EN BANC

[G.R. No. 135981. September 29, 2000]

PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC
GENOSA, appellant.
RESOLUTION
PANGANIBAN, J.:
It is a hornbook rule that an appeal in criminal cases opens the entire
records to review. The Court may pass upon all relevant issues, including
those factual in nature and those that may not have been brought before the
trial court. This is true especially in cases involving the imposition of the
death penalty, in which the accused must be allowed to avail themselves of
all possible avenues for their defense. Even novel theories such as the
"battered woman syndrome," which is alleged to be equivalent to selfdefense, should be heard, given due consideration and ruled upon on the
merits, not rejected merely on technical or procedural grounds. Criminal
conviction must rest on proof of guilt beyond reasonable doubt.

'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/

shedding of the epidermis.
'Abdomen distended w/ gas. Trunk bloated.'
which caused his death."
After arraignment and trial, the court a quo promulgated its Judgment,
the dispositive portion of which reads:
"WHEREFORE, after all the foregoing being duly considered, the Court
finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable
doubt of the crime of parricide as provided under Article 246 of the Revised
Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery
as a generic aggravating circumstance and none of mitigating circumstance,
hereby sentences the accused with the penalty of DEATH.
The Court likewise penalizes the accused to pay the heirs of the deceased the
sum of fifty thousand pesos (P50,000.00), Philippine currency as indemnity
and another sum of fifty thousand pesos (P50,000.00), Philippine currency as
moral damages."

The Case

The Antecedents

For resolution by the Court is an Urgent Omnibus Motion filed by

Appellant Marivic Genosa y Isidro in connection with the automatic review
of the September 25, 1998 "Judgment" [1] of the Regional Trial Court (RTC)
of Ormoc City[2] in Criminal Case No. 5016-0. The RTC found her guilty of
parricide aggravated by treachery and sentenced her to death.
In an Information[3] dated November 14, 1996, Provincial Prosecutor
I Rosario D. Beleta charged appellant-movant with parricide allegedly
committed as follows:
"That on or about the 15th day of November 1995, at Barangay Bilwang,
Municipality of Isabel, Province of Leyte, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to
kill, with treachery and evident premeditation, did then and there wilfully,
unlawfully and feloniously attack, assault, hit and wound one BEN
GENOSA, her legitimate husband, with the use of a hard deadly weapon,
which the accused had provided herself for the purpose, [causing] the
following wounds, to wit:
'Cadaveric spasm.
'Body on the 2nd stage of decomposition.
'Face, black, blown[ ]up & swollen w/ evident post- mortem lividity. Eyes
protruding from its sockets and tongue slightly protrudes out of the mouth.
'Fracture, open, depressed, circular located at the occipital bone of the head,
resulting [in] laceration of the brain, spontaneous rupture of the blood vessels
on the posterior surface of the brain, laceration of the dura and meningeal
vessels producing severe intracranial hemorrhage.

Prior to the filing of her Appeal Brief, appellant submitted an Urgent

Omnibus Motion,[4] to bring "to the attention of the x x x Court certain facts
and circumstances which, if found valid, could warrant the setting aside of
[her] conviction and the imposition of the death penalty."
Appellant alleges that the trial court grievously erred in concluding that
she had lied about the means she employed in killing her husband. On the
contrary, she had consistently claimed that she had shot her husband. Yet the
trial judge simply ruled that the cause of his death was "cardiopulmonary
arrest secondary to severe intracranial hemorrhage due to a depressed
fracture of the occipital bone," which resulted from her admitted act of
"smashing" him with a pipe. Such conclusion was allegedly unsupported by
the evidence on record, which bore no forensic autopsy report on the body of
the victim.
Appellant further alleges that despite the evidence on record of repeated
and severe beatings she had suffered at the hands of her husband, the trial
court failed to appreciate her self-defense theory. She claims that under the
surrounding circumstances, her act of killing her husband was equivalent to
self-defense. Furthermore, she argues that if she "did not lie about how she
killed her husband, then she did not lie about the abuse she suffered at his
hands."
She thus prays for the following reliefs:[5]
"1. The Honorable Court allow an exhumation of the body of the
victim, Ben M. Genosa, and a re-examination of the cause of
death.

2. The Honorable Court submit accused-appellant for examination

by qualified psychologists and psychiatrists of the Court to
determine her state of mind at the time of the killing of her
spouse, Ben M. Genosa.
3. Thereafter, the Honorable Court allow the reports of the
psychologists and psychiatrists to form part of the records of the
case for purposes of the automatic review or, in the alternative,
to allow a partial re-opening of the case before a lower court in
Metro Manila to admit the testimony of said psychologists and
psychiatrists."
On August 22, 2000, the solicitor general, on behalf of the State, filed
his Comment,[6] which substantially objected to the Motion on the ground
that appellant had not been "deprived of her right to due process, substantial
or procedural."
The Issues

In brief, the issues for our resolution are (1) whether the body of the
victim should be exhumed and reexamined in order to ascertain the cause of
his death, and (2) whether the appellant should be examined by qualified
psychologists or psychiatrists in order to determine her state of mind at the
time of the killing.
The Court's Ruling

The Court grants in part the Motion of appellant. We remand the case to
the RTC for the reception of evidence from qualified psychologists or
psychiatrists whom the parties may present to establish her state of mind at
the time of the killing.
First Issue: No Need for a Reexamination of Cause of Death

Accused-appellant seeks the exhumation of the victim's body to be able

to determine his exact cause of death, assailing the court a quo's conclusion
that he was "smashed or beaten at the back of his head" rather than shot, as
claimed by appellant.
Considering that the appellant has admitted the fact of killing her
husband and the acts of hitting his nape with a metal pipe and of shooting
him at the back of his head, the Court believes that exhumation is
unnecessary, if not immaterial, to determine which of said acts actually
caused the victim's death. There is no need to exhume the body at this time
and conduct an autopsy thereon for the purpose.
Moreover, the matter of proving the cause of death should have been
made before the trial court. Time and again, we have said that this Court is
not a trier of facts. Neither will it authorize the firsthand reception of
evidence, where the opportunity to offer the same was available to the party
during the trial stage. Consistent with this principle alone, the prayer sought
by appellant for the exhumation of the victim's body cannot be granted.

Second Issue: The Need to Determine Appellant's State of Mind at the Time of the Killing

In seeking to be "examined and evaluated by psychologists and

psychiatrists to bring into evidence the abuse inflicted upon her; [and] to
determine whether such abuse will support the 'battered woman syndrome',"
the appellant brings to the fore a novel defense theory. Through Counsel
Katrina Legarda, she asks the Court to "re-evaluate the traditional elements"
used in determining self-defense and to consider the "battered woman
syndrome" as a viable plea within the concept of self-defense.
Allegedly, there are four characteristics of the syndrome: (1) the woman
believes that the violence was her fault; (2) she has an inability to place the
responsibility for the violence elsewhere; (3) she fears for her life and/or her
children's lives; and (4) she has an irrational belief that the abuser is
omnipresent and omniscient. [7] Living in constant danger of harm or death,
she knows that future beatings are almost certain to occur and will escalate
over time. Her intimate knowledge of the violent nature of her batterer makes
her alert to when a particular attack is forthcoming, and when it will
seriously threaten her survival. Trapped in a cycle of violence and constant
fear, it is not unlikely that she would succumb to her helplessness and fail to
perceive possible solutions to the problem other than to injure or kill her
batterer. She is seized by fear of an existing or impending lethal aggression
and thus would have no opportunity beforehand to deliberate on her acts and
to choose a less fatal means of eliminating her sufferings.
Appellant further alleges that the syndrome is already a recognized form
of self-defense in the United States and in Europe. In the US particularly, it is
classified as a post-traumatic stress disorder, rather than a form of mental
illness.[8] It has been held admissible in order to assess a defendant's
perception of the danger posed by the abuser.[9]
In view of the foregoing, Appellant Genosa pleads that she be allowed
to present evidence to prove that her relationship with her spouse-victim had
afflicted her with the syndrome.Allegedly, an expert can explain how her
experiences as a battered woman had affected her perception of danger and
her honest belief in its imminence, and why she had resorted to force against
her batterer.
The records of the case already bear some evidence on domestic
violence between appellant and her deceased husband. A defense witness, Dr.
Dino Caing, testified that she had consulted him at least six (6) times due to
injuries related to domestic violence and twenty-three (23) times for severe
hypertension due to emotional stress. [10] Even the victim's brother and mother
attested to the spouses' quarrels every now and then. The court a quo,
however, simplistically ruled that since violence had not immediately
preceded the killing, self-defense could not be appreciated.

Indeed, there is legal and jurisprudential lacuna with respect to the socalled "battered woman syndrome" as a possible modifying circumstance that
could affect the criminal liability or penalty of the accused. The discourse of
appellant on the subject in her Omnibus Motion has convinced the Court that
the syndrome deserves serious consideration, especially in the light of its
possible effect on her very life. It could be that very thin line between death
and life or even acquittal. The Court cannot, for mere technical or procedural
objections, deny appellant the opportunity to offer this defense, for any
criminal conviction must be based on proof of guilt beyond reasonable
doubt. Accused persons facing the possibility of the death penalty must be
given fair opportunities to proffer all defenses possible that could save them
from capital punishment.
In People v. Parazo,[11] after final conviction of appellant therein, this
Court granted his Urgent Omnibus Motion and allowed him to undergo
mental, neurologic and otolaryngologic examination and evaluation to
determine whether he was a deaf-mute. Based on findings that he really was
deaf and mute, yet unaided during the trial by an expert witness who could
professionally understand and interpret his actions and mutterings, the Court
granted him re-arraignment and retrial. It justified its action on the principle
that "only upon proof of guilt beyond reasonable doubt may [the accused] be
consigned to the lethal injection chamber."
More recently in People v. Estrada,[12] we likewise nullified the trial
proceedings and remanded the case "to the court a quo for a conduct of a
proper mental examination on accused-appellant, a determination of his
competency to stand trial, and for further proceedings." In that case, the
defense counsel had moved to suspend the arraignment of the accused, who
could not properly and intelligently enter a plea because of his mental defect,
and to confine him instead in a psychiatric ward. But the trial court denied
the Motion, after simply propounding questions to the accused and
determining for itself that he could understand and answer them
"intelligently." After trial, he was convicted of murder aggravated by cruelty
and thus sentenced to death.
In nullifying the trial proceedings, this Court noted: [13]
"The trial court took it solely upon itself to determine the sanity of accusedappellant. The trial judge is not a psychiatrist or psychologist or some other
expert equipped with the specialized knowledge of determining the state of a
person's mental health. To determine the accused-appellant's competency to
stand trial, the court, in the instant case, should have at least ordered the
examination of accused-appellant, especially in the light of the latter's history
of mental illness."

It was held that in denying appellant an examination by a competent

medical expert, the trial court practically denied him a fair trial prior to
conviction, in violation of his constitutional rights.
Moreover, proof of insanity could have exempted appellant from
criminal liability. If the accused had not performed the act voluntarily, then
he could not have been criminally liable. The Court, through Mr. Justice
Reynato S. Puno, emphasized:
"The basic principle in our criminal law is that a person is criminally liable
for a felony committed by him. Under the classical theory on which our
penal code is mainly based, the basis of criminal liability is human free
will. Man is essentially a moral creature with an absolutely free will to
choose between good and evil. When he commits a felonious or criminal act
(delito doloso), the act is presumed to have been done voluntarily, i.e., with
freedom, intelligence and intent. Man, therefore, should be adjudged or held
accountable for wrongful acts so long as free will appears unimpaired." [14]
In the instant case, it is equally important to determine whether
Appellant Genosa had acted freely, intelligently and voluntarily when she
killed her spouse. The Court, however, cannot properly evaluate her batteredwoman-syndrome defense, absent expert testimony on her mental and
emotional state at the time of the killing and the possible psychological cause
and effect of her fatal act. Unlike in Parazo, we cannot simply refer her for
proper psychological or psychiatric examination and thereafter admit the
findings and evaluation as part of the records of the cases for purposes of
automatic review. The prosecution has likewise the right to a fair trial, which
includes the opportunity to cross-examine the defense witnesses and to refute
the expert opinion given. Thus, consistent with the principle of due process, a
partial reopening of the case is apropos, so as to allow the defense the
opportunity to present expert evidence consistent with our foregoing
disquisition, as well as the prosecution the opportunity to cross examine and
refute the same.
WHEREFORE, the Urgent Omnibus Motion of Appellant Marivic
Genosa is PARTLY GRANTED. The case is hereby REMANDED to the trial
court for the reception of expert psychological and/or psychiatric opinion on
the "battered woman syndrome" plea, within ninety (90) days from notice,
and, thereafter to forthwith report to this Court the proceedings taken,
together with the copies of the TSN and relevant documentary evidence, if
any, submitted.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, YnaresSantiago, and De Leon, Jr., JJ., concur.

[1]

Rollo, pp. 26-43. It was penned by Judge Fortunito L. Madrona.

Branch 35.
[3]
Rollo, pp. 9-10.
[4]
Rollo, pp. 139-154.
[5]
Appellant's Urgent Omnibus Motion, pp. 1-2.
[6]
Rollo, pp. 198 et seq.
[7]
Appellant's Urgent Omnibus Motion, p. 7; rollo, p. 149.
[8]
Ibid., citing "You've Come a Long Way, Baby: The Battered Woman's
Syndrome Revisited," the New York Law School Journal of Human Rights,
Vol. IX, pp. 117-118; Walker, L., Terrifying Love: Why Battered Women Kill
and How Society Responds, 1989, p. 48.
[9]
Ibid., citing State v. Kelly, 478 A2d 364 (1985).
[10]
TSN, August 5, 1998.
[11]
310 SCRA 146, July 8, 1999, per Purisima, J.
[12]
GR No. 130487, June 19, 2000, per Puno, J.
[13]
Ibid., p. 21.
[14]
On pp. 10-11.
[2]

THIRD DIVISION
[G.R. No. 111709. August 30, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER P.
TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO,
ANDRES C. INFANTE, CHEONG SAN HIONG, and JOHN
DOES, accused-appellants.
DECISION
MELO, J.:
This is one of the older cases which unfortunately has remained in
docket of the Court for sometime. It was reassigned, together with other
similar cases, to undersigned ponente in pursuance of A.M. No. 00-9-03-SC
dated February 27, 2001.

In the evening of March 2, 1991, M/T Tabangao, a cargo vessel owned

by the PNOC Shipping and Transport Corporation, loaded with 2,000 barrels
of kerosene, 2,600 barrels of regular gasoline, and 40,000 barrels of diesel
oil, with a total value of P40,426,793,87. was sailing off the coast of
Mindoro near Silonay Island.
The vessel, manned by 21 crew members, including Captain Edilberto
Libo-on, Second Mate Christian Torralba, and Operator Isaias Ervas, was
suddenly boarded, with the use of an aluminum ladder, by seven fully armed
pirates led by Emilio Changco, older brother of accused-appellant Cecilio
Changco. The pirates, including accused-appellants Tulin, Loyola, and
Infante, Jr. were armed with M-16 rifles, .45 and .38 caliber handguns, and
bolos. They detained the crew and took complete control of the vessel.
Thereafter, accused-appellant Loyola ordered three crew members to paint
over, using black paint, the name "M/T Tabangao" on the front and rear
portions of the vessel, as well as the PNOC logo on the chimney of the
vessel. The vessel was then painted with the name "Galilee," with registry at
San Lorenzo, Honduras. The crew was forced to sail to Singapore, all the
while sending misleading radio messages to PNOC that the ship was
undergoing repairs.
PNOC, after losing radio contact with the vessel, reported the
disappearance of the vessel to the Philippine Coast Guard and secured the
assistance of the Philippine Air Force and the Philippine Navy. However,
search and rescue operations yielded negative results. On March 9, 1991, the
ship arrived in the vicinity of Singapore and cruised around the area
presumably to await another vessel which, however, failed to arrive. The
pirates were thus forced to return to the Philippines on March 14, 1991,
arriving at Calatagan, Batangas on March 20, 1991 where it remained at sea.
On March 28, 1991, the "M/T Tabangao" again sailed to and anchored
about 10 to 18 nautical miles from Singapore's shoreline where another
vessel called "Navi Pride" anchored beside it. Emilio Changco ordered the
crew of "M/T Tabangao" to transfer the vessel's cargo to the hold of "Navi
Pride". Accused-appellant Cheong San Hiong supervised the crew of "Navi
Pride" in receiving the cargo. The transfer, after an interruption, with both
vessels leaving the area, was completed on March 30,1991.

On March 30, 1991, "M/T Tabangao" returned to the same area and
completed the transfer of cargo to "Navi Pride."
On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but
the vessel remained at sea. On April 10, 1991, the members of the crew were
released in three batches with the stern warning not to report the incident to
government authorities for a period of two days or until April 12, 1991,
otherwise they would be killed. The first batch was fetched from the
shoreline by a newly painted passenger jeep driven by accused-appellant
Cecilio Changco, brother of Emilio Changco, who brought them to Imus,
Cavite and gave P20,000.00 to Captain Libo-on for fare of the crew in
proceeding to their respective homes. The second batch was fetched by
accused-appellant Changco at midnight of April 10, 1991 and were brought
to different places in Metro Manila.
On April 12, 1991, the Chief Engineer, accompanied by the members of
the crew, called the PNOC Shipping and Transport Corporation office to
report the incident. The crew members were brought to the Coast Guard
Office for investigation. The incident was also reported to the National
Bureau of Investigation where the officers and members of the crew executed
sworn statements regarding the incident.

On October 24 1991, an Information charging qualified piracy or

violation of Presidential Decree No. 532 (piracy in Philippine Waters) was
filed against accused-appellants, as follows:
The undersigned State Prosecutor accuses ROGER P. TULIN, VIRGILIO I.
LOYOLA, CECILIO O. CHANGCO, ANDRES C. INFANTE, and
CHEONG SAN HIONG, and nine (9) other JOHN DOES of qualified piracy
(Violation of P.D. No. 532), committed as follows:
That on or about and during the period from March 2 to April 10, 1991, both
dates inclusive, and for sometime prior and subsequent thereto, and within
the jurisdiction of this Honorable Court, the said accused, then manning a
motor launch and armed with high powered guns, conspiring and
confederating together and mutually helping one another, did then and there,
wilfully, unlawfully and feloniously fire upon, board and seize while in the
Philippine waters M/T PNOC TABANGCO loaded with petroleum products,
together with the complement and crew members, employing violence
against or intimidation of persons or force upon things, then direct the vessel
to proceed to Singapore where the cargoes were unloaded and thereafter
returned to the Philippines on April 10, 1991, in violation of the aforesaid
law.

A series of arrests was thereafter effected as follows:

a. On May 19, 1991, the NBI received verified information that the
pirates were present at U.K. Beach, Balibago, Calatagan, Batangas. After
three days of surveillance, accused-appellant Tulin was arrested and brought
to the NBI headquarters in Manila.
b. Accused-appellants Infante, Jr. and Loyola were arrested by chance at
Aguinaldo Hi-way by NBI agents as the latter were pursuing the mastermind,
who managed to evade arrest.
c. On May 20, 1991, accused-appellants Hiong and Changco were
arrested at the lobby of Alpha Hotel in Batangas City.

CONTRARY TO LAW.
(pp. 119-20,
Rollo.)
This was docketed as Criminal Case No. 91-94896 before Branch 49 of
the Regional Trial Court of the National Capital Judicial Region stationed in
Manila. Upon arraignment, accused-appellants pleaded not guilty to the
charge. Trial thereupon ensued.
Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding
some inconsistencies in their testimony as to where they were on March 1,
1991, maintained the defense of denial, and disputed the charge, as well as
the transfer of any cargo from "M/T Tabangao" to the "Navi Pride." All of
them claimed having their own respective sources of livelihood. Their story

is to the effect that on March 2, 1991, while they were conversing by the
beach, a red speedboat with Captain Edilberto Liboon and Second Mate
Christian Torralba on board, approached the seashore. Captain Liboon
inquired from the three if they wanted to work in a vessel. They were told
that the work was light and that each worker was to be paid P3,000.00 a
month with additional compensation if they worked beyond that period. They
agreed even though they had no sea-going experience. On board, they
cooked, cleaned the vessel, prepared coffee, and ran errands for the officers.
They denied having gone to Singapore, claiming that the vessel only went to
Batangas. Upon arrival thereat in the morning of March 21, 1991, they were
paid P1,000.00 each as salary for nineteen days of work, and were told that
the balance would be remitted to their addresses. There was neither receipt
nor contracts of employment signed by the parties.
Accused-appellant Changco categorically denied the charge, averring
that he was at home sleeping on April 10, 1991. He testified that he is the
younger brother of Emilio Changco, Jr.
Accused-appellant Cheong San Hiong, also known as Ramzan Ali,
adduced evidence that he studied in Sydney, Australia, obtaining the
"Certificate" as Chief Officer, and later completed the course as a "Master"
of a vessel, working as such for two years on board a vessel. He was
employed at Navi Marine Services, Pte., Ltd. as Port Captain. The company
was engaged in the business of trading petroleum, including shipoil, bunker
lube oil, and petroleum to domestic and international markets. It owned four
vessels, one of which was "Navi Pride."

Operations Superintendent of the firm, proceeded to the high seas on board

"Navi Pride" but failed to locate the contact vessel.
The transaction with Paul Gan finally pushed through on March 27,
1991. Hiong, upon his return on board the vessel "Ching Ma," was assigned
to supervise a ship-to-ship transfer of diesel oil off the port of Singapore, the
contact vessel to be designated by Paul Gan. Hiong was ordered to ascertain
the quantity and quality of the oil and was given the amount of 300,000.00
Singapore Dollars for the purchase. Hiong, together with Paul Gan, and the
surveyor William Yao, on board "Navi Pride" sailed toward a vessel called
"M/T Galilee". Hiong was told that "M/T Galilee" would be making the
transfer. Although no inspection of "Navi Pride" was made by the port
authorities before departure, Navi Marine Services, Pte., Ltd. was able to
procure a port clearance upon submission of General Declaration and crew
list. Hiong, Paul Gan, and the brokers were not in the crew list submitted and
did not pass through the immigration. The General Declaration falsely
reflected that the vessel carried 11,900 tons.
On March 28, 1991, "Navi Pride" reached the location of "M/T Galilee".
The brokers then told the Captain of the vessel to ship-side with "M/T
Galilee" and then transfer of the oil transpired. Hiong and the surveyor
William Yao met the Captain of "M/T Galilee," called "Captain Bobby" (who
later turned out to be Emilio Changco). Hiong claimed that he did not ask for
the full name of Changco nor did he ask for the latter's personal card.

On March 2, 1991, the day before "M/T Tabangao" was seized by

Emilio Changco and his cohorts, Hiong's name was listed in the company's
letter to the Mercantile Section of the Maritime Department of the Singapore
government as the radio telephone operator on board the vessel "Ching Ma."

Upon completion of the transfer, Hiong took the soundings of the tanks
in the "Navi Pride" and took samples of the cargo. The surveyor prepared the
survey report which "Captain Bobby" signed under the name "Roberto
Castillo." Hiong then handed the payment to Paul Gan and William Yao.
Upon arrival at Singapore in the morning of March 29, 1991, Hiong reported
the quantity and quality of the cargo to the company.

The company was then dealing for the first time with Paul Gan, a
Singaporean broker, who offered to sell to the former bunker oil for the
amount of 300,000.00 Singapore dollars. After the company paid over onehalf of the aforesaid amount to Paul Gan, the latter, together with Joseph Ng,

Thereafter, Hiong was again asked to supervise another transfer of oil

purchased by the firm " from "M/T Galilee" to "Navi Pride." The same
procedure as in the first transfer was observed. This time, Hiong was told that
that there were food and drinks, including beer, purchased by the company

for the crew of "M/T Galilee. The transfer took ten hours and was completed
on March 30, 1991. Paul Gan was paid in full for the transfer.
On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he had
four vessels and wanted to offer its cargo to cargo operators. Hiong was
asked to act as a broker or ship agent for the sale of the cargo in Singapore.
Hiong went to the Philippines to discuss the matter with Emilio Changco,
who laid out the details of the new transfer, this time with "M/T Polaris" as
contact vessel. Hiong was told that the vessel was scheduled to arrive at the
port of Batangas that weekend. After being billeted at Alpha Hotel in
Batangas City, where Hiong checked in under the name "SONNY CSH." A
person by the name of "KEVIN OCAMPO," who later turned out to be
Emilio Changco himself, also checked in at Alpha Hotel. From accusedappellant Cecilio Changco, Hiong found out that the vessel was not arriving.
Hiong was thereafter arrested by NBI agents.
After trial, a 95-page decision was rendered convicting accusedappellants of the crime charged. The dispositive portion of said decision
reads:

severally, to said corporation the value thereof in the amount of

P11,240,000.00 Philippine Currency, with interests thereon, at the rate of 6%
per annum from March 2, 1991 until the said amount is paid in full. All the
accused including Cheong San Hiong are hereby ordered to return to the
Caltex Philippines, Inc. the cargo of the "M/T Tabangao", or if the accused
can no longer return the said cargo to said corporation, all the accused are
hereby condemned to pay, jointly and severally, to the Caltex Refinery, Inc.,
the value of said cargo in the amount of P40,426,793.87, Philippine Currency
plus interests until said amount is paid in full. After the accused Cheong San
Hiong has served his sentence, he shall be deported to Singapore.
All the accused shall be credited for the full period of their detention at the
National Bureau of Investigation and the City Jail of Manila during the
pendency of this case provided that they agreed in writing to abide by and
comply strictly with the rules and regulations of the City Jail of Manila and
the National Bureau of Investigation. With costs against all the accused.
SO ORDERED.
(pp. 149-150, Rollo.)

WHEREFORE, in the light of the foregoing considerations, judgment is

hereby rendered by this Court finding the accused Roger Tulin, Virgilio
Loyola, Andres Infante, Jr. and Cecilio Changco guilty beyond reasonable
doubt, as principals, of the crime of piracy in Philippine Waters defined in
Section 2(d) of Presidential Decree No. 532 and the accused Cheong San
Hiong, as accomplice, to said crime. Under Section 3(a) of the said law, the
penalty for the principals of said crime is mandatory death. However,
considering that, under the 1987 Constitution, the Court cannot impose the
death penalty, the accused Roger Tulin, Virgilio Loyola, Andres Infante, ]r.,
and Cecilio Changco are hereby each meted the penalty of RECLUSION
PERPETUA, with all the accessory penalties of the law. The accused Cheong
San Hiong is hereby meted the penalty of RECLUSION PERPETUA,
pursuant to Article 52 of the Revised Penal Code in relation to Section 5 of
PD 532. The accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and
Cecilio Changco are hereby ordered to return to the PNOC Shipping and
Transport Corporation the "M/T Tabangao" or if the accused can no longer
return the same, the said accused are hereby ordered to remit, jointly and

The matter was then elevated to this Court. The arguments of accusedappellants may be summarized as follows:
Roger P. Tulin Virgilio Loyola Andres C. Infante Jr., and Cecilio O. Changco
Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco
assert that the trial court erred in allowing them to adopt the proceedings
taken during the time they were being represented by Mr. Tomas Posadas, a
non-lawyer, thereby depriving them of their constitutional right to procedural
due process.
In this regard, said accused-appellants narrate that Mr. Posadas entered
his appearance as counsel for all of them. However, in the course of the
proceedings, or on February 11, 1992, the trial court discovered that Mr.
Posadas was not a member of the Philippine Bar. This was after Mr. Posadas
had presented and examined seven witnesses for the accused.

Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco

uniformly contend that during the custodial investigation, they were
subjected to physical violence; were forced to sign statements without being
given the opportunity to read the contents of the same; were denied
assistance of counsel, and were not informed of their rights, in violation of
their constitutional rights,
Said accused-appellants also argue that the trial court erred in finding
that the prosecution proved beyond reasonable doubt that they committed the
crime of qualified piracy. They allege that the pirates were outnumbered by
the crew who totaled 22 and who were not guarded at all times. The crew, so
these accused-appellants conclude, could have overpowered the alleged
pirates.
Cheong San Hiong
In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect
obliterated the crime committed by him; (2) the trial court erred in declaring
that the burden is lodged on him to prove by clear and convincing evidence
that he had no knowledge that Emilio Changco and his cohorts attacked and
seized the "M/T Tabangao" and/or that the cargo of the vessel was stolen or
the subject of theft or robbery or piracy; (3) the trial court erred in finding
him guilty as an accomplice to the crime of qualified piracy under Section 4
of Presidential Decree No. 532 (Anti-Piracy and Anti-Robbery Law of 1974);
(4) the trial court erred in convicting and punishing him as an accomplice
when the acts allegedly committed by him were done or executed outside of
Philippine waters and territory, stripping the Philippine courts of jurisdiction
to hold him for trial, to convict, and sentence; (5) the trial court erred in
making factual conclusions without evidence on record to prove the same
and which in fact are contrary to the evidence adduced during trial; (6) the
trial court erred in convicting him as an accomplice under Section 4 of
Presidential Decree No. 532 when he was charged as a principal by direct
participation under said decree, thus violating his constitutional right to be
informed of the nature and cause of the accusation against him.
Cheong also posits that the evidence against the other accusedappellants do not prove any participation on his part in the commission of the

crime of qualified piracy. He further argues that he had not in any way
participated in the seajacking of "M/T Tabangao" and in committing the
crime of qualified piracy, and that he was not aware that the vessel and its
cargo were pirated.
As legal basis for his appeal, he explains that he was charged under the
information with qualified piracy as principal under Section 2 of Presidential
Decree No. 532 which refers to Philippine waters. In the case at bar, he
argues that he was convicted for acts done outside Philippine waters or
territory. For the State to have criminal jurisdiction, the act must have been
committed within its territory.
We affirm the conviction of all the accused-appellants.
The issues of the instant case may be summarized as follows: (1) what
are the legal effects and implications of the fact that a non-lawyer represented
accused-appellants during the trial?; (2) what are the legal effects and
implications of the absence of counsel during the custodial investigation?; (3)
did the trial court err in finding that the prosecution was able to prove beyond
reasonable doubt that accused-appellants committed the crime of qualified
piracy?; (4) did Republic Act No. 7659 obliterate the crime committed by
accused-appellant Cheong?; and (5) can accused-appellant Cheong be
convicted as accomplice when he was not charged as such and when the acts
allegedly committed by him were done or executed outside Philippine waters
and territory?
On the first issue, the record reveals that a manifestation (Exhibit "20",
Record) was executed by accused-appellants Tulin, Loyola, Changco, and
Infante, Jr. on February 11, 1991, stating that they were adopting the
evidence adduced when they were represented by a non-lawyer. Such waiver
of the right to sufficient representation during the trial as covered by the due
process clause shall only be valid if made with the full assistance of a bona
fide lawyer. During the trial, accused-appellants, as represented by Atty.
Abdul Basar, made a categorical manifestation that said accused-appellants
were apprised of the nature and legal consequences of the subject
manifestation, and that they voluntarily and intelligently executed the same.
They also affirmed the truthfulness of its contents when asked in open court

(tsn, February 11, 1992, pp. 7-59). It is true that an accused person shall be
entitled to be present and to defend himself in person and by counsel at every
stage of the proceedings, from arraignment to promulgation of judgment
(Section 1, Rule 115, Revised Rules of Criminal Procedure). This is hinged
on the fact that a layman is not versed on the technicalities of trial. However,
it is also provided by law that "[r]ights may be waived, unless the waiver is
contrary to law, public order, public policy, morals, or good customs or
prejudicial to a third person with right recognized by law." (Article 6, Civil
Code of the Philippines). Thus, the same section of Rule 115 adds that
"[u]pon motion, the accused may be allowed to defend himself in person
when it sufficiently appears to the court that he can properly protect his rights
without the assistance of counsel." By analogy , but without prejudice to the
sanctions imposed by law for the illegal practice of law, it is amply shown
that the rights of accused-appellants were sufficiently and properly protected
by the appearance of Mr. Tomas Posadas. An examination of the record will
show that he knew the technical rules of procedure. Hence, we rule that there
was a valid waiver of the right to sufficient representation during the trial,
considering that it was unequivocally, knowingly, and intelligently made and
with the full assistance of a bona fide lawyer, Atty. Abdul Basar. Accordingly,
denial of due process cannot be successfully invoked where a valid waiver of
rights has been made (People vs. Serzo, 274 SCRA 553 [1997]; Sayson vs.
People, 166 SCRA 680 [1988]).
However, we must quickly add that the right to counsel during custodial
investigation may not be waived except in writing and in the presence of
counsel.
Section 12, Article III of the Constitution reads:
SEC. 12. (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent and to
have competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of
counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which
vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this
section as well as compensation to and rehabilitation of victims of torture or
similar practices, and their families.
Such rights originated from Miranda v. Arizona (384 U. S. 436 [1966])
which gave birth to the so-called Miranda doctrine which is to the effect that
prior to any questioning during custodial investigation, the person must be
warned that he has a right to remain silent, that any statement he gives may
be used as evidence against him, and that he has the right to the presence of
an attorney, either retained or appointed. The defendant may waive
effectuation of these rights, provided the waiver is made voluntarily,
knowingly, and intelligently. The Constitution even adds the more stringent
requirement that the waiver must be in writing and made in the presence of
counsel.
Saliently, the absence of counsel during the execution of the so-called
confessions of the accused-appellants make them invalid. In fact, the very
basic reading of the Miranda rights was not even shown in the case at bar.
Paragraph [3] of the aforestated Section 12 sets forth the so-called "fruit from
the poisonous tree doctrine," a phrase minted by Mr. Justice Felix Frankfurter
in the celebrated case of Nardone vs. United States (308 U.S. 388 [1939]).
According to this rule, once the primary source (the "tree") is shown to have
been unlawfully obtained, any secondary or derivative evidence (the "fruit")
derived from it is also inadmissible. The rule is based on the principle that
evidence illegally obtained by the State should not be used to gain other
evidence because the originally illegally obtained evidence taints all evidence
subsequently obtained (People vs. Alicando, 251 SCRA 293 [1995]). Thus, in
this case, the uncounselled extrajudicial confessions of accused-appellants,
without a valid waiver of the right to counsel, are inadmissible and whatever

information is derived therefrom shall be regarded as likewise inadmissible

in evidence against them.

Christian Torralba and Isaias Wervas executed their "Joint Affidavit" (Exhibit
"B") and pointed to and identified the said Accused as some of the pirates.

