to the National Labor Relations Commission claiming denial of due
process for not having been furnished copies of the aforesaid affidavits relied on by the labor arbiter. She further
contended that there was nothing immoral, nor was it abusive and unethical conduct unbecoming of a dignified
school teacher, for a teacher to enter into lawful wedlock with her student.11

On December 27, 1976, the National Labor Relations Commission unanimously reversed the Labor Arbiter's
decision and ordered petitioner's reinstatement with backwages, with the following specific findings:

Affiant Maselliones deposed and said that he saw appellant and Qua sitting on the student desk
inside a classroom after classes. The depositions of affiants Despi and Chin are of the same
tenor. No statements whatever were sworn by them that they were eyewitnesses to immoral or
scandalous acts.

xxx xxx xxx

Even if we have to strain our sense of moral values to accommodate the conclusion of the
Arbiter, we could not deduce anything immoral or scandalous about a girl and a boy talking
inside a room after classes with lights on and with the door open.

xxx xxx xxx

Petitioner-appellee naively insisted that the clearance application was precipitated by immoral
acts which did not lend dignity to the position of appellant. Aside from such gratuitous assertions
of immoral acts or conduct by herein appellant, no evidence to support such claims was
introduced by petitioner-appellee. We reviewed the the sequence of events from the beginning of
the relationship between appellant Evelyn Chua and Bobby Qua up to the date of the filing of the
present application for clearance in search of evidence that could have proved detrimental to the
image and dignity of the school but none has come to our attention. . . . 12

The case was elevated by private respondent to the Minister of Labor who, on March 30, 1977, reversed the
decision of the National Labor Relations Commission. The petitioner was, however, awarded six (6) months
salary as financial assistance. 13

On May 20, 1977, petitioner appealed the said decision to the Office of the President of the Philippines. 14 After
the corresponding exchanges, on September 1, 1978 said office, through Presidential Executive Assistant
Jacobo C. Clave, rendered its decision reversing the appealed decision. Private respondent was ordered to
reinstate petitioner to her former position without loss of seniority rights and other privileges and with full back
wages from the time she was not allowed to work until the date of her actual reinstatement. 15

Having run the gamut of three prior adjudications of the case with alternating reversals, one would think that this
decision of public respondent wrote finis to petitioner's calvary. However, in a resolution dated December 6,
1978, public respondent, acting on a motion for reconsideration 16 of herein private respondent and despite
opposition thereto, 17 reconsidered and modified the aforesaid decision, this time giving due course to the
application of Tay Tung High School, Inc. to terminate the services of petitioner as classroom teacher but giving
her separation pay equivalent to her six (6) months salary. 18

In thus reconsidering his earlier decision, public respondent reasoned out in his manifestation/comment filed on
August 14, 1979 in this Court in the present case:

That this Office did not limit itself to the legal issues involved in the case, but went further to view
the matter from the standpoint of policy which involves the delicate task of rearing and educating
of children whose interest must be held paramount in the school community, and on this basis,
this Office deemed it wise to uphold the judgment and action of the school authorities in
terminating the services of a teacher whose actuations and behavior, in the belief of the school
authorities, had spawned ugly rumors that had cast serious doubts on her integrity, a situation
which was considered by them as not healthy for a school campus, believing that a school
teacher should at all times act with utmost circumspection and conduct herself beyond reproach
and above suspicion; 19
In this petition for certiorari, petitioner relies on the following grounds for the reversal of the aforesaid resolution
of public respondent, viz.:

1. The dismissal or termination of petitioner's employment, despite Tay Tung's claim to the
contrary, was actually based on her marriage with her pupil and is, therefore, illegal.

2. Petitioner's right to due process under the Constitution was violated when the hearsay
affidavits of Laddy Maselliones, Eleuterio Despi, Pina D. Chiu, and Ong Lee Bing, were admitted
and considered in evidence without presenting the affiants as witnesses and affording the
petitioner the right to confront and cross-examine them.

3. No sufficient proofs were adduced to show that petitioner committed serious misconduct or
breached the trust reposed on her by her employer or committed any of the other grounds
enumerated in Article 283 (Now Article 282) of the Labor Code which will justify the termination of
her employment. 20

We first dispose of petitioner's claim that her right to due process was violated. We do not agree. There is no
denial of due process where a party was afforded an opportunity to present his side. Also, the procedure by
which issues are resolved based on position papers, affidavits and other documentary evidence is recognized as
not violative of such right. Moreover, petitioner could have insisted on a hearing to confront and cross-examine
the affiants but she did not do so, obviously because she was convinced that the case involves a question of
law. Besides, said affidavits were also cited and discussed by her in the proceedings before the Ministry of
Labor.

Now, on the merits. Citing its upright intention to preserve the respect of the community toward the teachers and
to strengthen the educational system, private respondent submits that petitioner's actuations as a teacher
constitute serious misconduct, if not an immoral act, a breach of trust and confidence reposed upon her and,
thus, a valid and just ground to terminate her services. It argues that as a school teacher who exercises
substitute parental authority over her pupils inside the school campus, petitioner had moral ascendancy over
Bobby Qua and, therefore, she must not abuse such authority and respect extended to her. Furthermore, it
charged petitioner with having allegedly violated the Code of Ethics for teachers the pertinent provision of which
states that a "school official or teacher should never take advantage of his/her position to court a pupil or
student." 21

On the other hand, petitioner maintains that there was no ground to terminate her services as there is nothing
wrong with a teacher falling in love with her pupil and, subsequently, contracting a lawful marriage with him. She
argued that she was dismissed because of her marriage with Bobby Qua This contention was sustained in the
aforesaid decision of the National Labor Relations Commission thus:

. . . One thing, however, has not escaped our observation: That the application for clearance was
filed only after more than one month elapsed from the date of appellant's marriage to Bobby Qua
Certainly, such belated application for clearance weakens instead of strengthening the cause of
petitioner-appellee. The alleged immoral acts transpired before the marriage and if it is these
alleged undignified conduct that triggered the intended separation, then why was the present
application for clearance not filed at that time when the alleged demoralizing effect was still fresh
and abrasive?22

After a painstaking perusal of the records, we are of the considered view that the determination of the legality of
the dismissal hinges on the issue of whether or not there is substantial evidence to prove that the antecedent
facts which culminated in the marriage between petitioner and her student constitute immorality and/or grave
misconduct. To constitute immorality, the circumstances of each particular case must be holistically considered
and evaluated in the light of prevailing norms of conduct and the applicable law. Contrary to what petitioner had
insisted on from the very start, what is before us is a factual question, the resolution of which is better left to the
trier of facts.

Considering that there was no formal hearing conducted, we are constrained to review the factual conclusions
arrived at by public respondent, and to nullify his decision through the extraordinary writ of certiorari if the same
is tainted by absence or excess of jurisdiction or grave abuse of discretion. The findings of fact must be
supported by substantial evidence; otherwise, this Court is not bound thereby.23

We rule that public respondent acted with grave abuse of discretion. As vividly and forcefully observed by him in
his original decision:
 Indeed, the records relied upon by the Acting Secretary of Labor (actually the records referred to
are the affidavits attached as Annexes "A" to "D" of the position paper dated August 10, 1976
filed by appellee at the arbitration proceedings) in arriving at his decision are unbelievable and
unworthy of credit, leaving many question unanswered by a rational mind. For one thing, the
affidavits refer to certain times of the day during off school hours when appellant and her student
were found together in one of the classrooms of the school. But the records of the case present a
ready answer: appellant was giving remedial instruction to her student and the school was the
most convenient place to serve the purpose. What is glaring in the affidavits is the complete
absence of specific immoral acts allegedly committed by appellant and her student. For another,
and very important at that, the alleged acts complained of invariably happened from September
to December, 1975, but the disciplinenary action imposed by appellee was sought only in
February, 1976, and what is more, the affidavits were executed only in August, 1976 and from all
indications, were prepared by appellee or its counsel. The affidavits heavily relied upon by
appellee are clearly the product of after-thought. . . . The action pursued by appellee in
dismissing appellant over one month after her marriage, allegedly based on immoral acts
committed even much earlier, is open to basis of the action sought seriously doubted; on the
question. The basis of the action sought is seriously doubted; on the contrary, we are more
inclined to believe that appellee had certain selfish, ulterior and undisclosed motives known only
to itself. 24

As earlier stated, from the outset even the labor arbiter conceded that there was no direct evidence to show that
immoral acts were committed. Nonetheless, indulging in a patently unfair conjecture, he concluded that "it is
however enough for a sane and credible mind to imagine and conclude what transpired during those times." 25 In
reversing his decision, the National Labor Relations Commission observed that the assertions of immoral acts or
conducts are gratuitous and that there is no direct evidence to support such claim, 26 a finding which herein
public respondent himself shared.

We are, therefore, at a loss as to how public respondent could adopt the volte-face in the questioned resolution, which we
hereby reject, despite his prior trenchant observations hereinbefore quoted. What is revealing however, is that the reversal of his original decision is
inexplicably based on unsubstantiated surmises and non sequiturs which he incorporated in his assailed resolution in this wise:

. . . While admittedly, no one directly saw Evelyn Chua and Bobby Qua doing immoral acts inside
the classroom it seems obvious and this Office is convinced that such a happening indeed
transpired within the solitude of the classrom after regular class hours. The marriage between
Evelyn Chua and Bobby Qua is the best proof which confirms the suspicion that the two indulged
in amorous relations in that place during those times of the day. . . . 27

With the finding that there is no substantial evidence of the imputed immoral acts, it follows that the alleged
violation of the Code of Ethics governing school teachers would have no basis. Private respondent utterly failed
to show that petitioner took advantage of her position to court her student. If the two eventually fell in love,
despite the disparity in their ages and academic levels, this only lends substance to the truism that the heart has
reasons of its own which reason does not know. But, definitely, yielding to this gentle and universal emotion is
not to be so casually equated with immorality. The deviation of the circumstances of their marriage from the
usual societal pattern cannot be considered as a defiance of contemporary social mores.

It would seem quite obvious that the avowed policy of the school in rearing and educating children is being
unnecessarily bannered to justify the dismissal of petitioner. This policy, however, is not at odds with and should
not be capitalized on to defeat the security of tenure granted by the Constitution to labor. In termination cases,
the burden of proving just and valid cause for dismissing an employee rests on the employer and his failure to do
so would result in a finding that the dismissal is unjustified.

The charge against petitioner not having been substantiated, we declare her dismissal as unwarranted and
illegal. It being apparent, however, that the relationship between petitioner and private respondent has been
inevitably and severely strained, we believe that it would neither be to the interest of the parties nor would any
prudent purpose be served by ordering her reinstatement.

WHEREFORE, the petition for certiorari is GRANTED and the resolution of public respondent, dated December
6, 1978 is ANNULLED and SET ASIDE. Private respondent Tay Tung High School, Inc. is hereby ORDERED to
pay petitioner backwages equivalent to three (3) years, without any deduction or qualification, and separation
pay in the amount of one (1) month for every year of service.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 100113 September 3, 1991

RENATO CAYETANO, petitioner,

vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON.
GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents.

Renato L. Cayetano for and in his own behalf.

Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, J.:

We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are
involved, the Court's decision in this case would indubitably have a profound effect on the political aspect of our
national existence.

The 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall
be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years
of age, holders of a college degree, and must not have been candidates for any elective position in the
immediately preceding -elections. However, a majority thereof, including the Chairman, shall be
members of the Philippine Bar who have been engaged in the practice of law for at least ten years.
(Emphasis supplied)

The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly
provides:

There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners
who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five
years of age and holders of a college degree. However, a majority thereof, including the Chairman, shall be
members of the Philippine Bar who have been engaged in the practice of law for at least ten years.' (Emphasis
supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal
qualification to an appointive office.

Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal principles and technique to
serve the interest of another with his consent. It is not limited to appearing in court, or advising and
assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers
incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all
kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken
for them in matters connected with the law. An attorney engages in the practice of law by maintaining an
office where he is held out to be-an attorney, using a letterhead describing himself as an attorney,
counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing
and collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)

The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v.
Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law when he:
 ... for valuable consideration engages in the business of advising person, firms, associations or
corporations as to their rights under the law, or appears in a representative capacity as an advocate in
proceedings pending or prospective, before any court, commissioner, referee, board, body, committee,
or commission constituted by law or authorized to settle controversies and there, in such representative
capacity performs any act or acts for the purpose of obtaining or defending the rights of their clients
under the law. Otherwise stated, one who, in a representative capacity, engages in the business of
advising clients as to their rights under the law, or while so engaged performs any act or acts either in
court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick
v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)

This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:

The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation
of pleadings and other papers incident to actions and special proceedings, the management of such
actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In
general, all advice to clients, and all action taken for them in matters connected with the
law incorporation services, assessment and condemnation services contemplating an appearance
before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and
insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and
guardianship have been held to constitute law practice, as do the preparation and drafting of legal
instruments, where the work done involves the determination by the trained legal mind of the legal effect
of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)

Practice of law under modem conditions consists in no small part of work performed outside of any court
and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal
advice on a large variety of subjects, and the preparation and execution of legal instruments covering an
extensive field of business and trust relations and other affairs. Although these transactions may have no
direct connection with court proceedings, they are always subject to become involved in litigation. They
require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great
capacity for adaptation to difficult and complex situations. These customary functions of an attorney or
counselor at law bear an intimate relation to the administration of justice by the courts. No valid
distinction, so far as concerns the question set forth in the order, can be drawn between that part of the
work of the lawyer which involves appearance in court and that part which involves advice and drafting of
instruments in his office. It is of importance to the welfare of the public that these manifold customary
functions be performed by persons possessed of adequate learning and skill, of sound moral character,
and acting at all times under the heavy trust obligations to clients which rests upon all attorneys.
(Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the
Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179
A. 139,144). (Emphasis ours)

The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975)
listed the dimensions of the practice of law in even broader terms as advocacy, counselling and public service.