However, regardless of the inadmissibility of the subject confessions,

there is sufficient evidence to convict accused-appellants with moral
certainty. We agree with the sound deduction of the trial court that indeed,
Emilio Changco (Exhibits "U" and "UU") and accused-appellants Tulin,
Loyola, .and Infante, Jr. did conspire and confederate to commit the crime
charged. In the words of then trial judge, now Justice Romeo J. Callejo of the
Court of Appeals -

xxx

...The Prosecution presented to the Court an array of witnesses, officers and

members of the crew of the "M/T Tabangao" no less, who identified and
pointed to the said Accused as among those who attacked and seized, the
"M/T Tabangao" on March 2, 1991, at about 6:30 o'clock in the afternoon,
off Lubang Island, Mindoro, with its cargo, and brought the said vessel, with
its cargo, and the officers and crew of the vessel, in the vicinity of
Horsebough Lighthouse, about sixty-six nautical miles off the shoreline of
Singapore and sold its cargo to the Accused Cheong San Hiong upon which
the cargo was discharged from the "M/T Tabangao" to the "Navi Pride" for
the price of about $500,000.00 (American Dollars) on March 29, and 30,
1991...
xxx
xxx
xxx
The Master, the officers and members of the crew of the "M/T Tabangao"
were on board the vessel with the Accused and their cohorts from March 2,
1991 up to April 10, 1991 or for more than one (1) month. There can be no
scintilla of doubt in the mind of the Court that the officers and crew of the
vessel could and did see and identify the seajackers and their leader. In fact,
immediately after the Accused were taken into custody by the operatives of
the National Bureau of Investigation, Benjamin Suyo, Norberto Senosa,

xxx
xxx
Indeed, when they testified before this Court on their defense, the three (3)
Accused admitted to the Court that they, in fact, boarded the said vessel in
the evening of March 2 1991 and remained on board when the vessel sailed
to its, destination, which turned out to be off the port of Singapore.
(pp. 106-112, Rollo.)
We also agree with the trial court's finding that accused-appellants'
defense of denial is not supported by any hard evidence but their bare
testimony. Greater weight is given to the categorical identification of the
accused by the prosecution witnesses than to the accused's plain denial of
participation in the commission of the crime (People v. Baccay, 284 SCRA
296 [1998]). Instead, accused-appellants Tulin, Loyola, and Infante, Jr.
narrated a patently desperate tale that they were hired by three complete
strangers (allegedly Captain Edilberto Liboon, Second Mate Christian
Torralba, and their companion) while said accused-appellants were
conversing with one another along the seashore at Apkaya, Balibago,
Calatagan, Batangas, to work on board the "M/T Tabangao" which was then
anchored off-shore. And readily, said accused-appellants agreed to work as
cooks and handymen for an indefinite period of time without even saying
goodbye to their families, without even knowing their destination or the
details of their voyage, without the personal effects needed for a long voyage
at sea. Such evidence is incredible and clearly not in accord with human
experience. As pointed out by the trial court, it is incredible that Captain
Liboon, Second Mate Torralba, and their companion "had to leave the vessel
at 9:30 o'clock in the evening and venture in a completely unfamiliar place
merely to recruit five (5) cooks or handymen (p. 113, Rollo)."

Anent accused-appellant Changco's defense of denial with the alibi that

on May 14 and 17, he was at his place of work and that on April 10, 1991, he
was in his house in Bacoor, Cavite, sleeping, suffice it to state that alibi is
fundamentally and inherently a weak defense, much more so when
uncorroborated by other witnesses (People v. Adora, 275 SCRA 441 [1997])
considering that it is easy to fabricate and concoct, and difficult to disprove.
Accused-appellant must adduce clear and convincing evidence that, at about
midnight on April 10, 1991, it was physically impossible for him to have
been in Calatagan, Batangas. Changco not only failed to do this, he was
likewise unable to prove that he was in his place of work on the dates
aforestated.
It is doctrinal that the trial court's evaluation of the credibility of a
testimony is accorded the highest respect, for trial courts have an
untrammeled opportunity to observe directly the demeanor of witnesses and,
thus, to determine whether a certain witness is telling the truth (People v.
Obello, 284 SCRA 79 [1998]).
We likewise uphold the trial court's finding of conspiracy. A conspiracy
exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it (Article 8, Revised Penal
Code). To be a conspirator, one need not participate in every detail of
execution; he need not even take part in every act or need not even know the
exact part to be performed by the others in the execution of the
conspiracy. As noted by the trial court, there are times when conspirators are
assigned separate and different tasks which may appear unrelated to one
another, but in fact, constitute a whole and collective effort to achieve a
common criminal design.
We affirm the trial court's finding that Emilio Changco, accusedappellants Tulin, Loyola, and Infante, Jr. and others, were the ones assigned
to attack and seize the "M/T Tabangao" off Lubang, Mindoro, while accusedappellant Cecilio Changco was to fetch the master and the members of the
crew from the shoreline of Calatagan, Batangas after the transfer, and bring
them to Imus, Cavite, and to provide the crew and the officers of the vessel
with money for their fare and food provisions on their way home. These acts
had to be well-coordinated. Accused-appellant Cecilio Changco need not be

present at the time of the attack and seizure of "M/T Tabangao" since he
performed his task in view of an objective common to all other accusedappellants.
Of notable importance is the connection of accused-appellants to one
another. Accused-appellant Cecilio Changco is the younger brother of Emilio
Changco (aka Captain Bobby/Captain Roberto Castillo/Kevin Ocampo),
owner of Phil-Asia Shipping Lines. Cecilio worked for his brother in said
corporation. Their residences are approximately six or seven kilometers away
from each other. Their families are close. Accused-appellant Tulin, on the
other hand, has known Cecilio since their parents were neighbors in Aplaya,
Balibago, Calatagan, Batangas. Accused-appellant Loyola's wife is a relative
of the Changco brothers by affinity .Besides, Loyola and Emilio Changco
had both been accused in a seajacking case regarding "M/T Isla Luzon" and
its cargo of steel coils and plates off Cebu and Bohol in 1989. Emilio
Changco (aka Kevin Ocampo) was convicted of the crime while Loyola at
that time remained at large.
As for accused-appellant Hiong, he ratiocinates that he can no longer be
convicted of piracy in Philippine waters as defined and penalized in Sections
2[d] and 3[a], respectively of Presidential Decree No. 532 because Republic
Act No. 7659 (effective January 1, 1994) which amended Article 122 of the
Revised Penal Code, has impliedly superseded Presidential Decree No. 532.
He reasons out that Presidential Decree No. 532 has been rendered
"superfluous or duplicitous" because both Article 122 of the Revised Penal
Code, as amended, and Presidential Decree No. 532 punish piracy committed
in Philippine waters. He maintains that in order to reconcile the two laws, the
word "any person" mentioned in Section 1 [d] of Presidential Decree No. 532
must be omitted such that Presidential Decree No. 532 shall only apply to
offenders who are members of the complement or to passengers of the vessel,
whereas Republic Act No. 7659 shall apply to offenders who are neither
members of the complement or passengers of the vessel, hence, excluding
him from the coverage of the law.
Article 122 of the Revised Penal Code, used to provide:

Article 122. Piracy in general and mutiny on the high seas. -The penalty of
reclusion temporal shall be inflicted upon any person who, on the high
seas, shall attack or seize a vessel or, not being a member of its complement
nor a passenger, shall seize the whole or part of the cargo of said vessel, its
equipment, or personal belongings of its complement or passengers.
(Unders
coring supplied.)
Article 122, as amended by Republic Act No. 7659 January 1, 1994),
reads:
Article 122. Piracy in general and mutiny on the high seas or in Philippine
waters. -The penalty of reclusion perpetua shall be inflicted upon any person
who, on the high seas, or in Philippine waters, shall attack or seize a vessel
or, being a member of its complement nor a passenger, shall seize the whole
or part of the cargo of said vessel, its equipment, or personal belongings of
its complement or passengers.
(Underscorin
g ours)

To summarize, Article 122 of the Revised Penal Code, before its

amendment, provided that piracy must be committed on the high seas by any
person not a member of its complement nor a passenger thereof. Upon its
amendment by Republic Act No. 7659, the coverage of the pertinent
provision was widened to include offenses committed "in Philippine waters."
On the other hand, under Presidential Decree No. 532 (issued in 1974), the
coverage of the law on piracy embraces any person including "a passenger
or member of the complement of said vessel in Philippine waters." Hence,
passenger or not, a member of the complement or not, any person is covered
by the law.
Republic Act No. 7659 neither superseded nor amended the provisions
on piracy under Presidential Decree No. 532. There is no contradiction
between the two laws. There is likewise no ambiguity and hence, there is no
need to construe or interpret the law. All the presidential decree did was to
widen the coverage of the law, in keeping with the intent to protect the
citizenry as well as neighboring states from crimes against the law of nations.
As expressed in one of the "whereas" clauses of Presidential Decree No. 532,
piracy is "among the highest forms of lawlessness condemned by the penal
statutes of all countries." For this reason, piracy under the Article 122, as
amended, and piracy under Presidential Decree No. 532 exist harmoniously
as separate laws.

On the other hand, Section 2 of Presidential Decree No. 532 provides:

SEC. 2. Definition of Terms. - The following shall mean and be understood,
as follows:
d. Piracy. -Any attack upon or seizure of any vessel, or the taking away of the
whole or part thereof or its cargo, equipment, or the personal belongings of
its complement or passengers, irrespective of the value thereof, by means of
violence against or intimidation of persons or force upon things, committed
by any person. including a passenger or member of the complement of said
vessel in Philippine waters, shall be considered as piracy. The offenders shall
be considered as pirates and punished as hereinafter provided (underscoring
supplied).

As regards the contention that the trial court did not acquire jurisdiction
over the person of accused-appellant Hiong since the crime was committed
outside Philippine waters, suffice it to state that unquestionably, the attack on
and seizure of "M/T Tabangao" (renamed "M/T Galilee" by the pirates) and
its cargo were committed in Philippine waters, although the captive vessel
was later brought by the pirates to Singapore where its cargo was off-loaded,
transferred, and sold. And such transfer was done under accused-appellant
Hiong's direct supervision. Although Presidential Decree No. 532 requires
that the attack and seizure of the vessel and its cargo be committed in
Philippine waters, the disposition by the pirates of the vessel and its cargo is
still deemed part of the act of piracy, hence, the same need not be committed
in Philippine waters.

Moreover, piracy falls under Title One of Book Two of the Revised
Penal Code. As such, it is an exception to the rule on territoriality in criminal
law. The same principle applies even if Hiong, in the instant case, were
charged, not with a violation of qualified piracy under the penal code but
under a special law, Presidential Decree No. 532 which penalizes piracy in
Philippine waters. Verily, Presidential Decree No. 532 should be applied with
more force here since its purpose is precisely to discourage and prevent
piracy in Philippine waters (People v. Catantan, 278 SCRA 761 [1997]). It is
likewise, well-settled that regardless of the law penalizing the same, piracy is
a reprehensible crime against the whole world (People v. Lol-lo, 43 Phil. 19
[1922]).
However, does this constitute a violation of accused-appellant's
constitutional right to be informed of the nature and cause of the accusation
against him on the ground that he was convicted as an accomplice under
Section 4 of Presidential Decree No. 532 even though he was charged as a
principal by direct participation under Section 2 of said law?
The trial court found that there was insufficiency of evidence showing:
(a) that accused-appellant Hiong directly participated in the attack and
seizure of "M/T Tabangao" and its cargo; (b) that he induced Emilio Changco
and his group in the attack and seizure of "M/T Tabangao" and its cargo; ( c)
and that his act was indispensable in the attack on and seizure of "M/T
Tabangao" and its cargo. Nevertheless, the trial court found that accusedappellant Hiong's participation was indisputably one which aided or abetted
Emilio Changco and his band of pirates in the disposition of the stolen cargo
under Section 4 of Presidential Decree No. 532 which provides:
SEC. 4. Aiding pirates or highway robbers/brigands or abetting piracy or
highway robbery brigandage. -Any person who knowingly and in any
manner aids or protects pirates or highway robbers/brigands, such as giving
them information about the movement of police or other peace officers of the
government, or acquires or receives property taken by such pirates or
brigands or in any manner derives any benefit therefrom; or any person who
directly or indirectly abets the commission of piracy or highway robbery or

brigandage, shall be considered as an accomplice of the principal officers and

be punished in accordance with Rules prescribed by the Revised Penal Code.
It shall be presumed that any person who does any of the acts provided in this
Section has performed them knowingly, unless the contrary is proven.
The ruling of the trial court is Within well-settle jurisprudence that if
there is lack of complete evidence of conspiracy, the liability is that of an
accomplice and not as principal (People v. Tolentino, 40 SCRA 514 [1971]).
Any doubt as to the participation of an individual in the commission of the
crime is always resolved in favor of lesser responsibility (People v. Corbes,
270 SCRA 465 [1997]; People vs. Elfano, Jr., 125 SCRA 792 [1983]; People
v. Pastores, 40 SCRA 498 [1971]).
Emphasis must also be placed on the last paragraph of Section 4 of
Presidential Decree No 532 which presumes that any person who does any of
the acts provided in said section has performed them knowingly, unless the
contrary is proven. In the case at bar, accused-appellant Hiong had failed to
overcome the legal presumption that he knowingly abetted or aided in the
commission of piracy, received property taken by such pirates and derived
benefit therefrom.
The record discloses that accused-appellant Hiong aided the pirates in
disposing of the stolen cargo by personally directing its transfer from "M/T
Galilee" to "M/T Navi Pride". He profited therefrom by buying the hijacked
cargo for Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992, pp. 15-23). He
even tested the quality and verified the quantity of the petroleum products,
connived with Navi Marine Services personnel in falsifying the General
Declarations and Crew List to ensure that the illegal transfer went through,
undetected by Singapore Port Authorities, and supplied the pirates with food,
beer, and other provisions for their maintenance while in port (tsn, June 3,
1992, pp. 133-134).
We believe that the falsification of the General Declaration (Arrival and
Departure) and Crew List was accomplished and utilized by accusedappellant Hiong and Navi Marine Services personnel in the execution of their
scheme to avert detection by Singapore Port Authorities. Hence, had

accused-appellant Hiong not falsified said entries, the Singapore Port

Authorities could have easily discovered the illegal activities that took place
and this would have resulted in his arrest and prosecution in Singapore.
Moreover, the transfer of the stolen cargo from "M/T Galilee" to "Navi
Pride" could not have been effected.
We completely uphold the factual findings of the trial court showing in
detail accused-appellant Hiong's role in the disposition of the pirated goods
summarized as follows: that on March 27, 1991, Hiong with Captain Biddy
Santos boarded the "Navi Pride," one of the vessels of the Navi Marine, to
rendezvous with the "M/T Galilee"; that the firm submitted the crew list of
the vessel (Exhibit "8-CSH", Record) to the port authorities, excluding the
name of Hiong; that the "General Declaration" (for departure) of the "Navi
Pride" for its voyage off port of Singapore (Exhibits "HH" and "8-A CSH",
Record) falsely stated that the vessel was scheduled to depart at 2200 (10
o'clock in the evening), that there were no passengers on board, and the
purpose of the voyage was for "cargo operation" and that the vessel was to
unload and transfer 1,900 tons of cargo; that after the transfer of the fuel
from "M/T Galilee" with' Emilio Changco a. k. a. Captain Bobby a. k. a.
Roberto Castillo at the helm, the surveyor prepared the "Quantity Certificate"
(Exhibit "11-C CSH, Record) stating that the cargo transferred to the "Navi
Pride" was 2,406 gross cubic meters; that although Hiong was not the Master
of the vessel, he affixed his signature on the "Certificate" above the word
"Master" (Exhibit "11-C-2 CSH", Record); that he then paid $150,000.00 but
did not require any receipt for the amount; that Emilio Changco also did not
issue one; and that in the requisite "General Declaration" upon its arrival at
Singapore on March 29, 1991, at 7 o'clock in the evening, (Exhibits "JJ" and
"13-A CSH", Record), it was made to falsely appear that the "Navi Pride"
unloaded 1,700 tons of cargo on the high seas during said voyage when in
fact it acquired from the "M/T Galilee" 2,000 metric tons of diesel oil. The
second transfer transpired with the same irregularities as discussed above. It
was likewise supervised by accused- appellant Cheong from his end while
Emilio Changco supervised the transfer from his end.
Accused-appellant Hiong maintains that he was merely following the
orders of his superiors and that he has no knowledge of the illegality of the
source of the cargo.

First and foremost, accused-appellant Hiong cannot deny knowledge of

the source and nature of the cargo since he himself received the same from
"M/T Tabangao". Second, considering that he is a highly educated mariner,
he should have avoided any participation in the cargo transfer given the very
suspicious circumstances under which it was acquired. He failed to show a
single piece of deed or bill of sale or even a purchase order or any contract of
sale for the purchase by the firm; he never bothered to ask for and scrutinize
the papers and documentation relative to the "M/T Galilee"; he did not even
verify the identity of Captain Robert Castillo whom he met for the first time
nor did he check the source of the cargo; he knew that the transfer took place
66 nautical miles off Singapore in the dead of the night which a marine
vessel of his firm did not ordinarily do; it was also the first time Navi Marine
transacted with Paul Gan involving a large sum of money without any receipt
issued therefor; he was not even aware if Paul Gan was a Singaporean
national and thus safe to deal with. It should also be noted that the value of
the cargo was P40,426,793.87 or roughly more than US$l,000,000.00
(computed at P30.00 to $1, the exchange rate at that time). Manifestly, the
cargo was sold for less than one-half of its value. Accused-appellant Hiong
should have been aware of this irregularity. Nobody in his right mind would
go to far away Singapore, spend much time and money for transportation
-only to sell at the aforestated price if it were legitimate sale involved. This,
in addition to the act of falsifying records, clearly shows that accusedappellant Hiong was well aware that the cargo that his firm was acquiring
was purloined.
Lastly, it cannot be correctly said that accused-appellant was "merely
following the orders of his superiors." An individual is justified in
performing an act in obedience to an order issued by a superior if such order,
is for some lawful purpose and that the means used by the subordinate to
carry out said order is lawful (Reyes, Revised Penal Code, Vol. 1, 1981 ed.,
p. 212). Notably, the alleged order of Hiong's superior Chua Kim Leng
Timothy, is a patent violation not only of Philippine, but of international law.
Such violation was committed on board a Philippine-operated vessel.
Moreover, the means used by Hiong in carrying out said order was equally
unlawful. He misled port and immigration authorities, falsified records, using
a mere clerk, Frankie Loh, to consummate said acts. During the trial, Hiong
presented himself, and the trial court was convinced, that he was an

intelligent and articulate Port Captain. These circumstances show that he

must have realized the nature and the implications of the order of Chua Kim
Leng Timothy. Thereafter, he could have refused to follow orders to conclude
the deal and to effect the transfer of the cargo to the Navi Pride. He did not
do so, for which reason, he must now suffer the consequences of his actions.
WHEREFORE, finding the conviction of accused-appellants justified
by the evidence on record, the Court hereby AFFIRMS the judgment of the
trial court in toto.
SO ORDERED.
Vitug,
JJ., concur.

Panganiban,

Gonzaga-Reyes, and Sandoval-Gutierrez,

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 122846
January 20, 2009
WHITE LIGHT CORPORATION, TITANIUM CORPORATION and
STA. MESA TOURIST & DEVELOPMENT
CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO
S. LIM, Respondent.
DECISION
Tinga, J.:
With another city ordinance of Manila also principally involving the tourist
district as subject, the Court is confronted anew with the incessant clash
between government power and individual liberty in tandem with the
archetypal tension between law and morality.
In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a city
ordinance barring the operation of motels and inns, among other
establishments, within the Ermita-Malate area. The petition at bar assails a
similarly-motivated city ordinance that prohibits those same establishments
from offering short-time admission, as well as pro-rated or "wash up" rates
for such abbreviated stays. Our earlier decision tested the city ordinance

against our sacred constitutional rights to liberty, due process and equal
protection of law. The same parameters apply to the present petition.
This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, which
seeks the reversal of the Decision3 in C.A.-G.R. S.P. No. 33316 of the Court
of Appeals, challenges the validity of Manila City Ordinance No. 7774
entitled, "An Ordinance Prohibiting Short-Time Admission, Short-Time
Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns,
Lodging Houses, Pension Houses, and Similar Establishments in the City of
Manila" (the Ordinance).
I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into
law the Ordinance.4 The Ordinance is reproduced in full, hereunder:
SECTION 1. Declaration of Policy. It is hereby the declared policy of the
City Government to protect the best interest, health and welfare, and the
morality of its constituents in general and the youth in particular.
SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting
short time admission in hotels, motels, lodging houses, pension houses and
similar establishments in the City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission and rate [sic],
wash-up rate or other similarly concocted terms, are hereby prohibited in
hotels, motels, inns, lodging houses, pension houses and similar
establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance
and charging of room rate for less than twelve (12) hours at any given time or
the renting out of rooms more than twice a day or any other term that may be
concocted by owners or managers of said establishments but would mean the
same or would bear the same meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall violate any
provision of this ordinance shall upon conviction thereof be punished by a
fine of Five Thousand (P5,000.00) Pesos or imprisonment for a period of not
exceeding one (1) year or both such fine and imprisonment at the discretion
of the court; Provided, That in case of [a] juridical person, the president, the
manager, or the persons in charge of the operation thereof shall be liable:
Provided, further, That in case of subsequent conviction for the same offense,
the business license of the guilty party shall automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City ordinances not
consistent with or contrary to this measure or any portion hereof are hereby
deemed repealed.
SEC. 7. Effectivity. This ordinance shall take effect immediately upon
approval.

Enacted by the city Council of Manila at its regular session today, November
10, 1992.
Approved by His Honor, the Mayor on December 3, 1992.
On December 15, 1992, the Malate Tourist and Development Corporation
(MTDC) filed a complaint for declaratory relief with prayer for a writ of
preliminary injunction and/or temporary restraining order ( TRO) 5 with the
Regional Trial Court (RTC) of Manila, Branch 9 impleading as defendant,
herein respondent City of Manila (the City) represented by Mayor
Lim.6 MTDC prayed that the Ordinance, insofar as it includes motels and
inns as among its prohibited establishments, be declared invalid and
unconstitutional. MTDC claimed that as owner and operator of the Victoria
Court in Malate, Manila it was authorized by Presidential Decree (P.D.) No.
259 to admit customers on a short time basis as well as to charge customers
wash up rates for stays of only three hours.
On December 21, 1992, petitioners White Light Corporation (WLC),
Titanium Corporation (TC) and Sta. Mesa Tourist and Development
Corporation (STDC) filed a motion to intervene and to admit attached
complaint-in-intervention7 on the ground that the Ordinance directly affects
their business interests as operators of drive-in-hotels and motels in
Manila.8 The three companies are components of the Anito Group of
Companies which owns and operates several hotels and motels in Metro
Manila.9
On December 23, 1992, the RTC granted the motion to intervene. 10 The RTC
also notified the Solicitor General of the proceedings pursuant to then Rule
64, Section 4 of the Rules of Court. On the same date, MTDC moved to
withdraw as plaintiff.11
On December 28, 1992, the RTC granted MTDC's motion to withdraw.12 The
RTC issued a TRO on January 14, 1993, directing the City to cease and desist
from enforcing the Ordinance.13 The City filed an Answer dated January 22,
1993 alleging that the Ordinance is a legitimate exercise of police power.14
On February 8, 1993, the RTC issued a writ of preliminary injunction
ordering the city to desist from the enforcement of the Ordinance. 15 A month
later, on March 8, 1993, the Solicitor General filed his Comment arguing that
the Ordinance is constitutional.
During the pre-trial conference, the WLC, TC and STDC agreed to submit
the case for decision without trial as the case involved a purely legal
question.16 On October 20, 1993, the RTC rendered a decision declaring the
Ordinance null and void. The dispositive portion of the decision reads:
WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the
City of Manila is hereby declared null and void.
Accordingly, the preliminary injunction heretofor issued is hereby made
permanent.

SO ORDERED.17
The RTC noted that the ordinance "strikes at the personal liberty of the
individual guaranteed and jealously guarded by the
Constitution."18 Reference was made to the provisions of the Constitution
encouraging private enterprises and the incentive to needed investment, as
well as the right to operate economic enterprises. Finally, from the
observation that the illicit relationships the Ordinance sought to dissuade
could nonetheless be consummated by simply paying for a 12-hour stay, the
RTC likened the law to the ordinance annulled in Ynot v. Intermediate
Appellate Court,19 where the legitimate purpose of preventing indiscriminate
slaughter of carabaos was sought to be effected through an inter-province ban
on the transport of carabaos and carabeef.
The City later filed a petition for review on certiorari with the Supreme
Court.20 The petition was docketed as G.R. No. 112471. However in a
resolution dated January 26, 1994, the Court treated the petition as a petition
forcertiorari and referred the petition to the Court of Appeals. 21
Before the Court of Appeals, the City asserted that the Ordinance is a valid
exercise of police power pursuant to Section 458 (4)(iv) of the Local
Government Code which confers on cities, among other local government
units, the power:
[To] regulate the establishment, operation and maintenance of cafes,
restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses
and other similar establishments, including tourist guides and transports. 22
The Ordinance, it is argued, is also a valid exercise of the power of the City
under Article III, Section 18(kk) of the Revised Manila Charter, thus:
"to enact all ordinances it may deem necessary and proper for the sanitation
and safety, the furtherance of the prosperity and the promotion of the
morality, peace, good order, comfort, convenience and general welfare of the
city and its inhabitants, and such others as be necessary to carry into effect
and discharge the powers and duties conferred by this Chapter; and to fix
penalties for the violation of ordinances which shall not exceed two hundred
pesos fine or six months imprisonment, or both such fine and imprisonment
for a single offense.23
Petitioners argued that the Ordinance is unconstitutional and void since it
violates the right to privacy and the freedom of movement; it is an invalid
exercise of police power; and it is an unreasonable and oppressive
interference in their business.
The Court of Appeals reversed the decision of the RTC and affirmed the
constitutionality of the Ordinance.24First, it held that the Ordinance did not
violate the right to privacy or the freedom of movement, as it only penalizes
the owners or operators of establishments that admit individuals for short
time stays. Second, the virtually limitless reach of police power is only

constrained by having a lawful object obtained through a lawful method. The

lawful objective of the Ordinance is satisfied since it aims to curb immoral
activities. There is a lawful method since the establishments are still allowed
to operate. Third, the adverse effect on the establishments is justified by the
well-being of its constituents in general. Finally, as held in Ermita-Malate
Motel Operators Association v. City Mayor of Manila, liberty is regulated by
law.
TC, WLC and STDC come to this Court via petition for review on
certiorari.25 In their petition and Memorandum, petitioners in essence repeat
the assertions they made before the Court of Appeals. They contend that the
assailed Ordinance is an invalid exercise of police power.
II.
We must address the threshold issue of petitioners standing. Petitioners
allege that as owners of establishments offering "wash-up" rates, their
business is being unlawfully interfered with by the Ordinance. However,
petitioners also allege that the equal protection rights of their clients are also
being interfered with. Thus, the crux of the matter is whether or not these
establishments have the requisite standing to plead for protection of their
patrons' equal protection rights.
Standing or locus standi is the ability of a party to demonstrate to the court
sufficient connection to and harm from the law or action challenged to
support that party's participation in the case. More importantly, the doctrine
of standing is built on the principle of separation of powers, 26 sparing as it
does unnecessary interference or invalidation by the judicial branch of the
actions rendered by its co-equal branches of government.
The requirement of standing is a core component of the judicial system
derived directly from the Constitution.27The constitutional component of
standing doctrine incorporates concepts which concededly are not susceptible
of precise definition.28 In this jurisdiction, the extancy of "a direct and
personal interest" presents the most obvious cause, as well as the standard
test for a petitioner's standing.29 In a similar vein, the United States Supreme
Court reviewed and elaborated on the meaning of the three constitutional
standing requirements of injury, causation, and redressability in Allen v.
Wright.30
Nonetheless, the general rules on standing admit of several exceptions such
as the overbreadth doctrine, taxpayer suits, third party standing and,
especially in the Philippines, the doctrine of transcendental importance. 31
For this particular set of facts, the concept of third party standing as an
exception and the overbreadth doctrine are appropriate. In Powers v.
Ohio,32 the United States Supreme Court wrote that: "We have recognized the
right of litigants to bring actions on behalf of third parties, provided three
important criteria are satisfied: the litigant must have suffered an injury-in-

fact, thus giving him or her a "sufficiently concrete interest" in the outcome
of the issue in dispute; the litigant must have a close relation to the third
party; and there must exist some hindrance to the third party's ability to
protect his or her own interests."33 Herein, it is clear that the business
interests of the petitioners are likewise injured by the Ordinance. They rely
on the patronage of their customers for their continued viability which
appears to be threatened by the enforcement of the Ordinance. The relative
silence in constitutional litigation of such special interest groups in our nation
such as the American Civil Liberties Union in the United States may also be
construed as a hindrance for customers to bring suit. 34
American jurisprudence is replete with examples where parties-in-interest
were allowed standing to advocate or invoke the fundamental due process or
equal protection claims of other persons or classes of persons injured by state
action. In Griswold v. Connecticut,35 the United States Supreme Court held
that physicians had standing to challenge a reproductive health statute that
would penalize them as accessories as well as to plead the constitutional
protections available to their patients. The Court held that:
"The rights of husband and wife, pressed here, are likely to be diluted or
adversely affected unless those rights are considered in a suit involving those
who have this kind of confidential relation to them."36
An even more analogous example may be found in Craig v. Boren,37 wherein
the United States Supreme Court held that a licensed beverage vendor has
standing to raise the equal protection claim of a male customer challenging a
statutory scheme prohibiting the sale of beer to males under the age of 21 and
to females under the age of 18. The United States High Court explained that
the vendors had standing "by acting as advocates of the rights of third parties
who seek access to their market or function."38
Assuming arguendo that petitioners do not have a relationship with their
patrons for the former to assert the rights of the latter, the overbreadth
doctrine comes into play. In overbreadth analysis, challengers to government
actionare in effect permitted to raise the rights of third parties. Generally
applied to statutes infringing on the freedom of speech, the overbreadth
doctrine applies when a statute needlessly restrains even constitutionally
guaranteed rights.39 In this case, the petitioners claim that the Ordinance
makes a sweeping intrusion into the right to liberty of their clients. We can
see that based on the allegations in the petition, the Ordinance suffers from
overbreadth.
We thus recognize that the petitioners have a right to assert the constitutional
rights of their clients to patronize their establishments for a "wash-rate" time
frame.
III.

To students of jurisprudence, the facts of this case will recall to mind not
only the recent City of Manila ruling, but our 1967 decision in ErmitaMalate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of
Manila.40Ermita-Malate concerned the City ordinance requiring patrons to
fill up a prescribed form stating personal information such as name, gender,
nationality, age, address and occupation before they could be admitted to a
motel, hotel or lodging house. This earlier ordinance was precisely enacted to
minimize certain practices deemed harmful to public morals. A purpose
similar to the annulled ordinance in City of Manila which sought a blanket
ban on motels, inns and similar establishments in the Ermita-Malate area.
However, the constitutionality of the ordinance in Ermita-Malate was
sustained by the Court.
The common thread that runs through those decisions and the case at bar
goes beyond the singularity of the localities covered under the respective
ordinances. All three ordinances were enacted with a view of regulating
public morals including particular illicit activity in transient lodging
establishments. This could be described as the middle case, wherein there is
no wholesale ban on motels and hotels but the services offered by these
establishments have been severely restricted. At its core, this is another case
about the extent to which the State can intrude into and regulate the lives of
its citizens.
The test of a valid ordinance is well established. A long line of decisions
including City of Manila has held that for an ordinance to be valid, it must
not only be within the corporate powers of the local government unit to enact
and pass according to the procedure prescribed by law, it must also conform
to the following substantive requirements: (1) must not contravene the
Constitution or any statute; (2) must not be unfair or oppressive; (3) must not
be partial or discriminatory; (4) must not prohibit but may regulate trade; (5)
must be general and consistent with public policy; and (6) must not be
unreasonable.41
The Ordinance prohibits two specific and distinct business practices, namely
wash rate admissions and renting out a room more than twice a day. The ban
is evidently sought to be rooted in the police power as conferred on local
government units by the Local Government Code through such implements
as the general welfare clause.
A.
Police power, while incapable of an exact definition, has been purposely
veiled in general terms to underscore its comprehensiveness to meet all
exigencies and provide enough room for an efficient and flexible response as
the conditions warrant.42 Police power is based upon the concept of necessity
of the State and its corresponding right to protect itself and its
people.43 Police power has been used as justification for numerous and varied

actions by the State. These range from the regulation of dance halls, 44 movie
theaters,45 gas stations46 and cockpits.47 The awesome scope of police power
is best demonstrated by the fact that in its hundred or so years of presence in
our nations legal system, its use has rarely been denied.
The apparent goal of the Ordinance is to minimize if not eliminate the use of
the covered establishments for illicit sex, prostitution, drug use and alike.
These goals, by themselves, are unimpeachable and certainly fall within the
ambit of the police power of the State. Yet the desirability of these ends do
not sanctify any and all means for their achievement. Those means must
align with the Constitution, and our emerging sophisticated analysis of its
guarantees to the people. The Bill of Rights stands as a rebuke to the
seductive theory of Macchiavelli, and, sometimes even, the political
majorities animated by his cynicism.
Even as we design the precedents that establish the framework for analysis of
due process or equal protection questions, the courts are naturally inhibited
by a due deference to the co-equal branches of government as they exercise
their political functions. But when we are compelled to nullify executive or
legislative actions, yet another form of caution emerges. If the Court were
animated by the same passing fancies or turbulent emotions that motivate
many political decisions, judicial integrity is compromised by any perception
that the judiciary is merely the third political branch of government. We
derive our respect and good standing in the annals of history by acting as
judicious and neutral arbiters of the rule of law, and there is no surer way to
that end than through the development of rigorous and sophisticated legal
standards through which the courts analyze the most fundamental and farreaching constitutional questions of the day.
B.
The primary constitutional question that confronts us is one of due process,
as guaranteed under Section 1, Article III of the Constitution. Due process
evades a precise definition.48 The purpose of the guaranty is to prevent
arbitrary governmental encroachment against the life, liberty and property of
individuals. The due process guaranty serves as a protection against arbitrary
regulation or seizure. Even corporations and partnerships are protected by the
guaranty insofar as their property is concerned.
The due process guaranty has traditionally been interpreted as imposing two
related but distinct restrictions on government, "procedural due process" and
"substantive due process." Procedural due process refers to the procedures
that the government must follow before it deprives a person of life, liberty, or
property.49 Procedural due process concerns itself with government action
adhering to the established process when it makes an intrusion into the
private sphere. Examples range from the form of notice given to the level of
formality of a hearing.

If due process were confined solely to its procedural aspects, there would
arise absurd situation of arbitrary government action, provided the proper
formalities are followed. Substantive due process completes the protection
envisioned by the due process clause. It inquires whether the government has
sufficient justification for depriving a person of life, liberty, or property.50
The question of substantive due process, moreso than most other fields of
law, has reflected dynamism in progressive legal thought tied with the
expanded acceptance of fundamental freedoms. Police power, traditionally
awesome as it may be, is now confronted with a more rigorous level of
analysis before it can be upheld. The vitality though of constitutional due
process has not been predicated on the frequency with which it has been
utilized to achieve a liberal result for, after all, the libertarian ends should
sometimes yield to the prerogatives of the State. Instead, the due process
clause has acquired potency because of the sophisticated methodology that
has emerged to determine the proper metes and bounds for its application.
C.
The general test of the validity of an ordinance on substantive due process
grounds is best tested when assessed with the evolved footnote 4 test laid
down by the U.S. Supreme Court in U.S. v. Carolene Products.51 Footnote 4
of the Carolene Products case acknowledged that the judiciary would defer to
the legislature unless there is a discrimination against a "discrete and insular"
minority or infringement of a "fundamental right."52 Consequently, two
standards of judicial review were established: strict scrutiny for laws dealing
with freedom of the mind or restricting the political process, and the rational
basis standard of review for economic legislation.
A third standard, denominated as heightened or immediate scrutiny, was later
adopted by the U.S. Supreme Court for evaluating classifications based on
gender53 and legitimacy.54 Immediate scrutiny was adopted by the U.S.
Supreme Court in Craig,55 after the Court declined to do so in Reed v.
Reed.56 While the test may have first been articulated in equal protection
analysis, it has in the United States since been applied in all substantive due
process cases as well.
We ourselves have often applied the rational basis test mainly in analysis of
equal protection challenges.57 Using the rational basis examination, laws or
ordinances are upheld if they rationally further a legitimate governmental
interest.58 Under intermediate review, governmental interest is extensively
examined and the availability of less restrictive measures is
considered.59 Applying strict scrutiny, the focus is on the presence of
compelling, rather than substantial, governmental interest and on the absence
of less restrictive means for achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny refers to
the standard for determining the quality and the amount of governmental

interest brought to justify the regulation of fundamental freedoms. 60 Strict

scrutiny is used today to test the validity of laws dealing with the regulation
of speech, gender, or race as well as other fundamental rights as expansion
from its earlier applications to equal protection. 61 The United States Supreme
Court has expanded the scope of strict scrutiny to protect fundamental rights
such as suffrage,62 judicial access63 and interstate travel.64
If we were to take the myopic view that an Ordinance should be analyzed
strictly as to its effect only on the petitioners at bar, then it would seem that
the only restraint imposed by the law which we are capacitated to act upon is
the injury to property sustained by the petitioners, an injury that would
warrant the application of the most deferential standard the rational basis
test. Yet as earlier stated, we recognize the capacity of the petitioners to
invoke as well the constitutional rights of their patrons those persons who
would be deprived of availing short time access or wash-up rates to the
lodging establishments in question.
Viewed cynically, one might say that the infringed rights of these customers
were are trivial since they seem shorn of political consequence. Concededly,
these are not the sort of cherished rights that, when proscribed, would impel
the people to tear up their cedulas. Still, the Bill of Rights does not shelter
gravitas alone. Indeed, it is those "trivial" yet fundamental freedoms which
the people reflexively exercise any day without the impairing awareness of
their constitutional consequence that accurately reflect the degree of liberty
enjoyed by the people. Liberty, as integrally incorporated as a fundamental
right in the Constitution, is not a Ten Commandments-style enumeration of
what may or what may not be done; but rather an atmosphere of freedom
where the people do not feel labored under a Big Brother presence as they
interact with each other, their society and nature, in a manner innately
understood by them as inherent, without doing harm or injury to others.
D.
The rights at stake herein fall within the same fundamental rights to liberty
which we upheld in City of Manila v. Hon. Laguio, Jr. We expounded on that
most primordial of rights, thus:
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to
include "the right to exist and the right to be free from arbitrary restraint or
servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of
man to enjoy the facilities with which he has been endowed by his Creator,
subject only to such restraint as are necessary for the common welfare."[ 65] In
accordance with this case, the rights of the citizen to be free to use his
faculties in all lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling; and to pursue any avocation are all deemed
embraced in the concept of liberty.[ 66]

The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to
clarify the meaning of "liberty." It said:
While the Court has not attempted to define with exactness the liberty . . .
guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not
merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and bring up children, to
worship God according to the dictates of his own conscience, and generally
to enjoy those privileges long recognized . . . as essential to the orderly
pursuit of happiness by free men. In a Constitution for a free people, there
can be no doubt that the meaning of "liberty" must be broad
indeed.67 [Citations omitted]
It cannot be denied that the primary animus behind the ordinance is the
curtailment of sexual behavior. The City asserts before this Court that the
subject establishments "have gained notoriety as venue of prostitution,
adultery and fornications in Manila since they provide the necessary
atmosphere for clandestine entry, presence and exit and thus became the
ideal haven for prostitutes and thrill-seekers." 68 Whether or not this
depiction of a mise-en-scene of vice is accurate, it cannot be denied that
legitimate sexual behavior among willing married or consenting single adults
which is constitutionally protected69 will be curtailed as well, as it was in the
City of Manila case. Our holding therein retains significance for our
purposes:
The concept of liberty compels respect for the individual whose claim to
privacy and interference demands respect. As the case of Morfe v. Mutuc,
borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His
separateness, his isolation, are indefeasible; indeed, they are so fundamental
that they are the basis on which his civic obligations are built. He cannot
abandon the consequences of his isolation, which are, broadly speaking, that
his experience is private, and the will built out of that experience personal to
himself. If he surrenders his will to others, he surrenders himself. If his will
is set by the will of others, he ceases to be a master of himself. I cannot
believe that a man no longer a master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe,
the invasion of which should be justified by a compelling state
interest. Morfe accorded recognition to the right to privacy independently of
its identification with liberty; in itself it is fully deserving of constitutional
protection. Governmental powers should stop short of certain intrusions into
the personal life of the citizen.70
We cannot discount other legitimate activities which the Ordinance would
proscribe or impair. There are very legitimate uses for a wash rate or renting

the room out for more than twice a day. Entire families are known to choose
pass the time in a motel or hotel whilst the power is momentarily out in their
homes. In transit passengers who wish to wash up and rest between trips
have a legitimate purpose for abbreviated stays in motels or hotels. Indeed
any person or groups of persons in need of comfortable private spaces for a
span of a few hours with purposes other than having sex or using illegal
drugs can legitimately look to staying in a motel or hotel as a convenient
alternative.
E.
That the Ordinance prevents the lawful uses of a wash rate depriving patrons
of a product and the petitioners of lucrative business ties in with another
constitutional requisite for the legitimacy of the Ordinance as a police power
measure. It must appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with
private rights and the means must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive of private
rights.71 It must also be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights can work.
More importantly, a reasonable relation must exist between the purposes of
the measure and the means employed for its accomplishment, for even under
the guise of protecting the public interest, personal rights and those
pertaining to private property will not be permitted to be arbitrarily invaded. 72
Lacking a concurrence of these requisites, the police measure shall be struck
down as an arbitrary intrusion into private rights. As held in Morfe v. Mutuc,
the exercise of police power is subject to judicial review when life, liberty or
property is affected.73 However, this is not in any way meant to take it away
from the vastness of State police power whose exercise enjoys the
presumption of validity.74
Similar to the Comelec resolution requiring newspapers to donate advertising
space to candidates, this Ordinance is a blunt and heavy instrument. 75 The
Ordinance makes no distinction between places frequented by patrons
engaged in illicit activities and patrons engaged in legitimate actions. Thus it
prevents legitimate use of places where illicit activities are rare or even
unheard of. A plain reading of section 3 of the Ordinance shows it makes no
classification of places of lodging, thus deems them all susceptible to illicit
patronage and subject them without exception to the unjustified prohibition.
The Court has professed its deep sentiment and tenderness of the ErmitaMalate area, its longtime home,76 and it is skeptical of those who wish to
depict our capital city the Pearl of the Orient as a modern-day Sodom or
Gomorrah for the Third World set. Those still steeped in Nick Joaquindreams of the grandeur of Old Manila will have to accept that Manila like all
evolving big cities, will have its problems. Urban decay is a fact of mega

cities such as Manila, and vice is a common problem confronted by the

modern metropolis wherever in the world. The solution to such perceived
decay is not to prevent legitimate businesses from offering a legitimate
product. Rather, cities revive themselves by offering incentives for new
businesses to sprout up thus attracting the dynamism of individuals that
would bring a new grandeur to Manila.
The behavior which the Ordinance seeks to curtail is in fact already
prohibited and could in fact be diminished simply by applying existing laws.
Less intrusive measures such as curbing the proliferation of prostitutes and
drug dealers through active police work would be more effective in easing
the situation. So would the strict enforcement of existing laws and
regulations penalizing prostitution and drug use. These measures would have
minimal intrusion on the businesses of the petitioners and other legitimate
merchants. Further, it is apparent that the Ordinance can easily be
circumvented by merely paying the whole day rate without any hindrance to
those engaged in illicit activities. Moreover, drug dealers and prostitutes can
in fact collect "wash rates" from their clientele by charging their customers a
portion of the rent for motel rooms and even apartments.
IV.
We reiterate that individual rights may be adversely affected only to the
extent that may fairly be required by the legitimate demands of public
interest or public welfare. The State is a leviathan that must be restrained
from needlessly intruding into the lives of its citizens. However wellintentioned the Ordinance may be, it is in effect an arbitrary and whimsical
intrusion into the rights of the establishments as well as their patrons. The
Ordinance needlessly restrains the operation of the businesses of the
petitioners as well as restricting the rights of their patrons without sufficient
justification. The Ordinance rashly equates wash rates and renting out a room
more than twice a day with immorality without accommodating innocuous
intentions.
The promotion of public welfare and a sense of morality among citizens
deserves the full endorsement of the judiciary provided that such measures
do not trample rights this Court is sworn to protect. 77 The notion that the
promotion of public morality is a function of the State is as old as
Aristotle.78 The advancement of moral relativism as a school of philosophy
does not de-legitimize the role of morality in law, even if it may foster wider
debate on which particular behavior to penalize. It is conceivable that a
society with relatively little shared morality among its citizens could be
functional so long as the pursuit of sharply variant moral perspectives yields
an adequate accommodation of different interests. 79
To be candid about it, the oft-quoted American maxim that "you cannot
legislate morality" is ultimately illegitimate as a matter of law, since as

explained by Calabresi, that phrase is more accurately interpreted as meaning

that efforts to legislate morality will fail if they are widely at variance with
public attitudes about right and wrong.80 Our penal laws, for one, are founded
on age-old moral traditions, and as long as there are widely accepted
distinctions between right and wrong, they will remain so oriented.
Yet the continuing progression of the human story has seen not only the
acceptance of the right-wrong distinction, but also the advent of fundamental
liberties as the key to the enjoyment of life to the fullest. Our democracy is
distinguished from non-free societies not with any more extensive
elaboration on our part of what is moral and immoral, but from our
recognition that the individual liberty to make the choices in our lives is
innate, and protected by the State. Independent and fair-minded judges
themselves are under a moral duty to uphold the Constitution as the
embodiment of the rule of law, by reason of their expression of consent to do
so when they take the oath of office, and because they are entrusted by the
people to uphold the law.81
Even as the implementation of moral norms remains an indispensable
complement to governance, that prerogative is hardly absolute, especially in
the face of the norms of due process of liberty. And while the tension may
often be left to the courts to relieve, it is possible for the government to avoid
the constitutional conflict by employing more judicious, less drastic means to
promote morality.
WHEREFORE, the Petition is GRANTED. The Decision of the Court of
Appeals is REVERSED, and the Decision of the Regional Trial Court of
Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby declared
UNCONSTITUTIONAL. No pronouncement as to costs.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A.
QUISUMBING
Associate Justice

CONSUELO YNARESSANTIAGO
Associate Justice

(On Official Leave)

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIAMARTINEZ

Associate Justice

12

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO
MORALES
Associate Justice

ADOLFO S. AZCUNA
Associate Justice

PRESBITERO J.
VELASCO, JR.
Associate Justice

MINITA V. CHICONAZARIO
Associate Justice

ANTONIO EDUARDO B.
NACHUR
Associate Justice

TERESITA LEONARDO DE
CASTRO
Associate Justice

(On Sick Leave)

ARTURO D. BRION
Associate Justice

(On Official Leave)

DIOSDADO M. PERALTA
Associate Justice
C E R T I F I C AT I O N
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified
that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice
Footnotes
1
G.R. 118127, 12 April 2005, 455 SCRA 308.
2
See rollo, pp. 4-41.
3
Id. at 42-59. Penned by Associate Justice Jaime M. Lantin,
concurred in by Associate Justices Ricardo P. Galvez (later, SolicitorGeneral) and Antonio P. Solano.
4
Id. at 46.
5
Id. at 62-69.
6
Id. at 45-46.
7
Id. at 70-77.
8
Id. at 47.
9
Id.
10
Id.
11
Id. at 48.

Id. at 81.
Id. at 82-83.
14
Id. at 84-99.
15
Id. at 104-105.
16
Id. at 49.
17
Id. at 52.
18
Id. at 120.
19
No. L-74457, 20 March 1987, 148 SCRA 659.
20
Rollo, pp. 129-145.
21
Id. at 158.
22
Id. at 53.
23
Id.
24
Id. at 43-59.
25
Id. at 4-40.
26
Allen v. Wright, 468 U.S. 737 (1984).
27
Const., Art. VIII , Sec. 5, Sanlakas v. Executive
Secretary Reyes, 466 Phil. 482 (2004).
28
Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99
S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979).
29
See Domingo v. Carague, G.R. No. 161065, 15 April 2005, 456
SCRA 450. See also Macasiano v. National Housing Authority, G.R.
No. 107921, 1 July 1993, 224 SCRA 236.
30
468 U.S. 737 (1984).
31
Supra note 29.
32
499 U.S. 400 (1991).
33
Id. at p 410-411.
34
See Kelsey McCowan Heilman, The Rights of Others: Protection
and Advocacy Organizations Associational Standing to Sue, 157 U.
Pa. L. Rev. 237, for a general discussion on advocacy groups.
35
381 U.S. 479(1965).
36
Id. at 481.
37
429 U.S. 190 (1976).
38
Id. at 194.
39
Chavez v. Comelec, G.R. No. 162777, 31 August 2004, 437 SCRA
415; Adiong v. Comelec, G.R. No. 103956, 31 March 1992, 207
SCRA 712.
40
127 Phil. 306 (1967).
41
City of Manila v. Laguio, Jr., supra note 1; Tatel v. Municipality of
Virac, G.R. No. 40243, 11 March 1992, 207 SCRA 157, 161;
Solicitor General v. Metropolitan Manila Authority, G.R. No.
102782, 11 December 1991, 204 SCRA 837, 845; Magtajas v. Pryce
13

Properties Corp., Inc., G.R. No. 111097, 20 July 1994, 234 SCRA
255, 268-267.
42
Ermita-Malate Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila, 127 Phil. 306 (1967).
43
JMM Promotion and Management Inc. v. Court of Appeals, 329
Phil. 87, 94 (1996) citing Rubi v. Provincial Board of Mindoro, 39
Phil. 660 (1919).
44
U.S. v. Rodriguez, 38 Phil. 759.
45
People v. Chan, 65 Phil. 611 (1938).
46
Javier v. Earnshaw, 64 Phil. 626 (1937).
47
Pedro v. Provincial Board of Rizal, 56 Phil. 123 (1931).
48
See U.S. v. Ling Su Fan, 10 Phil. 104 (1908); Insular Government
v. Ling Su Fan, 15 Phil. 58 (1910).
49
Lopez v. Director of Lands, 47 Phil. 23, 32 (1924).
50
See City of Manila v. Hon. Laguio, Jr., supra note 1 at 330 citing
CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW
PRINCIPLES AND POLICIES, 2nd Ed. 523 (2002).
51
304 U.S. 144 (1938).
52
Id, at 152.
53
Craig v. Boren, 429 U.S. 190 (1976).
54
Clark v. Jeter, 486 U.S. 456 (1988).
55
429 U.S. 190 (1976).
56
404 U.S. 71 (1971).
57
Central Bank Employees Association v. Bangko Sentral ng
Pilipinas, 487 Phil. 531 (2004); Association of Small Landowners in
the Philippines v. Secretary of Agrarian Reform, G.R. Nos. 78742,
79310, 79744, and 79777, July 14, 1989, 175 SCRA 343; In ErmitaMalate, supra note 1 at 324, the Court in fact noted: "if the liberty
involved were freedom of the mind or the person, the standard for
the validity of government acts is much more rigorous and exacting,
but where the liberty curtailed affects what are at the most rights of
property, the permissible scope of regulatory measures is wider."
58
Central Bank Employees Association v. Bangko Sentral ng
Pilipinas, supra note 57.
59
Id.
60
Mendoza, J., Concurring Opinion in Estrada v. Sandiganbayan,
G.R. No. 148560, 19 November 2001, 369 SCRA 394.
61
Id.
62
Bush v. Gore, 531 U.S. 98 (2000).
63
Boddie v. Connecticut, 401 U.S. 371 (1971).
64
Shapiro v. Thompson, 394 U.S. 618 (1969). It has been opined by
Chemerinsky that the use of the equal protection clause was to avoid

the use of substantive due process since the latter fell into disfavor in
the United States. See Erwin Chemerinsky, Constitutional Law,
Principles and Policies (2nd ed. 2002).
65
Morfe v. Mutuc, 130 Phil. 415 (1968).
66
Id. at 440.
67
City of Manila v. Laguio, Jr., supra note 1 at 336-337.
68
Rollo, p. 258.
69
"Motel patrons who are single and unmarried may invoke this right
to autonomy to consummate their bonds in intimate sexual conduct
within the motel's premises be it stressed that their consensual
sexual behavior does not contravene any fundamental state policy as
contained in the Constitution. (See Concerned Employee v. Glenda
Espiritu Mayor, A.M. No. P-02-1564, 23 November 2004) Adults
have a right to choose to forge such relationships with others in the
confines of their own private lives and still retain their dignity as free
persons. The liberty protected by the Constitution allows persons the
right to make this choice. Their right to liberty under the due process
clause gives them the full right to engage in their conduct without
intervention of the government, as long as they do not run afoul of
the law. Liberty should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom
from unlawful government restraint; it must include privacy
as well, if it is to be a repository of freedom. The right to be
let alone is the beginning of all freedom it is the most
comprehensive of rights and the right most valued by
civilized men." City of Manila v. Hon. Laguio, Jr. supra note
1 at 337-338.
70
City of Manila v. Laguio, Jr., supra note 1 at 338-339.
71
Metro Manila Development Authority v. Viron Transportation Co.,
G.R. Nos. 170656 and 170657, 15 August 2007, 530 SCRA 341.
72
U.S. v. Toribio, 15 Phil. 85 (1910).
73
130 Phil. 415 (1968).
74
Carlos Superdrug v. DSWD, G.R. No. 166494, June 29, 2007,
Alalayan v. National Power Corporation, 24 Phil. 172 (1968); U.S. v.
Salaveria, 39 Phil. 102 (1918).
75
Philippine Press Institute v. Comelec, 314 Phil. 131 (1995).
76
Supra note 1.
77
City of Manila v. Hon. Laguio, Jr., supra note 1; De La Cruz, et al.
v. Hon. Paras, et al., 208 Phil. 490 (1983); Ermita-Malate Hotel and
Motel Operations Association, Inc. v. City Mayor of Manila, supra
note 42.

78

"The end of the state is not mere life; it is, rather, a good quality of
life." Therefore any state "which is truly so called, and is not merely
one in name, must devote itself to the end of encouraging goodness.
Otherwise, a political association sinks into a mere alliance" The
law "should be a rule of life such as will make the members of a
[state] good and just." Otherwise it "becomes a mere covenant or
(in the phrase of the Sophist Lycophron) a guarantor of mens rights
against one another." Politics II.9.6-8.1280 31-1280bii; cited
in Hamburger, M., Morals and Law: The Growth of Aristotles Legal
Theory (1951 ed.), p. 178.
79
Greenwalt, K., Conflicts of Law and Morality (1989 ed.), at 38.
80
Steven G., Render Unto Caesar that which is Caesars, and unto
God that which is Gods, 31 Harv. J.L. & Pub. Pol'y 495. He cites the
example of the failed Twentieth (?) Amendment to the U.S.
Constitution, which prohibited the sale and consumption of liquor,
where it was clear that the State cannot justly and successfully
regulate consumption of alcohol, when huge portions of the
population engage in its consumption.
See also Posner, Richard H., The Problematics of Moral And
Legal Theory, The Belknap Press of Harvard University
Press (2002). He writes:
. . . Holmes warned long ago of the pitfalls of
misunderstanding law by taking its moral vocabulary too
seriously. A big part of legal education consists of showing
students how to skirt those pitfalls. The law uses moral terms
in part because of its origin, in part to be impressive, in part
to speak a language that the laity, to whom the commands of
the law are addressed, is more likely to understand and in
part, because there is a considerable overlap between law
and morality. The overlap, however, is too limited to justify
trying to align these two systems of social control (the sort of
project that Islamic nations such as Iran, Pakistan, and
Afghanistan have been engaged in of late). It is not a scandal
when the law to pronounce it out of phase with current moral
feeling. If often is, and for good practical reasons (in
particular, the law is a flywheel, limiting the effects of wide
swings in public opinion). When people make that criticism
as many do of the laws, still found on the statute books of
many states, punishing homosexual relationswhat they
mean is that the law neither is supported by public opinion
nor serves any temporal purpose, even that of stability, that it
is merely a vestige, an empty symbol.

81

See Burton, S., Judging in Good Faith, (1992 ed.), at 218.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. P-02-1651
August 4, 2003
ALEJANDRO ESTRADA, complainant,
vs.
SOLEDAD S. ESCRITOR, respondent.
PUNO, J.:
The case at bar takes us to a most difficult area of constitutional law where
man stands accountable to an authority higher than the state. To be held on
balance are the state's interest and the respondent's religious freedom. In this
highly sensitive area of law, the task of balancing between authority and
liberty is most delicate because to the person invoking religious freedom, the
consequences of the case are not only temporal. The task is not made easier
by the American origin of our religion clauses and the wealth of U.S.
jurisprudence on these clauses for in the United States, there is probably no
more intensely controverted area of constitutional interpretation than the
religion clauses.1 The U.S. Supreme Court itself has acknowledged that in
this constitutional area, there is "considerable internal inconsistency in the
opinions of the Court."2 As stated by a professor of law, "(i)t is by now
notorious that legal doctrines and judicial decisions in the area of religious
freedom are in serious disarray. In perhaps no other area of constitutional law
have confusion and inconsistency achieved such undisputed
sovereignty."3 Nevertheless, this thicket is the only path to take to conquer
the mountain of a legal problem the case at bar presents. Both the penetrating
and panoramic view this climb would provide will largely chart the course of
religious freedom in Philippine jurisdiction. That the religious freedom
question arose in an administrative case involving only one person does not
alter the paramount importance of the question for the "constitution
commands the positive protection by government of religious freedom -not
only for a minority, however small- not only for a majority, however largebut for each of us."4
I. Facts
The facts of the case will determine whether respondent will prevail in her
plea of religious freedom. It is necessary therefore to lay down the facts in
detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro
Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253,
Regional Trial Court of Las Pias City, requesting for an investigation of
rumors that respondent Soledad Escritor, court interpreter in said court, is

living with a man not her husband. They allegedly have a child of eighteen to
twenty years old. Estrada is not personally related either to Escritor or her
partner and is a resident not of Las Pias City but of Bacoor, Cavite.
Nevertheless, he filed the charge against Escritor as he believes that she is
committing an immoral act that tarnishes the image of the court, thus she
should not be allowed to remain employed therein as it might appear that the
court condones her act.5
Judge Caoibes referred the letter to Escritor who stated that "there is no truth
as to the veracity of the allegation" and challenged Estrada to "appear in the
open and prove his allegation in the proper forum."6 Judge Caoibes set a
preliminary conference on October 12, 2000. Escritor moved for the
inhibition of Judge Caoibes from hearing her case to avoid suspicion and bias
as she previously filed an administrative complaint against him and said case
was still pending in the Office of the Court Administrator (OCA). Escritor's
motion was denied. The preliminary conference proceeded with both Estrada
and Escritor in attendance. Estrada confirmed that he filed the lettercomplaint for immorality against Escritor because in his frequent visits to the
Hall of Justice of Las Pias City, he learned from conversations therein that
Escritor was living with a man not her husband and that she had an eighteen
to twenty-year old son by this man. This prompted him to write to Judge
Caoibes as he believed that employees of the judiciary should be respectable
and Escritor's live-in arrangement did not command respect. 7
Respondent Escritor testified that when she entered the judiciary in
1999,8 she was already a widow, her husband having died in 1998. 9 She
admitted that she has been living with Luciano Quilapio, Jr. without the
benefit of marriage for twenty years and that they have a son. But as a
member of the religious sect known as the Jehovah's Witnesses and the
Watch Tower and Bible Tract Society, their conjugal arrangement is in
conformity with their religious beliefs. In fact, after ten years of living
together, she executed on July 28, 1991 a "Declaration of Pledging
Faithfulness," viz:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted
Luciano D. Quilapio, Jr., as my mate in marital relationship; that I
have done all within my ability to obtain legal recognition of this
relationship by the proper public authorities and that it is because of
having been unable to do so that I therefore make this public
declaration pledging faithfulness in this marital relationship.
I recognize this relationship as a binding tie before 'Jehovah' God
and before all persons to be held to and honored in full accord with
the principles of God's Word. I will continue to seek the means to
obtain legal recognition of this relationship by the civil authorities

and if at any future time a change in circumstances make this

possible, I promise to legalize this union.
Signed this 28th day of July 1991.10
Escritor's partner, Quilapio, executed a similar pledge on the same
day.11 Both pledges were executed in Atimonan, Quezon and signed by three
witnesses. At the time Escritor executed her pledge, her husband was still
alive but living with another woman. Quilapio was likewise married at that
time, but had been separated in fact from his wife. During her testimony,
Escritor volunteered to present members of her congregation to confirm the
truthfulness of their "Declarations of Pledging Faithfulness," but Judge
Caoibes deemed it unnecessary and considered her identification of her
signature and the signature of Quilapio sufficient authentication of the
documents.12
Judge Caoibes endorsed the complaint to Executive Judge Manuel B.
Fernandez, Jr., who, in turn, endorsed the same to Court Administrator
Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation of
Acting Court Administrator Zenaida N. Elepao, directed Escritor to
comment on the charge against her. In her comment, Escritor reiterated her
religious congregation's approval of her conjugal arrangement with Quilapio,
viz:
Herein respondent does not ignore alleged accusation but she
reiterates to state with candor that there is no truth as to the veracity
of same allegation. Included herewith are documents denominated as
Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly
signed by both respondent and her mate in marital relationship with
the witnesses concurring their acceptance to the arrangement as
approved by the WATCH TOWER BIBLE and TRACT SOCIETY,
Philippine Branch.
Same marital arrangement is recognized as a binding tie before
"JEHOVAH" God and before all persons to be held to and honored in
full accord with the principles of God's Word.
xxx
xxx
xxx
Undersigned submits to the just, humane and fair discretion of the
Court with verification from the WATCH TOWER BIBLE and
TRACT SOCIETY, Philippine Branch . . . to which undersigned
believes to be a high authority in relation to her case. 13
Deputy Court Administrator Christopher O. Lock recommended that the case
be referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch 255,
Las Pias City for investigation, report and recommendation. In the course of
Judge Maceda's investigation, Escritor again testified that her congregation
allows her conjugal arrangement with Quilapio and it does not consider it
immoral. She offered to supply the investigating judge some clippings which

explain the basis of her congregation's belief and practice regarding her
conjugal arrangement. Escritor started living with Quilapio twenty years ago
when her husband was still alive but living with another woman. She met this
woman who confirmed to her that she was living with her (Escritor's)
husband.14
Gregorio Salazar, a member of the Jehovah's Witnesses since 1985, also
testified. He had been a presiding minister since 1991 and in such capacity is
aware of the rules and regulations of their congregation. He explained the
import of and procedure for executing a "Declaration of Pledging
Faithfulness", viz:
Q:
Now, insofar as the pre-marital relationship is concern (sic),
can you cite some particular rules and regulations in your
congregation?
A:
Well, we of course, talk to the persons with regards (sic) to
all the parties involved and then we request them to execute a Public
Declaration of Pledge of faithfulness.
Q:
What is that document?
A:
Declaration of Pledge of faithfulness.
Q:
What are the relations of the document Declaration of Pledge
of faithfulness, who are suppose (sic) to execute this document?
A:
This must be signed, the document must be signed by the
elders of the congregation; the couple, who is a member (sic) of the
congregation, baptized member and true member of the
congregation.
Q:
What standard rules and regulations do you have in relation
with this document?
A:
Actually, sir, the signing of that document, ah, with the
couple has consent to marital relationship (sic) gives the Christian
Congregation view that the couple has put themselves on record
before God and man that they are faithful to each other. As if that
relation is validated by God.
Q:
From your explanation, Minister, do you consider it a pledge
or a document between the parties, who are members of the
congregation?
A:
It is a pledge and a document. It is a declaration, pledge of a
(sic) pledge of faithfulness.
Q:
And what does pledge mean to you?
A:
It means to me that they have contracted, let us say, I am the
one who contracted with the opposite member of my congregation,
opposite sex, and that this document will give us the right to a
marital relationship.

Q:
So, in short, when you execute a declaration of pledge of
faithfulness, it is a preparation for you to enter a marriage?
A:
Yes, Sir.
Q:
But it does not necessarily mean that the parties, cohabiting
or living under the same roof?
A:
Well, the Pledge of faithfulness document is (sic) already
approved as to the marital relationship.
Q:
Do you mean to say, Minister, by executing this document
the contracting parties have the right to cohabit?
A:
Can I sir, cite, what the Bible says, the basis of that Pledge of
Faithfulness as we Christians follow. The basis is herein stated in the
Book of Matthew, Chapter Five, Verse Twenty-two. So, in that verse
of the Bible, Jesus said "that everyone divorcing his wife, except on
account of fornication, makes her a subject for adultery, and whoever
marries a divorced woman commits adultery.15
Escritor and Quilapio transferred to Salazar's Congregation, the Almanza
Congregation in Las Pias, in May 2001. The declarations having been
executed in Atimonan, Quezon in 1991, Salazar had no personal knowledge
of the personal circumstances of Escritor and Quilapio when they executed
their declarations. However, when the two transferred to Almanza, Salazar
inquired about their status from the Atimonan Congregation, gathered
comments of the elders therein, and requested a copy of their declarations.
The Almanza Congregation assumed that the personal circumstances of the
couple had been considered by the Atimonan Congregation when they
executed their declarations.
Escritor and Quilapio's declarations are recorded in the Watch Tower Central
office. They were executed in the usual and approved form prescribed by the
Watch Tower Bible and Tract Society which was lifted from the article,
"Maintaining Marriage in Honor Before God and Men,"16 in the March 15,
1977 issue of the Watch Tower magazine, entitled The Watchtower.
The declaration requires the approval of the elders of the Jehovah's Witnesses
congregation and is binding within the congregation all over the world except
in countries where divorce is allowed. The Jehovah's congregation requires
that at the time the declarations are executed, the couple cannot secure the
civil authorities' approval of the marital relationship because of legal
impediments. It is thus standard practice of the congregation to check the
couple's marital status before giving imprimatur to the conjugal arrangement.
The execution of the declaration finds scriptural basis in Matthew 5:32 that
when the spouse commits adultery, the offended spouse can remarry. The
marital status of the declarants and their respective spouses' commission of
adultery are investigated before the declarations are executed. Thus, in the
case of Escritor, it is presumed that the Atimonan Congregation conducted an

investigation on her marital status before the declaration was approved and
the declaration is valid everywhere, including the Almanza Congregation.
That Escritor's and Quilapio's declarations were approved are shown by the
signatures of three witnesses, the elders in the Atimonan Congregation.
Salazar confirmed from the congregation's branch office that these three
witnesses are elders in the Atimonan Congregation. Although in 1998
Escritor was widowed, thereby lifting the legal impediment to marry on her
part, her mate is still not capacitated to remarry. Thus, their declarations
remain valid. Once all legal impediments for both are lifted, the couple can
already register their marriage with the civil authorities and the validity of
the declarations ceases. The elders in the congregations can then solemnize
their marriage as authorized by Philippine law. In sum, therefore, insofar as
the congregation is concerned, there is nothing immoral about the conjugal
arrangement between Escritor and Quilapio and they remain members in
good standing in the congregation.17
Salvador Reyes, a minister at the General de Leon, Valenzuela City
Congregation of the Jehovah's Witnesses since 1974 and member of the
headquarters of the Watch Tower Bible and Tract Society of the Philippines,
Inc., presented the original copy of the magazine article entitled,
"Maintaining Marriage Before God and Men" to which Escritor and Minister
Salazar referred in their testimonies. The article appeared in the March 15,
1977 issue of the Watchtower magazine published in Pennsylvania, U.S.A.
Felix S. Fajardo, President of the Watch Tower Bible and Tract Society of the
Philippines, Inc., authorized Reyes to represent him in authenticating the
article. The article is distributed to the Jehovah's Witnesses congregations
which also distribute them to the public.18
The parties submitted their respective memoranda to the investigating judge.
Both stated that the issue for resolution is whether or not the relationship
between respondent Escritor and Quilapio is valid and binding in their own
religious congregation, the Jehovah's Witnesses. Complainant Estrada adds
however, that the effect of the relationship to Escritor's administrative
liability must likewise be determined. Estrada argued, through counsel, that
the Declaration of Pledging Faithfulness recognizes the supremacy of the
"proper public authorities" such that she bound herself "to seek means to . . .
legalize their union." Thus, even assuming arguendo that the declaration is
valid and binding in her congregation, it is binding only to her co-members
in the congregation and serves only the internal purpose of displaying to the
rest of the congregation that she and her mate are a respectable and morally
upright couple. Their religious belief and practice, however, cannot override
the norms of conduct required by law for government employees. To rule
otherwise would create a dangerous precedent as those who cannot legalize

their live-in relationship can simply join the Jehovah's Witnesses

congregation and use their religion as a defense against legal liability.19
On the other hand, respondent Escritor reiterates the validity of her conjugal
arrangement with Quilapio based on the belief and practice of her religion,
the Jehovah's Witnesses. She quoted portions of the magazine article entitled,
"Maintaining Marriage Before God and Men," in her memorandum signed by
herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits "1" and "2")
executed by the respondent and her mate greatly affect the
administrative liability of respondent. Jehovah's Witnesses admit and
recognize (sic) the supremacy of the proper public authorities in the
marriage arrangement. However, it is helpful to understand the
relative nature of Caesar's authority regarding marriage. From
country to country, marriage and divorce legislation presents a
multitude of different angles and aspects. Rather than becoming
entangled in a confusion of technicalities, the Christian, or the one
desiring to become a disciple of God's Son, can be guided by basic
Scriptural principles that hold true in all cases.
God's view is of first concern. So, first of all the person must
consider whether that one's present relationship, or the relationship
into which he or she contemplates entering, is one that could meet
with God's approval, or whether in itself, it violates the standards of
God's Word. Take, for example, the situation where a man lives with
a wife but also spends time living with another woman as a
concubine. As long as such a state of concubinage prevails, the
relationship of the second woman can never be harmonized with
Christian principles, nor could any declaration on the part of the
woman or the man make it so. The only right course is cessation of
the relationship. Similarly with an incestuous relationship with a
member of one's immediate family, or a homosexual relationship or
other such situation condemned by God's Word. It is not the lack of
any legal validation that makes such relationships unacceptable; they
are in themselves unscriptural and hence, immoral. Hence, a person
involved in such a situation could not make any kind of "Declaration
of Faithfulness," since it would have no merit in God's eyes.
If the relationship is such that it can have God's approval, then, a
second principle to consider is that one should do all one can to
establish the honorableness of one's marital union in the eyes of all.
(Heb. 13:4). If divorce is possible, then such step should now be
taken so that, having obtained the divorce (on whatever legal
grounds may be available), the present union can receive civil
validation as a recognized marriage.