One may be a practicing attorney in following any line of employment in the profession. If what he does
exacts knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their
profession, and he follows some one or more lines of employment such as this he is a practicing attorney
at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure,
knowledge, training and experience. "To engage in the practice of law is to perform those acts which are
characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which
device or service requires the use in any degree of legal knowledge or skill." (111 ALR 23)

The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of
the term "practice of law."

MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our
review of the provisions on the Commission on Audit. May I be allowed to make a very brief statement?

THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

 MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among
others, the qualifications provided for by Section I is that "They must be Members of the Philippine Bar"
— I am quoting from the provision — "who have been engaged in the practice of law for at least ten
years".

To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in
the COA or Commission on Audit, we would like to make the clarification that this provision on qualifications
regarding members of the Bar does not necessarily refer or involve actual practice of law outside the COA We
have to interpret this to mean that as long as the lawyers who are employed in the COA are using their legal
knowledge or legal talent in their respective work within COA, then they are qualified to be considered for
appointment as members or commissioners, even chairman, of the Commission on Audit.

This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it
important to take it up on the floor so that this interpretation may be made available whenever this provision on
the qualifications as regards members of the Philippine Bar engaging in the practice of law for at least ten years
is taken up.

MR. OPLE. Will Commissioner Foz yield to just one question.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of
a law practice that is set forth in the Article on the Commission on Audit?

MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve
legal work; it will involve legal work. And, therefore, lawyers who are employed in COA now would have
the necessary qualifications in accordance with the Provision on qualifications under our provisions on
the Commission on Audit. And, therefore, the answer is yes.

MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Thank you.

... ( Emphasis supplied)

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two
Commissioners of the Commission on Audit (COA) should either be certified public accountants with not less
than ten years of auditing practice, or members of the Philippine Bar who have been engaged in the practice of
law for at least ten years. (emphasis supplied)

Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer."
Today, although many lawyers do not engage in private practice, it is still a fact that the majority of lawyers are
private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p.
15).

At this point, it might be helpful to define private practice. The term, as commonly understood, means "an
individual or organization engaged in the business of delivering legal services." (Ibid.). Lawyers who practice
alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is usually a partnership
and members of the firm are the partners. Some firms may be organized as professional corporations and the
members called shareholders. In either case, the members of the firm are the experienced attorneys. In most
firms, there are younger or more inexperienced salaried attorneyscalled "associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is essentially tautologous,
unhelpful defining the practice of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West
Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as the performance of any acts . . . in or
out of court, commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co.,
145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623,
626 [1941]). Because lawyers perform almost every function known in the commercial and governmental realm,
such a definition would obviously be too global to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers
as well as an uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large
percentage spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do
continue to litigate and the litigating lawyer's role colors much of both the public image and the self perception of
the legal profession. (Ibid.).

In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this
so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as
a business counselor in this wise: "Even today, there are still uninformed laymen whose concept of an attorney
is one who principally tries cases before the courts. The members of the bench and bar and the informed laymen
such as businessmen, know that in most developed societies today, substantially more legal work is transacted
in law offices than in the courtrooms. General practitioners of law who do both litigation and non-litigation work
also know that in most cases they find themselves spending more time doing what [is] loosely desccribe[d] as
business counseling than in trying cases. The business lawyer has been described as the planner, the
diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery
should be avoided where internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11,
1989, p. 4).

In the course of a working day the average general practitioner wig engage in a number of legal tasks, each
involving different legal doctrines, legal skills, legal processes, legal institutions, clients, and other interested
parties. Even the increasing numbers of lawyers in specialized practice wig usually perform at least some legal
services outside their specialty. And even within a narrow specialty such as tax practice, a lawyer will shift from
one legal task or role such as advice-giving to an importantly different one such as representing a client before
an administrative agency. (Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types — a
litigator who specializes in this work to the exclusion of much else. Instead, the work will require the lawyer to
have mastered the full range of traditional lawyer skills of client counselling, advice-giving, document drafting,
and negotiation. And increasingly lawyers find that the new skills of evaluation and mediation are both effective
for many clients and a source of employment. (Ibid.).

Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important
ways, at least theoretically, so as to remove from it some of the salient features of adversarial litigation. Of these
special roles, the most prominent is that of prosecutor. In some lawyers' work the constraints are imposed both
by the nature of the client and by the way in which the lawyer is organized into a social unit to perform that work.
The most common of these roles are those of corporate practice and government legal service. (Ibid.).

In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate
law practice, a departure from the traditional concept of practice of law.

We are experiencing today what truly may be called a revolutionary transformation in corporate law
practice. Lawyers and other professional groups, in particular those members participating in various
legal-policy decisional contexts, are finding that understanding the major emerging trends in corporation
law is indispensable to intelligent decision-making.

Constructive adjustment to major corporate problems of today requires an accurate understanding of the
nature and implications of the corporate law research function accompanied by an accelerating rate of
information accumulation. The recognition of the need for such improved corporate legal policy
formulation, particularly "model-making" and "contingency planning," has impressed upon us the
inadequacy of traditional procedures in many decisional contexts.

In a complex legal problem the mass of information to be processed, the sorting and weighing of
significant conditional factors, the appraisal of major trends, the necessity of estimating the
consequences of given courses of action, and the need for fast decision and response in situations of
acute danger have prompted the use of sophisticated concepts of information flow theory, operational
analysis, automatic data processing, and electronic computing equipment. Understandably, an improved
decisional structure must stress the predictive component of the policy-making process, wherein a
"model", of the decisional context or a segment thereof is developed to test projected alternative courses
of action in terms of futuristic effects flowing therefrom.

Although members of the legal profession are regularly engaged in predicting and projecting the trends
of the law, the subject of corporate finance law has received relatively little organized and formalized
attention in the philosophy of advancing corporate legal education. Nonetheless, a cross-disciplinary
approach to legal research has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained primarily in the law can be
improved through an early introduction to multi-variable decisional context and the various approaches
for handling such problems. Lawyers, particularly with either a master's or doctorate degree in business
administration or management, functioning at the legal policy level of decision-making now have some
appreciation for the concepts and analytical techniques of other professions which are currently engaged
in similar types of complex decision-making.

Truth to tell, many situations involving corporate finance problems would require the services of an
astute attorney because of the complex legal implications that arise from each and every necessary step
in securing and maintaining the business issue raised. (Business Star, "Corporate Finance Law," Jan.
11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de

campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed of the tycoons
and magnates of business and industry.

Despite the growing number of corporate lawyers, many people could not explain what it is that a
corporate lawyer does. For one, the number of attorneys employed by a single corporation will vary with
the size and type of the corporation. Many smaller and some large corporations farm out all their legal
problems to private law firms. Many others have in-house counsel only for certain matters. Other
corporation have a staff large enough to handle most legal problems in-house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a
corporation. His areas of concern or jurisdiction may include, inter alia: corporate legal research, tax laws
research, acting out as corporate secretary (in board meetings), appearances in both courts and other
adjudicatory agencies (including the Securities and Exchange Commission), and in other capacities
which require an ability to deal with the law.

At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business of
the corporation he is representing. These include such matters as determining policy and becoming
involved in management. ( Emphasis supplied.)

In a big company, for example, one may have a feeling of being isolated from the action, or not
understanding how one's work actually fits into the work of the orgarnization. This can be frustrating to
someone who needs to see the results of his work first hand. In short, a corporate lawyer is sometimes
offered this fortune to be more closely involved in the running of the business.

Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation

(MNC). Some large MNCs provide one of the few opportunities available to corporate lawyers to enter
the international law field. After all, international law is practiced in a relatively small number of
companies and law firms. Because working in a foreign country is perceived by many as glamorous, tills
is an area coveted by corporate lawyers. In most cases, however, the overseas jobs go to experienced
attorneys while the younger attorneys do their "international practice" in law libraries. (Business Star,
"Corporate Law Practice," May 25,1990, p. 4).

This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of
Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a
good lawyer is one who perceives the difficulties, and the excellent lawyer is one who surmounts them."
(Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are
we talking of the traditional law teaching method of confining the subject study to the Corporation Code
and the Securities Code but an incursion as well into the intertwining modern management issues.

Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of
insights into current advances which are of particular significance to the corporate counsel; (2) an
introduction to usable disciplinary skins applicable to a corporate counsel's management responsibilities;
and (3) a devotion to the organization and management of the legal function itself.
These three subject areas may be thought of as intersecting circles, with a shared area linking them.
Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme for the corporate
counsel's total learning.

Some current advances in behavior and policy sciences affect the counsel's role. For that matter, the
corporate lawyer reviews the globalization process, including the resulting strategic repositioning that the
firms he provides counsel for are required to make, and the need to think about a corporation's; strategy
at multiple levels. The salience of the nation-state is being reduced as firms deal both with global
multinational entities and simultaneously with sub-national governmental units. Firms increasingly
collaborate not only with public entities but with each other — often with those who are competitors in
other arenas.

Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly
changing. The modem corporate lawyer has gained a new role as a stakeholder — in some cases
participating in the organization and operations of governance through participation on boards and other
decision-making roles. Often these new patterns develop alongside existing legal institutions and laws
are perceived as barriers. These trends are complicated as corporations organize for global operations. (
Emphasis supplied)

The practising lawyer of today is familiar as well with governmental policies toward the promotion and
management of technology. New collaborative arrangements for promoting specific technologies or
competitiveness more generally require approaches from industry that differ from older, more adversarial
relationships and traditional forms of seeking to influence governmental policies. And there are lessons
to be learned from other countries. In Europe, Esprit, Eureka and Race are examples of collaborative
efforts between governmental and business Japan's MITI is world famous. (Emphasis supplied)

Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct
group within the managerial structure of all kinds of organizations. Effectiveness of both long-term and
temporary groups within organizations has been found to be related to indentifiable factors in the group-
context interaction such as the groups actively revising their knowledge of the environment coordinating
work with outsiders, promoting team achievements within the organization. In general, such external
activities are better predictors of team performance than internal group processes.

In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial
mettle of corporations are challenged. Current research is seeking ways both to anticipate effective
managerial procedures and to understand relationships of financial liability and insurance considerations.
(Emphasis supplied)

Regarding the skills to apply by the corporate counsel, three factors are apropos:

First System Dynamics. The field of systems dynamics has been found an effective tool for new
managerial thinking regarding both planning and pressing immediate problems. An understanding of the
role of feedback loops, inventory levels, and rates of flow, enable users to simulate all sorts of systematic
problems — physical, economic, managerial, social, and psychological. New programming techniques
now make the system dynamics principles more accessible to managers — including corporate
counsels. (Emphasis supplied)

Second Decision Analysis. This enables users to make better decisions involving complexity and
uncertainty. In the context of a law department, it can be used to appraise the settlement value of
litigation, aid in negotiation settlement, and minimize the cost and risk involved in managing a portfolio of
cases. (Emphasis supplied)

Third Modeling for Negotiation Management. Computer-based models can be used directly by parties
and mediators in all lands of negotiations. All integrated set of such tools provide coherent and effective
negotiation support, including hands-on on instruction in these techniques. A simulation case of an
international joint venture may be used to illustrate the point.

[Be this as it may,] the organization and management of the legal function, concern three pointed areas
of consideration, thus:

Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the
general counsel's responsibilities. They differ from those of remedial law. Preventive lawyering is
 concerned with minimizing the risks of legal trouble and maximizing legal rights for such legal entities at
that time when transactional or similar facts are being considered and made.

Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm
to which legal consequences attach. It needs to be directly supportive of this nation's evolving economic
and organizational fabric as firms change to stay competitive in a global, interdependent environment.
The practice and theory of "law" is not adequate today to facilitate the relationships needed in trying to
make a global economy work.

Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in
the last decade as one of the most vibrant subsets of the legal profession. The corporate counsel hear
responsibility for key aspects of the firm's strategic issues, including structuring its global operations,
managing improved relationships with an increasingly diversified body of employees, managing
expanded liability exposure, creating new and varied interactions with public decision-makers, coping
internally with more complex make or by decisions.

This whole exercise drives home the thesis that knowing corporate law is not enough to make one a
good general corporate counsel nor to give him a full sense of how the legal system shapes corporate
activities. And even if the corporate lawyer's aim is not the understand all of the law's effects on
corporate activities, he must, at the very least, also gain a working knowledge of the management issues
if only to be able to grasp not only the basic legal "constitution' or makeup of the modem corporation.
"Business Star", "The Corporate Counsel," April 10, 1991, p. 4).

The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of
financial law affecting each aspect of their work. Yet, many would admit to ignorance of vast tracts of the
financial law territory. What transpires next is a dilemma of professional security: Will the lawyer admit
ignorance and risk opprobrium?; or will he feign understanding and risk exposure? (Business Star,
"Corporate Finance law," Jan. 11, 1989, p. 4).