Finally, if the marital relationship is not one out of harmony with the
principles of God's Word, and if one has done all that can reasonably
be done to have it recognized by civil authorities and has been
blocked in doing so, then, a Declaration Pledging Faithfulness can be
signed. In some cases, as has been noted, the extreme slowness of
official action may make accomplishing of legal steps a matter of
many, many years of effort. Or it may be that the costs represent a
crushingly heavy burden that the individual would need years to be
able to meet. In such cases, the declaration pledging faithfulness will
provide the congregation with the basis for viewing the existing
union as honorable while the individual continues conscientiously to
work out the legal aspects to the best of his ability.
Keeping in mind the basic principles presented, the respondent as a
Minister of Jehovah God, should be able to approach the matter in a
balanced way, neither underestimating nor overestimating the
validation offered by the political state. She always gives primary
concern to God's view of the union. Along with this, every effort
should be made to set a fine example of faithfulness and devotion to
one's mate, thus, keeping the marriage "honorable among all." Such
course will bring God's blessing and result to the honor and praise of
the author of marriage, Jehovah God. (1 Cor. 10:31-33)20
Respondent also brought to the attention of the investigating judge that
complainant's Memorandum came from Judge Caoibes' chambers 21 whom
she claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found
Escritor's factual allegations credible as they were supported by testimonial
and documentary evidence. He also noted that "(b)y strict Catholic standards,
the live-in relationship of respondent with her mate should fall within the
definition of immoral conduct, to wit: 'that which is willful, flagrant, or
shameless, and which shows a moral indifference to the opinion of the good
and respectable members of the community' (7 C.J.S. 959)' (Delos Reyes vs.
Aznar, 179 SCRA, at p. 666)." He pointed out, however, that "the more
relevant question is whether or not to exact from respondent Escritor, a
member of 'Jehovah's Witnesses,' the strict moral standards of the Catholic
faith in determining her administrative responsibility in the case at
bar."22 The investigating judge acknowledged that "religious freedom is a
fundamental right which is entitled to the highest priority and the amplest
protection among human rights, for it involves the relationship of man to his
Creator (at p. 270, EBRALINAG supra, citing Chief Justice Enrique M.
Fernando's separate opinion in German vs. Barangan, 135 SCRA 514, 530531)" and thereby recommended the dismissal of the complaint against
Escritor.23

After considering the Report and Recommendation of Executive Judge

Maceda, the Office of the Court Administrator, through Deputy Court
Administrator (DCA) Lock and with the approval of Court Administrator
Presbitero Velasco, concurred with the factual findings of Judge Maceda but
departed from his recommendation to dismiss the complaint. DCA Lock
stressed that although Escritor had become capacitated to marry by the time
she joined the judiciary as her husband had died a year before, "it is due to
her relationship with a married man, voluntarily carried on, that respondent
may still be subject to disciplinary action."24 Considering the ruling of the
Court in Dicdican v. Fernan, et al.25 that "court personnel have been enjoined
to adhere to the exacting standards of morality and decency in their
professional and private conduct in order to preserve the good name and
integrity of the court of justice," DCA Lock found Escritor's defense of
freedom of religion unavailing to warrant dismissal of the charge of
immorality. Accordingly, he recommended that respondent be found guilty of
immorality and that she be penalized with suspension of six months and one
day without pay with a warning that a repetition of a similar act will be dealt
with more severely in accordance with the Civil Service Rules. 26
II. Issue
Whether or not respondent should be found guilty of the administrative
charge of "gross and immoral conduct." To resolve this issue, it is necessary
to determine the sub-issue of whether or not respondent's right to religious
freedom should carve out an exception from the prevailing jurisprudence on
illicit relations for which government employees are held administratively
liable.
III. Applicable Laws
Respondent is charged with committing "gross and immoral conduct" under
Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative
Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or employee
in the Civil Service shall be suspended or dismissed except for cause
as provided by law and after due process.
(b) The following shall be grounds for disciplinary action:
xxx
xxx
xxx
(5) Disgraceful and immoral conduct; xxx.
Not represented by counsel, respondent, in layman's terms, invokes the
religious beliefs and practices and moral standards of her religion, the
Jehovah's Witnesses, in asserting that her conjugal arrangement with a man
not her legal husband does not constitute disgraceful and immoral conduct
for which she should be held administratively liable. While not articulated by
respondent, she invokes religious freedom under Article III, Section 5 of the
Constitution, which provides, viz:

Sec. 5. No law shall be made respecting an establishment of religion,

or prohibiting the free exercise thereof. The free exercise and
enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.
IV. Old World Antecedents of the American Religion Clauses
To understand the life that the religion clauses have taken, it would be well to
understand not only its birth in the United States, but its conception in the
Old World. One cannot understand, much less intelligently criticize the
approaches of the courts and the political branches to religious freedom in
the recent past in the United States without a deep appreciation of the roots
of these controversies in the ancient and medieval world and in the American
experience.27 This fresh look at the religion clauses is proper in deciding this
case of first impression.
In primitive times, all of life may be said to have been religious. Every
significant event in the primitive man's life, from birth to death, was marked
by religious ceremonies. Tribal society survived because religious sanctions
effectively elicited adherence to social customs. A person who broke a
custom violated a taboo which would then bring upon him "the wrathful
vengeance of a superhuman mysterious power."28 Distinction between the
religious and non-religious would thus have been meaningless to him. He
sought protection from all kinds of evil - whether a wild beast or tribe enemy
and lightning or wind - from the same person. The head of the clan or the Old
Man of the tribe or the king protected his wards against both human and
superhuman enemies. In time, the king not only interceded for his people
with the divine powers, but he himself was looked upon as a divine being and
his laws as divine decrees.29
Time came, however, when the function of acting as intermediary between
human and spiritual powers became sufficiently differentiated from the
responsibility of leading the tribe in war and policing it in peace as to require
the full-time services of a special priest class. This saw the birth of the social
and communal problem of the competing claims of the king and priest.
Nevertheless, from the beginning, the king and not the priest was superior.
The head of the tribe was the warrior, and although he also performed
priestly functions, he carried out these functions because he was the head and
representative of the community.30
There being no distinction between the religious and the secular, the same
authority that promulgated laws regulating relations between man and man
promulgated laws concerning man's obligations to the supernatural. This
authority was the king who was the head of the state and the source of all law
and who only delegated performance of rituals and sacrifice to the priests.
The Code of Hammurabi, king of Babylonia, imposed penalties for homicide,

larceny, perjury, and other crimes; regulated the fees of surgeons and the
wages of masons and tailors and prescribed rules for inheritance of
property;31 and also catalogued the gods and assigned them their places in the
divine hierarchy so as to put Hammurabi's own god to a position of equality
with existing gods.32 In sum, the relationship of religion to the state (king) in
pre-Hebreic times may be characterized as a union of the two forces, with the
state almost universally the dominant partner.33
With the rise of the Hebrew state, a new term had to be coined to describe the
relation of the Hebrew state with the Mosaic religion: theocracy. The
authority and power of the state was ascribed to God. 34 The Mosaic creed
was not merely regarded as the religion of the state, it was (at least until
Saul) the state itself. Among the Hebrews, patriarch, prophet, and priest
preceded king and prince. As man of God, Moses decided when the people
should travel and when to pitch camp, when they should make war and when
peace. Saul and David were made kings by the prophet Samuel, disciple of
Eli the priest. Like the Code of Hammurabi, the Mosaic code combined civil
laws with religious mandates, but unlike the Hammurabi Code, religious
laws were not of secondary importance. On the contrary, religious motivation
was primary and all-embracing: sacrifices were made and Israel was
prohibited from exacting usury, mistreating aliens or using false weights, all
because God commanded these.
Moses of the Bible led not like the ancient kings. The latter used religion as
an engine to advance the purposes of the state. Hammurabi unified
Mesopotamia and established Babylon as its capital by elevating its city-god
to a primary position over the previous reigning gods.35 Moses, on the other
hand, capitalized on the natural yearnings of the Hebrew slaves for freedom
and independence to further God's purposes. Liberation and Exodus were
preludes to Sinai and the receipt of the Divine Law. The conquest of Canaan
was a preparation for the building of the temple and the full worship of
God.36
Upon the monotheism of Moses was the theocracy of Israel founded. This
monotheism, more than anything else, charted not only the future of religion
in western civilization, but equally, the future of the relationship between
religion and state in the west. This fact is acknowledged by many writers,
among whom is Northcott who pointed out, viz:
Historically it was the Hebrew and Christian conception of a single
and universal God that introduced a religious exclusivism leading to
compulsion and persecution in the realm of religion. Ancient
religions were regarded as confined to each separate people believing
in them, and the question of change from one religious belief to
another did not arise. It was not until an exclusive fellowship, that

the questions of proselytism, change of belief and liberty of religion

arose.37 (emphasis supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In this
period, religion was not only superior to the state, but it was all of the state.
The Law of God as transmitted through Moses and his successors was the
whole of government.
With Saul, however, the state rose to be the rival and ultimately, the master,
of religion. Saul and David each received their kingdom from Samuel the
prophet and disciple of Eli the priest, but soon the king dominated prophet
and priest. Saul disobeyed and even sought to slay Samuel the prophet of
God.38 Under Solomon, the subordination of religion to state became
complete; he used religion as an engine to further the state's purposes. He
reformed the order of priesthood established by Moses because the high
priest under that order endorsed the claim of his rival to the throne. 39
The subordination of religion to the state was also true in pre-Christian Rome
which engaged in emperor-worship. When Augustus became head of the
Roman state and the priestly hierarchy, he placed religion at a high esteem as
part of a political plan to establish the real religion of pre-Christian Rome the worship of the head of the state. He set his great uncle Julius Caesar
among the gods, and commanded that worship of Divine Julius should not be
less than worship of Apollo, Jupiter and other gods. When Augustus died, he
also joined the ranks of the gods, as other emperors before him. 40
The onset of Christianity, however, posed a difficulty to the emperor as the
Christians' dogmatic exclusiveness prevented them from paying homage to
publicly accepted gods. In the first two centuries after the death of Jesus,
Christians were subjected to persecution. By the time of the emperor Trajan,
Christians were considered outlaws. Their crime was "hatred of the human
race", placing them in the same category as pirates and brigands and other
"enemies of mankind" who were subject to summary punishments. 41
In 284, Diocletian became emperor and sought to reorganize the empire and
make its administration more efficient. But the closely-knit hierarchically
controlled church presented a serious problem, being a state within a state
over which he had no control. He had two options: either to force it into
submission and break its power or enter into an alliance with it and procure
political control over it. He opted for force and revived the persecution,
destroyed the churches, confiscated sacred books, imprisoned the clergy and
by torture forced them to sacrifice.42 But his efforts proved futile.
The later emperor, Constantine, took the second option of alliance.
Constantine joined with Galerius and Licinius, his two co-rulers of the
empire, in issuing an edict of toleration to Christians "on condition that
nothing is done by them contrary to discipline."43 A year later, after Galerius
died, Constantine and Licius jointly issued the epochal Edict of Milan (312

or 313), a document of monumental importance in the history of religious

liberty. It provided "that liberty of worship shall not be denied to any, but that
the mind and will of every individual shall be free to manage divine affairs
according to his own choice." (emphasis supplied) Thus, all restrictive
statutes were abrogated and it was enacted "that every person who cherishes
the desire to observe the Christian religion shall freely and unconditionally
proceed to observe the same without let or hindrance." Furthermore, it was
provided that the "same free and open power to follow their own religion or
worship is granted also to others, in accordance with the tranquillity of our
times, in order that every person may have free opportunity to worship the
object of his choice."(emphasis supplied)44
Before long, not only did Christianity achieve equal status, but acquired
privilege, then prestige, and eventually, exclusive power. Religion became an
engine of state policy as Constantine considered Christianity a means of
unifying his complex empire. Within seven years after the Edict of Milan,
under the emperor's command, great Christian edifices were erected, the
clergy were freed from public burdens others had to bear, and private heathen
sacrifices were forbidden.
The favors granted to Christianity came at a price: state interference in
religious affairs. Constantine and his successors called and dismissed church
councils, and enforced unity of belief and practice. Until recently the church
had been the victim of persecution and repression, but this time it welcomed
the state's persecution and repression of the nonconformist and the orthodox
on the belief that it was better for heretics to be purged of their error than to
die unsaved.
Both in theory as in practice, the partnership between church and state was
not easy. It was a constant struggle of one claiming dominance over the other.
In time, however, after the collapse and disintegration of the Roman Empire,
and while monarchical states were gradually being consolidated among the
numerous feudal holdings, the church stood as the one permanent, stable and
universal power. Not surprisingly, therefore, it claimed not merely equality
but superiority over the secular states. This claim, symbolized by Pope Leo's
crowning of Charlemagne, became the church's accepted principle of its
relationship to the state in the Middle Ages. As viewed by the church, the
union of church and state was now a union of the state in the church. The
rulers of the states did not concede to this claim of supremacy. Thus, while
Charlemagne received his crown from the Pope, he himself crowned his own
son as successor to nullify the inference of supremacy.45 The whole history of
medieval Europe was a struggle for supremacy between prince and Pope and
the resulting religious wars and persecution of heretics and nonconformists.
At about the second quarter of the 13th century, the Inquisition was
established, the purpose of which was the discovery and extermination of

heresy. Accused heretics were tortured with the approval of the church in the
bull Ad extirpanda issued by Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the Reformation
aimed at reforming the Catholic Church and resulting in the establishment of
Protestant churches. While Protestants are accustomed to ascribe to the
Reformation the rise of religious liberty and its acceptance as the principle
governing the relations between a democratic state and its citizens, history
shows that it is more accurate to say that the "same causes that gave rise to
the Protestant revolution also resulted in the widespread acceptance of the
principle of religious liberty, and ultimately of the principle of separation of
church and state."46 Pleas for tolerance and freedom of conscience can
without doubt be found in the writings of leaders of the Reformation. But just
as Protestants living in the countries of papists pleaded for toleration of
religion, so did the papists that lived where Protestants were
dominant.47Papist and Protestant governments alike accepted the idea of
cooperation between church and state and regarded as essential to national
unity the uniformity of at least the outward manifestations of
religion.48 Certainly, Luther, leader of the Reformation, stated that "neither
pope, nor bishop, nor any man whatever has the right of making one syllable
binding on a Christian man, unless it be done with his own consent."49 But
when the tables had turned and he was no longer the hunted heretic, he
likewise stated when he made an alliance with the secular powers that
"(h)eretics are not to be disputed with, but to be condemned unheard, and
whilst they perish by fire, the faithful ought to pursue the evil to its source,
and bathe their hands in the blood of the Catholic bishops, and of the Pope,
who is a devil in disguise."50 To Luther, unity among the peoples in the
interests of the state was an important consideration. Other personalities in
the Reformation such as Melanchton, Zwingli and Calvin strongly espoused
theocracy or the use of the state as an engine to further religion. In
establishing theocracy in Geneva, Calvin made absence from the sermon a
crime, he included criticism of the clergy in the crime of blasphemy
punishable by death, and to eliminate heresy, he cooperated in the
Inquisition.51
There were, however, those who truly advocated religious liberty. Erasmus,
who belonged to the Renaissance than the Reformation, wrote that "(t)he
terrible papal edict, the more terrible imperial edict, the imprisonments, the
confiscations, the recantations, the fagots and burnings, all these things I can
see accomplish nothing except to make the evil more widespread." 52 The
minority or dissident sects also ardently advocated religious liberty. The
Anabaptists, persecuted and despised, along with the Socinians (Unitarians)
and the Friends of the Quakers founded by George Fox in the 17th century,
endorsed the supremacy and freedom of the individual conscience. They

regarded religion as outside the realm of political governments. 53 The English

Baptists proclaimed that the "magistrate is not to meddle with religion or
matters of conscience, nor compel men to this or that form of religion." 54
Thus, out of the Reformation, three rationalizations of church-state relations
may be distinguished: the Erastian (after the German doctor Erastus), the
theocratic, and the separatist. The first assumed state superiority in
ecclesiastical affairs and the use of religion as an engine of state policy as
demonstrated by Luther's belief that civic cohesion could not exist without
religious unity so that coercion to achieve religious unity was justified. The
second was founded on ecclesiastical supremacy and the use of state
machinery to further religious interests as promoted by Calvin. The third,
which was yet to achieve ultimate and complete expression in the New
World, was discernibly in its incipient form in the arguments of some
dissident minorities that the magistrate should not intermeddle in religious
affairs.55 After the Reformation, Erastianism pervaded all Europe except for
Calvin's theocratic Geneva. In England, perhaps more than in any other
country, Erastianism was at its height. To illustrate, a statute was enacted by
Parliament in 1678, which, to encourage woolen trade, imposed on all
clergymen the duty of seeing to it that no person was buried in a shroud made
of any substance other than wool.56 Under Elizabeth, supremacy of the crown
over the church was complete: ecclesiastical offices were regulated by her
proclamations, recusants were fined and imprisoned, Jesuits and
proselytizing priests were put to death for high treason, the thirty-nine
Articles of the Church of England were adopted and English Protestantism
attained its present doctrinal status.57 Elizabeth was to be recognized as "the
only Supreme Governor of this realm . . . as well in all spiritual or
ecclesiastical things or causes as temporal." She and her successors were
vested, in their dominions, with "all manner of jurisdictions, privileges, and
preeminences, in any wise touching or concerning any spiritual or
ecclesiastical jurisdiction."58 Later, however, Cromwell established the
constitution in 1647 which granted full liberty to all Protestant sects, but
denied toleration to Catholics.59 In 1689, William III issued the Act of
Toleration which established a de facto toleration for all except Catholics.
The Catholics achieved religious liberty in the 19th century when the Roman
Catholic Relief Act of 1829 was adopted. The Jews followed suit in 1858
when they were finally permitted to sit in Parliament. 60
When the representatives of the American states met in Philadelphia in 1787
to draft the constitutional foundation of the new republic, the theocratic state
which had flourished intermittently in Israel, Judea, the Holy Roman Empire
and Geneva was completely gone. The prevailing church-state relationship in
Europe was Erastianism embodied in the system of jurisdictionalism
whereby one faith was favored as the official state-supported religion, but

other faiths were permitted to exist with freedom in various degrees. No

nation had yet adopted as the basis of its church-state relations the principle
of the mutual independence of religion and government and the concomitant
principle that neither might be used as an engine to further the policies of the
other, although the principle was in its seminal form in the arguments of
some dissident minorities and intellectual leaders of the Renaissance. The
religious wars of 16th and 17th century Europe were a thing of the past by
the time America declared its independence from the Old World, but their
memory was still vivid in the minds of the Constitutional Fathers as
expressed by the United States Supreme Court, viz:
The centuries immediately before and contemporaneous with the
colonization of America had been filled with turmoil, civil strife, and
persecution generated in large part by established sects determined to
maintain their absolute political and religious supremacy. With the
power of government supporting them, at various times and places,
Catholics had persecuted Protestants, Protestants had persecuted
Catholics, Protestant sects had persecuted other protestant sects,
Catholics of one shade of belief had persecuted Catholics of another
shade of belief, and all of these had from time to time persecuted
Jews. In efforts to force loyalty to whatever religious group
happened to be on top and in league with the government of a
particular time and place, men and women had been fined, cast in
jail, cruelly tortured, and killed. Among the offenses for which these
punishments had been inflicted were such things as speaking
disrespectfully of the views of ministers of government-established
churches, non-attendance at those churches, expressions of nonbelief in their doctrines, and failure to pay taxes and tithes to support
them.61
In 1784, James Madison captured in this statement the entire history of
church-state relations in Europe up to the time the United States Constitution
was adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of the
secular arm to extinguish religious discord, by proscribing all
differences in religious opinions.62
In sum, this history shows two salient features: First, with minor exceptions,
the history of church-state relationships was characterized by persecution,
oppression, hatred, bloodshed, and war, all in the name of the God of Love
and of the Prince of Peace. Second, likewise with minor exceptions, this
history witnessed the unscrupulous use of religion by secular powers to
promote secular purposes and policies, and the willing acceptance of that role
by the vanguards of religion in exchange for the favors and mundane benefits
conferred by ambitious princes and emperors in exchange for religion's

invaluable service. This was the context in which the unique experiment of
the principle of religious freedom and separation of church and state saw its
birth in American constitutional democracy and in human history.63
V. Factors Contributing to the Adoption of the American Religion
Clauses
Settlers fleeing from religious persecution in Europe, primarily in Anglicandominated England, established many of the American colonies. British
thought pervaded these colonies as the immigrants brought with them their
religious and political ideas from England and English books and pamphlets
largely provided their cultural fare.64But although these settlers escaped from
Europe to be freed from bondage of laws which compelled them to support
and attend government favored churches, some of these settlers themselves
transplanted into American soil the oppressive practices they escaped from.
The charters granted by the English Crown to the individuals and companies
designated to make the laws which would control the destinies of the
colonials authorized them to erect religious establishments, which all,
whether believers or not, were required to support or attend. 65 At one time,
six of the colonies established a state religion. Other colonies, however, such
as Rhode Island and Delaware tolerated a high degree of religious diversity.
Still others, which originally tolerated only a single religion, eventually
extended support to several different faiths.66
This was the state of the American colonies when the unique American
experiment of separation of church and state came about. The birth of the
experiment cannot be attributed to a single cause or event. Rather, a number
of interdependent practical and ideological factors contributed in bringing it
forth. Among these were the "English Act of Toleration of 1689, the
multiplicity of sects, the lack of church affiliation on the part of most
Americans, the rise of commercial intercourse, the exigencies of the
Revolutionary War, the Williams-Penn tradition and the success of their
experiments, the writings of Locke, the social contract theory, the Great
Awakening, and the influence of European rationalism and deism." 67 Each of
these factors shall be briefly discussed.
First, the practical factors. England's policy of opening the gates of the
American colonies to different faiths resulted in the multiplicity of sects in
the colonies. With an Erastian justification, English lords chose to forego
protecting what was considered to be the true and eternal church of a
particular time in order to encourage trade and commerce. The colonies were
large financial investments which would be profitable only if people would
settle there. It would be difficult to engage in trade with persons one seeks to
destroy for religious belief, thus tolerance was a necessity. This tended to
distract the colonies from their preoccupations over their religion and its
exclusiveness, encouraging them "to think less of the Church and more of the

State and of commerce."68 The diversity brought about by the colonies' open
gates encouraged religious freedom and non-establishment in several ways.
First, as there were too many dissenting sects to abolish, there was no
alternative but to learn to live together. Secondly, because of the daily
exposure to different religions, the passionate conviction in the exclusive
rightness of one's religion, which impels persecution for the sake of one's
religion, waned. Finally, because of the great diversity of the sects, religious
uniformity was not possible, and without such uniformity, establishment
could not survive.69
But while there was a multiplicity of denomination, paradoxically, there was
a scarcity of adherents. Only about four percent of the entire population of
the country had a church affiliation at the time the republic was
founded.70This might be attributed to the drifting to the American colonies of
the skepticism that characterized European Enlightenment. 71 Economic
considerations might have also been a factor. The individualism of the
American colonist, manifested in the multiplicity of sects, also resulted in
much unaffiliated religion which treated religion as a personal noninstitutional matter. The prevalence of lack of church affiliation contributed
to religious liberty and disestablishment as persons who were not connected
with any church were not likely to persecute others for similar independence
nor accede to compulsory taxation to support a church to which they did not
belong.72
However, for those who were affiliated to churches, the colonial policy
regarding their worship generally followed the tenor of the English Act of
Toleration of 1689. In England, this Act conferred on Protestant dissenters
the right to hold public services subject to registration of their ministers and
places of worship.73 Although the toleration accorded to Protestant dissenters
who qualified under its terms was only a modest advance in religious
freedom, it nevertheless was of some influence to the American
experiment.74 Even then, for practical considerations, concessions had to be
made to other dissenting churches to ensure their cooperation in the War of
Independence which thus had a unifying effect on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-18th century,
an evangelical religious revival originating in New England, caused a break
with formal church religion and a resistance to coercion by established
churches. This movement emphasized an emotional, personal religion that
appealed directly to the individual, putting emphasis on the rights and duties
of the individual conscience and its answerability exclusively to God. Thus,
although they had no quarrel with orthodox Christian theology as in fact they
were fundamentalists, this group became staunch advocates of separation of
church and state.75

Then there was the Williams-Penn tradition. Roger Williams was the founder
of the colony of Rhode Island where he established a community of Baptists,
Quakers and other nonconformists. In this colony, religious freedom was not
based on practical considerations but on the concept of mutual independence
of religion and government. In 1663, Rhode Island obtained a charter from
the British crown which declared that settlers have it "much on their heart to
hold forth a livelie experiment that a most flourishing civil state may best be
maintained . . . with full libertie in religious concernments." 76 In Williams'
pamphlet, The Bloudy Tenent of Persecution for cause of Conscience,
discussed in a Conference between Truth and Peace, 77 he articulated the
philosophical basis for his argument of religious liberty. To him, religious
freedom and separation of church and state did not constitute two but only
one principle. Religious persecution is wrong because it "confounds the Civil
and Religious" and because "States . . . are proved essentially Civil. The
"power of true discerning the true fear of God" is not one of the powers that
the people have transferred to Civil Authority.78 Williams' Bloudy Tenet is
considered an epochal milestone in the history of religious freedom and the
separation of church and state.79
William Penn, proprietor of the land that became Pennsylvania, was also an
ardent advocate of toleration, having been imprisoned for his religious
convictions as a member of the despised Quakers. He opposed coercion in
matters of conscience because "imposition, restraint and persecution for
conscience sake, highly invade the Divine prerogative." Aside from his
idealism, proprietary interests made toleration in Pennsylvania necessary. He
attracted large numbers of settlers by promising religious toleration, thus
bringing in immigrants both from the Continent and Britain. At the end of the
colonial period, Pennsylvania had the greatest variety of religious groups.
Penn was responsible in large part for the "Concessions and agreements of
the Proprietors, Freeholders, and inhabitants of West Jersey, in America", a
monumental document in the history of civil liberty which provided among
others, for liberty of conscience.80 The Baptist followers of Williams and the
Quakers who came after Penn continued the tradition started by the leaders
of their denominations. Aside from the Baptists and the Quakers, the
Presbyterians likewise greatly contributed to the evolution of separation and
freedom.81 The Constitutional fathers who convened in Philadelphia in 1787,
and Congress and the states that adopted the First Amendment in 1791 were
very familiar with and strongly influenced by the successful examples of
Rhode Island and Pennsylvania.82
Undeniably, John Locke and the social contract theory also contributed to the
American experiment. The social contract theory popularized by Locke was
so widely accepted as to be deemed self-evident truth in America's
Declaration of Independence. With the doctrine of natural rights and equality

set forth in the Declaration of Independence, there was no room for religious
discrimination. It was difficult to justify inequality in religious treatment by a
new nation that severed its political bonds with the English crown which
violated the self-evident truth that all men are created equal. 83
The social contract theory was applied by many religious groups in arguing
against establishment, putting emphasis on religion as a natural right that is
entirely personal and not within the scope of the powers of a political body.
That Locke and the social contract theory were influential in the development
of religious freedom and separation is evident from the memorial presented
by the Baptists to the Continental Congress in 1774, viz:
Men unite in society, according to the great Mr. Locke, with an
intention in every one the better to preserve himself, his liberty and
property. The power of the society, or Legislature constituted by
them, can never be supposed to extend any further than the common
good, but is obliged to secure every one's property. To give laws, to
receive obedience, to compel with the sword, belong to none but the
civil magistrate; and on this ground we affirm that the magistrate's
power extends not to establishing any articles of faith or forms of
worship, by force of laws; for laws are of no force without penalties.
The care of souls cannot belong to the civil magistrate, because his
power consists only in outward force; but pure and saving religion
consists in the inward persuasion of the mind, without which nothing
can be acceptable to God.84 (emphasis supplied)
The idea that religion was outside the jurisdiction of civil government was
acceptable to both the religionist and rationalist. To the religionist, God or
Christ did not desire that government have that jurisdiction ("render unto
Caesar that which is Caesar's"; "my kingdom is not of this world") and to the
rationalist, the power to act in the realm of religion was not one of the
powers conferred on government as part of the social contract. 85
Not only the social contract theory drifted to the colonies from Europe. Many
of the leaders of the Revolutionary and post-revolutionary period were also
influenced by European deism and rationalism, 86 in general, and some were
apathetic if not antagonistic to formal religious worship and institutionalized
religion. Jefferson, Paine, John Adams, Washington, Franklin, Madison,
among others were reckoned to be among the Unitarians or Deists.
Unitarianism and Deism contributed to the emphasis on secular interests and
the relegation of historic theology to the background. 87 For these men of the
enlightenment, religion should be allowed to rise and fall on its own, and the
state must be protected from the clutches of the church whose entanglements
has caused intolerance and corruption as witnessed throughout history.88 Not
only the leaders but also the masses embraced rationalism at the end of the
eighteenth century, accounting for the popularity of Paine's Age of Reason. 89

Finally, the events leading to religious freedom and separation in Virginia

contributed significantly to the American experiment of the First
Amendment. Virginia was the "first state in the history of the world to
proclaim the decree of absolute divorce between church and state." 90 Many
factors contributed to this, among which were that half to two-thirds of the
population were organized dissenting sects, the Great Awakening had won
many converts, the established Anglican Church of Virginia found
themselves on the losing side of the Revolution and had alienated many
influential laymen with its identification with the Crown's tyranny, and above
all, present in Virginia was a group of political leaders who were devoted to
liberty generally,91 who had accepted the social contract as self-evident, and
who had been greatly influenced by Deism and Unitarianism. Among these
leaders were Washington, Patrick Henry, George Mason, James Madison and
above the rest, Thomas Jefferson.
The first major step towards separation in Virginia was the adoption of the
following provision in the Bill of Rights of the state's first constitution:
That religion, or the duty which we owe to our Creator, and the
manner of discharging it, can be directed only by reason and
conviction, not by force or violence; and therefore, all men are
equally entitled to the free exercise of religion according to the
dictates of conscience; and that it is the mutual duty of all to practice
Christian forbearance, love, and charity towards each
other.92 (emphasis supplied)
The adoption of the Bill of Rights signified the beginning of the end of
establishment. Baptists, Presbyterians and Lutherans flooded the first
legislative assembly with petitions for abolition of establishment. While the
majority of the population were dissenters, a majority of the legislature were
churchmen. The legislature compromised and enacted a bill in 1776
abolishing the more oppressive features of establishment and granting
exemptions to the dissenters, but not guaranteeing separation. It repealed the
laws punishing heresy and absence from worship and requiring the dissenters
to contribute to the support of the establishment.93 But the dissenters were not
satisfied; they not only wanted abolition of support for the establishment,
they opposed the compulsory support of their own religion as others. As
members of the established church would not allow that only they would pay
taxes while the rest did not, the legislature enacted in 1779 a bill making
permanent the establishment's loss of its exclusive status and its power to tax
its members; but those who voted for it did so in the hope that a general
assessment bill would be passed. Without the latter, the establishment would
not survive. Thus, a bill was introduced in 1779 requiring every person to
enroll his name with the county clerk and indicate which "society for the
purpose of Religious Worship" he wished to support. On the basis of this list,

collections were to be made by the sheriff and turned over to the clergymen
and teachers designated by the religious congregation. The assessment of any
person who failed to enroll in any society was to be divided proportionately
among the societies.94 The bill evoked strong opposition.
In 1784, another bill, entitled "Bill Establishing a Provision for Teachers of
the Christian Religion" was introduced requiring all persons "to pay a
moderate tax or contribution annually for the support of the Christian
religion, or of some Christian church, denomination or communion of
Christians, or for some form of Christian worship."95 This likewise aroused
the same opposition to the 1779 bill. The most telling blow against the 1784
bill was the monumental "Memorial and Remonstrance against Religious
Assessments" written by Madison and widely distributed before the
reconvening of legislature in the fall of 1785.96 It stressed natural rights, the
government's lack of jurisdiction over the domain of religion, and the social
contract as the ideological basis of separation while also citing practical
considerations such as loss of population through migration. He wrote, viz:
Because we hold it for a 'fundamental and undeniable truth,' that
religion, or the duty which we owe to our creator, and the manner of
discharging it, can be directed only by reason and conviction, not by
force or violence. The religion, then, of every man, must be left to
the conviction and conscience of every man; and it is the right of
every man to exercise it as these may dictate. This right is, in its
nature, an unalienable right. It is unalienable, because the opinions of
men, depending only on the evidence contemplated in their own
minds, cannot follow the dictates of other men; it is unalienable,
also, because what is here a right towards men, is a duty towards the
creator. It is the duty of every man to render the creator such
homage, and such only as he believes to be acceptable to him; this
duty is precedent, both in order of time and degree of obligation, to
the claims of civil society. Before any man can be considered as a
member of civil society, he must be considered as a subject of the
governor of the universe; and if a member of civil society, who
enters into any subordinate association, must always do it with a
reservation of his duty to the general authority, much more must
every man who becomes a member of any particular civil society do
it with the saving his allegiance to the universal
sovereign.97 (emphases supplied)
Madison articulated in the Memorial the widely held beliefs in 1785 as
indicated by the great number of signatures appended to the Memorial. The
assessment bill was speedily defeated.

Taking advantage of the situation, Madison called up a much earlier 1779 bill
of Jefferson which had not been voted on, the "Bill for Establishing Religious
Freedom", and it was finally passed in January 1786. It provided, viz:
Well aware that Almighty God hath created the mind free; that all
attempts to influence it by temporal punishments or burdens, or by
civil incapacitations, tend not only to beget habits of hypocrisy and
meanness, and are a departure from the plan of the Holy Author of
our religion, who being Lord both of body and mind, yet chose not to
propagate it by coercions on either, as was in his Almighty power to
do;
xxx
xxx
xxx
Be it therefore enacted by the General Assembly. That no man shall
be compelled to frequent or support any religious worship, place or
ministry whatsoever, nor shall be enforced, restrained, molested or
burdened in his body or goods, nor shall otherwise suffer on account
of his religious opinions or beliefs, but that all men shall be free to
profess, and by argument to maintain, their opinions in matters of
religion, and that the same shall in no wise diminish, enlarge or
affect their civil capacities.98 (emphases supplied)
This statute forbade any kind of taxation in support of religion and
effectually ended any thought of a general or particular establishment in
Virginia.99 But the passage of this law was obtained not only because of the
influence of the great leaders in Virginia but also because of substantial
popular support coming mainly from the two great dissenting sects, namely
the Presbyterians and the Baptists. The former were never established in
Virginia and an underprivileged minority of the population. This made them
anxious to pull down the existing state church as they realized that it was
impossible for them to be elevated to that privileged position. Apart from
these expediential considerations, however, many of the Presbyterians were
sincere advocates of separation100 grounded on rational, secular arguments
and to the language of natural religion.101 Influenced by Roger Williams, the
Baptists, on the other hand, assumed that religion was essentially a matter of
concern of the individual and his God, i.e., subjective, spiritual and
supernatural, having no relation with the social order.102 To them, the Holy
Ghost was sufficient to maintain and direct the Church without governmental
assistance and state-supported religion was contrary ti the spirit of the
Gospel.103 Thus, separation was necessary.104 Jefferson's religious freedom
statute was a milestone in the history of religious freedom. The United States
Supreme Court has not just once acknowledged that the provisions of the
First Amendment of the U.S. Constitution had the same objectives and
intended to afford the same protection against government interference with
religious liberty as the Virginia Statute of Religious Liberty.

Even in the absence of the religion clauses, the principle that government had
no power to legislate in the area of religion by restricting its free exercise or
establishing it was implicit in the Constitution of 1787. This could be
deduced from the prohibition of any religious test for federal office in Article
VI of the Constitution and the assumed lack of power of Congress to act on
any subject not expressly mentioned in the Constitution. 105However,
omission of an express guaranty of religious freedom and other natural rights
nearly prevented the ratification of the Constitution. 106 In the ratifying
conventions of almost every state, some objection was expressed to the
absence of a restriction on the Federal Government as regards legislation on
religion.107 Thus, in 1791, this restriction was made explicit with the adoption
of the religion clauses in the First Amendment as they are worded to this day,
with the first part usually referred to as the Establishment Clause and the
second part, the Free Exercise Clause, viz:
Congress shall make no law respecting an establishment of religion
or prohibiting the free exercise thereof.
VI. Religion Clauses in the United States:
Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the First Amendment
religion clauses comes an equally broad disagreement as to what these
clauses specifically require, permit and forbid. No agreement has been
reached by those who have studied the religion clauses as regards its exact
meaning and the paucity of records in Congress renders it difficult to
ascertain its meaning.108 Consequently, the jurisprudence in this area is
volatile and fraught with inconsistencies whether within a Court decision or
across decisions.
One source of difficulty is the difference in the context in which the First
Amendment was adopted and in which it is applied today. In the 1780s,
religion played a primary role in social life - i.e., family responsibilities,
education, health care, poor relief, and other aspects of social life with
significant moral dimension - while government played a supportive and
indirect role by maintaining conditions in which these activities may be
carried out by religious or religiously-motivated associations. Today,
government plays this primary role and religion plays the supportive
role.109 Government runs even family planning, sex education, adoption and
foster care programs.110 Stated otherwise and with some exaggeration,
"(w)hereas two centuries ago, in matters of social life which have a
significant moral dimension, government was the handmaid of religion,
today religion, in its social responsibilities, as contrasted with personal faith
and collective worship, is the handmaid of government." 111 With government
regulation of individual conduct having become more pervasive, inevitably
some of those regulations would reach conduct that for some individuals are

religious. As a result, increasingly, there may be inadvertent collisions

between purely secular government actions and religion clause values. 112
Parallel to this expansion of government has been the expansion of religious
organizations in population, physical institutions, types of activities
undertaken, and sheer variety of denominations, sects and cults. Churches
run day-care centers, retirement homes, hospitals, schools at all levels,
research centers, settlement houses, halfway houses for prisoners, sports
facilities, theme parks, publishing houses and mass media programs. In these
activities, religious organizations complement and compete with commercial
enterprises, thus blurring the line between many types of activities
undertaken by religious groups and secular activities. Churches have also
concerned themselves with social and political issues as a necessary
outgrowth of religious faith as witnessed in pastoral letters on war and peace,
economic justice, and human life, or in ringing affirmations for racial
equality on religious foundations. Inevitably, these developments have
brought about substantial entanglement of religion and government.
Likewise, the growth in population density, mobility and diversity has
significantly changed the environment in which religious organizations and
activities exist and the laws affecting them are made. It is no longer easy for
individuals to live solely among their own kind or to shelter their children
from exposure to competing values. The result is disagreement over what
laws should require, permit or prohibit;113 and agreement that if the rights of
believers as well as non-believers are all to be respected and given their just
due, a rigid, wooden interpretation of the religion clauses that is blind to
societal and political realities must be avoided. 114
Religion cases arise from different circumstances. The more obvious ones
arise from a government action which purposely aids or inhibits religion.
These cases are easier to resolve as, in general, these actions are plainly
unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof
of intent to aid or inhibit religion.115The more difficult religion clause cases
involve government action with a secular purpose and general applicability
which incidentally or inadvertently aids or burdens religious exercise. In Free
Exercise Clause cases, these government actions are referred to as those with
"burdensome effect" on religious exercise even if the government action is
not religiously motivated.116 Ideally, the legislature would recognize the
religions and their practices and would consider them, when practical, in
enacting laws of general application. But when the legislature fails to do so,
religions that are threatened and burdened turn to the courts for
protection.117 Most of these free exercise claims brought to the Court are for
exemption, not invalidation of the facially neutral law that has a
"burdensome" effect.118

With the change in political and social context and the increasing inadvertent
collisions between law and religious exercise, the definition of religion for
purposes of interpreting the religion clauses has also been modified to suit
current realities. Defining religion is a difficult task for even theologians,
philosophers and moralists cannot agree on a comprehensive definition.
Nevertheless, courts must define religion for constitutional and other legal
purposes.119 It was in the 1890 case of Davis v. Beason120 that the United
States Supreme Court first had occasion to define religion, viz:
The term 'religion' has reference to one's views of his relations to his
Creator, and to the obligations they impose of reverence for his being
and character, and of obedience to his will. It is often confounded
with the cultus or form of worship of a particular sect, but is
distinguishable from the latter. The First Amendment to the
Constitution, in declaring that Congress shall make no law respecting
the establishment of religion, or forbidding the free exercise thereof,
was intended to allow everyone under the jurisdiction of the United
States to entertain such notions respecting his relations to his Maker
and the duties they impose as may be approved by his judgment and
conscience, and to exhibit his sentiments in such form of worship as
he may think proper, not injurious to the equal rights of others, and
to prohibit legislation for the support of any religious tenets, or the
modes of worship of any sect.121
The definition was clearly theistic which was reflective of the popular
attitudes in 1890.
In 1944, the Court stated in United States v. Ballard122 that the free exercise
of religion "embraces the right to maintain theories of life and of death and of
the hereafter which are rank heresy to followers of the orthodox faiths." 123 By
the 1960s, American pluralism in religion had flourished to include nontheistic creeds from Asia such as Buddhism and Taoism. 124 In 1961, the
Court, in Torcaso v. Watkins,125 expanded the term "religion" to non-theistic
beliefs such as Buddhism, Taoism, Ethical Culture, and Secular Humanism.
Four years later, the Court faced a definitional problem in United States v.
Seeger126 which involved four men who claimed "conscientious objector"
status in refusing to serve in the Vietnam War. One of the four, Seeger, was
not a member of any organized religion opposed to war, but when
specifically asked about his belief in a Supreme Being, Seeger stated that
"you could call (it) a belief in a Supreme Being or God. These just do not
happen to be the words that I use." Forest Peter, another one of the four
claimed that after considerable meditation and reflection "on values derived
from the Western religious and philosophical tradition," he determined that it
would be "a violation of his moral code to take human life and that he
considered this belief superior to any obligation to the state." The Court

avoided a constitutional question by broadly interpreting not the Free

Exercise Clause, but the statutory definition of religion in the Universal
Military Training and Service Act of 1940 which exempt from combat
anyone "who, by reason of religious training and belief, is conscientiously
opposed to participation in war in any form." Speaking for the Court, Justice
Clark ruled, viz:
Congress, in using the expression 'Supreme Being' rather than the
designation 'God,' was merely clarifying the meaning of religious
tradition and belief so as to embrace all religions and to exclude
essentially political, sociological, or philosophical views (and) the
test of belief 'in relation to a Supreme Being' is whether a given
belief that is sincere and meaningful occupies a place in the life of its
possessor parallel to the orthodox belief in God. (emphasis supplied)
The Court was convinced that Seeger, Peter and the others were
conscientious objectors possessed of such religious belief and training.
Federal and state courts have expanded the definition of religion in Seeger to
include even non-theistic beliefs such as Taoism or Zen Buddhism. It has
been proposed that basically, a creed must meet four criteria to qualify as
religion under the First Amendment. First, there must be belief in God or
some parallel belief that occupies a central place in the believer's life.
Second, the religion must involve a moral code transcending individual
belief, i.e., it cannot be purely subjective. Third, a demonstrable sincerity in
belief is necessary, but the court must not inquire into the truth or
reasonableness of the belief.127 Fourth, there must be some associational
ties,128although there is also a view that religious beliefs held by a single
person rather than being part of the teachings of any kind of group or sect are
entitled to the protection of the Free Exercise Clause. 129
Defining religion is only the beginning of the difficult task of deciding
religion clause cases. Having hurdled the issue of definition, the court then
has to draw lines to determine what is or is not permissible under the religion
clauses. In this task, the purpose of the clauses is the yardstick. Their purpose
is singular; they are two sides of the same coin. 130 In devoting two clauses to
religion, the Founders were stating not two opposing thoughts that would
cancel each other out, but two complementary thoughts that apply in
different ways in different circumstances. 131 The purpose of the religion
clauses - both in the restriction it imposes on the power of the government to
interfere with the free exercise of religion and the limitation on the power of
government to establish, aid, and support religion - is the protection and
promotion of religious liberty.132 The end, the goal, and the rationale of the
religion clauses is this liberty.133 Both clauses were adopted to prevent
government imposition of religious orthodoxy; the great evil against which
they are directed is government-induced homogeneity.134 The Free Exercise

Clause directly articulates the common objective of the two clauses and the
Establishment Clause specifically addresses a form of interference with
religious liberty with which the Framers were most familiar and for which
government historically had demonstrated a propensity.135 In other words,
free exercise is the end, proscribing establishment is a necessary means to
this end to protect the rights of those who might dissent from whatever
religion is established.136 It has even been suggested that the sense of the First
Amendment is captured if it were to read as "Congress shall make no law
respecting an establishment of religion or otherwise prohibiting the free
exercise thereof" because the fundamental and single purpose of the two
religious clauses is to "avoid any infringement on the free exercise of
religions"137 Thus, the Establishment Clause mandates separation of church
and state to protect each from the other, in service of the larger goal of
preserving religious liberty. The effect of the separation is to limit the
opportunities for any religious group to capture the state apparatus to the
disadvantage of those of other faiths, or of no faith at all 138 because history
has shown that religious fervor conjoined with state power is likely to
tolerate far less religious disagreement and disobedience from those who
hold different beliefs than an enlightened secular state. 139 In the words of the
U.S. Supreme Court, the two clauses are interrelated, viz: "(t)he structure of
our government has, for the preservation of civil liberty, rescued the temporal
institutions from religious interference. On the other hand, it has secured
religious liberty from the invasion of the civil authority." 140
In upholding religious liberty as the end goal in religious clause cases, the
line the court draws to ensure that government does not establish and instead
remains neutral toward religion is not absolutely straight. Chief Justice
Burger explains, viz:
The course of constitutional neutrality in this area cannot be an
absolutely straight line; rigidity could well defeat the basic purpose
of these provisions, which is to insure that no religion be sponsored
or favored, none commanded and none inhibited.141 (emphasis
supplied)
Consequently, U.S. jurisprudence has produced two identifiably
different,142 even opposing, strains of jurisprudence on the religion clauses:
separation (in the form of strict separation or the tamer version of strict
neutrality or separation) and benevolent neutrality or accommodation. A view
of the landscape of U.S. religion clause cases would be useful in
understanding these two strains, the scope of protection of each clause, and
the tests used in religious clause cases. Most of these cases are cited as
authorities in Philippine religion clause cases.
A. Free Exercise Clause

The Court first interpreted the Free Exercise Clause in the 1878 case of
Reynolds v. United States.143 This landmark case involved Reynolds, a
Mormon who proved that it was his religious duty to have several wives and
that the failure to practice polygamy by male members of his religion when
circumstances would permit would be punished with damnation in the life to
come. Reynolds' act of contracting a second marriage violated Section 5352,
Revised Statutes prohibiting and penalizing bigamy, for which he was
convicted. The Court affirmed Reynolds' conviction, using what in
jurisprudence would be called the belief-action test which allows absolute
protection to belief but not to action. It cited Jefferson's Bill Establishing
Religious Freedom which, according to the Court, declares "the true
distinction between what properly belongs to the Church and what to the
State."144The bill, making a distinction between belief and action, states in
relevant part, viz:
That to suffer the civil magistrate to intrude his powers into the field
of opinion, and to restrain the profession or propagation of principles
on supposition of their ill tendency, is a dangerous fallacy which at
once destroys all religious liberty;
that it is time enough for the rightful purposes of civil government
for its officers to interfere when principles break out into overt acts
against peace and good order.145 (emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion,
but was left free to reach actions which were in violation of social
duties or subversive of good order. . .
Laws are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with
practices. Suppose one believed that human sacrifice were a
necessary part of religious worship, would it be seriously contended
that the civil government under which he lived could not interfere to
prevent a sacrifice? Or if a wife religiously believed it was her duty
to burn herself upon the funeral pile of her dead husband, would it be
beyond the power of the civil government to prevent her carrying her
belief into practice?
So here, as a law of the organization of society under the exclusive
dominion of the United States, it is provided that plural marriages
shall not be allowed. Can a man excuse his practices to the contrary
because of his religious belief? To permit this would be to make the
professed doctrines of religious belief superior to the law of the land,
and in effect to permit every citizen to become a law unto himself.
Government could exist only in name under such circumstances. 146

The construct was thus simple: the state was absolutely prohibited by the
Free Exercise Clause from regulating individual religious beliefs, but placed
no restriction on the ability of the state to regulate religiously motivated
conduct. It was logical for belief to be accorded absolute protection because
any statute designed to prohibit a particular religious belief unaccompanied
by any conduct would most certainly be motivated only by the legislature's
preference of a competing religious belief. Thus, all cases of regulation of
belief would amount to regulation of religion for religious reasons violative
of the Free Exercise Clause. On the other hand, most state regulations of
conduct are for public welfare purposes and have nothing to do with the
legislature's religious preferences. Any burden on religion that results from
state regulation of conduct arises only when particular individuals are
engaging in the generally regulated conduct because of their particular
religious beliefs. These burdens are thus usually inadvertent and did not
figure in the belief-action test. As long as the Court found that regulation
address action rather than belief, the Free Exercise Clause did not pose any
problem.147 The Free Exercise Clause thus gave no protection against the
proscription of actions even if considered central to a religion unless the
legislature formally outlawed the belief itself. 148
This belief-action distinction was held by the Court for some years as shown
by cases where the Court upheld other laws which burdened the practice of
the Mormon religion by imposing various penalties on polygamy such as the
Davis case and Church of Latter Day Saints v. United States. 149 However,
more than a century since Reynolds was decided, the Court has expanded the
scope of protection from belief to speech and conduct. But while the beliefaction test has been abandoned, the rulings in the earlier Free Exercise cases
have gone unchallenged. The belief-action distinction is still of some
importance though as there remains an absolute prohibition of governmental
proscription of beliefs.150
The Free Exercise Clause accords absolute protection to individual religious
convictions and beliefs151 and proscribes government from questioning a
person's beliefs or imposing penalties or disabilities based solely on those
beliefs. The Clause extends protection to both beliefs and unbelief. Thus,
in Torcaso v. Watkins,152 a unanimous Court struck down a state law
requiring as a qualification for public office an oath declaring belief in the
existence of God. The protection also allows courts to look into the good
faith of a person in his belief, but prohibits inquiry into the truth of a person's
religious beliefs. As held in United States v. Ballard,153 "(h)eresy trials are
foreign to the Constitution. Men may believe what they cannot prove. They
may not be put to the proof of their religious doctrines or beliefs."
Next to belief which enjoys virtually absolute protection, religious speech
and expressive religious conduct are accorded the highest degree of

protection. Thus, in the 1940 case of Cantwell v. Connecticut,154 the Court

struck down a state law prohibiting door-to-door solicitation for any religious
or charitable cause without prior approval of a state agency. The law was
challenged by Cantwell, a member of the Jehovah's Witnesses which is
committed to active proselytizing. The Court invalidated the state statute as
the prior approval necessary was held to be a censorship of religion
prohibited by the Free Exercise Clause. The Court held, viz:
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields the tenets of one may seem the
rankest error to his neighbor. To persuade others to his point of view,
the pleader, as we know, resorts to exaggeration, to vilification of
men who have been, or are, prominent in church or state, and even to
false statement. But the people of this nation have ordained in the
light of history, that, in spite of the probability of excesses and
abuses, these liberties are, in the long view, essential to enlightened
opinion and right conduct on the part of citizens of a democracy.155
Cantwell took a step forward from the protection afforded by the Reynolds
case in that it not only affirmed protection of belief but also freedom to act
for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to believe
and freedom to act. The first is absolute but, in the nature of things,
the second cannot be. Conduct remains subject to regulation for the
protection of society. . . In every case, the power to regulate must be
so exercised as not, in attaining a permissible end, unduly to infringe
the protected freedom. (emphasis supplied)156
The Court stated, however, that government had the power to regulate the
times, places, and manner of solicitation on the streets and assure the peace
and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of Jeanette,157 ruled
that police could not prohibit members of the Jehovah's Witnesses from
peaceably and orderly proselytizing on Sundays merely because other
citizens complained. In another case likewise involving the Jehovah's
Witnesses, Niemotko v. Maryland,158 the Court unanimously held
unconstitutional a city council's denial of a permit to the Jehovah's Witnesses
to use the city park for a public meeting. The city council's refusal was
because of the "unsatisfactory" answers of the Jehovah's Witnesses to
questions about Catholicism, military service, and other issues. The denial of
the public forum was considered blatant censorship. While protected,
religious speech in the public forum is still subject to reasonable time, place
and manner regulations similar to non-religious speech. Religious
proselytizing in congested areas, for example, may be limited to certain areas
to maintain the safe and orderly flow of pedestrians and vehicular traffic as

held in the case of Heffron v. International Society for Krishna

Consciousness.159
The least protected under the Free Exercise Clause is religious conduct,
usually in the form of unconventional religious practices. Protection in this
realm depends on the character of the action and the government rationale for
regulating the action.160 The Mormons' religious conduct of polygamy is an
example of unconventional religious practice. As discussed in the Reynolds
case above, the Court did not afford protection to the practice. Reynolds was
reiterated in the 1890 case of Davis again involving Mormons, where the
Court held, viz: "(c)rime is not the less odious because sanctioned by what
any particular sect may designate as religion."161
The belief-action test in Reynolds and Davis proved unsatisfactory. Under
this test, regulation of religiously dictated conduct would be upheld no matter
how central the conduct was to the exercise of religion and no matter how
insignificant was the government's non-religious regulatory interest so long
as the government is proscribing action and not belief. Thus, the Court
abandoned the simplistic belief-action distinction and instead recognized the
deliberate-inadvertent distinction, i.e., the distinction between deliberate state
interference of religious exercise for religious reasons which was plainly
unconstitutional and government's inadvertent interference with religion in
pursuing some secular objective.162 In the 1940 case of Minersville School
District v. Gobitis,163 the Court upheld a local school board requirement that
all public school students participate in a daily flag salute program, including
the Jehovah's Witnesses who were forced to salute the American flag in
violation of their religious training, which considered flag salute to be
worship of a "graven image." The Court recognized that the general
requirement of compulsory flag salute inadvertently burdened the Jehovah
Witnesses' practice of their religion, but justified the government regulation
as an appropriate means of attaining national unity, which was the "basis of
national security." Thus, although the Court was already aware of the
deliberate-inadvertent distinction in government interference with religion, it
continued to hold that the Free Exercise Clause presented no problem to
interference with religion that was inadvertent no matter how serious the
interference, no matter how trivial the state's non-religious objectives, and no
matter how many alternative approaches were available to the state to pursue
its objectives with less impact on religion, so long as government was acting
in pursuit of a secular objective.
Three years later, the Gobitis decision was overturned in West Virginia v.
Barnette164 which involved a similar set of facts and issue. The Court
recognized that saluting the flag, in connection with the pledges, was a form
of utterance and the flag salute program was a compulsion of students to
declare a belief. The Court ruled that "compulsory unification of opinions

leads only to the unanimity of the graveyard" and exempt the students who
were members of the Jehovah's Witnesses from saluting the flag. A close
scrutiny of the case, however, would show that it was decided not on the
issue of religious conduct as the Court said, "(n)or does the issue as we see it
turn on one's possession of particular religious views or the sincerity with
which they are held. While religion supplies appellees' motive for enduring
the discomforts of making the issue in this case, many citizens who do not
share these religious views hold such a compulsory rite to infringe
constitutional liberty of the individual." (emphasis supplied) 165 The Court
pronounced, however, that, "freedoms of speech and of press, of assembly,
and of worship . . . are susceptible only of restriction only to prevent grave
and immediate danger to interests which the state may lawfully
protect."166 The Court seemed to recognize the extent to which its approach in
Gobitis subordinated the religious liberty of political minorities - a specially
protected constitutional value - to the common everyday economic and
public welfare objectives of the majority in the legislature. This time, even
inadvertent interference with religion must pass judicial scrutiny under the
Free Exercise Clause with only grave and immediate danger sufficing to
override religious liberty. But the seeds of this heightened scrutiny would
only grow to a full flower in the 1960s.167
Nearly a century after Reynolds employed the belief-action test, the Warren
Court began the modern free exercise jurisprudence. 168 A two-part balancing
test was established in Braunfeld v. Brown169 where the Court considered
the constitutionality of applying Sunday closing laws to Orthodox Jews
whose beliefs required them to observe another day as the Sabbath and
abstain from commercial activity on Saturday. Chief Justice Warren, writing
for the Court, found that the law placed a severe burden on Sabattarian
retailers. He noted, however, that since the burden was the indirect effect of a
law with a secular purpose, it would violate the Free Exercise Clause only if
there were alternative ways of achieving the state's interest. He employed a
two-part balancing test of validity where the first step was for plaintiff to
show that the regulation placed a real burden on his religious exercise. Next,
the burden would be upheld only if the state showed that it was pursuing an
overriding secular goal by the means which imposed the least burden on
religious practices.170 The Court found that the state had an overriding secular
interest in setting aside a single day for rest, recreation and tranquility and
there was no alternative means of pursuing this interest but to require Sunday
as a uniform rest day.
Two years after came the stricter compelling state interest test in the 1963
case of Sherbert v. Verner.171 This test was similar to the two-part balancing
test in Braunfeld,172 but this latter test stressed that the state interest was not
merely any colorable state interest, but must be paramount and compelling to

override the free exercise claim. In this case, Sherbert, a Seventh Day
Adventist, claimed unemployment compensation under the law as her
employment was terminated for refusal to work on Saturdays on religious
grounds. Her claim was denied. She sought recourse in the Supreme Court.
In laying down the standard for determining whether the denial of benefits
could withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellee's conscientious objection to Saturday work
constitutes no conduct prompted by religious principles of a kind
within the reach of state legislation. If, therefore, the decision of the
South Carolina Supreme Court is to withstand appellant's
constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the
State of her constitutional rights of free exercise, or because any
incidental burden on the free exercise of appellant's religion may be
justified by a 'compelling state interest in the regulation of a subject
within the State's constitutional power to regulate. . .'NAACP v.
Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct
328.173 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not
sufficient to merely show a rational relationship of the substantial
infringement to the religious right and a colorable state interest. "(I)n this
highly sensitive constitutional area, '[o]nly the gravest abuses, endangering
paramount interests, give occasion for permissible limitation.' Thomas v.
Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315."174 The Court
found that there was no such compelling state interest to override Sherbert's
religious liberty. It added that even if the state could show that Sherbert's
exemption would pose serious detrimental effects to the unemployment
compensation fund and scheduling of work, it was incumbent upon the state
to show that no alternative means of regulations would address such
detrimental effects without infringing religious liberty. The state, however,
did not discharge this burden. The Court thus carved out for Sherbert an
exemption from the Saturday work requirement that caused her
disqualification from claiming the unemployment benefits. The Court
reasoned that upholding the denial of Sherbert's benefits would force her to
choose between receiving benefits and following her religion. This choice
placed "the same kind of burden upon the free exercise of religion as would a
fine imposed against (her) for her Saturday worship." This germinal case of
Sherbert firmly established the exemption doctrine,175 viz:
It is certain that not every conscience can be accommodated by all
the laws of the land; but when general laws conflict with scruples of
conscience, exemptions ought to be granted unless some 'compelling
state interest' intervenes.

Thus, in a short period of twenty-three years from Gobitis to Sherbert (or

even as early as Braunfeld), the Court moved from the doctrine that
inadvertent or incidental interferences with religion raise no problem under
the Free Exercise Clause to the doctrine that such interferences violate the
Free Exercise Clause in the absence of a compelling state interest - the
highest level of constitutional scrutiny short of a holding of a per se
violation. Thus, the problem posed by the belief-action test and the
deliberate-inadvertent distinction was addressed. 176
Throughout the 1970s and 1980s under the Warren, and afterwards, the
Burger Court, the rationale in Sherbert continued to be applied. In Thomas v.
Review Board177 and Hobbie v. Unemployment Appeals Division,178for
example, the Court reiterated the exemption doctrine and held that in the
absence of a compelling justification, a state could not withhold
unemployment compensation from an employee who resigned or was
discharged due to unwillingness to depart from religious practices and beliefs
that conflicted with job requirements. But not every governmental refusal to
allow an exemption from a regulation which burdens a sincerely held
religious belief has been invalidated, even though strict or heightened
scrutiny is applied. In United States v. Lee,179 for instance, the Court using
strict scrutiny and referring to Thomas, upheld the federal government's
refusal to exempt Amish employers who requested for exemption from
paying social security taxes on wages on the ground of religious beliefs. The
Court held that "(b)ecause the broad public interest in maintaining a sound
tax system is of such a high order, religious belief in conflict with the
payment of taxes affords no basis for resisting the tax." 180 It reasoned that
unlike in Sherbert, an exemption would significantly impair government's
achievement of its objective - "the fiscal vitality of the social security
system;" mandatory participation is indispensable to attain this objective. The
Court noted that if an exemption were made, it would be hard to justify not
allowing a similar exemption from general federal taxes where the taxpayer
argues that his religious beliefs require him to reduce or eliminate his
payments so that he will not contribute to the government's war-related
activities, for example.
The strict scrutiny and compelling state interest test significantly increased
the degree of protection afforded to religiously motivated conduct. While not
affording absolute immunity to religious activity, a compelling secular
justification was necessary to uphold public policies that collided with
religious practices. Although the members of the Court often disagreed over
which governmental interests should be considered compelling, thereby
producing dissenting and separate opinions in religious conduct cases, this
general test established a strong presumption in favor of the free exercise of
religion.181

Heightened scrutiny was also used in the 1972 case of Wisconsin v.

Yoder182 where the Court upheld the religious practice of the Old Order
Amish faith over the state's compulsory high school attendance law. The
Amish parents in this case did not permit secular education of their children
beyond the eighth grade. Chief Justice Burger, writing for the majority,
held, viz:
It follows that in order for Wisconsin to compel school attendance
beyond the eighth grade against a claim that such attendance
interferes with the practice of a legitimate religious belief, it must
appear either that the State does not deny the free exercise of
religious belief by its requirement, or that there is a state interest of
sufficient magnitude to override the interest claiming protection
under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the Religion
Clauses had specially and firmly fixed the right of free exercise of
religious beliefs, and buttressing this fundamental right was an
equally firm, even if less explicit, prohibition against the
establishment of any religion. The values underlying these two
provisions relating to religion have been zealously protected,
sometimes even at the expense of other interests of admittedly high
social importance. . .
The essence of all that has been said and written on the subject is that
only those interests of the highest order and those not otherwise
served can overbalance legitimate claims to the free exercise of
religion. . .
. . . our decisions have rejected the idea that that religiously grounded
conduct is always outside the protection of the Free Exercise Clause.
It is true that activities of individuals, even when religiously based,
are often subject to regulation by the States in the exercise of their
undoubted power to promote the health, safety, and general welfare,
or the Federal government in the exercise of its delegated powers . . .
But to agree that religiously grounded conduct must often be subject
to the broad police power of the State is not to deny that there are
areas of conduct protected by the Free Exercise Clause of the First
Amendment and thus beyond the power of the State to control, even
under regulations of general applicability. . . .This case, therefore,
does not become easier because respondents were convicted for their
"actions" in refusing to send their children to the public high school;
in this context belief and action cannot be neatly confined in logictight compartments. . .183
The onset of the 1990s, however, saw a major setback in the protection
afforded by the Free Exercise Clause. In Employment Division, Oregon