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of
the COMELEC in a letter received by the Secretariat of the Commission on Appointments on April 25, 1991.
Petitioner opposed the nomination because allegedly Monsod does not possess the required qualification of
having been engaged in the practice of law for at least ten years.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the
COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as Chairman of
the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination,
petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition praying that said
confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be
declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a
grade of 86-55%. He has been a dues paying member of the Integrated Bar of the Philippines since its inception
in 1972-73. He has also been paying his professional license fees as lawyer for more than ten years. (p. 124,
Rollo)

After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law
office of his father. During his stint in the World Bank Group (1963-1970), Monsod worked as an operations
officer for about two years in Costa Rica and Panama, which involved getting acquainted with the laws of
member-countries negotiating loans and coordinating legal, economic, and project work of the Bank. Upon
returning to the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer of an
investment bank and subsequently of a business conglomerate, and since 1986, has rendered services to
various companies as a legal and economic consultant or chief executive officer. As former Secretary-General
(1986) and National Chairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in election
law. He appeared for NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy,
Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's Conference for
Human Development, has worked with the under privileged sectors, such as the farmer and urban poor groups,
in initiating, lobbying for and engaging in affirmative action for the agrarian reform law and lately the urban land
reform bill. Monsod also made use of his legal knowledge as a member of the Davide Commission, a quast
judicial body, which conducted numerous hearings (1990) and as a member of the Constitutional Commission
(1986-1987), and Chairman of its Committee on Accountability of Public Officers, for which he was cited by the
President of the Commission, Justice Cecilia Muñoz-Palma for "innumerable amendments to reconcile
government functions with individual freedoms and public accountability and the party-list system for the House
of Representative. (pp. 128-129 Rollo) ( Emphasis supplied)

Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.

In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately
constituted to meet the various contingencies that arise during a negotiation. Besides top officials of the
Borrower concerned, there are the legal officer (such as the legal counsel), the finance manager, and
an operations officer (such as an official involved in negotiating the contracts) who comprise the
members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for Developing Country
Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied)

After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as the loan
transaction is concerned. Thus, the meat of any Loan Agreement can be compartmentalized into five (5)
fundamental parts: (1) business terms; (2) borrower's representation; (3) conditions of closing; (4)
covenants; and (5) events of default. (Ibid., p. 13).

In the same vein, lawyers play an important role in any debt restructuring program. For aside from
performing the tasks of legislative drafting and legal advising, they score national development policies
as key factors in maintaining their countries' sovereignty. (Condensed from the work paper, entitled
"Wanted: Development Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal
adviser of the United States Agency for International Development, during the Session on Law for the
Development of Nations at the Abidjan World Conference in Ivory Coast, sponsored by the World Peace
Through Law Center on August 26-31, 1973). ( Emphasis supplied)

Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand
expertise in the law of contracts, in legislation and agreement drafting and in renegotiation. Necessarily,
a sovereign lawyer may work with an international business specialist or an economist in the formulation
of a model loan agreement. Debt restructuring contract agreements contain such a mixture of technical
language that they should be carefully drafted and signed only with the advise of competent counsel in
conjunction with the guidance of adequate technical support personnel. (See International Law Aspects
of the Philippine External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p.
321). ( Emphasis supplied)

A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions
which determines the contractual remedies for a failure to perform one or more elements of the contract.
A good agreement must not only define the responsibilities of both parties, but must also state the
recourse open to either party when the other fails to discharge an obligation. For a compleat debt
restructuring represents a devotion to that principle which in the ultimate analysis is sine qua non for
foreign loan agreements-an adherence to the rule of law in domestic and international affairs of whose
kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. once said: "They carry no banners, they
beat no drums; but where they are, men learn that bustle and bush are not the equal of quiet genius and
serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar
of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of
law practice, and taking into consideration the liberal construction intended by the framers of the Constitution,
Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of
industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor — verily more
than satisfy the constitutional requirement — that he has been engaged in the practice of law for at least ten
years.

Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:

Appointment is an essentially discretionary power and must be performed by the officer in which it is
vested according to his best lights, the only condition being that the appointee should possess the
qualifications required by law. If he does, then the appointment cannot be faulted on the ground that
there are others better qualified who should have been preferred. This is a political question involving
considerations of wisdom which only the appointing authority can decide. (emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA 744)
where it stated:

It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements
are satisfied, the Commission has no alternative but to attest to the appointment in accordance with the
Civil Service Law. The Commission has no authority to revoke an appointment on the ground that
another person is more qualified for a particular position. It also has no authority to direct the
appointment of a substitute of its choice. To do so would be an encroachment on the discretion vested
upon the appointing authority. An appointment is essentially within the discretionary power of
whomsoever it is vested, subject to the only condition that the appointee should possess the
qualifications required by law. ( Emphasis supplied)

The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1)
nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in the
Philippines, upon submission by the Commission on Appointments of its certificate of confirmation, the President
issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v.
Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of
the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which
provides:

The Chairman and the Commisioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first appointed,
three Members shall hold office for seven years, two Members for five years, and the last Members for
three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of
the predecessor. In no case shall any Member be appointed or designated in a temporary or acting
capacity.

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law
is the traditional or stereotyped notion of law practice, as distinguished from the modern concept of the
practice of law, which modern connotation is exactly what was intended by the eminent framers of the
1987 Constitution. Moreover, Justice Padilla's definition would require generally a habitual law practice,
perhaps practised two or three times a week and would outlaw say, law practice once or twice a year for
ten consecutive years. Clearly, this is far from the constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use
of a definition of law practice which really means nothing because the definition says that law practice " . . . is
what people ordinarily mean by the practice of law." True I cited the definition but only by way of sarcasm as
evident from my statement that the definition of law practice by "traditional areas of law practice is
essentially tautologous" or defining a phrase by means of the phrase itself that is being defined.

Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in
making use of the law, or in advising others on what the law means, are actually practicing law. In that sense,
perhaps, but we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the Philippine Bar,
who has been practising law for over ten years. This is different from the acts of persons practising law, without
first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say,
on the ground that he lacks one or more qualifications. This matter, I greatly doubt. For one thing, how can an
action or petition be brought against the President? And even assuming that he is indeed disqualified, how can
the action be entertained since he is the incumbent President?

We now proceed:

The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation,
implicitly determined that he possessed the necessary qualifications as required by law. The judgment rendered
by the Commission in the exercise of such an acknowledged power is beyond judicial interference except only
upon a clear showing of a grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1
Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the
Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective
power, since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of
jurisdiction and would warrant the issuance of the writs prayed, for has been clearly shown.

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court
reverse the Commission, and thus in effect confirm the appointment? Clearly, the answer is in the
negative.

(2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The
answer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirm a
Presidential nominee, it would be incredible that the U.S. Supreme Court would still reverse the U.S.
Senate.

Finally, one significant legal maxim is:

We must interpret not by the letter that killeth, but by the spirit that giveth life.

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was
Samson's beloved) for help in capturing Samson. Delilah agreed on condition that —

No blade shall touch his skin;

No blood shall flow from his veins.

When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot
two or three inches away from in front of Samson's eyes. This blinded the man. Upon hearing of what had
happened to her beloved, Delilah was beside herself with anger, and fuming with righteous fury, accused the
procurator of reneging on his word. The procurator calmly replied: "Did any blade touch his skin? Did any blood
flow from his veins?" The procurator was clearly relying on the letter, not the spirit of the agreement.

In view of the foregoing, this petition is hereby DISMISSED.

SO ORDERED.

Fernan, C.J., Griño-Aquino and Medialdea, JJ., concur.

Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)

Sarmiento, J., is on leave.

Regalado, and Davide, Jr., J., took no part.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-13954 August 12, 1959

GENARO GERONA, ET AL., petitioners-appellants,

vs.
THE HONORABLE SECRETARY OF EDUCATION, ET AL., respondents-appellees.

K.V. Felon and Hayed C. Cavington for appellant.

Office of the Solicitor General Edilberto Barot and Solicitor Conrado T. Limcaoco for appellees.

MONTEMAYOR, J.:

Petitioners are Appealing the decision of the Court of First Instance of Masbate dismissing their complaint.
Acting upon the "Urgent Motion for Writ of Preliminary Injunction" filed on behalf of petitioners of December 12,
1958, and without objection on the part of the Solicitor General, by resolution of this Court of December 16, we
issued the corresponding writ of preliminary injunction restraining respondents from excluding or banning
petitioners-appellants, their children and all other of Jehovah's Witnesses for whom this action has been brought,
from admission to public schools, particularly the Buenavista Community School, solely on account of their
refusal to salute the flag or preventing their return to school should they have already been banned, until further
orders from this Court.

The facts involved are not disputed. On June 11, 1955, Republic Act No. 1265 was approved and went into
effect. Acting upon section 2 of said Act authorizing and directing the Secretary of Education to issue or cause to
be issued rules and regulations for the proper conduct of the flag ceremony, said Secretary issued Department
Order No. 8, series of 1955 on July 21, 1955 which Department Order quoting Republic Act No. 1265 in its
entirety, we reproduce below for purpose of reference:

"Republic of the Philippines

Department of Education
Office of the Secretary
Manila

Department Order
No. 8, s. 1955

July 21, 1955

COMPULSORY DAILY FLAG CEREMONY IN ALL PUBLIC AND PRIVATE SCHOOLS

To the Director of Public Schools and the Director of Private Schools:

1. Quoted below is Republic Act No. 1265 entitled "An Act making Flag Ceremony Compulsory in all
Educational Institutions," which is self-explanatory.

SECTION 1. All educational institutions henceforth observe daily flag ceremony, which shall be
simple and dignified and shall include the playing or singing of the Philippine National Anthem.

SECTION 2. The Secretary of Education is hereby authorized and directed to issue or cause to
be issued rules and regulations for the proper conduct of the flag ceremony herein provided.

SECTION 3. Failure of refusal to observe the flag ceremony provided by this Act and in
accordance with rules and regulations issued by the Secretary of Education, after proper notice
and hearing, shall subject the educational institution concerned and its head to public censure as
an administrative punishment which shall be published at least once in a newspaper of general
circulation.
 In case of failure to observe for the second time the flag ceremony provided by this Act, the Secretary of
Education, after proper notice and hearing, shall cause the cancellation of the recognition or permit of
the private educational institution responsible for such failure.

SECTION 4. This Act shall take effect upon its approval.

Approved, June 11, 1955.

2. As provided in Section 2 of the Act, the rules and regulations governing the proper conduct of the
required flag ceremony, given in the in closure to this Order, are hereby promulgated. These rules and
regulations should be made known to all teachers and school officials, public and private. The patriotic
objective or significance of the Act should be explained to all pupils and students in the schools and to all
communities through the purok organizations and community assemblies.

(Sgd.) G. HERNANDEZ, JR.

Secretary of Education

Incl.:
As stated

(Inclosure of Department order No. 8, s. 1955)

RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL EDUCATIONAL
INSTITUTIONS

1. The Filipino Flag shall be displayed by all educational institutions, public and private, every school day
throughout the year. It shall be raised at sunrise and lowered at sunset. The flag staff must be straight,
slightly and gently tapering at the end, and of such height as would give the Flag a commanding position
in front of the building or within the compound.

2. Every public and private educational institution shall hold a flag-raising ceremony every morning
except when it is raining, in which event the ceremony may be conducted indoors in the best way
possible. A retreat shall be held in the afternoon of the same day.

The flag-raising ceremony in the morning shall be conducted in the following manner:

a. Pupils and teachers or students and faculty members who are in school and its premises shall
assemble in formation facing the flag. At command, books shall be put away or held in the left hand and
everybody shall come to attention. Those with hats shall uncover. No one shall enter or leave the school
grounds during the ceremony.

b. The assembly shall sing the Philippine National Anthem accompanied by the school band or without
the accompaniment if it has none; or the anthem may be played by the school band alone. At the first
note of the Anthem, the flag shall be raised briskly. While the flag is being raised, all persons present
shall stand at attention and execute a salute. Boys and men with hats shall salute by placing that hat
over the heart. Those without hats may stand with their arms and hands downed and straight at the
sides. Those in military or Boy Scout uniform shall give the salute prescribed by their regulations. The
salute shall be started as the Flag rises, and completed upon last note of the anthem.

c. Immediately following the singing of the Anthem, the assembly shall recite in unison of following
patriotic pledge (English or vernacular version 0, which may bring the ceremony to a close. This is
required of all public schools and of private schools which are intended for Filipino students or whose
population is predominantly Filipino.

ENGLISH VERSION

I Love the Philippines.

It is the land of my birth,
It is the home of my people.
It protects me and helps me to be strong, happy and useful.
 In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true Filipino in thought, in word, in deed.

3. The retreat shall be observed as follows:

a. Teachers and pupils or faculty members and students whose classes and after the last school period
in the afternoon before sun down shall assemble facing the flag. At command, the Philippine National
Anthem shall be sung with accompaniment of the school band. If the school has no band, the assembly
will only sing the Anthem. Boys who have been taking part in preparatory military training or Boy Scout
activities shall attend the retreat in formation and execute the salute prescribed for them. Others shall
execute the same salute and observe the same deportment as required of them in the flag-raising
ceremony. The flag should be lowered slowly so that it will be in the hands of the color detail at the
sound of the last note of the Anthem.

b. If the school so prefers, it may have its bugle corp play "To the Colors", instead of the singing of the
National Anthem, for the retreat. At the sound of the first note, the assembly shall stand at attention
facing the flag and observe the same deportment as required in the flag-raising ceremony. Or, it may
have its bugle corp play "To the Colors" and at the sound of the first note everybody within hearing
distance shall stand at attention, face the flag, and observe the same deportment as required in the flag-
raising ceremony.