Department of Human Resources v. Smith,184 the sharply divided

Rehnquist Court dramatically departed from the heightened scrutiny and
compelling justification approach and imposed serious limits on the scope of
protection of religious freedom afforded by the First Amendment. In this
case, the well-established practice of the Native American Church, a sect
outside the Judeo-Christian mainstream of American religion, came in
conflict with the state's interest in prohibiting the use of illicit drugs.
Oregon's controlled substances statute made the possession of peyote a
criminal offense. Two members of the church, Smith and Black, worked as
drug rehabilitation counselors for a private social service agency in Oregon.
Along with other church members, Smith and Black ingested peyote, a
hallucinogenic drug, at a sacramental ceremony practiced by Native
Americans for hundreds of years. The social service agency fired Smith and
Black citing their use of peyote as "job-related misconduct". They applied for
unemployment compensation, but the Oregon Employment Appeals Board
denied their application as they were discharged for job-related misconduct.
Justice Scalia, writing for the majority, ruled that "if prohibiting the exercise
of religion . . . is . . . merely the incidental effect of a generally applicable
and otherwise valid law, the First Amendment has not been offended." In
other words, the Free Exercise Clause would be offended only if a particular
religious practice were singled out for proscription. The majority opinion
relied heavily on the Reynolds case and in effect, equated Oregon's drug
prohibition law with the anti-polygamy statute in Reynolds. The relevant
portion of the majority opinion held, viz:
We have never invalidated any governmental action on the basis of
the Sherbert test except the denial of unemployment compensation.
Even if we were inclined to breathe into Sherbert some life beyond
the unemployment compensation field, we would not apply it to
require exemptions from a generally applicable criminal law. . .
We conclude today that the sounder approach, and the approach in accord
with the vast majority of our precedents, is to hold the test inapplicable to
such challenges. The government's ability to enforce generally applicable
prohibitions of socially harmful conduct, like its ability to carry out other
aspects of public policy, "cannot depend on measuring the effects of a
governmental action on a religious objector's spiritual development." . . .To
make an individual's obligation to obey such a law contingent upon the law's
coincidence with his religious beliefs except where the State's interest is
"compelling" - permitting him, by virtue of his beliefs, "to become a law unto
himself," . . . - contradicts both constitutional tradition and common sense.
Justice O'Connor wrote a concurring opinion pointing out that the majority's
rejection of the compelling governmental interest test was the most
controversial part of the decision. Although she concurred in the result that

the Free Exercise Clause had not been offended, she sharply criticized the
majority opinion as a dramatic departure "from well-settled First Amendment
jurisprudence. . . and . . . (as) incompatible with our Nation's fundamental
commitment to religious liberty." This portion of her concurring opinion was
supported by Justices Brennan, Marshall and Blackmun who dissented from
the Court's decision. Justice O'Connor asserted that "(t)he compelling state
interest test effectuates the First Amendment's command that religious liberty
is an independent liberty, that it occupies a preferred position, and that the
Court will not permit encroachments upon this liberty, whether direct or
indirect, unless required by clear and compelling government interest 'of the
highest order'." Justice Blackmun registered a separate dissenting opinion,
joined by Justices Brennan and Marshall. He charged the majority with
"mischaracterizing" precedents and "overturning. . . settled law concerning
the Religion Clauses of our Constitution." He pointed out that the Native
American Church restricted and supervised the sacramental use of peyote.
Thus, the state had no significant health or safety justification for regulating
the sacramental drug use. He also observed that Oregon had not attempted to
prosecute Smith or Black, or any Native Americans, for that matter, for the
sacramental use of peyote. In conclusion, he said that "Oregon's interest in
enforcing its drug laws against religious use of peyote (was) not sufficiently
compelling to outweigh respondents' right to the free exercise of their
religion."
The Court went back to the Reynolds and Gobitis doctrine in Smith. The
Court's standard in Smith virtually eliminated the requirement that the
government justify with a compelling state interest the burdens on religious
exercise imposed by laws neutral toward religion. The Smith doctrine is
highly unsatisfactory in several respects and has been criticized as exhibiting
a shallow understanding of free exercise jurisprudence. 185 First, the First
amendment was intended to protect minority religions from the tyranny of
the religious and political majority. A deliberate regulatory interference with
minority religious freedom is the worst form of this tyranny. But regulatory
interference with a minority religion as a result of ignorance or sensitivity of
the religious and political majority is no less an interference with the
minority's religious freedom. If the regulation had instead restricted the
majority's religious practice, the majoritarian legislative process would in all
probability have modified or rejected the regulation. Thus, the imposition of
the political majority's non-religious objectives at the expense of the
minority's religious interests implements the majority's religious viewpoint at
the expense of the minority's. Second, government impairment of religious
liberty would most often be of the inadvertent kind as in Smith considering
the political culture where direct and deliberate regulatory imposition of
religious orthodoxy is nearly inconceivable. If the Free Exercise Clause

could not afford protection to inadvertent interference, it would be left almost

meaningless. Third, the Reynolds-Gobitis-Smith doctrine simply defies
common sense. The state should not be allowed to interfere with the most
deeply held fundamental religious convictions of an individual in order to
pursue some trivial state economic or bureaucratic objective. This is
especially true when there are alternative approaches for the state to
effectively pursue its objective without serious inadvertent impact on
religion.186
Thus, the Smith decision has been criticized not only for increasing the
power of the state over religion but as discriminating in favor of mainstream
religious groups against smaller, more peripheral groups who lack legislative
clout,187 contrary to the original theory of the First
Amendment.188 Undeniably, claims for judicial exemption emanate almost
invariably from relatively politically powerless minority religions and Smith
virtually wiped out their judicial recourse for exemption. 189 Thus, the Smith
decision elicited much negative public reaction especially from the religious
community, and commentaries insisted that the Court was allowing the Free
Exercise Clause to disappear.190 So much was the uproar that a majority in
Congress was convinced to enact the Religious Freedom Restoration Act
(RFRA) of 1993. The RFRA prohibited government at all levels from
substantially burdening a person's free exercise of religion, even if such
burden resulted from a generally applicable rule, unless the government
could demonstrate a compelling state interest and the rule constituted the
least restrictive means of furthering that interest. 191 RFRA, in effect, sought
to overturn the substance of the Smith ruling and restore the status quo prior
to Smith. Three years after the RFRA was enacted, however, the Court,
dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne v.
Flores.192 The Court ruled that "RFRA contradicts vital principles necessary
to maintain separation of powers and the federal balance." It emphasized the
primacy of its role as interpreter of the Constitution and unequivocally
rejected, on broad institutional grounds, a direct congressional challenge of
final judicial authority on a question of constitutional interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah193 which was ruled consistent with the Smith doctrine. This case
involved animal sacrifice of the Santeria, a blend of Roman Catholicism and
West African religions brought to the Carribean by East African slaves. An
ordinance made it a crime to "unnecessarily kill, torment, torture, or mutilate
an animal in public or private ritual or ceremony not for the primary purpose
of food consumption." The ordinance came as a response to the local concern
over the sacrificial practices of the Santeria. Justice Kennedy, writing for the
majority, carefully pointed out that the questioned ordinance was not a
generally applicable criminal prohibition, but instead singled out

practitioners of the Santeria in that it forbade animal slaughter only insofar as

it took place within the context of religious rituals.
It may be seen from the foregoing cases that under the Free Exercise Clause,
religious belief is absolutely protected, religious speech and proselytizing are
highly protected but subject to restraints applicable to non-religious speech,
and unconventional religious practice receives less protection; nevertheless
conduct, even if its violates a law, could be accorded protection as shown in
Wisconsin.194
B. Establishment Clause
The Court's first encounter with the Establishment Clause was in the 1947
case of Everson v. Board of Education.195 Prior cases had made passing
reference to the Establishment Clause196 and raised establishment questions
but were decided on other grounds.197 It was in the Everson case that the U.S.
Supreme Court adopted Jefferson's metaphor of "a wall of separation
between church and state" as encapsulating the meaning of the Establishment
Clause. The often and loosely used phrase "separation of church and state"
does not appear in the U.S. Constitution. It became part of U.S. jurisprudence
when the Court in the 1878 case ofReynolds v. United States198 quoted
Jefferson's famous letter of 1802 to the Danbury Baptist Association in
narrating the history of the religion clauses, viz:
Believing with you that religion is a matter which lies solely between
man and his God; that he owes account to none other for his faith or
his worship; that the legislative powers of the Government reach
actions only, and not opinions, I contemplate with sovereign
reverence that act of the whole American people which declared that
their Legislature should 'make no law respecting an establishment of
religion or prohibiting the free exercise thereof,' thus building a wall
of separation between Church and State.199(emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, "(c)oming as this
does from an acknowledged leader of the advocates of the measure, it may be
accepted almost as an authoritative declaration of the scope and effect of the
amendment thus secured."200
The interpretation of the Establishment Clause has in large part been in cases
involving education, notably state aid to private religious schools and prayer
in public schools.201 In Everson v. Board of Education, for example, the issue
was whether a New Jersey local school board could reimburse parents for
expenses incurred in transporting their children to and from Catholic schools.
The reimbursement was part of a general program under which all parents of
children in public schools and nonprofit private schools, regardless of
religion, were entitled to reimbursement for transportation costs. Justice
Hugo Black, writing for a sharply divided Court, justified the
reimbursements on the child benefit theory, i.e., that the school board was

merely furthering the state's legitimate interest in getting children "regardless

of their religion, safely and expeditiously to and from accredited schools."
The Court, after narrating the history of the First Amendment in Virginia,
interpreted the Establishment Clause,viz:
The 'establishment of religion' clause of the First Amendment means
at least this: Neither a state nor the Federal Government can set up a
church. Neither can pass laws which aid one religion, aid all
religions, or prefer one religion over another. Neither can force nor
influence a person to go to or remain away from church against his
will or force him to profess a belief or disbelief in any religion. No
person can be punished for entertaining or professing religious
beliefs or disbeliefs, for church attendance or non-attendance. No tax
in any amount, large or small, can be levied to support any religious
activities or institutions, whatever they may be called, or whatever
form they may adopt to teach or practice religion. Neither a state nor
the Federal Government can, openly or secretly participate in the
affairs of any religious organizations or groups and vice versa. In the
words of Jefferson, the clause against establishment of religion by
law was intended to erect "a wall of separation between Church and
State."202
The Court then ended the opinion, viz:
The First Amendment has erected a wall between church and state.
That wall must be kept high and impregnable. We could not approve
the slightest breach. New Jersey has not breached it here. 203
By 1971, the Court integrated the different elements of the Court's
Establishment Clause jurisprudence that evolved in the 1950s and 1960s and
laid down a three-pronged test in Lemon v. Kurtzman204 in determining the
constitutionality of policies challenged under the Establishment Clause. This
case involved a Pennsylvania statutory program providing publicly funded
reimbursement for the cost of teachers' salaries, textbooks, and instructional
materials in secular subjects and a Rhode Island statute providing salary
supplements to teachers in parochial schools. The Lemon test requires a
challenged policy to meet the following criteria to pass scrutiny under the
Establishment Clause. "First, the statute must have a secular legislative
purpose; second, its primary or principal effect must be one that neither
advances nor inhibits religion (Board of Education v. Allen, 392 US 236,
243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must
not foster 'an excessive entanglement with religion.' (Walz v.Tax
Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409 [1970])"
(emphasis supplied)205 Using this test, the Court held that the Pennsylvania
statutory program and Rhode Island statute were unconstitutional as fostering
excessive entanglement between government and religion.

The most controversial of the education cases involving the Establishment

Clause are the school prayer decisions. "Few decisions of the modern
Supreme Court have been criticized more intensely than the school prayer
decisions of the early 1960s."206 In the 1962 case of Engel v. Vitale,207 the
Court invalidated a New York Board of Regents policy that established the
voluntary recitation of a brief generic prayer by children in the public schools
at the start of each school day. The majority opinion written by Justice Black
stated that "in this country it is no part of the business of government to
compose official prayers for any group of the American people to recite as
part of a religious program carried on by government." In fact, history shows
that this very practice of establishing governmentally composed prayers for
religious services was one of the reasons that caused many of the early
colonists to leave England and seek religious freedom in America. The Court
called to mind that the first and most immediate purpose of the Establishment
Clause rested on the belief that a union of government and religion tends to
destroy government and to degrade religion. The following year, the Engel
decision was reinforced in Abington School District v.
Schempp208 and Murray v. Curlett209 where the Court struck down the
practice of Bible reading and the recitation of the Lord's prayer in the
Pennsylvania and Maryland schools. The Court held that to withstand the
strictures of the Establishment Clause, a statute must have a secular
legislative purpose and a primary effect that neither advances nor inhibits
religion. It reiterated, viz:
The wholesome 'neutrality' of which this Court's cases speak thus
stems from a recognition of the teachings of history that powerful
sects or groups might bring about a fusion of governmental and
religious functions or a concert or dependency of one upon the other
to the end that official support of the State of Federal Government
would be placed behind the tenets of one or of all orthodoxies. This
the Establishment Clause prohibits. And a further reason for
neutrality is found in the Free Exercise Clause, which recognizes the
value of religious training, teaching and observance and, more
particularly, the right of every person to freely choose his own course
with reference thereto, free of any compulsion from the state. 210
The school prayer decisions drew furious reactions. Religious leaders and
conservative members of Congress and resolutions passed by several state
legislatures condemned these decisions.211 On several occasions,
constitutional amendments have been introduced in Congress to overturn the
school prayer decisions. Still, the Court has maintained its position and has in
fact reinforced it in the 1985 case of Wallace v. Jaffree212 where the Court
struck down an Alabama law that required public school students to observe

a moment of silence "for the purpose of meditation or voluntary prayer" at

the start of each school day.
Religious instruction in public schools has also pressed the Court to interpret
the Establishment Clause. Optional religious instruction within public school
premises and instructional time were declared offensive of the Establishment
Clause in the 1948 case of McCollum v. Board of Education,213 decided
just a year after the seminal Everson case. In this case, interested members of
the Jewish, Roman Catholic and a few Protestant faiths obtained permission
from the Board of Education to offer classes in religious instruction to public
school students in grades four to nine. Religion classes were attended by
pupils whose parents signed printed cards requesting that their children be
permitted to attend. The classes were taught in three separate groups by
Protestant teachers, Catholic priests and a Jewish rabbi and were held weekly
from thirty to forty minutes during regular class hours in the regular
classrooms of the school building. The religious teachers were employed at
no expense to the school authorities but they were subject to the approval and
supervision of the superintendent of schools. Students who did not choose to
take religious instruction were required to leave their classrooms and go to
some other place in the school building for their secular studies while those
who were released from their secular study for religious instruction were
required to attend the religious classes. The Court held that the use of taxsupported property for religious instruction and the close cooperation
between the school authorities and the religious council in promoting
religious education amounted to a prohibited use of tax-established and taxsupported public school system to aid religious groups spread their faith. The
Court rejected the claim that the Establishment Clause only prohibited
government preference of one religion over another and not an impartial
governmental assistance of all religions. In Zorach v. Clauson,214 however,
the Court upheld released time programs allowing students in public schools
to leave campus upon parental permission to attend religious services while
other students attended study hall. Justice Douglas, the writer of the opinion,
stressed that "(t)he First Amendment does not require that in every and all
respects there shall be a separation of Church and State." The Court
distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for religious
instruction and the force of the public school was used to promote
that instruction. . . We follow the McCollum case. But we cannot
expand it to cover the present released time program unless
separation of Church and State means that public institutions can
make no adjustments of their schedules to accommodate the religious
needs of the people. We cannot read into the Bill of Rights such a
philosophy of hostility to religion.215

In the area of government displays or affirmations of belief, the Court has

given leeway to religious beliefs and practices which have acquired a secular
meaning and have become deeply entrenched in history. For instance,
inMcGowan v. Maryland,216 the Court upheld laws that prohibited certain
businesses from operating on Sunday despite the obvious religious
underpinnings of the restrictions. Citing the secular purpose of the Sunday
closing laws and treating as incidental the fact that this day of rest happened
to be the day of worship for most Christians, the Court held, viz:
It is common knowledge that the first day of the week has come to
have special significance as a rest day in this country. People of all
religions and people with no religion regard Sunday as a time for
family activity, for visiting friends and relatives, for later sleeping,
for passive and active entertainments, for dining out, and the like. 217
In the 1983 case of Marsh v. Chambers,218 the Court refused to invalidate
Nebraska's policy of beginning legislative sessions with prayers offered by a
Protestant chaplain retained at the taxpayers' expense. The majority opinion
did not rely on the Lemon test and instead drew heavily from history and the
need for accommodation of popular religious beliefs, viz:
In light of the unambiguous and unbroken history of more than 200
years, there can be no doubt that the practice of opening legislative
sessions with prayer has become the fabric of our society. To invoke
Divine guidance on a public body entrusted with making the laws is
not, in these circumstances, an "establishment" of religion or a step
toward establishment; it is simply a tolerable acknowledgement of
beliefs widely held among the people of this country. As Justice
Douglas observed, "(w)e are a religious people whose institutions
presuppose a Supreme Being." (Zorach c. Clauson, 343 US 306, 313
[1952])219(emphasis supplied)
Some view the Marsh ruling as a mere aberration as the Court would
"inevitably be embarrassed if it were to attempt to strike down a practice that
occurs in nearly every legislature in the United States, including the U.S.
Congress."220 That Marsh was not an aberration is suggested by subsequent
cases. In the 1984 case of Lynch v. Donnelly,221 the Court upheld a citysponsored nativity scene in Rhode Island. By a 5-4 decision, the majority
opinion hardly employed the Lemon test and again relied on history and the
fact that the creche had become a "neutral harbinger of the holiday season"
for many, rather than a symbol of Christianity.
The Establishment Clause has also been interpreted in the area of tax
exemption. By tradition, church and charitable institutions have been exempt
from local property taxes and their income exempt from federal and state
income taxes. In the 1970 case of Walz v. Tax Commission,222 the New York
City Tax Commission's grant of property tax exemptions to churches as

allowed by state law was challenged by Walz on the theory that this required
him to subsidize those churches indirectly. The Court upheld the law
stressing its neutrality, viz:
It has not singled out one particular church or religious group or even
churches as such; rather, it has granted exemptions to all houses of
religious worship within a broad class of property owned by nonprofit, quasi-public corporations . . . The State has an affirmative
policy that considers these groups as beneficial and stabilizing
influences in community life and finds this classification useful,
desirable, and in the public interest.223
The Court added that the exemption was not establishing religion but
"sparing the exercise of religion from the burden of property taxation levied
on private profit institutions"224 and preventing excessive entanglement
between state and religion. At the same time, the Court acknowledged the
long-standing practice of religious tax exemption and the Court's traditional
deference to legislative bodies with respect to the taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our
national life, beginning with pre-Revolutionary colonial times, than
for the government to exercise . . . this kind of benevolent neutrality
toward churches and religious exercise generally so long as none was
favored over others and none suffered interference. 225 (emphasis
supplied)
C. Strict Neutrality v. Benevolent Neutrality
To be sure, the cases discussed above, while citing many landmark decisions
in the religious clauses area, are but a small fraction of the hundreds of
religion clauses cases that the U.S. Supreme Court has passed upon. Court
rulings contrary to or making nuances of the above cases may be cited.
Professor McConnell poignantly recognizes this, viz:
Thus, as of today, it is constitutional for a state to hire a Presbyterian
minister to lead the legislature in daily prayers (Marsh v. Chambers,
463 US783, 792-93[1983]), but unconstitutional for a state to set
aside a moment of silence in the schools for children to pray if they
want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is
unconstitutional for a state to require employers to accommodate
their employees' work schedules to their sabbath observances (Estate
of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but
constitutionally mandatory for a state to require employers to pay
workers compensation when the resulting inconsistency between
work and sabbath leads to discharge (. . .Sherbert v. Verner, 374 US
398, 403-4 [1963]). It is constitutional for the government to give
money to religiously-affiliated organizations to teach adolescents
about proper sexual behavior (Bowen v. Kendrick, 487 US 589, 611

[1988]), but not to teach them science or history (Lemon v.

Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the
government to provide religious school pupils with books (Board of
Education v. Allen, 392 US 236, 238 [1968]), but not with maps
(Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to
religious schools (Everson v. Board of Education, 330 US 1, 17
[1947]), but not from school to a museum on a field trip (Wolman v.
Walter, 433 US 229, 252-55 [1977]); with cash to pay for statemandated standardized tests (Committee for Pub. Educ. and
Religious Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to
pay for safety-related maintenance (Committee for Pub. Educ v.
Nyquist, 413 US 756, 774-80 [1973]). It is a mess.226
But the purpose of the overview is not to review the entirety of the U.S.
religion clause jurisprudence nor to extract the prevailing case law regarding
particular religious beliefs or conduct colliding with particular government
regulations. Rather, the cases discussed above suffice to show that, as legal
scholars observe, this area of jurisprudence has demonstrated two main
standards used by the Court in deciding religion clause cases: separation (in
the form of strict separation or the tamer version of strict neutrality or
separation) and benevolent neutrality or accommodation. The weight of
current authority, judicial and in terms of sheer volume, appears to lie with
the separationists, strict or tame.227 But the accommodationists have also
attracted a number of influential scholars and jurists. 228 The two standards
producing two streams of jurisprudence branch out respectively from the
history of the First Amendment in England and the American colonies and
climaxing in Virginia as narrated in this opinion and officially acknowledged
by the Court in Everson, and from American societal life which reveres
religion and practices age-old religious traditions. Stated otherwise,
separation - strict or tame - protects the principle of church-state separation
with a rigid reading of the principle while benevolent neutrality protects
religious realities, tradition and established practice with a flexible reading of
the principle.229 The latter also appeals to history in support of its
position, viz:
The opposing school of thought argues that the First Congress
intended to allow government support of religion, at least as long as
that support did not discriminate in favor of one particular
religion. . . the Supreme Court has overlooked many important
pieces of history. Madison, for example, was on the congressional
committee that appointed a chaplain, he declared several national
days of prayer and fasting during his presidency, and he sponsored
Jefferson's bill for punishing Sabbath breakers; moreover, while
president, Jefferson allowed federal support of religious missions to

the Indians. . . And so, concludes one recent book, 'there is no

support in the Congressional records that either the First Congress,
which framed the First Amendment, or its principal author and
sponsor, James Madison, intended that Amendment to create a state
of complete independence between religion and government. In fact,
the evidence in the public documents goes the other
way.230 (emphasis supplied)
To succinctly and poignantly illustrate the historical basis of benevolent
neutrality that gives room for accommodation, less than twenty-four hours
after Congress adopted the First Amendment's prohibition on laws respecting
an establishment of religion, Congress decided to express its thanks to God
Almighty for the many blessings enjoyed by the nation with a resolution in
favor of a presidential proclamation declaring a national day of Thanksgiving
and Prayer. Only two members of Congress opposed the resolution, one on
the ground that the move was a "mimicking of European customs, where
they made a mere mockery of thanksgivings", the other on establishment
clause concerns. Nevertheless, the salutary effect of thanksgivings
throughout Western history was acknowledged and the motion was passed
without further recorded discussion.231 Thus, accommodationists also go back
to the framers to ascertain the meaning of the First Amendment, but prefer to
focus on acts rather than words. Contrary to the claim of separationists that
rationalism pervaded America in the late 19th century and that America was
less specifically Christian during those years than at any other time before or
since,232accommodationaists claim that American citizens at the time of the
Constitution's origins were a remarkably religious people in particularly
Christian terms.233
The two streams of jurisprudence - separationist or accommodationist - are
anchored on a different reading of the "wall of separation." The strict
separtionist view holds that Jefferson meant the "wall of separation" to
protect the state from the church. Jefferson was a man of the Enlightenment
Era of the eighteenth century, characterized by the rationalism and
anticlericalism of that philosophic bent.234 He has often been regarded as
espousing Deism or the rationalistic belief in a natural religion and natural
law divorced from its medieval connection with divine law, and instead
adhering to a secular belief in a universal harmony.235 Thus, according to this
Jeffersonian view, the Establishment Clause being meant to protect the state
from the church, the state's hostility towards religion allows no interaction
between the two.236 In fact, when Jefferson became President, he refused to
proclaim fast or thanksgiving days on the ground that these are religious
exercises and the Constitution prohibited the government from intermeddling
with religion.237 This approach erects an absolute barrier to formal
interdependence of religion and state. Religious institutions could not receive

aid, whether direct or indirect, from the state. Nor could the state adjust its
secular programs to alleviate burdens the programs placed on
believers.238 Only the complete separation of religion from politics would
eliminate the formal influence of religious institutions and provide for a free
choice among political views thus a strict "wall of separation" is
necessary.239 Strict separation faces difficulties, however, as it is deeply
embedded in history and contemporary practice that enormous amounts of
aid, both direct and indirect, flow to religion from government in return for
huge amounts of mostly indirect aid from religion. Thus, strict separationists
are caught in an awkward position of claiming a constitutional principle that
has never existed and is never likely to.240
A tamer version of the strict separationist view, the strict neutrality or
separationist view is largely used by the Court, showing the Court's tendency
to press relentlessly towards a more secular society.241 It finds basis in the
Everson case where the Court declared that Jefferson's "wall of separation"
encapsulated the meaning of the First Amendment but at the same time held
that the First Amendment "requires the state to be neutral in its relations with
groups of religious believers and non-believers; it does not require the state
to be their adversary. State power is no more to be used so as to handicap
religions than it is to favor them." (emphasis supplied) 242While the strict
neutrality approach is not hostile to religion, it is strict in holding that
religion may not be used as a basis for classification for purposes of
governmental action, whether the action confers rights or privileges or
imposes duties or obligations. Only secular criteria may be the basis of
government action. It does not permit, much less require, accommodation of
secular programs to religious belief.243 Professor Kurland wrote, viz:
The thesis proposed here as the proper construction of the religion
clauses of the first amendment is that the freedom and separation
clauses should be read as a single precept that government cannot
utilize religion as a standard for action or inaction because these
clauses prohibit classification in terms of religion either to confer a
benefit or to impose a burden.244
The Court has repeatedly declared that religious freedom means government
neutrality in religious matters and the Court has also repeatedly interpreted
this policy of neutrality to prohibit government from acting except for secular
purposes and in ways that have primarily secular effects. 245
Prayer in public schools is an area where the Court has applied strict
neutrality and refused to allow any form of prayer, spoken or silent, in the
public schools as in Engel and Schempp.246 The McCollum case prohibiting
optional religious instruction within public school premises during regular
class hours also demonstrates strict neutrality. In these education cases, the
Court refused to uphold the government action as they were based not on a

secular but on a religious purpose. Strict neutrality was also used in Reynolds
and Smith which both held that if government acts in pursuit of a generally
applicable law with a secular purpose that merely incidentally burdens
religious exercise, the First Amendment has not been offended. However, if
the strict neutrality standard is applied in interpreting the Establishment
Clause, it could de facto void religious expression in the Free Exercise
Clause. As pointed out by Justice Goldberg in his concurring opinion in
Schempp, strict neutrality could lead to "a brooding and pervasive devotion
to the secular and a passive, or even active, hostility to the religious" which is
prohibited by the Constitution.247 Professor Laurence Tribe commented in his
authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with
the very idea of a free exercise clause. The Framers, whatever
specific applications they may have intended, clearly envisioned
religion as something special; they enacted that vision into law by
guaranteeing the free exercise of religion but not, say, of philosophy
or science. The strict neutrality approach all but erases this
distinction. Thus it is not surprising that the Supreme Court has
rejected strict neutrality, permitting and sometimes mandating
religious classifications.248
The separationist approach, whether strict or tame, is caught in a dilemma
because while the Jeffersonian wall of separation "captures the spirit of the
American ideal of church-state separation", in real life church and state are
not and cannot be totally separate.249 This is all the more true in
contemporary times when both the government and religion are growing and
expanding their spheres of involvement and activity, resulting in the
intersection of government and religion at many points. 250
Consequently, the Court has also decided cases employing benevolent
neutrality. Benevolent neutrality which gives room for accommodation is
buttressed by a different view of the "wall of separation" associated with
Williams, founder of the Rhode Island colony. In Mark DeWolfe Howe's
classic, The Garden and the Wilderness, he asserts that to the extent the
Founders had a wall of separation in mind, it was unlike the Jeffersonian wall
that is meant to protect the state from the church; instead, the wall is meant to
protect the church from the state,251i.e., the "garden" of the church must be
walled in for its own protection from the "wilderness" of the world 252 with its
potential for corrupting those values so necessary to religious
commitment.253 Howe called this the "theological" or "evangelical" rationale
for church-state separation while the wall espoused by "enlightened"
statesmen such as Jefferson and Madison, was a "political" rationale seeking
to protect politics from intrusions by the church. 254 But it has been asserted
that this contrast between the Williams and Jeffersonian positions is more

accurately described as a difference in kinds or styles of religious thinking,

not as a conflict between "religious" and "secular (political)"; the religious
style was biblical and evangelical in character while the secular style was
grounded in natural religion, more generic and philosophical in its religious
orientation.255
The Williams wall is, however, breached for the church is in the state and so
the remaining purpose of the wall is to safeguard religious liberty. Williams'
view would therefore allow for interaction between church and state, but is
strict with regard to state action which would threaten the integrity of
religious commitment.256 His conception of separation is not total such that it
provides basis for certain interactions between church and state dictated by
apparent necessity or practicality.257 This "theological" view of separation is
found in Williams' writings, viz:
. . . when they have opened a gap in the hedge or wall of separation
between the garden of the church and the wilderness of the world,
God hath ever broke down the wall itself, removed the candlestick,
and made his garden a wilderness, as this day. And that therefore if
He will eer please to restore His garden and paradise again, it must
of necessity be walled in peculiarly unto Himself from the world. . .
258

Chief Justice Burger spoke of benevolent neutrality in Walz, viz:

The general principle deducible from the First Amendment and all
that has been said by the Court is this: that we will not tolerate either
governmentally established religion or governmental interference
with religion. Short of those expressly proscribed governmental acts
there is room for play in the joints productive of a benevolent
neutrality which will permit religious exercise to exist without
sponsorship and without interference.259 (emphasis supplied)
The Zorach case expressed the doctrine of accommodation, 260 viz:
The First Amendment, however, does not say that in every and all
respects there shall be a separation of Church and State. Rather, it
studiously defines the manner, the specific ways, in which there shall
be no concert or union or dependency one or the other. That is the
common sense of the matter. Otherwise, the state and religion would
be aliens to each other - hostile, suspicious, and even unfriendly.
Churches could not be required to pay even property taxes.
Municipalities would not be permitted to render police or fire
protection to religious groups. Policemen who helped parishioners
into their places of worship would violate the Constitution. Prayers
in our legislative halls; the appeals to the Almighty in the messages
of the Chief Executive; the proclamations making Thanksgiving Day
a holiday; "so help me God" in our courtroom oaths- these and all

other references to the Almighty that run through our laws, our
public rituals, our ceremonies would be flouting the First
Amendment. A fastidious atheist or agnostic could even object to the
supplication with which the Court opens each session: 'God save the
United States and this Honorable Court.
xxx
xxx
xxx
We are a religious people whose institutions presuppose a Supreme
Being. We guarantee the freedom to worship as one chooses. . .
When the state encourages religious instruction or cooperates with
religious authorities by adjusting the schedule of public events, it
follows the best of our traditions. For it then respects the religious
nature of our people and accommodates the public service to their
spiritual needs. To hold that it may not would be to find in the
Constitution a requirement that the government show a callous
indifference to religious groups. . . But we find no constitutional
requirement which makes it necessary for government to be hostile
to religion and to throw its weight against efforts to widen their
effective scope of religious influence.261 (emphases supplied)
Benevolent neutrality is congruent with the sociological proposition that
religion serves a function essential to the survival of society itself, thus there
is no human society without one or more ways of performing the essential
function of religion. Although for some individuals there may be no felt need
for religion and thus it is optional or even dispensable, for society it is not,
which is why there is no human society without one or more ways of
performing the essential function of religion. Even in ostensibly atheistic
societies, there are vigorous underground religion(s) and surrogate religion(s)
in their ideology.262 As one sociologist wrote:
It is widely held by students of society that there are certain
functional prerequisites without which society would not continue to
exist. At first glance, this seems to be obvious - scarcely more than to
say that an automobile could not exist, as a going system, without a
carburetor. . . Most writers list religion among the functional
prerequisites.263
Another noted sociologist, Talcott Parsons, wrote: "There is no known
human society without something which modern social scientists would
classify as a religionReligion is as much a human universal as
language."264
Benevolent neutrality thus recognizes that religion plays an important role in
the public life of the United States as shown by many traditional government
practices which, to strict neutrality, pose Establishment Clause questions.
Among these are the inscription of "In God We Trust" on American currency,
the recognition of America as "one nation under God" in the official pledge

of allegiance to the flag, the Supreme Court's time-honored practice of

opening oral argument with the invocation "God save the United States and
this honorable Court," and the practice of Congress and every state
legislature of paying a chaplain, usually of a particular Protestant
denomination to lead representatives in prayer.265 These practices clearly
show the preference for one theological viewpoint -the existence of and
potential for intervention by a god - over the contrary theological viewpoint
of atheism. Church and government agencies also cooperate in the building
of low-cost housing and in other forms of poor relief, in the treatment of
alcoholism and drug addiction, in foreign aid and other government activities
with strong moral dimension.266 The persistence of these de facto
establishments are in large part explained by the fact that throughout history,
the evangelical theory of separation, i.e., Williams' wall, has demanded
respect for these de facto establishments. 267 But the separationists have a
different explanation. To characterize these as de jure establishments
according to the principle of the Jeffersonian wall, the U.S. Supreme Court,
the many dissenting and concurring opinions explain some of these practices
as "'de minimis' instances of government endorsement or as historic
governmental practices that have largely lost their religious significance or at
least have proven not to lead the government into further involvement with
religion.268
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically into
account not to promote the government's favored form of religion, but to
allow individuals and groups to exercise their religion without hindrance.
Their purpose or effect therefore is to remove a burden on, or facilitate the
exercise of, a person's or institution's religion. As Justice Brennan explained,
the "government [may] take religion into accountto exempt, when
possible, from generally applicable governmental regulation individuals
whose religious beliefs and practices would otherwise thereby be infringed,
or to create without state involvement an atmosphere in which voluntary
religious exercise may flourish."269 (emphasis supplied) Accommodation is
forbearance and not alliance. it does not reflect agreement with the minority,
but respect for the conflict between the temporal and spiritual authority in
which the minority finds itself.270
Accommodation is distinguished from strict neutrality in that the latter holds
that government should base public policy solely on secular considerations,
without regard to the religious consequences of its actions. The debate
between accommodation and strict neutrality is at base a question of means:
"Is the freedom of religion best achieved when the government is conscious
of the effects of its action on the various religious practices of its people, and

seeks to minimize interferences with those practices? Or is it best advanced

through a policy of 'religious blindness' - keeping government aloof from
religious practices and issues?" An accommodationist holds that it is good
public policy, and sometimes constitutionally required, for the state to make
conscious and deliberate efforts to avoid interference with religious freedom.
On the other hand, the strict neutrality adherent believes that it is good public
policy, and also constitutionally required, for the government to avoid
religion-specific policy even at the cost of inhibiting religious exercise. 271
There are strong and compelling reasons, however, to take the
accommodationist position rather than the strict neutrality position. First, the
accommodationist interpretation is most consistent with the language of the
First Amendment. The religion clauses contain two parallel provisions, both
specifically directed at "religion." The government may not "establish"
religion and neither may government "prohibit" it. Taken together, the
religion clauses can be read most plausibly as warding off two equal and
opposite threats to religious freedom - government action that promotes the
(political) majority's favored brand of religion and government action that
impedes religious practices not favored by the majority. The substantive end
in view is the preservation of the autonomy of religious life and not just the
formal process value of ensuring that government does not act on the basis of
religious bias. On the other hand, strict neutrality interprets the religion
clauses as allowing government to do whatever it desires to or for religion, as
long as it does the same to or for comparable secular entities. Thus, for
example, if government prohibits all alcoholic consumption by minors, it can
prohibit minors from taking part in communion. Paradoxically, this view
would make the religion clauses violate the religion clauses, so to speak,
since the religion clauses single out religion by name for special protection.
Second, the accommodationist position best achieves the purposes of the
First Amendment. The principle underlying the First Amendment is that
freedom to carry out one's duties to a Supreme Being is an inalienable right,
not one dependent on the grace of legislature. Although inalienable, it is
necessarily limited by the rights of others, including the public right of peace
and good order. Nevertheless it is a substantive right and not merely a
privilege against discriminatory legislation. The accomplishment of the
purpose of the First Amendment requires more than the "religion blindness"
of strict neutrality. With the pervasiveness of government regulation,
conflicts with religious practices become frequent and intense. Laws that are
suitable for secular entities are sometimes inappropriate for religious entities,
thus the government must make special provisions to preserve a degree of
independence for religious entities for them to carry out their religious
missions according to their religious beliefs. Otherwise, religion will become
just like other secular entities subject to pervasive regulation by majoritarian