4. The flag should be handled reverently in raising or lowering it and not allowed to touch the ground.
This can be insured by having one pupil hold the flag while another pupil fastening it to or unfasten it
from the halyard.

5. To display the National Flag at half-mast when necessary, it must be hoisted to full-mast, allowing it to
fly there for a moment, and then brought down to half-mast. To lower the flag, it must again be hoisted to
full-mast before bringing it down."

In his turn the Director of Public Schools issued Circular No. 22, series of 1955, on July 30, 1955 addressed to
Division Superintendents of Schools, enclosing a copy of Department Order No. 8, series of 1955 and enjoining
strict compliance therewith.

It would appear that pursuant to the Department Order in question, the flag ceremony contemplated therein was
held daily in every school, public and private. Petitioners' children attending the Buenavista Community School,
Uson, Masbate, refused to salute the flag, sing the national anthem and recite the patriotic pledge contrary to the
requirement of Department Order No. 8; as a result they were expelled from school sometime in September,
1955. It is said that other children similarly situated who refused or failed to comply with the requirement about
saluting the flag are under threats of being also expelled from all public schools in the Philippines.

Petitioners thru counsel wrote to the Secretary of Education petitioning that in the implementation of this flag
ceremony, they and their children attending school be allowed to remain silent and stand at attention with their
arms and hands down and straight at the sides and that they be exempted from executing the formal salute,
singing of the National Anthem and the reciting of the patriotic pledge, giving their reason for the same. On
December 16, 1955 the Secretary of Education wrote to counsel for petitioner denying the petition, making it
clear that the denial was the final and absolute stand of the Department of Education on the matter and that
counsel may thereafter feel free to seek a judicial determination of the constitutionality or interpretation of
Republic Act No. 1265 as construed and applied to Jehovah's Witnesses. The letter also informed petitioners'
counsel that with reference to his letter of December 1, 1955 relative to the request for reinstatement of
petitioners' children who had been expelled from school for non-compliance with Department Order No. 8, no
favorable action could be taken thereon. So, on March 27, 1957 petitioners commenced the present action
asking that a writ of preliminary injunction issue to restrain the Secretary of Education and the Director of Public
Schools from enforcing Department Order No. 8 "as applied to petitioners and all others of Jehovah's Witnesses
for whom this action is brought and to restrain them from excluding from the public schools the children of the
petitioners on account of their refusal to execute a formal salute to the flag, sing the national anthem and recite
the patriotic pledge, and that after hearing, the trial court declare Department Order No. 8 invalid and contrary to
the Bill of Rights and that the preliminary injunction prayed for be made permanent.
Petitioners-appellants belong to what is called the JEHOVAH'S WITNESS, an unincorporated body teaching that
the obligation imposed by law of God is superior to that of laws enacted by the State. Their religious beliefs
include a literal version of Exodus, Chapter 20, verses 4 and 5, which say: "Thou shalt not make unto thee any
graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the
water under the earth; thou shalt not bow down thyself to them, nor serve them." They consider that the flag is
an "image within this command. For this reason they refuse to salute it.

To further make clear the stand of petitioners as to the relative position and priority of religious teaching on the
one hand and laws promulgated by the State on the other, we quote from appellant's brief on page 50 thereof:

In Halter vs. Nebraska, 205 U.S. 34, 41, 27 S. Ct. 419, 51 L. Ed. 696 (1907), the United States Supreme
Court held that the flag `is an emblem of National sovereignty,

To many persons the saluting of a national flag means nothing. To a sincere person who believed in God
and the Bible as his Word, and who is in a covenant with Almighty God to do his will exclusively, it
means much. To such person "sovereignty" means the supreme authority or power. Many believe that
"the higher powers," mentioned in the Bible at Romans 13:1, means the "sovereign state"; but to the
Christian this means Jehovah God and his son, Christ Jesus, Jehovah's anointed King. They, Father and
Son are the higher powers, to whom all must be subject and joyfully obey. (Emphasis supplied)

The question involved in this appeal is a highly important one. We are called upon to determine the right of a
citizen as guaranteed by the Constitution about freedom of religious belief and the right to practice it as against
the power and authority of the State to limit or restrain the same. Our task is lessened by the fact that petitioners
do not challenge the legality or constitutionality of Republic Act 1265. All that they question is the legality or
constitutionality of Department Order No. 8, series of 1955 of the Department of Education implementing said
Republic Act.

The realm of belief and creed is infinitive and limitless bounded only by one's imagination and though. 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. 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.

One may believe in polygamy because it is permitted by his religious, but the moment he translates said
religious belief into an overt act, such as engaging or practising plural marriages, he may be prosecuted for
bigamy and he may not plead or involve his religious belief as a defense or as matter of exemption from the
operation of the law.

In the case of Reynolds vs. U.S. (98 U.S. 145) the U.S. Supreme Court upheld the validity of a law prohibiting
and punishing polygamy even as against the claim of religious belief of the Mormons. Said the Court:

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 circumstance. (emphasis supplied)

Again, one may not believe in the payment of taxes because he may claim that according to his religious belief,
the payment of taxes means service to one other than God. As long as he confines himself to mere belief, well
and good. But when he puts said belief into practice and he actually refuses to pay taxes on his property or on
his business, then the States steps in, compels payment, and enforces it either by court action or levy and
distraint.

One of the important questions to determine here is the true meaning and significance of the Filipino flag.
Petitioners believe and maintain that it is an image and therefore to salute the same is to go against their
religious belief. "Thou shalt not make unto thee any graven . . . thou shalt not bow down thyself to them or serve
them." They also claim that the flag salute is a religious ceremony, participation in which is forbidden by their
religious belief. We disagree. Appellants themselves (page 51 of their brief) concede that the flag is a symbol of
the State. They give the meaning of the word "image" on page 51 of their brief as follows:
 Under the word "image" this comment is given by Webster: "Image, in modern usage, commonly
suggests religious veneration." (Emphasis supplied)

The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of
national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect.
Considering the complete separation of church and state in our system of governments, the flag is utterly devoid
of any religious significance. Saluting the flag consequently does not involve any religious ceremony. The flag
salute, particularly the recital of the pledge of loyalty is no more a religious ceremony than the taking of an oath
of office by a public official or by a candidate for admission to the bar. In said oath, taken while his right hand is
raised, he swears allegiance to the Republic of the Philippines, promise to defend the Constitution and even
invokes the help of God; and it is to be doubted whether a member of Jehovah's Witness who is a candidate for
admission to the Philippine Bar would object to taking the oath on the ground that is religious ceremony.

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 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.

We understand that petitioners, during the flag ceremony, are willing to remain silent and stand at attention with
their arms and hands down straight at the sides, and they agree that boys, members of Jehovah's Witness who
have been taking part in military training or Boy Scout activities, and are in uniform, may execute the salute to
the flag prescribed by the Circular for them. So, the requirement contained in Department Order No. 8 that
during the flag ceremony those without hats may stand with their arms and hands down and straight at the sides,
including the formal salute by boys in military and boy Scout uniform, meets with the conformity of petitioners. Of
course, there is the other requirement that boys and men with hats shall salute the flag by placing their hats over
the heart, but petitioners and other members of the Jehovah's Witness could well solve this requirements or
avoid it by putting away their hats just as pupils books, may put them away, at command (Rules and
Regulations, Sec. 2, par. [a]). Consequently, the opposition of petitioners to the flag salute may be reduced to
their objection to singing the National Anthem and reciting the patriotic pledge.

After a careful and conscientious examination of the patriotic pledge as reproduced at the beginning of this
decision, frankly we find nothing, absolutely nothing, objectionable, even from the point of view of religious belief.
The school child or student is simply made to say that he loves the Philippines because it is the land of his birth
and the home of his people; that because it protects him, in return he will heed the counsel of his parents, obey
the rules and regulations of his school, perform the duties of a patriotic and law-abiding citizen; and serve his
country unselfishly and faithly, and that he would be a true Filipino in thought, in word, and in deed. He is not
even made to pledge allegiance to the flag or to the Republic for which it stands. So that even if we assume for a
moment that the flag were an image, connoting religious and veneration instead of a mere symbol of the State
and of national unity, the religious scruples of appellants against bowing to and venerating an image are not
interfered with or otherwise jeopardized.

And as to the singing of the National Anthem, which we reproduce below:

Land of the morning,

Child of the sun returning.
With fervor burning,
Thee do our souls adore.
Land dear and holy,
Cradle of noble heroes,
Ne'er shall invaders,
Trample thy sacred shores.
Ever within thy skies and thy clouds,
and o'er thy hills and sea,
Do we behold the radiance, feel the throb
of glorious liberty.
Thy banner, dear to all our hearts,
Its sun and stars alight.
O—never shall its shining field
Be dimmed by tyrant's might.
Beautiful land of love,
O—land—of—light,
 In thine embrace `tis rapture to lie.
But is glory ever, when thou art wronged,
For us, they sons to suffer and die.

the same thing may be said; that it speaks only of love of country, of patriotism, liberty and the glory of suffering
and dying for it. It does not even speak of resorting to force and engaging in military service or duty to defend the
country, which service might meet with objection on the part of conscientious objectors. Surely, petitioners do
not disclaim or disavow these noble and sacred feelings of patriotism, respect, even veneration for the flag and
love of coutnry for which the flag stands.

Men may differ and do differ on religous 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 viatlly interested, for to them, they mean national existence and survival as a nation or national
extinction.

In enforcing the flag salute on the petitioners, there was absolutely no compulsion involved, and for their failure
or refusal to obey school regulations about the flag salute they were not being persecuted. Neither were they
being criminally prosecuted under threat of penal sacntion. If they chose not to obey the flag salute regulation,
they merely lost the benefits of public education being maintained at the expense of their fellow citizens, nothing
more. According to a popular expression, they could take it or leave it. Having elected not to comply with the
regulations about the flag salute, they forfeited their right to attend public schools.

In the case of Hamilton vs. University of California, 293 U.S. 243, 79 L. ed. 343, quite similar to the present case,
appellants therein were taxpayers and citizens of the United States and of California. The University of California
received endowment and support from the State legislature under certain conditions such as that any resident of
California of the age of 14 years or upward of approved moral character shall have the right to enter the
University as a student and receive instructions therein. The University as part of its cirriculum and instruction
required military science and tactics in the Reserve Officers Training Corps. Appellants conformed to all
requirements of the University except taking the course in military science and tactics and for this the regents of
the University suspended them. Appellants were members of the Methodist Espiscopal Church and of the
Epworth League. For many years their fathers have been ordained ministers of that church. They believed that
war and preparation for war is a violation of their religious belief. In other words, they were conscientious
objectors to war. They believed that war, training for war, and military training were immoral, wrong and contrary
to the letter and spirit of the teaching of God and precepts of the Christian religion. They petitioned for exemption
from the military science and tactics course but the regents refused to make military training optional or to
exempt them and they were suspended. So they initiated court action with a California Supreme Court to compel
the regents of the University to admit them. In that action they assailed the validity of the State law providing for
military training in the University. The petition was denied by the State Supreme Court. In affirming the decision
of the State Supreme Court, the Supreme Court of the United States held that:

. . . California has not drafted or called them to attend the University. They are seeking education offered
by the State and at the same time insisting that they be excluded from the prescribed course solely upon
grounds of their religious beliefs and consicientious objections to war, preparation for war and military
education. Taken on the basis of the facts alleged in the petition, appellants' contentions amount to no
more than an assertion that the due process clause of the Fourtheenth Amendment as a safeguard of
liberty' confers the right to be students in the state university free from obligation to take military training
as one of the conditions of attendance.

Viewed in the light of our decisions that proposition must at once be put aside as untenable . . .

In United States vs. Macintosh, 283 U.S. 605, 75 L. ed. 1302, 51 S. Ct. 570, a later naturalization case,
the applicant was unwilling, because of conscientious objections, to take unqualifiedly the statutory oath
of allegiance which contains this statement: "That he will support and defend the constitution and laws of
the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the
same." U.S.C. title 8, Sec. 381. His petition stated that he was willing if necessary to take up arms in
defense of this country, "but I should want to be free to judge of the necessity." In amplification he said: "I
do not undertake to support "my country, right or wrong" in any dispute which may arise, and I am not
willing to poromise beforehand, and without knowing the cause for which my country may go to war,
either that I will or that I will not "take up arms in defense of this country," however "necessary" the war
may seem to be to the government of the day." The opinion of this court quotes from petitioner's brief a
statement to the effect that it is a fixed principle of our Constitution, zealously guarded by our laws, that a
 citizen cannot be forced and need not bear arms in a war if he has conscientious religious scruples
against doing so." And, referring to that part of the argument in behalf of the applicant this court said (p.
623): "This, if it means what it seems to say, is an astonishing statement. Of course, there is no such
principle of the Constitution, fixed or otherwise. The conscientious objector is relieved from the obligation
to bear arms in obedience to no constitutional provision, express or implied; but because, and only
because, it has accorded with the policy of Congress thus to relieve him . . . The previlege of the native-
born conscientious objector to avoid bearing arms comes not from the Constitution but from the acts of
Congress. That body may grant or withhold the exemption as in its wisdom it sees fit; and if it be
withheld, the native-born conscientious objector cannot successfully assert the privilege. No other
conclusion is compatible with the well-nigh limitless extent of the war power as above illustrated, which
include by necessary implication, the power, inthe last extremity, to compel armed serviced of any citizen
in the land, without regard to his objections or his views in respect of the justice or morality of the
particular war or of war in general. In Jacobson v. Massachusetts, 197 U.S. 11, 29, 49 L. ed. 643, 651,
25 S. Ct. 358, 3 Ann. Cas, 765, this Court (upholding a state compulsory vaccination law) speaking of
the liberties guaranteed to the individual by the Fourteenth Amendment, said: "... and yet he may be
compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary
intersts, or even his religious or political convictions, to take his place in the ranks of the army of his
country and risk the chance of being shot down in its defense.