institutions. Third, the accommodationist interpretation is particularly

necessary to protect adherents of minority religions from the inevitable
effects of majoritarianism, which include ignorance and indifference and
overt hostility to the minority. In a democratic republic, laws are inevitably
based on the presuppositions of the majority, thus not infrequently, they come
into conflict with the religious scruples of those holding different world
views, even in the absence of a deliberate intent to interfere with religious
practice. At times, this effect is unavoidable as a practical matter because
some laws are so necessary to the common good that exceptions are
intolerable. But in other instances, the injury to religious conscience is so
great and the advancement of public purposes so small or incomparable that
only indifference or hostility could explain a refusal to make exemptions.
Because of plural traditions, legislators and executive officials are frequently
willing to make such exemptions when the need is brought to their attention,
but this may not always be the case when the religious practice is either
unknown at the time of enactment or is for some reason unpopular. In these
cases, a constitutional interpretation that allows accommodations prevents
needless injury to the religious consciences of those who can have an
influence in the legislature; while a constitutional interpretation that requires
accommodations extends this treatment to religious faiths that are less able to
protect themselves in the political arena. Fourth, the accommodationist
position is practical as it is a commonsensical way to deal with the various
needs and beliefs of different faiths in a pluralistic nation. Without
accommodation, many otherwise beneficial laws would interfere severely
with religious freedom. Aside from laws against serving alcoholic beverages
to minors conflicting with celebration of communion, regulations requiring
hard hats in construction areas can effectively exclude Amish and Sikhs from
the workplace, or employment anti-discrimination laws can conflict with the
Roman Catholic male priesthood, among others. Exemptions from such laws
are easy to craft and administer and contribute much to promoting religious
freedom at little cost to public policy. Without exemptions, legislature would
be frequently forced to choose between violating religious conscience of a
segment of the population or dispensing with legislation it considers
beneficial to society as a whole. Exemption seems manifestly more
reasonable than either of the alternative: no exemption or no law.272
Benevolent neutrality gives room for different kinds of accommodation:
those which are constitutionally compelled, i.e., required by the Free
Exercise Clause; and those which are discretionary or legislative, i.e., and
those not required by the Free Exercise Clause but nonetheless permitted by
the Establishment Clause.273 Some Justices of the Supreme Court have also
used the term accommodation to describe government actions that
acknowledge or express prevailing religious sentiments of the community

such as display of a religious symbol on public property or the delivery of a

prayer at public ceremonial events.274 Stated otherwise, using benevolent
neutrality as a standard could result to three situations of accommodation:
those where accommodation is required, those where it is permissible, and
those where it is prohibited. In the first situation, accommodation is required
to preserve free exercise protections and not unconstitutionally infringe on
religious liberty or create penalties for religious freedom. Contrary to the
Smith declaration that free exercise exemptions are "intentional government
advancement", these exemptions merely relieve the prohibition on the free
exercise thus allowing the burdened religious adherent to be left alone. The
state must create exceptions to laws of general applicability when these laws
threaten religious convictions or practices in the absence of a compelling
state interest.275 By allowing such exemptions, the Free Exercise Clause does
not give believers the right or privilege to choose for themselves to override
socially-prescribed decision; it allows them to obey spiritual rather than
temporal authority276 for those who seriously invoke the Free Exercise Clause
claim to be fulfilling a solemn duty. Religious freedom is a matter less of
rights than duties; more precisely, it is a matter of rights derived from duties.
To deny a person or a community the right to act upon such a duty can be
justified only by appeal to a yet more compelling duty. Of course, those
denied will usually not find the reason for the denial compelling. "Because
they may turn out to be right about the duty in question, and because, even if
they are wrong, religion bears witness to that which transcends the political
order, such denials should be rare and painfully reluctant." 277
The Yoder case is an example where the Court held that the state must
accommodate the religious beliefs of the Amish who objected to enrolling
their children in high school as required by law. The Sherbert case is another
example where the Court held that the state unemployment compensation
plan must accommodate the religious convictions of Sherbert. 278 In these
cases of "burdensome effect", the modern approach of the Court has been to
apply strict scrutiny, i.e., to declare the burden as permissible, the Court
requires the state to demonstrate that the regulation which burdens the
religious exercise pursues a particularly important or compelling government
goal through the least restrictive means. If the state's objective could be
served as well or almost as well by granting an exemption to those whose
religious beliefs are burdened by the regulation, such an exemption must be
given.279 This approach of the Court on "burdensome effect" was only
applied since the 1960s. Prior to this time, the Court took the separationist
view that as long as the state was acting in pursuit of non-religious ends and
regulating conduct rather than pure religious beliefs, the Free Exercise
Clause did not pose a hindrance such as in Reynolds. 280 In the second
situation where accommodation is permissible, the state may, but is not

required to, accommodate religious interests. The Walz case illustrates this
situation where the Court upheld the constitutionality of tax exemption given
by New York to church properties, but did not rule that the state was required
to provide tax exemptions. The Court declared that "(t)he limits of
permissible state accommodation to religion are by no means co-extensive
with the noninterference mandated by the Free Exercise Clause." 281 The
Court held that New York could have an interest in encouraging religious
values and avoiding threats to those values through the burden of property
taxes. Other examples are the Zorach case allowing released time in public
schools and Marsh allowing payment of legislative chaplains from public
funds. Finally, in the situation where accommodation is prohibited,
establishment concerns prevail over potential accommodation interests. To
say that there are valid exemptions buttressed by the Free Exercise Clause
does not mean that all claims for free exercise exemptions are valid. 282 An
example where accommodation was prohibited is McCollum where the Court
ruled against optional religious instruction in the public school premises. 283 In
effect, the last situation would arrive at a strict neutrality conclusion.
In the first situation where accommodation is required, the approach follows
this basic framework:
If the plaintiff can show that a law or government practice inhibits
the free exercise of his religious beliefs, the burden shifts to the
government to demonstrate that the law or practice is necessary to
the accomplishment of some important (or 'compelling') secular
objective and that it is the least restrictive means of achieving that
objective. If the plaintiff meets this burden and the government does
not, the plaintiff is entitled to exemption from the law or practice at
issue. In order to be protected, the claimant's beliefs must be
'sincere', but they need not necessarily be consistent, coherent,
clearly articulated, or congruent with those of the claimant's religious
denomination. 'Only beliefs rooted in religion are protected by the
Free Exercise Clause'; secular beliefs, however sincere and
conscientious, do not suffice.284
In other words, a three-step process (also referred to as the "two-step
balancing process" supra when the second and third steps are combined) as in
Sherbert is followed in weighing the state's interest and religious freedom
when these collide. Three questions are answered in this process. First, "(h)as
the statute or government action created a burden on the free exercise of
religion?" The courts often look into the sincerity of the religious belief, but
without inquiring into the truth of the belief because the Free Exercise Clause
prohibits inquiring about its truth as held in Ballard and Cantwell. The
sincerity of the claimant's belief is ascertained to avoid the mere claim of
religious beliefs to escape a mandatory regulation. As evidence of sincerity,

the U.S. Supreme Court has considered historical evidence as in Wisconsin

where the Amish people had held a long-standing objection to enrolling their
children in ninth and tenth grades in public high schools. In another
case, Dobkin v. District of Columbia,285 the Court denied the claim of a
party who refused to appear in court on Saturday alleging he was a
Sabbatarian, but the Court noted that he regularly conducted business on
Saturday. Although it is true that the Court might erroneously deny some
claims because of a misjudgment of sincerity, this is not as argument to reject
all claims by not allowing accommodation as a rule. There might be injury to
the particular claimant or to his religious community, but for the most part,
the injustice is done only in the particular case. 286 Aside from the sincerity,
the court may look into the centrality of those beliefs, assessing them not on
an objective basis but in terms of the opinion and belief of the person seeking
exemption. In Wisconsin, for example, the Court noted that the Amish
people's convictions against becoming involved in public high schools were
central to their way of life and faith. Similarly, in Sherbert, the Court
concluded that the prohibition against Saturday work was a "cardinal
principle."287 Professor Lupu puts to task the person claiming exemption, viz:
On the claimant's side, the meaning and significance of the relevant
religious practice must be demonstrated. Religious command should
outweigh custom, individual conscience should count for more than
personal convenience, and theological principle should be of greater
significance than institutional ease. Sincerity matters, (footnote
omitted) and longevity of practice - both by the individual and within
the individual's religious tradition - reinforces sincerity. Most
importantly, the law of free exercise must be inclusive and
expansive, recognizing non-Christian religions - eastern, Western,
aboriginal and otherwise - as constitutionally equal to their Christian
counterparts, and accepting of the intensity and scope of
fundamentalist creed.288
Second, the court asks: "(i)s there a sufficiently compelling state interest to
justify this infringement of religious liberty?" In this step, the government
has to establish that its purposes are legitimate for the state and that they are
compelling. Government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those
objectives will be undermined if exemptions are granted. 289 The person
claiming religious freedom, on the other hand, will endeavor to show that the
interest is not legitimate or that the purpose, although legitimate, is not
compelling compared to infringement of religious liberty. This step involves
balancing, i.e., weighing the interest of the state against religious liberty to
determine which is more compelling under the particular set of facts. The
greater the state's interests, the more central the religious belief would have

to be to overcome it. In assessing the state interest, the court will have to
determine the importance of the secular interest and the extent to which that
interest will be impaired by an exemption for the religious practice. Should
the court find the interest truly compelling, there will be no requirement that
the state diminish the effectiveness of its regulation by granting the
exemption.290
Third, the court asks: "(h)as the state in achieving its legitimate purposes
used the least intrusive means possible so that the free exercise is not
infringed any more than necessary to achieve the legitimate goal of the
state?"291The analysis requires the state to show that the means in which it is
achieving its legitimate state objective is the least intrusive means, i.e., it has
chosen a way to achieve its legitimate state end that imposes as little as
possible on religious liberties. In Cantwell, for example, the Court
invalidated the license requirement for the door-to-door solicitation as it was
a forbidden burden on religious liberty, noting that less drastic means of
insuring peace and tranquility existed. As a whole, in carrying out the
compelling state interest test, the Court should give careful attention to
context, both religious and regulatory, to achieve refined judgment. 292
In sum, as shown by U.S. jurisprudence on religion clause cases, the
competing values of secular government and religious freedom create
tensions that make constitutional law on the subject of religious liberty
unsettled, mirroring the evolving views of a dynamic society.293
VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket of Catholicism
covered the archipelago. There was a union of church and state and
Catholicism was the state religion under the Spanish Constitution of 1876.
Civil authorities exercised religious functions and the friars exercised civil
powers.294 Catholics alone enjoyed the right of engaging in public ceremonies
of worship.295 Although the Spanish Constitution itself was not extended to
the Philippines, Catholicism was also the established church in our country
under the Spanish rule. Catholicism was in fact protected by the Spanish
Penal Code of 1884 which was in effect in the Philippines. Some of the
offenses in chapter six of the Penal Code entitled "Crimes against Religion
and Worship" referred to crimes against the state religion. 296 The coming of
the Americans to our country, however, changed this state-church scheme for
with the advent of this regime, the unique American experiment of
"separation of church and state" was transported to Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the United
States and Spain on December 10, 1898, the American guarantee of religious
freedom had been extended to the Philippines. The Treaty provided that "the
inhabitants of the territories over which Spain relinquishes or cedes her

sovereignty shall be secured in the free exercise of religion." 297 Even the
Filipinos themselves guaranteed religious freedom a month later or on
January 22, 1899 upon the adoption of the Malolos Constitution of the
Philippine Republic under General Emilio Aguinaldo. It provided that "the
State recognizes the liberty and equality of all religion (de todos los cultos) in
the same manner as the separation of the Church and State." But the Malolos
Constitution and government was short-lived as the Americans took over the
reigns of government.298
With the Philippines under the American regime, President McKinley issued
Instructions to the Second Philippine Commission, the body created to take
over the civil government in the Philippines in 1900. The Instructions
guaranteed religious freedom, viz:
That no law shall be made respecting the establishment of religion or
prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without
discrimination or preference shall forever be allowed ... that no form
of religion and no minister of religion shall be forced upon the
community or upon any citizen of the Islands, that, on the other
hand, no minister of religion shall be interfered with or molested in
following his calling.299
This provision was based on the First Amendment of the United States
Constitution. Likewise, the Instructions declared that "(t)he separation
between State and Church shall be real, entire and absolute." 300
Thereafter, every organic act of the Philippines contained a provision on
freedom of religion. Similar to the religious freedom clause in the
Instructions, the Philippine Bill of 1902 provided that:
No law shall be made respecting an establishment of religion or prohibiting
the free exercise thereof, and that free exercise and enjoyment of religious
worship, without discrimination or preference, shall forever be allowed.
In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of 1902
"caused the complete separation of church and state, and the abolition of all
special privileges and all restrictions theretofor conferred or imposed upon
any particular religious sect."302
The Jones Law of 1916 carried the same provision, but expanded it with a
restriction against using public money or property for religious purposes, viz:
That no law shall be made respecting an establishment of religion or
prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without
discrimination or preference, shall forever be allowed; and no
religious test shall be required for the exercise of civil or political
rights. No public money or property shall ever be appropriated,
applied, donated, or used, directly or indirectly, for the use, benefit,

or support of any sect, church, denomination, sectarian institution, or

system of religion, or for the use, benefit or support of any priest,
preacher, minister, or other religious teachers or dignitary as such.
This was followed by the Philippine Independence Law or TydingsMcDuffie Law of 1934 which guaranteed independence to the
Philippines and authorized the drafting of a Philippine constitution. It
enjoined Filipinos to include freedom of religion in drafting their
constitution preparatory to the grant of independence. The law
prescribed that "(a)bsolute toleration of religious sentiment shall be
secured and no inhabitant or religious organization shall be molested
in person or property on account of religious belief or mode of
worship."303
The Constitutional Convention then began working on the 1935 Constitution.
In their proceedings, Delegate Jose P. Laurel as Chairman of the Committee
on Bill of Rights acknowledged that "(i)t was the Treaty of Paris of
December 10, 1898, which first introduced religious toleration in our
country. President McKinley's Instructions to the Second Philippine
Commission reasserted this right which later was incorporated into the
Philippine Bill of 1902 and in the Jones Law."304 In accordance with the
Tydings-McDuffie Law, the 1935 Constitution provided in the Bill of Rights,
Article IV, Section 7, viz:
Sec. 7. No law shall be made respecting an establishment of religion,
or prohibiting the free exercise thereof, and the free exercise and
enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.
This provision, borrowed from the Jones Law, was readily approved
by the Convention.305 In his speech as Chairman of the Committee on
Bill of Rights, Delegate Laurel said that modifications in
phraseology of the Bill of Rights in the Jones Law were avoided
whenever possible because "the principles must remain couched in a
language expressive of their historical background, nature, extent
and limitations as construed and interpreted by the great statesmen
and jurists that vitalized them."306
The 1973 Constitution which superseded the 1935 Constitution contained an
almost identical provision on religious freedom in the Bill of Rights in
Article IV, Section 8, viz:
Sec. 8. No law shall be made respecting an establishment of religion,
or prohibiting the free exercise thereof. The free exercise and
enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.

This time, however, the General Provisions in Article XV added in Section

15 that "(t)he separation of church and state shall be inviolable."
Without discussion by the 1986 Constitutional Commission, the 1973
religious clauses were reproduced in the 1987 Constitution under the Bill of
Rights in Article III, Section 5.307 Likewise, the provision on separation of
church and state was included verbatim in the 1987 Constitution, but this
time as a principle in Section 6, Article II entitled Declaration of Principles
and State Policies.
Considering the American origin of the Philippine religion clauses and the
intent to adopt the historical background, nature, extent and limitations of the
First Amendment of the U.S. Constitution when it was included in the 1935
Bill of Rights, it is not surprising that nearly all the major Philippine cases
involving the religion clauses turn to U.S. jurisprudence in explaining the
nature, extent and limitations of these clauses. However, a close scrutiny of
these cases would also reveal that while U.S. jurisprudence on religion
clauses flows into two main streams of interpretation - separation and
benevolent neutrality - the well-spring of Philippine jurisprudence on this
subject is for the most part, benevolent neutrality which gives room for
accommodation.
B. Jurisprudence
In revisiting the landscape of Philippine jurisprudence on the religion
clauses, we begin with the definition of "religion". "Religion" is derived from
the Middle English religioun, from Old French religion, from Latin religio,
vaguely referring to a "bond between man and the gods." 308 This preChristian term for the cult and rituals of pagan Rome was first Christianized
in the Latin translation of the Bible.309 While the U.S. Supreme Court has had
to take up the challenge of defining the parameters and contours of "religion"
to determine whether a non-theistic belief or act is covered by the religion
clauses, this Court has not been confronted with the same issue. In Philippine
jurisprudence, religion, for purposes of the religion clauses, has thus far been
interpreted as theistic. In 1937, the Philippine case of Aglipay v.
Ruiz310 involving the Establishment Clause, defined "religion" as a
"profession of faith to an active power that binds and elevates man to his
Creator." Twenty years later, the Court cited the Aglipay definition
in American Bible Society v. City of Manila,311 a case involving the Free
Exercise clause. The latter also cited the American case of Davis in defining
religion, viz: "(i)t has reference to one's views of his relations to His Creator
and to the obligations they impose of reverence to His being and character
and obedience to His Will." The Beason definition, however, has been
expanded in U.S. jurisprudence to include non-theistic beliefs.
1. Free Exercise Clause

Freedom of choice guarantees the liberty of the religious conscience and

prohibits any degree of compulsion or burden, whether direct or indirect, in
the practice of one's religion. The Free Exercise Clause principally
guarantees voluntarism, although the Establishment Clause also assures
voluntarism by placing the burden of the advancement of religious groups on
their intrinsic merits and not on the support of the state. 312
In interpreting the Free Exercise Clause, the realm of belief poses no
difficulty. The early case of Gerona v. Secretary of Education313 is
instructive on the matter, viz:
The realm of belief and creed is infinite and limitless bounded only
by one's imagination and thought. So is the freedom of belief,
including religious belief, limitless and without bounds. One may
believe in most anything, however strange, bizarre and unreasonable
the same may appear to others, even heretical when weighed in the
scales of orthodoxy or doctrinal standards. But between the freedom
of belief and the exercise of said belief, there is quite a stretch of
road to travel.314
The difficulty in interpretation sets in when belief is externalized into speech
and action.
Religious speech comes within the pale of the Free Exercise Clause as
illustrated in the American Bible Society case. In that case, plaintiff
American Bible Society was a foreign, non-stock, non-profit, religious
missionary corporation which sold bibles and gospel portions of the bible in
the course of its ministry. The defendant City of Manila required plaintiff to
secure a mayor's permit and a municipal license as ordinarily required of
those engaged in the business of general merchandise under the city's
ordinances. Plaintiff argued that this amounted to "religious censorship and
restrained the free exercise and enjoyment of religious profession, to wit: the
distribution and sale of bibles and other religious literature to the people of
the Philippines."
After defining religion, the Court, citing Tanada and Fernando, made this
statement, viz:
The constitutional guaranty of the free exercise and enjoyment of
religious profession and worship carries with it the right to
disseminate religious information. Any restraint of such right can
only be justified like other restraints of freedom of expression on the
grounds that there is a clear and present danger of any substantive
evil which the State has the right to prevent. (Tanada and Fernando
on the Constitution of the Philippines, vol. 1, 4th ed., p. 297)
(emphasis supplied)
This was the Court's maiden unequivocal affirmation of the "clear and
present danger" rule in the religious freedom area, and in Philippine

jurisprudence, for that matter.315 The case did not clearly show, however,
whether the Court proceeded to apply the test to the facts and issues of the
case, i.e., it did not identify the secular value the government regulation
sought to protect, whether the religious speech posed a clear and present
danger to this or other secular value protected by government, or whether
there was danger but it could not be characterized as clear and present. It is
one thing to apply the test and find that there is no clear and present danger,
and quite another not to apply the test altogether.
Instead, the Court categorically held that the questioned ordinances were not
applicable to plaintiff as it was not engaged in the business or occupation of
selling said "merchandise" for profit. To add, the Court, citing Murdock v.
Pennsylvania,316 ruled that applying the ordinance requiring it to secure a
license and pay a license fee or tax would impair its free exercise of religious
profession and worship and its right of dissemination of religious beliefs "as
the power to tax the exercise of a privilege is the power to control or suppress
its enjoyment." Thus, in American Bible Society, the "clear and present
danger" rule was laid down but it was not clearly applied.
In the much later case of Tolentino v. Secretary of Finance,317 also
involving the sale of religious books, the Court distinguished the American
Bible Society case from the facts and issues in Tolentino and did not apply
the American Bible Society ruling. In Tolentino, the Philippine Bible Society
challenged the validity of the registration provisions of the Value Added Tax
(VAT) Law as a prior restraint. The Court held, however, that the fixed
amount of registration fee was not imposed for the exercise of a privilege like
a license tax which American Bible Society ruled was violative of religious
freedom. Rather, the registration fee was merely an administrative fee to
defray part of the cost of registration which was a central feature of the VAT
system. Citing Jimmy Swaggart Ministries v. Board of
Equalization,318 the Court also declared prefatorily that "the Free Exercise of
Religion Clause does not prohibit imposing a generally applicable sales and
use tax on the sale of religious materials by a religious organization." In the
Court's resolution of the motion for reconsideration of the Tolentino decision,
the Court noted that the burden on religious freedom caused by the tax was
just similar to any other economic imposition that might make the right to
disseminate religious doctrines costly.
Two years after American Bible Society came the 1959 case of Gerona v.
Secretary of Education,319 this time involving conduct expressive of
religious belief colliding with a rule prescribed in accordance with law. In
this case, petitioners were members of the Jehovah's Witnesses. They
challenged a Department Order issued by the Secretary of Education
implementing Republic Act No. 1265 which prescribed compulsory flag
ceremonies in all public schools. In violation of the Order, petitioner's

children refused to salute the Philippine flag, sing the national anthem, or
recite the patriotic pledge, hence they were expelled from school. Seeking
protection under the Free Exercise Clause, petitioners claimed that their
refusal was on account of their religious belief that the Philippine flag is an
image and saluting the same is contrary to their religious belief. The Court
stated, viz:
. . . If the exercise of religious belief clashes with the established
institutions of society and with the law, then the former must yield to
the latter. The Government steps in and either restrains said exercise
or even prosecutes the one exercising it. (emphasis supplied) 320
The Court then proceeded to determine if the acts involved constituted a
religious ceremony in conflict with the beliefs of the petitioners with the
following justification:
After all, the determination of whether a certain ritual is or is not a religious
ceremony must rest with the courts. It cannot be left to a religious group or
sect, much less to a follower of said group or sect; otherwise, there would be
confusion and misunderstanding for there might be as many interpretations
and meaning to be given to a certain ritual or ceremony as there are religious
groups or sects or followers, all depending upon the meaning which they,
though in all sincerity and good faith, may want to give to such ritual or
ceremony.321
It was held that the flag was not an image, the flag salute was not a religious
ceremony, and there was nothing objectionable about the singing of the
national anthem as it speaks only of love of country, patriotism, liberty and
the glory of suffering and dying for it. The Court upheld the questioned
Order and the expulsion of petitioner's children, stressing that:
Men may differ and do differ on religious beliefs and creeds,
government policies, the wisdom and legality of laws, even the
correctness of judicial decisions and decrees; but in the field of love
of country, reverence for the flag, national unity and patriotism, they
can hardly afford to differ, for these are matters in which they are
mutually and vitally interested, for to them, they mean national
existence and survival as a nation or national extinction. 322
In support of its ruling, the Court cited Justice Frankfurter's dissent in the
Barnette case, viz:
The constitutional protection of religious freedom x x x gave
religious equality, not civil immunity. Its essence is freedom from
conformity to religious dogma, not freedom from conformity to law
because of religious dogma.323
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the Constitution does not and
cannot mean exemption from or non-compliance with reasonable and non-

discriminatory laws, rules and regulations promulgated by competent

authority.324
Thus, the religious freedom doctrines one can derive from Gerona are: (1) it
is incumbent upon the Court to determine whether a certain ritual is religious
or not; (2) religious freedom will not be upheld if it clashes with the
established institutions of society and with the law such that when a law of
general applicability (in this case the Department Order) incidentally burdens
the exercise of one's religion, one's right to religious freedom cannot justify
exemption from compliance with the law. The Gerona ruling was reiterated
in Balbuna, et al. v. Secretary of Education, et al.325
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope
Workers Union.[326] In this unanimously decided en banc case, Victoriano
was a member of the Iglesia ni Cristo which prohibits the affiliation of its
members with any labor organization. He worked in the Elizalde Rope
Factory, Inc. and was a member of the Elizalde Rope Workers Union which
had with the company a closed shop provision pursuant to Republic Act No.
875 allowing closed shop arrangements. Subsequently, Republic Act No.
3350 was enacted exempting from the application and coverage of a closed
shop agreement employees belonging to any religious sect which prohibits
affiliation of their members with any labor organization. Victoriano resigned
from the union after Republic Act No. 3350 took effect. The union notified
the company of Victoriano's resignation, which in turn notified Victoriano
that unless he could make a satisfactory arrangement with the union, the
company would be constrained to dismiss him from the service. Victoriano
sought to enjoin the company and the union from dismissing him. The court
having granted the injunction, the union came to this Court on questions of
law, among which was whether Republic Act No. 3350 was unconstitutional
for impairing the obligation of contracts and for granting an exemption
offensive of the Establishment Clause. With respect to the first issue, the
Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental personal
right and liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84
L.ed.155, 164, 60 S.Ct. 146) and has a preferred position in the
hierarchy of values. Contractual rights, therefore, must yield to
freedom of religion. It is only where unavoidably necessary to
prevent an immediate and grave danger to the security and welfare of
the community that infringement of religious freedom may be
justified, and only to the smallest extent necessary.327 (emphasis
supplied)
As regards the Establishment Clause issue, the Court after citing the
constitutional provision on establishment and free exercise of religion,
declared, viz:

The constitutional provisions not only prohibits legislation for the

support of any religious tenets or the modes of worship of any sect,
thus forestalling compulsion by law of the acceptance of any creed or
the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L.
ed. 1148, 1153), but also assures the free exercise of one's chosen
form of religion within limits of utmost amplitude. It has been said
that the religion clauses of the Constitution are all designed to protect
the broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live as
he believes he ought to live, consistent with the liberty of others and
with the common good. (footnote omitted). Any legislation whose
effect or purpose is to impede the observance of one or all religions,
or to discriminate invidiously between the religions, is invalid, even
though the burden may be characterized as being only indirect.
(Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970)
But if the state regulates conduct by enacting, within its power, a
general law which has for its purpose and effect to advance the
state's secular goals, the statute is valid despite its indirect burden on
religious observance, unless the state can accomplish its purpose
without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6
L ed. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420,
444-5 and 449)328 (emphasis supplied)
Quoting Aglipay v. Ruiz,329 the Court held that "government is not precluded
from pursuing valid objectives secular in character even if the incidental
result would be favorable to a religion or sect." It also cited Board of
Education v. Allen,330 which held that in order to withstand the strictures of
constitutional prohibition, a statute must have a secular legislative purpose
and a primary effect that neither advances nor inhibits religion. Using these
criteria in upholding Republic Act No. 3350, the Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular purpose
of advancing the constitutional right to the free exercise of religion,
by averting that certain persons be refused work, or be dismissed
from work, or be dispossessed of their right to work and of being
impeded to pursue a modest means of livelihood, by reason of union
security agreements. . . . The primary effects of the exemption from
closed shop agreements in favor of members of religious sects that
prohibit their members from affiliating with a labor organization, is
the protection of said employees against the aggregate force of the
collective bargaining agreement, and relieving certain citizens of a
burden on their religious beliefs, and . . . eliminating to a certain
extent economic insecurity due to unemployment.331

The Court stressed that "(a)lthough the exemption may benefit those who are
members of religious sects that prohibit their members from joining labor
unions, the benefit upon the religious sects is merely incidental and
indirect."332 In enacting Republic Act No. 3350, Congress merely relieved the
exercise of religion by certain persons of a burden imposed by union security
agreements which Congress itself also imposed through the Industrial Peace
Act. The Court concluded the issue of exemption by citing Sherbert which
laid down the rule that when general laws conflict with scruples of
conscience, exemptions ought to be granted unless some "compelling state
interest" intervenes. The Court then abruptly added that "(i)n the instant case,
We see no compelling state interest to withhold exemption."333
A close look at Victoriano would show that the Court mentioned several tests
in determining when religious freedom may be validly limited. First, the
Court mentioned the test of "immediate and grave danger to the security and
welfare of the community" and "infringement of religious freedom only to
the smallest extent necessary" to justify limitation of religious freedom.
Second, religious exercise may be indirectly burdened by a general law
which has for its purpose and effect the advancement of the state's secular
goals, provided that there is no other means by which the state can
accomplish this purpose without imposing such burden. Third, the Court
referred to the "compelling state interest" test which grants exemptions when
general laws conflict with religious exercise, unless a compelling state
interest intervenes.
It is worth noting, however, that the first two tests were mentioned only for
the purpose of highlighting the importance of the protection of religious
freedom as the secular purpose of Republic Act No. 3350. Upholding
religious freedom was a secular purpose insofar as it relieved the burden on
religious freedom caused by another law, i.e, the Industrial Peace Act
providing for union shop agreements. The first two tests were only
mentioned in Victoriano but were not applied by the Court to the facts and
issues of the case. The third, the "compelling state interest" test was
employed by the Court to determine whether the exemption provided by
Republic Act No. 3350 was not unconstitutional. It upheld the exemption,
stating that there was no "compelling state interest" to strike it down.
However, after careful consideration of the Sherbert case from which
Victoriano borrowed this test, the inevitable conclusion is that the
"compelling state interest" test was not appropriate and could not find
application in the Victoriano case. In Sherbert, appellant Sherbert invoked
religious freedom in seeking exemption from the provisions of the South
Carolina Unemployment Compensation Act which disqualified her from
claiming unemployment benefits. It was the appellees, members of the South
Carolina Employment Commission, a government agency, who propounded

the state interest to justify overriding Sherbert's claim of religious freedom.

The U.S. Supreme Court, considering Sherbert's and the Commission's
arguments, found that the state interest was not sufficiently compelling to
prevail over Sherbert's free exercise claim. This situation did not obtain in the
Victoriano case where it was the government itself, through Congress, which
provided the exemption in Republic Act No. 3350 to allow Victoriano's
exercise of religion. Thus, the government could not argue against the
exemption on the basis of a compelling state interest as it would be arguing
against itself; while Victoriano would not seek exemption from the
questioned law to allow the free exercose of religion as the law in fact
provides such an exemption. In sum, although Victoriano involved a religious
belief and conduct, it did not involve a free exercise issue where the Free
Exercise Clause is invoked to exempt him from the burden imposed by a law
on his religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni Cristo,
namely Basa, et al. v. Federacion Obrera de la Industria Tabaquera y
Otros Trabajadores de Filipinas,334 Anucension v. National Labor Union,
et al.,335 and Gonzales, et al. v. Central Azucarera de Tarlac Labor
Union.336
Then came German v. Barangan in 1985 at the height of the antiadministration rallies. Petitioners were walking to St. Jude Church within the
Malacanang security area to pray for "an end to violence" when they were
barred by the police. Invoking their constitutional freedom of religious
worship and locomotion, they came to the Court on a petition for mandamus
to allow them to enter and pray inside the St. Jude Chapel. The Court was
divided on the issue. The slim majority of six recognized their freedom of
religion but noted their absence of good faith and concluded that they were
using their religious liberty to express their opposition to the government.
Citing Cantwell, the Court distinguished between freedom to believe and
freedom to act on matters of religion, viz:
. . . Thus the (First) amendment embraces two concepts - freedom to
believe and freedom to act. The first is absolute, but in the nature of
things, the second cannot be.337
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their
freedom of belief or choice of their religion, but only in the manner
by which they had attempted to translate the same to action. This
curtailment is in accord with the pronouncement of this Court in
Gerona v. Secretary of Education (106 Phil. 2), thus:
. . . But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel. If the exercise of said
religious belief clashes with the established institutions of society

and with the law, then the former must yield and give way to the
latter. The government steps in and either restrains said exercise or
even prosecutes the one exercising it. (italics supplied)
The majority found that the restriction imposed upon petitioners was
"necessary to maintain the smooth functioning of the executive branch of the
government, which petitioners' mass action would certainly disrupt" 338and
denied the petition. Thus, without considering the tests mentioned in
Victoriano, German went back to the Gerona rule that religious freedom will
not be upheld if it clashes with the established institutions of society and the
law.
Then Associate Justice Teehankee registered a dissent which in subsequent
jurisprudence would be cited as a test in religious freedom cases. His dissent
stated in relevant part, viz:
A brief restatement of the applicable constitutional principles as set
forth in the landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA
553[1983]) should guide us in resolving the issues.
1. The right to freely exercise one's religion is guaranteed in Section
8 of our Bill of Rights. (footnote omitted) Freedom of worship,
alongside with freedom of expression and speech and peaceable
assembly "along with the other intellectual freedoms, are highly
ranked in our scheme of constitutional values. It cannot be too
strongly stressed that on the judiciary - even more so than on the
other departments - rests the grave and delicate responsibility of
assuring respect for and deference to such preferred rights. No verbal
formula, no sanctifying phrase can, of course, dispense with what has
been so felicitously termed by Justice Holmes 'as the sovereign
prerogative of judgment.' Nonetheless, the presumption must be to
incline the weight of the scales of justice on the side of such rights,
enjoying as they do precedence and primacy.' (J.B.L. Reyes, 125
SCRA at pp. 569-570)
2. In the free exercise of such preferred rights, there is to be no prior
restraint although there may be subsequent punishment of any illegal
acts committed during the exercise of such basic rights. The sole
justification for a prior restraint or limitation on the exercise of these
basic rights is the existence of a grave and present danger of a
character both grave and imminent, of a serious evil to public safety,
public morals, public health or any other legitimate public interest,
that the State has a right (and duty) to prevent (Idem, at pp. 560561).339 (emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice
Teehankee's dissent was taken involved the rights to free speech and
assembly, and not the exercise of religious freedom. At issue in that case was

a permit sought by retired Justice J.B.L. Reyes, on behalf of the Anti-Bases

Coalition, from the City of Manila to hold a peaceful march and rally from
the Luneta to the gates of the U.S. Embassy. Nevertheless Bagatsing was
used by Justice Teehankee in his dissent which had overtones of petitioner
German and his companions' right to assemble and petition the government
for redress of grievances.340
In 1993, the issue on the Jehovah's Witnesses' participation in the flag
ceremony again came before the Court inEbralinag v. The Division
Superintendent of Schools.341 A unanimous Court overturned the Gerona
ruling after three decades. Similar to Gerona, this case involved several
Jehovah's Witnesses who were expelled from school for refusing to salute the
flag, sing the national anthem and recite the patriotic pledge, in violation of
the Administrative Code of 1987. In resolving the same religious freedom
issue as in Gerona, the Court this time transported the "grave and imminent
danger" test laid down in Justice Teehankee's dissent in German, viz:
The sole justification for a prior restraint or limitation on the exercise
of religious freedom (according to the late Chief Justice Claudio
Teehankee in his dissenting opinion in German v. Barangan, 135
SCRA 514, 517) is the existence of a grave and present danger of a
character both grave and imminent, of a serious evil to public safety,
public morals, public health or any other legitimate public interest,
that the State has a right (and duty) to prevent. Absent such a threat
to public safety, the expulsion of the petitioners from the schools is
not justified.342 (emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovah's Witnesses
from saluting the flag, singing the national anthem and reciting the
patriotic pledge, this religious group which admittedly comprises a
'small portion of the school population' will shake up our part of the
globe and suddenly produce a nation 'untaught and uninculcated in
and unimbued with reverence for the flag, patriotism, love of country
and admiration for national heroes' (Gerona v. Secretary of
Education, 106 Phil. 224). After all, what the petitioners seek only is
exemption from the flag ceremony, not exclusion from the public
schools where they may study the Constitution, the democratic way
of life and form of government, and learn not only the arts, sciences,
Philippine history and culture but also receive training for a vocation
or profession and be taught the virtues of 'patriotism, respect for
human rights, appreciation of national heroes, the rights and duties of
citizenship, and moral and spiritual values' (Sec. 3[2], Art. XIV, 1987
Constitution) as part of the curricula. Expelling or banning the
petitioners from Philippine schools will bring about the very

situation that this Court has feared in Gerona. Forcing a small

religious group, through the iron hand of the law, to participate in a
ceremony that violates their religious beliefs, will hardly be
conducive to love of country or respect for duly constituted
authorities.343
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to the
country, x x x- assuming that such unity and loyalty can be attained
through coercion- is not a goal that is constitutionally obtainable at
the expense of religious liberty. A desirable end cannot be promoted
by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed.
1042, 1046).344
Towards the end of the decision, the Court also cited the Victoriano case and
its use of the "compelling state interest" test in according exemption to the
Jehovah's Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75,
we upheld the exemption of members of the Iglesia ni Cristo, from
the coverage of a closed shop agreement between their employer and
a union because it would violate the teaching of their church not to
join any group:
'x x x It is certain that not every conscience can be
accommodated by all the laws of the land; but when general
laws conflict with scruples of conscience, exemptions ought
to be granted unless some 'compelling state interest'
intervenes.' (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d
965, 970, 83 S.Ct. 1790)'
We hold that a similar exemption may be accorded to the Jehovah's
Witnesses with regard to the observance of the flag ceremony out of
respect for their religious beliefs, however 'bizarre' those beliefs may
seem to others.345
The Court annulled the orders expelling petitioners from school.
Thus, the "grave and imminent danger" test laid down in a dissenting opinion
in German which involved prior restraint of religious worship with overtones
of the right to free speech and assembly, was transported to Ebralinag which
did not involve prior restraint of religious worship, speech or assembly.
Although, it might be observed that the Court faintly implied that Ebralinag
also involved the right to free speech when in its preliminary remarks, the
Court stated that compelling petitioners to participate in the flag ceremony
"is alien to the conscience of the present generation of Filipinos who cut their
teeth on the Bill of Rights which guarantees their rights to free speech and
the free exercise of religious profession and worship;" the Court then stated

in a footnote that the "flag salute, singing the national anthem and reciting
the patriotic pledge are all forms of utterances." 346
The "compelling state interest" test was not fully applied by the Court in
Ebralinag. In the Solicitor General's consolidated comment, one of the
grounds cited to defend the expulsion orders issued by the public respondents
was that "(t)he State's compelling interests being pursued by the DEC's
lawful regulations in question do not warrant exemption of the school
children of the Jehovah's Witnesses from the flag salute ceremonies on the
basis of their own self-perceived religious convictions." 347 The Court,
however, referred to the test only towards the end of the decision and did not
even mention what the Solicitor General argued as the compelling state
interest, much less did the Court explain why the interest was not sufficiently
compelling to override petitioners' religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni
Cristo v. Court of Appeals, et al.348Although there was a dissent with
respect to the applicability of the "clear and present danger" test in this case,
the majority opinion in unequivocal terms applied the "clear and present
danger" test to religious speech. This case involved the television program,
"Ang Iglesia ni Cristo," regularly aired over the television. Upon petitioner
Iglesia ni Cristo's submission of the VTR tapes of some of its episodes,
respondent Board of Review for Motion Pictures and Television classified
these as "X" or not for public viewing on the ground that they "offend and
constitute an attack against other religions which is expressly prohibited by
law." Invoking religious freedom, petitioner alleged that the Board acted
without jurisdiction or with grave abuse of discretion in requiring it to submit
the VTR tapes of its television program and x-rating them. While upholding
the Board's power to review the Iglesia television show, the Court was
emphatic about the preferred status of religious freedom. Quoting Justice
Cruz' commentary on the constitution, the Court held that freedom to believe
is absolute but freedom to act on one's belief, where it affects the public, is
subject to the authority of the state. The commentary quoted Justice
Frankfurter's dissent in Barnette which was quoted in Gerona, viz: "(t)he
constitutional provision on religious freedom terminated disabilities, it did
not create new privileges. It gave religious liberty, not civil immunity. Its
essence is freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma." 349 Nevertheless, the Court
was quick to add the criteria by which the state can regulate the exercise of
religious freedom, that is, when the exercise will bring about the "clear and
present danger of some substantive evil which the State is duty bound to
prevent, i.e., serious detriment to the more overriding interest of public
health, public morals, or public welfare."350