And see University of Maryland v. Coale, 165 Md. 224, 167 A. 54, a case, similar to that now before us,
decided against the contention of a student in the University of Maryland who on conscientious grounds
objected to military training there required. His appeal to this Court was dismissed for the want of a
substantial federal questions. 290 U.S. 597, 78 L. ed. 525, 54 S. Ct. 131.

Plainly there is no ground for the contention that the regents' order, requiring able-bodied male students
under the age of twenty-four as a condition of their enrollment to take the prescribed instruction in
military science and tactics, transgresses any constitutional right asserted by these appellants.

Mr. Justice Cardozo in his concurring opinion said:

I assume for present purposes that religious liberty protected by the First Amendment against invasion
by the nation is protected by the Fourteenth Amendment against invasion by the states.

Accepting that premise, I cannot find in the respondents' ordinance an obstruction by the state to "the
free exercise" of religion as the phrase was understood by the foundrs of hte nation, and by the
generations that have followed. Davis vs. Beasin, 133 U.S. 333, 342, 33 L. ed. 637, 10 s.Ct. 299.

There is no occasion at this time to mark the limits of governmental power in the exaction of military
service when the nation is at peace. The petitioners have not been required to bear arms for any hostile
purpose, offensive or defensive, either now or in the future. They have not even been required in any
absolute or peremptory way to join courses of instruction that will fit them to bear arms. If they elect to
resort to an institution for higher education maintained with the state's moneys, then they are comanded
to follow courses of instruction believed by the state to be vital to its welfare. This may be condemned by
some unwise or illiberal or unfair when there is violence to conscientious scruples, either religious or
merely ethical. More must be shown to set the ordinance at naught. In controversies of this order courts
do not concern themselves with matters of legislative policy, unrelated to privileges or liberties secured
by the organic law. The first Amendment, if it be read into the Fourteenth, makes invalid any state law
`respecting an establishment of religion or prohibiting the free exercise thereof.' Instruction in military
science is not instruction in the practice or tenets of a religion. Neither directly nor indirectly is
government establishing a state religion when it insists upon such training. Instruction in military science,
unaccompanied here by any pledge of military service, is not an interference by the state with the free
exercise of religion when the liberties of the constitution are read in the light of a century and a half of
history during days of peace and war . . .

Manifestly a different doctrine would carry us to lengths that have never yet been dreamed of. The
conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in
furtherance of a war, whether for attack or for defense, or in furtherance of any other end, condemned by
his conscience as irreligious or immoral. The right of private judgment has never yet been so exalted
above the powers and the compulsion of the agencies of government. One who is a martyr to a
principle—which may turn out in the end to be a delusion or an error—does not prove by his martyrdom
that he has kept within the law."
We are not unmindful of the decision of the United States Federal Supreme Court on similar set of facts. In the
case of Minersville School District vs. Gobitis, 310 U.S. 586, 84 L. ed. 1375, two Jehovah Witnesses children
were expelled from the public school of Minersville for refusing to salute the national flag in accordance with the
regulations poromulgated by the school board for the daily flag ceremony. Their father Gobitsi on behalf of his
two children and in his own behalf brought suit to enjoin the school authorities from continuing to exact the
execution of the flag ceremony as a condition of his children's admittance in school. After trial, the District Court
gave him relief and this decree was affirmed by the Circuit Court of Appeals. On appeal to the Federal Supreme
Court, the decrees of both the District Court and the Circuit Court of Appeals were reversed with the lone dissent
of Chief Justice Stone, on the ground that the requirement of participation of all pupils in the public schools in the
flag ceremony did not infringe the due process law and liberty guaranteed by the Constitution, particularly the
one referring to religious freedom and belief. Three years later, that is, on June 14, 1943, the ruling laid down in
the Minersville School District vs. Gobitis case, was in the case of West Virginia State Board of
Education vs. Bernette, 319 U.S. 624-671 reversed by a sharply divided court, the majority opinion being penned
by Mr. Justice Jackson in which Justice Black, Douglas and Murphy concurred; while Mr. Justice Frankfurter
who wrote the opinion in the Gobitis case, filed a long dissenting opinion, and Justices Roberts and Reed
adhered to the views expressed in the Gobitis case.

Neither attempting to justify the ruling laid down in the Minersville vs. Gobitis case nor desiring to criticize the
doctrine of the West Virginia vs. Barnette case, frankly, we are more inclined to favor the former as more in
keeping with the spirit of our Constitution and the government policy as laid down in Republic Act No. 1265
entitles "An Act Making Flag Ceremony Compulsory In All Educational Institutions".

We cannot help thinking that one reason that may have possibly influenced the decision in the West Virginia
State Board of Education vs. Barnette case, was that the children involved in said case and their parents found
themselves in a serious dilemma for refusing to salute the flag as required by the regulations of the School
Board. They were expelled by the School Board and their absence was considered unlawful and because of the
law of compulsory school atendance of all children of school age, they were considered as truants and the
school officials threatened to send them to reformatories maintained for criminially inclinded juveniles. Parents of
such children have been prosecuted or were threatened with prosecution for cause such as alleged delinquency
and if convicted, were subject to fine not exceeding $50.00 and a jail term not exceeding 30 days. That is why in
the majority opinion it was stated:

. . . The sole conflict is between authority and rights of the individual. The state asserts power to
conditions access to public education on making a prescribed sign and profession and at the same time
to coerce attendance by punishing both parent and child . . .

Such a grave and embarrassing situation, however, does not obtain in the Philippines. True, we have a law
(Republic Act 896) requiring compulsory enrollment of children of shcool age, but said law contains so many
exceptions and exemptions that it can be said that a child of school age is very seldom compelled to attend
school, let alone the fact that almost invariably, there is school crisis every year wherein the pupils applying for
admission in public schools could not be accommodated, and what is equally important is that there is no
punishment or penal sanction either for the pupil who fail to attend school or is expelled for failure to comply with
school regulations such as the compulsory flag salute ceremony, or his parents.

In the case of re Summers, 325 U.S. 561-578, decided on June 11, 1945, that is, two years after the decision in
the case of West Virginia, the Supreme Court of the United States affirmed a decision of the Illinois Supreme
Court refusing admission of petitioner Clyde Wilson Summers to the Illinois Bar. Summers had complied with tall
the prerequisites to admission to the Bar of that state, but he was a conscientious objector who did not believe in
the use of force or war because of his religious belief. He described this attitude of his as follows:

The so-called "misconduct" for which petitioner could be reproached for is his taking the New Testament
too seriously. Instead of merely reading or preaching the Sermon on the Mount, he tries to practice it.
The only fault of the petitioner consists in his attempt to act as a good Christian in accordance with his
interpreation of the Bible, and according to the dictates of his conscience. We respectfully submit that the
profession of law does nt shut its gates to persons who have qualified in all other respects even when
they follow in the footsteps of that Great Teacher of mankind who delivered the Sermon on the Mount.
We respectfully submit that under our Constitutional guarantees even good Christians who have met all
the requirements for the admission to the bar may be admitted to practice law

The Constitution of Illinois required service in the militia in time of war of men of petitioner's age group. The
Federal Supreme Court defined the position of Summers as a conscientious objector in the following words:
 . . . without detailing petitioner's testimony before the Committee or his subsequent statments in the
record, his position may be compendiously stated as one of non-violence. Petitioner will not serve in the
armed forces. While he recognizes a difference between the military and police forces, he would not act
in the latter to coerce threatened violations. Petitioner would not use force to meet aggression against
himself or his family, no matter how aggravated or whether or not carrying a danger of bodily harm to
himself or others. He is a believer in passive resistance. We need to consider only his attitude toward
service in the armed forces.

It was not denied that Summers was unwilling to serve in the militia of Illinois because of his religious belief. In
affirming the decision of the Illinois Supreme Court excluding Summers from the practice of law in that state, the
Federal Supreme Court held that the action of the State Supreme Court did not violate the principle of religious
freedom contained in the Constitution.

If a man lived, say on an island, alone and all by himself without neighbors, he would normally have complete
and absolute rights as to the way he lives, his religion, incuding the manners he practices his religious beliefs.
There would be no laws to obey, no rules and regulations to follow. He would be subject only to Nature's
physical laws. But man iis gregarious by nature and instinct and he gravitates toward community life, to receive
and enjoy the benefits of society and of social and political organization. The moment he does this and he
becomes a member of a community or nation, he has to give rights for the benefit of his fellow citizens and for
the general welfare, just as his fellow men and companions also agree to a limitation of their rights in his favor.
So, with his religion. He may retain retain his freedom or religious belief, but as to practising the same, he would
have to give up some of those practices repugnant to the general welfare and subordinate them to the laws and
sovereignty of the State. In order words, the practice of religion or religious belief is subject to reasonable and
non-discrminatory laws and regulations by the state.

In the case of Prince vs. Commonwealth of Massachusetts, 88 L. ed. 645, the United States Supreme Court
affirmed a decision convicting Sarah Prince of a violation of the Child Labor Law of Massachusetts. Mr. Justice
Rutledge who wrote the opinion tersely described the case thus:

The case brings for review another episode in the conflict between Jehovah's Witneses and state
authority. This time Sarah Prince appeals from convictions for violating Massachusetts' child labor laws,
by acts said to be a rightful exercise of her religious convictions.

When the offenses where committed she was the aunt and custodian of Betty M. Simmons, a girl nine
years of age. . . . (Emphasis supplied)

The defendant in this case allowed Betty, under here legal cutody who was at the same time niece, to distribute
religious pamphlets intended to propagate the religion of Johovah Wiitness. The question involved was whether
or not the law in question contravened the Fourtheenth Amendment by denying appellant freedom of religion
and denying to her the equal protection of the law. Defendant claimed that the child was exercising her God
given right and her constitutional right to preach the gospel and that no preacher of God's commands shold be
interfered with. She rested her case squarely on freedom of religion. In affirming the judgment of conviction and
upholding the law as agains the claiim of relgion and the exercise of religious belief, the court said:

. . . And neither rights of religion nor lights of parenthood are beyond limitation. Acting to guard the
general interest in youth's well-being, the state as parens patriae may restrict the parent's control by
requiring shcool attendance, regulating or prohibiting the child's labor, and in many other ways. Its
authority is not nullified merely because the parent grounds his claim to control the child's course of
conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the
child more than for himself on relgious grounds. The right to practice religion freely does not include
liberty to expose the community or the child to communicable disease or the latter to ill health or death. .
. . It is too late now to doubt that legislation appropriately designed to reach such evils is withinthe state's
police power, whether against the parent's claim to control of the child or one that religious scruples
dictate contrary action.

Incidentally, it must be noted that this case was decided after that of West Virginia vs. Barnette, supra.

In requiring school pupils to participate in the flag salute, the State thru the Secretary of Education was not
imposing a religion or religious belief or a religious test on said students. It was merely enforcing a non-
discriminatory school regulation applicable to all alike whether Christian, Moslem, Protestant or Jehovah's
Witness. The State was merely carrying out the duty imposed upon it by the Constitution which charges it with
supervision over and regulation of all educational institutions, to establish and maintain a complete and
adequate system of public education, and see to it that all schools aim to develop among other things, civic
conscience and teach the duties of citizenship. (Art. XIV, section 5 of the Constitution). It does nothing more than
try to inculcate in the minds of the school population during the formative period of their life, love of country and
love of the flag, all of which make for united and patriotic citizenry, so that later in after years they may be ready
and willing to serve, fight, even die for it. It is well known that whatever is taught to the youth during this period,
such as love of God, of parents, respect for elders, love of the truth, loyalty, honoring one's word and respecting
the rights of other, becomes a habit or second nature that will remain with them always. School children of
kingdoms and empires are taught early to respect and love the king or the emperor for these rulers and
sovereigns symbolize the nation, and the children as future citizens or subjects will come to love their country.

Petitioners do not question the right of public schools to conduct the flag salute ceremony regularly but they do
"question the attempt to compel conscientious objectors guided by the word of God to salute the flag or
participate in the ceremony to specific commandment of Jehovah God. It is perfectly proper and lawful for one nt
bound by a covenant with Jehovah to salute the flag when that person desires to salute it. It is entirely wrong to
interfere with that right or prevent such one from saluting the flag. Conversely, it is also true that it is wrong and
illegal to compel one who, for concience' sake, cannot participate in the ceremony." (p. 85, Appellant's Brief)

The trouble with exempting petitioners from participation in the flag ceremony aside from the fact that they have
no valid right to such exemption is that the latter would disrupt shcool discipline and demoralize the rest of the
school population which by far constitutes the great majority. If the children of Jehovah Witnesses are exempted,
then the other pupils, especially the young ones seeing no reason for such exemption, would naturlly ask for the
same privilege because they might want to do something else such as play or study, instead of standing at
attention saluting the flag and singing the national anthem and reciting the patriotic pledge, all of which consume
considerable time; and if to avoid odions discrimination this exemption is extended to others, then the flag
ceremony would soon be a thing of the past or perhaps conducted with very few participants, and the time will
come when we would have citizens untaught and uninculcated in and not imbued with reverence for the flag and
love of country, admiration for national heroes, and patriotism — a pathetic, even tragic situation, and all
because a small portion of the shcool population imposed its will, demanded and was granted an exemption. In
a way that might be regarded as tyranny of the minority, and a small minority at that.

In a few cases, such exemptions in a limited way have been afforded members of a religious group.
Conscientious objectors in the United States who because of their religion were unwilling to serve in the war
particularly as regards actual fighting or field duty, were allowed to do some work in relation to the war, but not
involving combat duty or the use of force. But that was by special legislation. If that is possible here as regards
exemption from participation in the flag ceremony, then petitioners would have to look to the Legislature, not the
courts for relief.

The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption form or
non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent
authority. As was said by Mr. Justice Frankfurter in h is dissent in West Virginia vs. Barnette, supra:

The constitutional protection of religious freedom ... 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. Religious loyalties may be exercised without hindrance from the State, not the State
may not exercise that which except by leave of religious loyalties is within the domain of temporal power.
Otherwise, each individual could set up his own censor against obedience to laws conscientiously
deemed for the public good by those whose business it is to make laws. (West Virginia State Board vs.
Barnette, supra, at p. 653; emphasis supplied)

In conclusion we find and hold that the Filipino flag is not an image that requires religious veneration; rather it is
symbol of the Republic of the Philippines, of sovereignty, an emblem of freedom, liberty and national unity; that
the flag salute is nt a religious ceremony but an act and profession of love and allegiance and pledge of loyalty
to the fatherland which the flag stands for; that by authority of the legislature, the Secretary of Education was
duly authorized to promulgate Department Order No. 8, series of 1955; that the requirement of observance of
the flag ceremony or salute provided for in said Department Order No. 8, does not violate the Constitutional
provision about freedom of religion and exercise of religion; that compliance with the non-discriminatory and
reasonable rules and regulations and school disicipline, including observance of the flag ceremony is a
prerequisite to attendance in public schools; and that for failure and refusal to participate in the flag ceremony,
petitioners were properly excluded and dismissed from the public shcool they were attending.

In view of the foregoing, the appealed decision is affirmed. The writ of preliminary injunction heretofore issued is
ordered dissolved. No costs.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-14283 November 29, 1960

GIL BALBUNA, ET AL., petitioners-appellants,

vs.
THE HON. SECRETARY OF EDUCATION, ET AL., respondents-appellees.

K. V. Faylona and Juan B. Soliven for appellants.

Office of the Solicitor General Edilberto Barot and Solicitor Ceferino Padua for appellees.

REYES, J.B.L., J.:

Appeal by members of the "Jehovah's Witnesses" from a decision of the Court of First Instance of Capiz, dated
June 23, 1958, dismissing their petition for prohibition and mandamus against the Secretary of Education and
the other respondents.

The action was brought to enjoin the enforcement of Department Order No. 8, s. 1955, issued by the Secretary
of Education, promulgating rules and regulations for the conduct of the compulsory flag ceremony in all schools,
as provided in Republic Act No. 1265. Petitioners appellants assail the validity of the above Department Order,
for it allegedly denies them freedom of worship and of speech guaranteed by the Bill of Rights; that it denies
them due process of law and the equal protection of the laws; and that it unduly restricts their rights in the
upbringing of their children. Since the brief for the petitioners-appellants assails Republic Act No. 1265 only as
construed and applied, the issue ultimately boils down the validity of Department Order No. 8, s. 1955, which
promulgated the rules and regulations for the implementation of the law.

This case, therefore, is on all fours with Gerona, et al., vs. Secretary of Education, et al., 106 Phil., 2; 57 Off.
Gaz., (5) 820, also involving Jehovah's Witnesses, and assailing, on practically identical grounds, the validity of
the same Department Order above-mentioned. This Court discerns no reasons for changing its stand therein,
where we said:

In conclusion, we find and hold that the Filipino flag is not an image that requires religious veneration;
rather, it is a symbol of the Republic of the Philippines, of sovereignty, an emblem of freedom, liberty and
national unity; that the flag salute is not a religious ceremony but an act and profession of love and
allegiance and pledge of loyalty to the fatherland which the flag stands for; that by the authority of the
Legislature of the Secretary of Education was duly authorized to promulgate Department Order No. 8,
series of 1955; that the requirement of observance of the flag ceremony, or salute provided for in said
Department Order No. 8 does not violate the Constitutional provisions about freedom of religion and
exercise of religion; that compliance with the non-discriminatory and reasonable rules and regulations
and school discipline, including observance of the flag ceremony, is a prerequisite to attendance in
public schools; and that for failure and refusal to participate in the flag ceremony, petitioners were
properly excluded and dismissed from the public school they were attending.

However, in their memorandum, petitioners-appellants raise the new issue that that Department Order No. 8 has
no binding force and effect, not having been published in the Official Gazette as allegedly required by
Commonwealth Act 638, Article 2 of the New Civil Code, and Section 11 of the Revised Administrative Code.
We see no merit in this contention. The assailed Department Order, being addressed only to the Directors of
Public and Private Schools, and educational institutions under their supervision, can not be said to be of general
application. Moreover, as observed in People vs. QuePo Lay, 94 Phil., 640; 50 Off. Gaz., (10) 4850 (affirmed in
Lim Hoa Ting vs. Central Bank, 104 Phil., 573; 55 Off. Gaz., [6] 1006), —

the laws in question (Commonwealth Act 638 and Act 2930) do not require the publication of the
circulars, regulations or notices therein mentioned in order to become binding and effective. All that said
two laws provide is that laws, regulations, decisions of the Supreme Court and Court of Appeals, notices
and documents required by law to be published shall be published in the Official Gazette but said two
laws do not say that unless so published they will be of no force and effect. In other words, said two acts
merely enumerate and make a list of what should be published in the Official Gazette, presumably, for
 the guidance of the different branches of the government issuing the same, and of the Bureau of
Printing.

It is true, as held in the above cases, that pursuant to Article 2 of the New Civil Code and Section 11 of the
Revised Administrative Code, statutes or laws shall take effect fifteen days following the completion of their
publication in the Official Gazette, unless otherwise provided. It is likewise true that administrative rules and
regulations, issued to implement a law, have the force of law. Nevertheless, the cases cited above involved
circulars of the Central Bank which provided for penalties for violations thereof and that was the primary factor
that influenced the rationale of those decisions. In the case at bar, Department Order No. 8 does not provide any
penalty against those pupils or students refusing to participate in the flag ceremony or otherwise violating the
provisions of said order. Their expulsion was merely the consequence of their failure to observe school discipline
which the school authorities are bound to maintain. As observed in Gerona vs. Secretary of Education, supra,

... for their failure or refusal to obey school regulations about the flag salute, they were not being
prosecuted. Neither were they being criminally prosecuted under threat of penal sanction. If they choose
not to obey the flag salute regulation, they merely lost the benefits of public education being maintained
at the expense of their fellow citizens, nothing more. Having elected not to comply with the regulations
about the flag salute, they forfeited their right to attend public schools.

Finally, appellants contend that Republic Act No. 1265 is unconstitutional and void for being an undue
delegations of legislative power, "for its failure to lay down any specific and definite standard by which the
Secretary of Education may be guided in the preparation of those rules and regulations which he has been
authorized to promulgate." With this view we again disagree. Sections 1 and 2 of the Act read as follows:

Section 1. All educational institutions shall henceforth, observed daily flag ceremony, which shall be
simple and dignified and shall include the playing or singing of the Philippine National Anthem.

Section 2. The Secretary of Education is hereby authorized and directed to issue or cause to be issued
rules and regulations for the proper conduct of the flag ceremony herein provide.

In our opinion, the requirements above-quoted constitute an adequate standard, to wit, simplicity and dignity of
the flag ceremony and the singing of the National Anthem — specially when contrasted with other standards
heretofore upheld by the Courts: "public interest"(People vs. Rosenthal, 68 Phil. 328); "public welfare"
(Municipality of Cardona vs. Binangonan, 36 Phil. 547); Interest of law and order"(Rubi vs. Provincial Board, 39
Phil., 669; justice and equity and the substantial merits of the case" (Int. Hardwood vs. Pañgil Federation of
Labor, 70 Phil. 602); or "adequate and efficient instruction" (P.A.C.U. vs. Secretary of Education, 97 Phil., 806;
51 Off. Gaz., 6230). That the Legislature did not specify the details of the flag ceremony is no objection to the
validity of the statute, for all that is required of it is the laying down of standards and policy that will limit the
discretion of the regulatory agency. To require the statute to establish in detail the manner of exercise of the
delegated power would be to destroy the administrative flexibility that the delegation is intended to achieve.

Wherefore, the decision appealed from is affirmed. Costs against petitioner-appellants.

Paras, C.J., Padilla, Bautista Angelo, Labrador, Barrera, Gutierrez David, Paredes, and Dizon, JJ., concur.
 EN BANC

A.M. No. P-02-1651 June 22, 2006

(Formerly OCA I.P.I. No. 00-1021-P)

ALEJANDRO ESTRADA, Complainant,

vs.
SOLEDAD S. ESCRITOR, Respondent.

RESOLUTION

PUNO, J.:

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

I. THE PAST PROCEEDINGS

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

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

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

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

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

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

A. Ruling

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

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

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

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

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

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

B. Law of the case

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

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

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

1. Old World Antecedents

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

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

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

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

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

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

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

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

2. Religion Clauses in the U.S. Context

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

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

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

a. Strict Separation and Strict Neutrality/Separation

The Strict Separationist believes that the Establishment Clause was meant to protect the state from the church,
and the state’s hostility towards religion allows no interaction between the two. According to this Jeffersonian
view, an absolute barrier to formal interdependence of religion and state needs to be erected. Religious
institutions could not receive aid, whether direct or indirect, from the state. Nor could the state adjust its secular
programs to alleviate burdens the programs placed on believers.29 Only the complete separation of religion from
politics would eliminate the formal influence of religious institutions and provide for a free choice among political
views, thus a strict "wall of separation" is necessary. 30

Strict separation faces difficulties, however, as it is deeply embedded in American history and contemporary
practice that enormous amounts of aid, both direct and indirect, flow to religion from government in return for
huge amounts of mostly indirect aid from religion.31 For example, less than twenty-four hours after Congress
adopted the First Amendment’s prohibition on laws respecting an establishment of religion, Congress decided to
express its thanks to God Almighty for the many blessings enjoyed by the nation with a resolution in favor of a
presidential proclamation declaring a national day of Thanksgiving and Prayer.32 Thus, strict separationists are
caught in an awkward position of claiming a constitutional principle that has never existed and is never likely to.33

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

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

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

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

b. Benevolent Neutrality/Accommodation

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

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

xxx xxx xxx

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

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

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

(1) Legislative Acts and the Free Exercise Clause

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

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

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

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

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

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

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

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

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

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

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

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

Then, in the 1972 case of Wisconsin v. Yoder,61 the U.S. Court again ruled that religious exemption was in order,
notwithstanding that the law of general application had a criminal penalty. Using heightened scrutiny, the Court
overturned the conviction of Amish parents for violating Wisconsin compulsory school-attendance laws. The
Court, in effect, granted exemption from a neutral, criminal statute that punished religiously motivated conduct.
Chief Justice Burger, writing for the majority, held, viz:

It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that
such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State
does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient
magnitude to override the interest claiming protection under the Free Exercise Clause. Long before there was
general acknowledgement of the need for universal education, the Religion Clauses had specially and firmly
fixed the right of free exercise of religious beliefs, and buttressing this fundamental right was an equally firm,
even if less explicit, prohibition against the establishment of any religion. The values underlying these two
provisions relating to religion have been zealously protected, sometimes even at the expense of other interests
of admittedly high social importance. . .

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

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

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

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

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

Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which would impose a discipline to
prevent manipulation in the balancing of interests. The fourth and the fifth elements prevented the likelihood of
exaggeration of the weight on the governmental interest side of the balance, by not allowing speculation about
the effects of a decision adverse to those interests nor accepting that those interests would be defined at a
higher level of generality than the constitutional interests on the other side of the balance. 66

Thus, the strict scrutiny and compelling state interest test significantly increased the degree of protection
afforded to religiously motivated conduct. While not affording absolute immunity to religious activity, a compelling
secular justification was necessary to uphold public policies that collided with religious practices. Although the
members of the U.S. Court often disagreed over which governmental interests should be considered compelling,
thereby producing dissenting and separate opinions in religious conduct cases, this general test established a
strong presumption in favor of the free exercise of religion.67 Most scholars and courts agreed that under
Sherbert and Yoder, the Free Exercise Clause provided individuals some form of heightened scrutiny protection,
if not always a compelling interest one.68 The 1990 case of Employment Division, Oregon Department of Human
Resources v. Smith,69 drastically changed all that.

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

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

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

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

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

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

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

Justice O’Connor also disagreed with the majority’s description of prior cases and especially its leaving the
protection of minority religions to the political process. She said that, "First Amendment was enacted precisely to
protect the rights of those whose religious practice are not shared by the majority and may be viewed with
hostility." 80

Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and Marshall. The dissenting
Justices agreed with Justice O’Connor that the majority had mischaracterized precedents, such as in describing
Yoder as a "hybrid" case rather than as one under the free exercise clause. The dissent also argued that strict
scrutiny should be used in evaluating government laws burdening religion. 81

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(3) Accommodation under the Religion Clauses

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

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

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

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

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

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

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

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

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

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

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

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

By juxtaposing the American Constitution and jurisprudence against that of the Philippines, it is immediately
clear that one cannot simply conclude that we have adopted—lock, stock and barrel—the religion clauses as
embodied in the First Amendment, and therefore, the U.S. Court’s interpretation of the same. Unlike in the U.S.
where legislative exemptions of religion had to be upheld by the U.S. Supreme Court as constituting permissive
accommodations, similar exemptions for religion are mandatory accommodations under our own constitutions.
Thus, our 1935, 1973 and 1987 Constitutions contain provisions on tax exemption of church property,123 salary of
religious officers in government institutions,124 and optional religious instruction.125 Our own preamble also
invokes the aid of a divine being.126 These constitutional provisions are wholly ours and have no counterpart in
the U.S. Constitution or its amendments. They all reveal without doubt that the Filipino people, in adopting these
constitutions, manifested their adherence to the benevolent neutrality approach that requires accommodations in
interpreting the religion clauses.127

The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar as it asserted that
the 1935 Constitution incorporates the Walz ruling as this case was decided subsequent to the 1935 Constitution
is a misreading of the ponencia. What the ponencia pointed out was that even as early as 1935, or more than
three decades before the U.S. Court could validate the exemption in Walz as a form or permissible
accommodation, we have already incorporated the same in our Constitution, as a mandatory accommodation.

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

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

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

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

The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it
the right to disseminate religious information. Any restraint of such right can only be justified like other restraints
of freedom of expression on the grounds that there is a clear and present danger of any substantive evil which
the State has the right to prevent. (citations omitted, emphasis supplied)

Another case involving mandatory accommodation is Ebralinag v. The Division Superintendent of

Schools.132 The case involved several Jehovah’s Witnesses who were expelled from school for refusing to salute
the flag, sing the national anthem and recite the patriotic pledge, in violation of the Administrative Code of 1987.
In resolving the religious freedom issue, a unanimous Court overturned an earlier ruling denying such
exemption,133 using the "grave and imminent danger" test, viz:

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

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

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

Having established that benevolent neutrality-accommodation is the framework by which free exercise cases
must be decided, the next question then turned to the test that should be used in ascertaining the limits of the
exercise of religious freedom. In our Decision dated August 4, 2003, we reviewed our jurisprudence, and ruled
that in cases involving purely conduct based on religious belief, as in the case at bar, the compelling state
interest test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the
Free Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger" test but did
not employ it. Nevertheless, this test continued to be cited in subsequent cases on religious liberty. The Gerona
case then pronounced that the test of permissibility of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned the "immediate and grave danger" test as well as
the doctrine that a law of general applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the "compelling
state interest" test. After Victoriano, German went back to the Gerona rule. Ebralinag then employed the "grave
and immediate danger" test and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back
to the "clear and present danger" test in the maiden case of American Bible Society. Not surprisingly, all the
cases which employed the "clear and present danger" or "grave and immediate danger" test involved, in one
form or another, religious speech as this test is often used in cases on freedom of expression. On the other
hand, the Gerona and German cases set the rule that religious freedom will not prevail over established
institutions of society and law. Gerona, however, which was the authority cited by German has been overruled
by Ebralinag which employed the "grave and immediate danger" test. Victoriano was the only case that
employed the "compelling state interest" test, but as explained previously, the use of the test was inappropriate
to the facts of the case.

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

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

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

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

b. The Compelling State Interest Test

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

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

xxx xxx xxx

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

xxx xxx xxx

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor will it be applied for
the first time, as an exemption of such nature, albeit by legislative act, has already been granted to Moslem
polygamy and the criminal law of bigamy.
Finally, we must consider the language of the Religion Clauses vis-à-vis the other fundamental rights in the Bill
of Rights. It has been noted that unlike other fundamental rights like the right to life, liberty or property, the
Religion Clauses are stated in absolute terms, unqualified by the requirement of "due process,"
"unreasonableness," or "lawful order." Only the right to free speech is comparable in its absolute grant. Given
the unequivocal and unqualified grant couched in the language, the Court cannot simply dismiss a claim of
exemption based on the Free Exercise Clause, solely on the premise that the law in question is a general
criminal law. 143 If the burden is great and the sincerity of the religious belief is not in question, adherence to the
benevolent neutrality-accommodation approach require that the Court make an individual determination and not
dismiss the claim outright.

At this point, we must emphasize that the adoption of the benevolent neutrality-accommodation approach does
not mean that the Court ought to grant exemptions every time a free exercise claim comes before it. This is an
erroneous reading of the framework which the dissent of Mr. Justice Carpio seems to entertain. Although
benevolent neutrality is the lens with which the Court ought to view religion clause cases, the interest of the state
should also be afforded utmost protection. This is precisely the purpose of the test—to draw the line between
mandatory, permissible and forbidden religious exercise. Thus, under the framework, the Court cannot simply
dismiss a claim under the Free Exercise Clause because the conduct in question offends a law or the orthodox
view, as proposed by Mr. Justice Carpio, for this precisely is the protection afforded by the religion clauses of the
Constitution.144 As stated in the Decision:

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

II. THE CURRENT PROCEEDINGS

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

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

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

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

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

1. Exhibit "A-OSG" and submarking — The September 30, 2003 Letter to the OSG of Bro. Raymond B. Leach,
Legal Representative of the Watch Tower Bible and Tract Society of the Philippines, Inc.
Purpose: To show that the OSG exerted efforts to examine the sincerity and centrality of respondent’s claimed
religious belief and practice.

2. Exhibit "B-OSG" and submarking — The duly notarized certification dated September 30, 2003 issued and
signed by Bro. Leach.

PURPOSES: (1) To substantiate the sincerity and centrality of respondent’s claimed religious belief and practice;
and (2) to prove that the Declaration of Pledging Faithfulness, being a purely internal arrangement within the
congregation of the Jehovah’s Witnesses, cannot be a source of any legal protection for respondent.

In its Memorandum-In-Intervention, the OSG contends that the State has a compelling interest to override
respondent’s claimed religious belief and practice, in order to protect marriage and the family as basic social
institutions. The Solicitor General, quoting the Constitution148 and the Family Code,149 argues that marriage and
the family are so crucial to the stability and peace of the nation that the conjugal arrangement embraced in the
Declaration of Pledging Faithfulness should not be recognized or given effect, as "it is utterly destructive of the
avowed institutions of marriage and the family for it reduces to a mockery these legally exalted and socially
significant institutions which in their purity demand respect and dignity."150

Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor General in so far as he asserts
that the State has a compelling interest in the preservation of marriage and the family as basic social institutions,
which is ultimately the public policy underlying the criminal sanctions against concubinage and bigamy. He also
argues that in dismissing the administrative complaint against respondent, "the majority opinion effectively
condones and accords a semblance of legitimacy to her patently unlawful cohabitation..." and "facilitates the
circumvention of the Revised Penal Code." According to Mr. Justice Carpio, by choosing to turn a blind eye to
respondent’s criminal conduct, the majority is in fact recognizing a practice, custom or agreement that subverts
marriage. He argues in a similar fashion as regards the state’s interest in the sound administration of justice.

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

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

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

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

The above arguments are mere reiterations of the arguments raised by Mme. Justice Ynares-Santiago in her
dissenting opinion to our Decision dated August 4, 2003, which she offers again in toto. These arguments have
already been addressed in our decision dated August 4, 2003.154 In said Decision, we noted that Mme. Justice
Ynares-Santiago’s dissenting opinion dwelt more on the standards of morality, without categorically holding that
religious freedom is not in issue.155 We, therefore, went into a discussion on morality, in order to show that:

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

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

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

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

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

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

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

Mr. Justice Carpio’s slippery slope argument, on the other hand, is non-sequitur. If the Court grants respondent
exemption from the laws which respondent Escritor has been charged to have violated, the exemption would not
apply to Catholics who have secured church annulment of their marriage even without a final annulment from a
civil court. First, unlike Jehovah’s Witnesses, the Catholic faith considers cohabitation without marriage as
immoral. Second, but more important, the Jehovah’s Witnesses have standards and procedures which must be
followed before cohabitation without marriage is given the blessing of the congregation. This includes an
investigative process whereby the elders of the congregation verify the circumstances of the declarants. Also,
the Declaration is not a blanket authority to cohabit without marriage because once all legal impediments for the
couple are lifted, the validity of the Declaration ceases, and the congregation requires that the couple legalize
their union.

At bottom, the slippery slope argument of Mr. Justice Carpio is speculative. Nevertheless, insofar as he raises
the issue of equality among religions, we look to the words of the Religion Clauses, which clearly single out
religion for both a benefit and a burden: "No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof…" On its face, the language grants a unique advantage to religious conduct,
protecting it from governmental imposition; and imposes a unique disadvantage, preventing the government
from supporting it. To understand this as a provision which puts religion on an equal footing with other bases for
action seems to be a curious reading. There are no "free exercise" of "establishment" provisions for science,
sports, philosophy, or family relations. The language itself thus seems to answer whether we have a paradigm of
equality or liberty; the language of the Clause is clearly in the form of a grant of liberty. 169

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

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

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

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

IN VIEW WHEREOF, the instant administrative complaint is dismissed.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 74457 March 20, 1987

RESTITUTO YNOT, petitioner,

vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL POLICE,
BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION
IV, ILOILO CITY, respondents.

Ramon A. Gonzales for petitioner.

CRUZ, J.:

The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike — but hear me
first!" It is this cry that the petitioner in effect repeats here as he challenges the constitutionality of Executive
Order No. 626-A.

The said executive order reads in full as follows:

WHEREAS, the President has given orders prohibiting the interprovincial movement of carabaos
and the slaughtering of carabaos not complying with the requirements of Executive Order No.
626 particularly with respect to age;

WHEREAS, it has been observed that despite such orders the violators still manage to
circumvent the prohibition against inter-provincial movement of carabaos by transporting
carabeef instead; and

WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626 and the
prohibition against interprovincial movement of carabaos, it is necessary to strengthen the said
Executive Order and provide for the disposition of the carabaos and carabeef subject of the
violation;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers vested in me by the Constitution, do hereby promulgate the following:

SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no carabao
regardless of age, sex, physical condition or purpose and no carabeef shall be transported from
one province to another. The carabao or carabeef transported in violation of this Executive Order
as amended shall be subject to confiscation and forfeiture by the government, to be distributed to
charitable institutions and other similar institutions as the Chairman of the National Meat
Inspection Commission may ay see fit, in the case of carabeef, and to deserving farmers through
dispersal as the Director of Animal Industry may see fit, in the case of carabaos.

SECTION 2. This Executive Order shall take effect immediately.

Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen hundred
and eighty.

(SGD.) FERDINAND E. MARCOS

President

Republic of the Philippines

The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984, when
they were confiscated by the police station commander of Barotac Nuevo, Iloilo, for violation of the above
measure. 1 The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of a supersedeas bond of
P12,000.00. After considering the merits of the case, the court sustained the confiscation of the carabaos and, since they could no longer be produced,
ordered the confiscation of the bond. The court also declined to rule on the constitutionality of the executive order, as raise by the petitioner, for lack of
authority and also for its presumed validity. 2

The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial court, ** and he has now come
before us in this petition for review on certiorari.

The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright
confiscation of the carabao or carabeef being transported across provincial boundaries. His claim is that the
penalty is invalid because it is imposed without according the owner a right to be heard before a competent and
impartial court as guaranteed by due process. He complains that the measure should not have been presumed,
and so sustained, as constitutional. There is also a challenge to the improper exercise of the legislative power by
the former President under Amendment No. 6 of the 1973 Constitution. 4

While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable here. The
question raised there was the necessity of the previous publication of the measure in the Official Gazette before
it could be considered enforceable. We imposed the requirement then on the basis of due process of law. In
doing so, however, this Court did not, as contended by the Solicitor General, impliedly affirm the constitutionality
of Executive Order No. 626-A. That is an entirely different matter.

This Court has declared that while lower courts should observe a becoming modesty in examining constitutional
questions, they are nonetheless not prevented from resolving the same whenever warranted, subject only to
review by the highest tribunal. 6 We have jurisdiction under the Constitution to "review, revise, reverse, modify or
affirm on appeal or certiorari, as the law or rules of court may provide," final judgments and orders of lower
courts in, among others, all cases involving the constitutionality of certain measures. 7 This simply means that
the resolution of such cases may be made in the first instance by these lower courts.

And while it is true that laws are presumed to be constitutional, that presumption is not by any means conclusive
and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the need to declare
them so, then "will be the time to make the hammer fall, and heavily," 8 to recall Justice Laurel's trenchant
warning. Stated otherwise, courts should not follow the path of least resistance by simply presuming the
constitutionality of a law when it is questioned. On the contrary, they should probe the issue more deeply, to
relieve the abscess, paraphrasing another distinguished jurist, 9 and so heal the wound or excise the affliction.

Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the task for
fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of the bench,
especially this Court.

The challenged measure is denominated an executive order but it is really presidential decree, promulgating a
new rule instead of merely implementing an existing law. It was issued by President Marcos not for the purpose
of taking care that the laws were faithfully executed but in the exercise of his legislative authority under
Amendment No. 6. It was provided thereunder that whenever in his judgment there existed a grave emergency
or a threat or imminence thereof or whenever the legislature failed or was unable to act adequately on any
matter that in his judgment required immediate action, he could, in order to meet the exigency, issue decrees,
orders or letters of instruction that were to have the force and effect of law. As there is no showing of any
exigency to justify the exercise of that extraordinary power then, the petitioner has reason, indeed, to question
the validity of the executive order. Nevertheless, since the determination of the grounds was supposed to have
been made by the President "in his judgment, " a phrase that will lead to protracted discussion not really
necessary at this time, we reserve resolution of this matter until a more appropriate occasion. For the nonce, we
confine ourselves to the more fundamental question of due process.

It is part of the art of constitution-making that the provisions of the charter be cast in precise and unmistakable
language to avoid controversies that might arise on their correct interpretation. That is the Ideal. In the case of
the due process clause, however, this rule was deliberately not followed and the wording was purposely kept
ambiguous. In fact, a proposal to delineate it more clearly was submitted in the Constitutional Convention of
1934, but it was rejected by Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights, who
forcefully argued against it. He was sustained by the body. 10

The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt necessary because due process is not, like
some provisions of the fundamental law, an "iron rule" laying down an implacable and immutable command for all seasons and all persons. Flexibility must be
the best virtue of the guaranty. The very elasticity of the due process clause was meant to make it adapt easily to every situation, enlarging or constricting its
protection as the changing times and circumstances may require.

Aware of this, the courts have also hesitated to adopt their own specific description of due process lest they
confine themselves in a legal straitjacket that will deprive them of the elbow room they may need to vary the
meaning of the clause whenever indicated. Instead, they have preferred to leave the import of the protection
open-ended, as it were, to be "gradually ascertained by the process of inclusion and exclusion in the course of
the decision of cases as they arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example, would go no farther than to
define due process — and in so doing sums it all up — as nothing more and nothing less than "the embodiment of the sporting Idea of fair play." 12

When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth not proceed against the life liberty
or property of any of its subjects except by the lawful judgment of his peers or the law of the land, they thereby won for themselves and their progeny that
splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King John made at Runnymede in 1215 has since then
resounded through the ages, as a ringing reminder to all rulers, benevolent or base, that every person, when confronted by the stern visage of the law, is
entitled to have his say in a fair and open hearing of his cause.

The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear "the other
side" before an opinion is formed or a decision is made by those who sit in judgment. Obviously, one side is only
one-half of the question; the other half must also be considered if an impartial verdict is to be reached based on
an informed appreciation of the issues in contention. It is indispensable that the two sides complement each
other, as unto the bow the arrow, in leading to the correct ruling after examination of the problem not from one or
the other perspective only but in its totality. A judgment based on less that this full appraisal, on the pretext that a
hearing is unnecessary or useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all, in
repressive regimes, the insolence of power.

The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be dispensed with
because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial system that the jurisprudence of this
country is rich with applications of this guaranty as proof of our fealty to the rule of law and the ancient rudiments of fair play. We have consistently declared
that every person, faced by the awesome power of the State, is entitled to "the law of the land," which Daniel Webster described almost two hundred years
ago in the famous Dartmouth College Case, 14 as "the law which hears before it condemns, which proceeds upon inquiry and renders judgment only after
trial." It has to be so if the rights of every person are to be secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade
the due process clause into a worn and empty catchword.

This is not to say that notice and hearing are imperative in every case for, to be sure, there are a number of
admitted exceptions. The conclusive presumption, for example, bars the admission of contrary evidence as long
as such presumption is based on human experience or there is a rational connection between the fact proved
and the fact ultimately presumed therefrom. 15 There are instances when the need for expeditions action will justify omission of these
requisites, as in the summary abatement of a nuisance per se, like a mad dog on the loose, which may be killed on sight because of the immediate danger it
poses to the safety and lives of the people. Pornographic materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily
destroyed. The passport of a person sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16 Filthy
restaurants may be summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such instances, previous
judicial hearing may be omitted without violation of due process in view of the nature of the property involved or the urgency of the need to protect the general
welfare from a clear and present danger.

The protection of the general welfare is the particular function of the police power which both restraints and is
restrained by due process. The police power is simply defined as the power inherent in the State to regulate
liberty and property for the promotion of the general welfare. 18 By reason of its function, it extends to all the great public needs and
is described as the most pervasive, the least limitable and the most demanding of the three inherent powers of the State, far outpacing taxation and eminent
domain. The individual, as a member of society, is hemmed in by the police power, which affects him even before he is born and follows him still after he is
dead — from the womb to beyond the tomb — in practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome
intrusion. Even so, as long as the activity or the property has some relevance to the public welfare, its regulation under the police power is not only proper but
necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non laedas, which call for
the subordination of individual interests to the benefit of the greater number.

It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending the basic
rule in Executive Order No. 626, prohibiting the slaughter of carabaos except under certain conditions. The
original measure was issued for the reason, as expressed in one of its Whereases, that "present conditions
demand that the carabaos and the buffaloes be conserved for the benefit of the small farmers who rely on them
for energy needs." We affirm at the outset the need for such a measure. In the face of the worsening energy
crisis and the increased dependence of our farms on these traditional beasts of burden, the government would
have been remiss, indeed, if it had not taken steps to protect and preserve them.

A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding and slaughter of
large cattle was claimed to be a deprivation of property without due process of law. The defendant had been convicted thereunder for having slaughtered his
own carabao without the required permit, and he appealed to the Supreme Court. The conviction was affirmed. The law was sustained as a valid police
measure to prevent the indiscriminate killing of carabaos, which were then badly needed by farmers. An epidemic had stricken many of these animals and the
reduction of their number had resulted in an acute decline in agricultural output, which in turn had caused an incipient famine. Furthermore, because of the
scarcity of the animals and the consequent increase in their price, cattle-rustling had spread alarmingly, necessitating more effective measures for the
registration and branding of these animals. The Court held that the questioned statute was a valid exercise of the police power and declared in part as
follows:
 To justify the State in thus interposing its authority in behalf of the public, it must appear, first,
that the interests of the public generally, as distinguished from those of a particular class, require
such interference; and second, that the means are reasonably necessary for the accomplishment
of the purpose, and not unduly oppressive upon individuals. ...

From what has been said, we think it is clear that the enactment of the provisions of the statute
under consideration was required by "the interests of the public generally, as distinguished from
those of a particular class" and that the prohibition of the slaughter of carabaos for human
consumption, so long as these animals are fit for agricultural work or draft purposes was a
"reasonably necessary" limitation on private ownership, to protect the community from the loss of
the services of such animals by their slaughter by improvident owners, tempted either by greed
of momentary gain, or by a desire to enjoy the luxury of animal food, even when by so doing the
productive power of the community may be measurably and dangerously affected.

In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor man's
tractor, so to speak, has a direct relevance to the public welfare and so is a lawful subject of Executive Order No.
626. The method chosen in the basic measure is also reasonably necessary for the purpose sought to be
achieved and not unduly oppressive upon individuals, again following the above-cited doctrine. There is no
doubt that by banning the slaughter of these animals except where they are at least seven years old if male and
eleven years old if female upon issuance of the necessary permit, the executive order will be conserving those
still fit for farm work or breeding and preventing their improvident depletion.

But while conceding that the amendatory measure has the same lawful subject as the original executive order,
we cannot say with equal certainty that it complies with the second requirement, viz., that there be a lawful
method. We note that to strengthen the original measure, Executive Order No. 626-A imposes an absolute ban
not on the slaughter of the carabaos but on their movement, providing that "no carabao regardless of age, sex,
physical condition or purpose (sic) and no carabeef shall be transported from one province to another." The
object of the prohibition escapes us. The reasonable connection between the means employed and the purpose
sought to be achieved by the questioned measure is missing

We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their indiscriminate
slaughter, considering that they can be killed anywhere, with no less difficulty in one province than in another.
Obviously, retaining the carabaos in one province will not prevent their slaughter there, any more than moving
them to another province will make it easier to kill them there. As for the carabeef, the prohibition is made to
apply to it as otherwise, so says executive order, it could be easily circumvented by simply killing the animal.
Perhaps so. However, if the movement of the live animals for the purpose of preventing their slaughter cannot
be prohibited, it should follow that there is no reason either to prohibit their transfer as, not to be flippant dead
meat.

Even if a reasonable relation between the means and the end were to be assumed, we would still have to reckon
with the sanction that the measure applies for violation of the prohibition. The penalty is outright confiscation of
the carabao or carabeef being transported, to be meted out by the executive authorities, usually the police only.
In the Toribio Case, the statute was sustained because the penalty prescribed was fine and imprisonment, to be
imposed by the court after trial and conviction of the accused. Under the challenged measure, significantly, no
such trial is prescribed, and the property being transported is immediately impounded by the police and
declared, by the measure itself, as forfeited to the government.

In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to
the petitioner only after he had filed a complaint for recovery and given a supersedeas bond of P12,000.00,
which was ordered confiscated upon his failure to produce the carabaos when ordered by the trial court. The
executive order defined the prohibition, convicted the petitioner and immediately imposed punishment, which
was carried out forthright. The measure struck at once and pounced upon the petitioner without giving him a
chance to be heard, thus denying him the centuries-old guaranty of elementary fair play.

It has already been remarked that there are occasions when notice and hearing may be validly dispensed with
notwithstanding the usual requirement for these minimum guarantees of due process. It is also conceded that
summary action may be validly taken in administrative proceedings as procedural due process is not necessarily
judicial only. 20 In the exceptional cases accepted, however. there is a justification for the omission of the right to
a previous hearing, to wit, the immediacy of the problem sought to be corrected and the urgency of the need to
correct it.
In the case before us, there was no such pressure of time or action calling for the petitioner's peremptory
treatment. The properties involved were not even inimical per se as to require their instant destruction. There
certainly was no reason why the offense prohibited by the executive order should not have been proved first in a
court of justice, with the accused being accorded all the rights safeguarded to him under the Constitution.
Considering that, as we held in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in nature, the violation
thereof should have been pronounced not by the police only but by a court of justice, which alone would have
had the authority to impose the prescribed penalty, and only after trial and conviction of the accused.

We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as
prescribed in the questioned executive order. It is there authorized that the seized property shall "be distributed
to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection
Commission may see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of
Animal Industry may see fit, in the case of carabaos." (Emphasis supplied.) The phrase "may see fit" is an
extremely generous and dangerous condition, if condition it is. It is laden with perilous opportunities for partiality
and abuse, and even corruption. One searches in vain for the usual standard and the reasonable guidelines, or
better still, the limitations that the said officers must observe when they make their distribution. There is none.
Their options are apparently boundless. Who shall be the fortunate beneficiaries of their generosity and by what
criteria shall they be chosen? Only the officers named can supply the answer, they and they alone may choose
the grantee as they see fit, and in their own exclusive discretion. Definitely, there is here a "roving commission,"
a wide and sweeping authority that is not "canalized within banks that keep it from overflowing," in short, a
clearly profligate and therefore invalid delegation of legislative powers.

To sum up then, we find that the challenged measure is an invalid exercise of the police power because the
method employed to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is
unduly oppressive. Due process is violated because the owner of the property confiscated is denied the right to
be heard in his defense and is immediately condemned and punished. The conferment on the administrative
authorities of the power to adjudge the guilt of the supposed offender is a clear encroachment on judicial
functions and militates against the doctrine of separation of powers. There is, finally, also an invalid delegation of
legislative powers to the officers mentioned therein who are granted unlimited discretion in the distribution of the
properties arbitrarily taken. For these reasons, we hereby declare Executive Order No. 626-A unconstitutional.

We agree with the respondent court, however, that the police station commander who confiscated the
petitioner's carabaos is not liable in damages for enforcing the executive order in accordance with its mandate.
The law was at that time presumptively valid, and it was his obligation, as a member of the police, to enforce it. It
would have been impertinent of him, being a mere subordinate of the President, to declare the executive order
unconstitutional and, on his own responsibility alone, refuse to execute it. Even the trial court, in fact, and the
Court of Appeals itself did not feel they had the competence, for all their superior authority, to question the order
we now annul.

The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this case
would never have reached us and the taking of his property under the challenged measure would have become
a fait accompli despite its invalidity. We commend him for his spirit. Without the present challenge, the matter
would have ended in that pump boat in Masbate and another violation of the Constitution, for all its obviousness,
would have been perpetrated, allowed without protest, and soon forgotten in the limbo of relinquished rights.

The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke them
whenever they are ignored or violated. Rights are but weapons on the wall if, like expensive tapestry, all they do
is embellish and impress. Rights, as weapons, must be a promise of protection. They become truly meaningful,
and fulfill the role assigned to them in the free society, if they are kept bright and sharp with use by those who
are not afraid to assert them.

WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed above, the
decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the amount thereof is
ordered restored to the petitioner. No costs.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco, Padilla Bidin Sarmiento and Cortes,
JJ., concur.

Melencio-Herrera and Feliciano, JJ., are on leave.