In annulling the x-rating of the shows, the Court stressed that the
Constitution is hostile to all prior restraints on speech, including religious
speech and the x-rating was a suppression of petitioner's freedom of speech
as much as it was an interference with its right to free exercise of religion.
Citing Cantwell, the Court recognized that the different religions may
criticize one another and their tenets may collide, but the Establishment
Clause prohibits the state from protecting any religion from this kind of
attack.
The Court then called to mind the "clear and present danger" test first laid
down in the American Bible Society case and the test of "immediate and
grave danger" with "infringement only to the smallest extent necessary to
avoid danger" in Victoriano and pointed out that the reviewing board failed
to apply the "clear and present danger" test. Applying the test, the Court
noted, viz:
The records show that the decision of the respondent Board, affirmed
by the respondent appellate court, is completely bereft of findings of
facts to justify the conclusion that the subject video tapes constitute
impermissible attacks against another religion. There is no showing
whatsoever of the type of harm the tapes will bring about especially
the gravity and imminence of the threatened harm. Prior restraint on
speech, including religious speech, cannot be justified by
hypothetical fears but only by the showing of a substantive and
imminent evil which has taken the life of a reality already on ground.
Replying to the challenge on the applicability of the "clear and present
danger" test to the case, the Court acknowledged the permutations that the
test has undergone, but stressed that the test is still applied to four types of
speech: "speech that advocates dangerous ideas, speech that provokes a
hostile audience reaction, out of court contempt and release of information
that endangers a fair trial"351 and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is reason
to apply the clear and present danger test to the case at bar which
concerns speech that attacks other religions and could readily
provoke hostile audience reaction. It cannot be doubted that religious
truths disturb and disturb terribly.352
In Iglesia therefore, the Court went back to Gerona insofar as holding that
religious freedom cannot be invoked to seek exemption from compliance
with a law that burdens one's religious exercise. It also reiterated the "clear
and present danger" test in American Bible Society and the "grave and
imminent danger" in Victoriano, but this time clearly justifying its
applicability and showing how the test was applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of not
invalidating a law offensive to religious freedom, but carving out an

exception or upholding an exception to accommodate religious exercise

where it is justified.353
2. Establishment Clause
In Philippine jurisdiction, there is substantial agreement on the values sought
to be protected by the Establishment Clause, namely, voluntarism and
insulation of the political process from interfaith dissension. The first,
voluntarism, has both a personal and a social dimension. As a personal value,
it refers to the inviolability of the human conscience which, as discussed
above, is also protected by the free exercise clause. From the religious
perspective, religion requires voluntarism because compulsory faith lacks
religious efficacy. Compelled religion is a contradiction in terms. 354 As a
social value, it means that the "growth of a religious sect as a social force
must come from the voluntary support of its members because of the belief
that both spiritual and secular society will benefit if religions are allowed to
compete on their own intrinsic merit without benefit of official patronage.
Such voluntarism cannot be achieved unless the political process is insulated
from religion and unless religion is insulated from politics." 355 Nonestablishment thus calls for government neutrality in religious matters to
uphold voluntarism and avoid breeding interfaith dissension. 356
The neutrality principle was applied in the first significant non-establishment
case under the 1935 Constitution. In the 1937 case of Aglipay v. Ruiz,357 the
Philippine Independent Church challenged the issuance and sale of postage
stamps commemorating the Thirty-Third International Eucharistic Congress
of the Catholic Church on the ground that the constitutional prohibition
against the use of public money for religious purposes has been violated. It
appears that the Director of Posts issued the questioned stamps under the
provisions of Act No. 4052358 which appropriated a sum for the cost of plates
and printing of postage stamps with new designs and authorized the Director
of Posts to dispose of the sum in a manner and frequency "advantageous to
the Government." The printing and issuance of the postage stamps in
question appears to have been approved by authority of the President. Justice
Laurel, speaking for the Court, took pains explaining religious freedom and
the role of religion in society, and in conclusion, found no constitutional
infirmity in the issuance and sale of the stamps, viz:
The prohibition herein expressed is a direct corollary of the principle
of separation of church and state. Without the necessity of adverting
to the historical background of this principle in our country, it is
sufficient to say that our history, not to speak of the history of
mankind, has taught us that the union of church and state is
prejudicial to both, for occasions might arise when the state will use
the church, and the church the state, as a weapon in the furtherance
of their respective ends and aims . . . It is almost trite to say now that

in this country we enjoy both religious and civil freedom. All the
officers of the Government, from the highest to the lowest, in taking
their oath to support and defend the Constitution, bind themselves to
recognize and respect the constitutional guarantee of religious
freedom, with its inherent limitations and recognized implications. It
should be stated that what is guaranteed by our Constitution is
religious liberty, not mere toleration.
Religious freedom, however, as a constitutional mandate is not an inhibition
of profound reverence for religion and is not a denial of its influence in
human affairs. Religion as a profession of faith to an active power that binds
and elevates man to his Creator is recognized. And, in so far as it instills into
the minds the purest principles of morality, its influence is deeply felt and
highly appreciated. When the Filipino people, in the preamble of their
Constitution, implored "the aid of Divine Providence, in order to establish a
government that shall embody their ideals, conserve and develop the
patrimony of the nation, promote the general welfare, and secure to
themselves and their posterity the blessings of independence under a regime
of justice, liberty and democracy," they thereby manifested their intense
religious nature and placed unfaltering reliance upon Him who guides the
destinies of men and nations. The elevating influence of religion in human
society is recognized here as elsewhere. In fact, certain general concessions
are indiscriminately accorded to religious sects and denominations. . . 359
xxx
xxx
xxx
It is obvious that while the issuance and sale of the stamps in
question may be said to be inseparably linked with an event of a
religious character, the resulting propaganda, if any, received by the
Roman Catholic Church, was not the aim and purpose of the
Government. We are of the opinion that the Government should not
be embarrassed in its activities simply because of incidental results,
more or less religious in character, if the purpose had in view is one
which could legitimately be undertaken by appropriate legislation.
The main purpose should not be frustrated by its subordination to
mere incidental results not contemplated. (Vide Bradfield vs.
Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed.,
168)360(emphases supplied)
In so deciding the case, the Court, citing U.S. jurisprudence, laid down the
doctrine that a law or government action with a legitimate secular purpose
does not offend the Establishment Clause even if it incidentally aids a
particular religion.
Almost forty-five years after Aglipay came Garces v. Estenzo.361 Although
the Court found that the separation of church and state was not at issue as the
controversy was over who should have custody of a saint's image, it

nevertheless made pronouncements on the separation of church and state

along the same line as the Aglipay ruling. The Court held that there was
nothing unconstitutional or illegal in holding a fiesta and having a patron
saint for the barrio. It adhered to the barrio resolutions of the barangay
involved in the case stating that the barrio fiesta is a socio-religious affair, the
celebration of which is an "ingrained tradition in rural communities" that
"relieves the monotony and drudgery of the lives of the masses." Corollarily,
the Court found nothing illegal about any activity intended to facilitate the
worship of the patron saint such as the acquisition and display of his image
bought with funds obtained through solicitation from the barrio residents.
The Court pointed out that the image of the patron saint was "purchased in
connection with the celebration of the barrio fiesta honoring the patron saint,
San Vicente Ferrer, and not for the purpose of favoring any religion nor
interfering with religious matters or the religious beliefs of the barrio
residents." Citing the Aglipay ruling, the Court declared, viz:
Not every governmental activity which involves the expenditure of
public funds and which has some religious tint is violative of the
constitutional provisions regarding separation of church and state,
freedom of worship and banning the use of public money or
property.
Then came the 1978 case of Pamil v. Teleron, et al.362 which presented a
novel issue involving the religion clauses. In this case, Section 2175 of the
Revised Administrative Code of 1917 disqualifying ecclesiastics from
appointment or election as municipal officer was challenged. After protracted
deliberation, the Court was sharply divided on the issue. Seven members of
the Court, one short of the number necessary to declare a law
unconstitutional, approached the problem from a free exercise perspective
and considered the law a religious test offensive of the constitution. They
were Justices Fernando, Teehankee, Muoz-Palma, Concepcion, Jr., Santos,
Fernandez, and Guerrero. Then Associate Justice Fernando, the ponente,
stated, viz: "The challenged Administrative Code provision, certainly insofar
as it declares ineligible ecclesiastics to any elective or appointive office, is,
on its face, inconsistent with the religious freedom guaranteed by the
Constitution." Citing Torcaso v. Watkins,363 the ponencia held, viz:
Torcaso v. Watkins, an American Supreme Court decision, has
persuasive weight. What was there involved was the validity of a
provision in the Maryland Constitution prescribing that 'no religious
test ought ever to be required as a disqualification for any office or
profit or trust in this State, other than a declaration of belief in the
existence of God ***.' Such a constitutional requirement was
assailed as contrary to the First Amendment of the United States
Constitution by an appointee to the office of notary public in

Maryland, who was refused a commission as he would not declare a

belief in God. He failed in the Maryland Court of Appeals but
prevailed in the United States Supreme Court, which reversed the
state court decision. It could not have been otherwise. As
emphatically declared by Justice Black: 'this Maryland religious test
for public office unconstitutionally invades the appellant's freedom
of belief and religion and therefore cannot be enforced against him.
The analogy appears to be obvious. In that case, it was lack of belief
in God that was a disqualification. Here being an ecclesiastic and
therefore professing a religious faith suffices to disqualify for a
public office. There is thus an incompatibility between the
Administrative Code provision relied upon by petitioner and an
express constitutional mandate.364
On the other hand, the prevailing five other members of the Court - Chief
Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino - approached
the case from a non-establishment perspective and upheld the law as a
safeguard against the constant threat of union of church and state that has
marked Philippine history. Justice Makasiar stated: "To allow an ecclesiastic
to head the executive department of a municipality is to permit the erosion of
the principle of separation of Church and State and thus open the floodgates
for the violation of the cherished liberty of religion which the constitutional
provision seeks to enforce and protect." Consequently, the Court upheld the
validity of Section 2175 of the Revised Administrative Code and declared
respondent priest ineligible for the office of municipal mayor.
Another type of cases interpreting the establishment clause deals with
intramural religious disputes. Fonacier v. Court of Appeals365 is the leading
case. The issue therein was the right of control over certain properties of the
Philippine Independent Church, the resolution of which necessitated the
determination of who was the legitimate bishop of the church. The Court
cited American Jurisprudence,366 viz:
Where, however, a decision of an ecclesiastical court plainly violates
the law it professes to administer, or is in conflict with the law of the
land, it will not be followed by the civil courts. . . In some instances,
not only have the civil courts the right to inquire into the jurisdiction
of the religious tribunals and the regularity of their procedure, but
they have subjected their decisions to the test of fairness or to the test
furnished by the constitution and the law of the church. . . 367
The Court then ruled that petitioner Fonacier was legitimately ousted and
respondent de los Reyes was the duly elected head of the Church, based on
their internal laws. To finally dispose of the property issue, the Court,
citingWatson v. Jones,368 declared that the rule in property controversies
within religious congregations strictly independent of any other superior

ecclesiastical association (such as the Philippine Independent Church) is that

the rules for resolving such controversies should be those of any voluntary
association. If the congregation adopts the majority rule then the majority
should prevail; if it adopts adherence to duly constituted authorities within
the congregation, then that should be followed. Applying these rules,
Fonacier lost the case. While the Court exercised jurisdiction over the case, it
nevertheless refused to touch doctrinal and disciplinary differences raised,viz:
The amendments of the constitution, restatement of articles of
religion and abandonment of faith or abjuration alleged by appellant,
having to do with faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church and having reference
to the power of excluding from the church those allegedly unworthy
of membership, are unquestionably ecclesiastical matters which are
outside the province of the civil courts.369
VIII. Free Exercise Clause vis--vis Establishment Clause
In both Philippine and U.S. jurisdiction, it is recognized that there is a
tension between the Free Exercise Clause and the Establishment Clause in
their application. There is a natural antagonism between a command not to
establish religion and a command not to inhibit its practice; this tension
between the religion clauses often leaves the courts with a choice between
competing values in religion cases.370
One set of facts, for instance, can be differently viewed from the
Establishment Clause perspective and the Free Exercise Clause point of view,
and decided in opposite directions. In Pamil, the majority gave more weight
to the religious liberty of the priest in holding that the prohibition of
ecclesiastics to assume elective or appointive government positions was
violative of the Free Exercise Clause. On the other hand, the prevailing five
justices gave importance to the Establishment Clause in stating that the
principle of separation of church and state justified the prohibition.
Tension is also apparent when a case is decided to uphold the Free Exercise
Clause and consequently exemptions from a law of general applicability are
afforded by the Court to the person claiming religious freedom; the question
arises whether the exemption does not amount to support of the religion in
violation of the Establishment Clause. This was the case in the Free Exercise
Clause case of Sherbert where the U.S. Supreme Court ruled, viz:
In holding as we do, plainly we are not fostering the "establishment"
of the Seventh-day Adventist religion in South Carolina, for the
extension of unemployment benefits to Sabbatarians in common with
Sunday worshippers reflects nothing more than the governmental
obligation of neutrality in the face of religious differences, and does
not represent that involvement of religious with secular institutions

which it is the object of the Establishment Clause to

forestall.371 (emphasis supplied)
Tension also exists when a law of general application provides exemption in
order to uphold free exercise as in the Walz case where the appellant argued
that the exemption granted to religious organizations, in effect, required him
to contribute to religious bodies in violation of the Establishment Clause. But
the Court held that the exemption was not a case of establishing religion but
merely upholding the Free Exercise Clause by "sparing the exercise of
religion from the burden of property taxation levied on private profit
institutions." Justice Burger wrote,viz:
(t)he Court has struggled to find a neutral course between the two
religion clauses, both of which are cast in absolute terms, and either
of which, if expanded to a logical extreme, would tend to clash with
the other.372
Similarly, the Philippine Supreme Court in the Victoriano case held that the
exemption afforded by law to religious sects who prohibit their members
from joining unions did not offend the Establishment Clause. We ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress acted
consistently with the spirit of the constitutional provision. It acted
merely to relieve the exercise of religion, by certain persons, of a
burden that is imposed by union security agreements.373 (emphasis
supplied)
Finally, in some cases, a practice is obviously violative of the Establishment
Clause but the Court nevertheless upholds it. In Schempp, Justice Brennan
stated: "(t)here are certain practices, conceivably violative of the
Establishment Clause, the striking down of which might seriously interfere
with certain religious liberties also protected by the First Amendment."
How the tension between the Establishment Clause and the Free Exercise
Clause will be resolved is a question for determination in the actual cases that
come to the Court. In cases involving both the Establishment Clause and the
Free Exercise Clause, the two clauses should be balanced against each other.
The courts must review all the relevant facts and determine whether there is a
sufficiently strong free exercise right that should prevail over the
Establishment Clause problem. In the United States, it has been proposed that
in balancing, the free exercise claim must be given an edge not only because
of abundant historical evidence in the colonial and early national period of
the United States that the free exercise principle long antedated any broadbased support of disestablishment, but also because an Establishment Clause
concern raised by merely accommodating a citizen's free exercise of religion
seems far less dangerous to the republic than pure establishment cases. Each
time the courts side with the Establishment Clause in cases involving tension
between the two religion clauses, the courts convey a message of hostility to

the religion that in that case cannot be freely exercised. 374 American professor
of constitutional law, Laurence Tribe, similarly suggests that the free exercise
principle "should be dominant in any conflict with the anti-establishment
principle." This dominance would be the result of commitment to religious
tolerance instead of "thwarting at all costs even the faintest appearance of
establishment."375 In our jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a
literal interpretation of the religion clauses does not suffice. Modern society
is characterized by the expanding regulatory arm of government that reaches
a variety of areas of human conduct and an expanding concept of religion. To
adequately meet the demands of this modern society, the societal values the
religion clauses are intended to protect must be considered in their
interpretation and resolution of the tension. This, in fact, has been the
approach followed by the Philippine Court.376
IX. Philippine Religion Clauses: Nature, Purpose, Tests Based on
Philippine and American Religion Clause History, Law and
Jurisprudence
The history of the religion clauses in the 1987 Constitution shows that these
clauses were largely adopted from the First Amendment of the U.S.
Constitution. The religion clauses in the First Amendment were contained in
every organic Act of the Philippines under the American regime. When the
delegates of the 1934 Constitutional Convention adopted a Bill of Rights in
the 1935 Constitution, they purposely retained the phraseology of the religion
clauses in the First Amendment as contained in the Jones Law in order to
adopt its historical background, nature, extent and limitations. At that time,
there were not too many religion clause cases in the United States as the U.S.
Supreme Court decided an Establishment Clause issue only in the 1947
Everson case. The Free Exercise Clause cases were also scarce then. Over the
years, however, with the expanding reach of government regulation to a
whole gamut of human actions and the growing plurality and activities of
religions, the number of religion clause cases in the U.S. exponentially
increased. With this increase came an expansion of the interpretation of the
religion clauses, at times reinforcing prevailing case law, at other times
modifying it, and still at other times creating contradictions so that two main
streams of jurisprudence had become identifiable. The first stream employs
separation while the second employs benevolent neutrality in interpreting the
religious clauses. Alongside this change in the landscape of U.S. religion
clause jurisprudence, the Philippines continued to adopt the 1935
Constitution religion clauses in the 1973 Constitution and later, the 1987
Constitution. Philippine jurisprudence and commentaries on the religious
clauses also continued to borrow authorities from U.S. jurisprudence without
articulating the stark distinction between the two streams of U.S.
jurisprudence. One might simply conclude that the Philippine Constitutions

and jurisprudence also inherited the disarray of U.S. religion clause

jurisprudence and the two identifiable streams; thus, when a religion clause
case comes before the Court, a separationist approach or a benevolent
neutrality approach might be adopted and each will have U.S. authorities to
support it. Or, one might conclude that as the history of the First Amendment
as narrated by the Court in Everson supports the separationist approach,
Philippine jurisprudence should also follow this approach in light of the
Philippine religion clauses' history. As a result, in a case where the party
claims religious liberty in the face of a general law that inadvertently burdens
his religious exercise, he faces an almost insurmountable wall in convincing
the Court that the wall of separation would not be breached if the Court
grants him an exemption. These conclusions, however, are not and were
never warranted by the 1987, 1973 and 1935 Constitutions as shown by other
provisions on religion in all three constitutions. It is a cardinal rule in
constitutional construction that the constitution must be interpreted as a
whole and apparently conflicting provisions should be reconciled and
harmonized in a manner that will give to all of them full force and
effect.377 From this construction, it will be ascertained that the intent of the
framers was to adopt a benevolent neutrality approach in interpreting the
religious clauses in the Philippine constitutions, and the enforcement of this
intent is the goal of construing the constitution. 378
We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At
the same time that the 1935 Constitution provided for an Establishment
Clause, it also provided for tax exemption of church property in Article VI,
Section 22, par. 3(b), viz:
(3) Cemeteries, churches, and parsonages or convents, appurtenant
thereto, and all lands, buildings, and improvements used exclusively
for religious, charitable, or educational purposes shall be exempt
from taxation.
Before the advent of the 1935 Constitution, Section 344 of the
Administrative Code provided for a similar exemption. To the same effect,
the Tydings-McDuffie Law contained a limitation on the taxing power of the
Philippine government during the Commonwealth period.379 The original
draft of the Constitution placed this provision in an ordinance to be appended
to the Constitution because this was among the provisions prescribed by the
Tydings-McDuffie Law. However, in order to have a constitutional guarantee
for such an exemption even beyond the Commonwealth period, the provision
was introduced in the body of the Constitution on the rationale that "if
churches, convents [rectories or parsonages] and their accessories are always
necessary for facilitating the exercise of such [religious] freedom, it would
also be natural that their existence be also guaranteed by exempting them

from taxation."380 The amendment was readily approved with 83 affirmative

votes against 15 negative votes.381
The Philippine constitutional provision on tax exemption is not found in the
U.S. Constitution. In the U.S. case of Walz, the Court struggled to justify this
kind of exemption to withstand Establishment Clause scrutiny by stating that
church property was not singled out but was exempt along with property
owned by non-profit, quasi-public corporations because the state upheld the
secular policy "that considers these groups as beneficial and stabilizing
influences in community life and finds this classification useful, desirable,
and in the public interest." The Court also stated that the exemption was
meant to relieve the burden on free exercise imposed by property taxation. At
the same time, however, the Court acknowledged that the exemption was an
exercise of benevolent neutrality to accommodate a long-standing tradition of
exemption. With the inclusion of the church property tax exemption in the
body of the 1935 Constitution and not merely as an ordinance appended to
the Constitution, the benevolent neutrality referred to in the Walz case was
given constitutional imprimatur under the regime of the 1935 Constitution.
The provision, as stated in the deliberations, was an acknowledgment of the
necessity of the exempt institutions to the exercise of religious liberty,
thereby evincing benevolence towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:
(3) No public money, or property shall ever be appropriated, applied,
or used, directly or indirectly, for the use, benefit, or support of any
sect, church, denomination, sectarian institution or system of
religion, for the use, benefit or support of any priest, preacher,
ministers or other religious teacher or dignitary as such, except when
such priest, preacher, minister, or dignitary is assigned to the armed
forces or to any penal institution, orphanage, or leprosarium.
(emphasis supplied)
The original draft of this provision was a reproduction of a portion of section
3 of the Jones Law which did not contain the above exception, viz:
No public money or property shall ever be appropriated, applied, or
used, directly or indirectly, for the use, benefit, or support of any
sect, church denomination, sectarian institution, or system of
religion, or for the use, benefit or support of any priest, preacher,
minister, or dignitary as such382
In the deliberations of this draft provision, an amendment was proposed to
strike down everything after "church denomination."383 The proposal
intended to imitate the silence of the U.S. Constitution on the subject of
support for priests and ministers. It was also an imitation of the silence of the
Malolos Constitution to restore the situation under the Malolos Constitution
and prior to the Jones Law, when chaplains of the revolutionary army

received pay from public funds with no doubt about its legality. It was
pointed out, however, that even with the prohibition under the Jones Law,
appropriations were made to chaplains of the national penitentiary and the
Auditor General upheld its validity on the basis of a similar United States
practice. But it was also pointed out that the U.S. Constitution did not contain
a prohibition on appropriations similar to the Jones Law.384 To settle the
question on the constitutionality of payment of salaries of religious officers
in certain government institutions and to avoid the feared situation where the
enumerated government institutions could not employ religious officials with
compensation, the exception in the 1935 provision was introduced and
approved. The provision garnered 74 affirmative votes against 34 negative
votes.385 As pointed out in the deliberations, the U.S. Constitution does not
provide for this exemption. However, the U.S. Supreme Court in Cruz v.
Beto, apparently taking a benevolent neutrality approach, implicitly approved
the state of Texas' payment of prison chaplains' salaries as reasonably
necessary to permit inmates to practice their religion. Also, in the Marsh
case, the U.S. Supreme Court upheld the long-standing tradition of beginning
legislative sessions with prayers offered by legislative chaplains retained at
taxpayers' expense. The constitutional provision exempting religious officers
in government institutions affirms the departure of the Philippine
Constitution from the U.S. Constitution in its adoption of benevolent
neutrality in Philippine jurisdiction. While the provision prohibiting aid to
religion protects the wall of separation between church and state, the
provision at the same time gives constitutional sanction to a breach in the
wall.
To further buttress the thesis that benevolent neutrality is contemplated in the
Philippine Establishment Clause, the 1935 Constitution provides for optional
religious instruction in public schools in Article XIII, Section 5, viz:
. . . Optional religious instruction shall be maintained in the public
schools as now authorized by law. . .
The law then applicable was Section 928 of the Administrative Code, viz:
It shall be lawful, however, for the priest or minister of any church
established in the town where a public school is situated, either in
person or by a designated teacher of religion, to teach religion for
one-half hour three times a week, in the school building, to those
public-school pupils whose parents or guardians desire it and express
their desire therefor in writing filed with the principal of the
school . . .
During the debates of the Constitutional Convention, there were three
positions on the issue of religious instruction in public schools. The first held
that the teaching of religion in public schools should be prohibited as this
was a violation of the principle of separation of church and state and the

prohibition against the use of public funds for religious purposes. The second
favored the proposed optional religious instruction as authorized by the
Administrative Code and recognized that the actual practice of allowing
religious instruction in the public schools was sufficient proof that religious
instruction was not and would not be a source of religious discord in the
schools.386 The third wanted religion to be included as a course in the
curriculum of the public schools but would only be taken by pupils at the
option of their parents or guardians. After several rounds of debate, the
second camp prevailed, thus raising to constitutional stature the optional
teaching of religion in public schools, despite the opposition to the provision
on the ground of separation of church and state.387 As in the provisions on
church property tax exemption and compensation of religious officers in
government institutions, the U.S. Constitution does not provide for optional
religious instruction in public schools. In fact, in the McCollum case, the
Court, using strict neutrality, prohibited this kind of religious instruction
where the religion teachers would conduct class within the school premises.
The constitutional provision on optional religious instruction shows that
Philippine jurisdiction rejects the strict neutrality approach which does not
allow such accommodation of religion.
Finally, to make certain the Constitution's benevolence to religion, the
Filipino people "implored (ing) the aid of Divine Providence (,) in order to
establish a government that shall embody their ideals, conserve and develop
the patrimony of the nation, promote the general welfare, and secure to
themselves and their posterity the blessings of independence under a regime
of justice, liberty, and democracy, (in) ordain(ing) and promulgat(ing) this
Constitution." A preamble is a "key to open the mind of the authors of the
constitution as to the evil sought to be prevented and the objects sought to be
accomplished by the provisions thereof."388 There was no debate on the
inclusion of a "Divine Providence" in the preamble. In Aglipay, Justice
Laurel noted that when the Filipino people implored the aid of Divine
Providence, "(t)hey thereby manifested their intense religious nature and
placed unfaltering reliance upon Him who guides the destinies of men and
nations."389 The 1935 Constitution's religion clauses, understood alongside
the other provisions on religion in the Constitution, indubitably shows not
hostility, but benevolence, to religion.390
The 1973 Constitution contained in Article VI, Section 22(3) a provision
similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on
exemption of church property from taxation, with the modification that the
property should not only be used directly, but also actually and exclusively
for religious or charitable purposes. Parallel to Article VI, Section 23(3) of
the 1935 Constitution, the 1973 Constitution also contained a similar
provision on salaries of religious officials employed in the enumerated

government institutions. Article XIII, Section 5 of the 1935 Constitution on

optional religious instruction was also carried to the 1973 Constitution in
Article XV, Section 8(8) with the modification that optional religious
instruction shall be conducted "as may be provided by law" and not "as now
authorized by law" as stated in the 1935 Constitution. The 1973 counterpart,
however, made explicit in the constitution that the religious instruction in
public elementary and high schools shall be done "(a)t the option expressed
in writing by the parents or guardians, and without cost to them and the
government." With the adoption of these provisions in the 1973 Constitution,
the benevolent neutrality approach continued to enjoy constitutional sanction.
In Article XV, Section 15 of the General Provisions of the 1973 Constitution
this provision made its maiden appearance: "(t)he separation of church and
state shall be inviolable." The 1973 Constitution retained the portion of the
preamble "imploring the aid of Divine Providence."
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and
Problems of the Committee on Church and State of the 1971 Constitutional
Convention, the question arose as to whether the "absolute" separation of
Church and State as enunciated in the Everson case and reiterated in
Schempp - i.e., neutrality not only as between one religion and another but
even as between religion and non-religion - is embodied in the Philippine
Constitution. The sub-committee's answer was that it did not seem so. Citing
the Aglipay case where Justice Laurel recognized the "elevating influence of
religion in human society" and the Filipinos' imploring of Divine Providence
in the 1935 Constitution, the sub-committee asserted that the state may not
prefer or aid one religion over another, but may aid all religions equally or
the cause of religion in general.391 Among the position papers submitted to
the Committee on Church on State was a background paper for
reconsideration of the religion provisions of the constitution by Fr. Bernas,
S.J. He stated therein that the Philippine Constitution is not hostile to religion
and in fact recognizes the value of religion and accommodates religious
values.392 Stated otherwise, the Establishment Clause contemplates not a
strict neutrality but benevolent neutrality. While the Committee introduced
the provision on separation of church and state in the General Provisions of
the 1973 Constitution, this was nothing new as according to it, this principle
was implied in the 1935 Constitution even in the absence of a similar
provision.393
Then came the 1987 Constitution. The 1973 Constitutional provision on tax
exemption of church property was retained with minor modification in
Article VI, Section 28(3) of the 1987 Constitution. The same is true with
respect to the prohibition on the use of public money and property for
religious purposes and the salaries of religious officers serving in the
enumerated government institutions, now contained in Article VI, Section

29(2). Commissioner Bacani, however, probed into the possibility of

allowing the government to spend public money for purposes which might
have religious connections but which would benefit the public generally.
Citing the Aglipay case, Commissioner Rodrigo explained that if a public
expenditure would benefit the government directly, such expense would be
constitutional even if it results to an incidental benefit to religion. With that
explanation, Commissioner Bacani no longer pursued his proposal. 394
The provision on optional religious instruction was also adopted in the 1987
Constitution in Article XIV, Section 3(3) with the modification that it was
expressly provided that optional instruction shall be conducted "within the
regular class hours" and "without additional cost to the government". There
were protracted debates on what additional cost meant, i.e., cost over and
above what is needed for normal operations such as wear and tear, electricity,
janitorial services,395 and when during the day instruction would be
conducted.396 In deliberating on the phrase "within the regular class hours,"
Commissioner Aquino expressed her reservations to this proposal as this
would violate the time-honored principle of separation of church and state.
She cited the McCullom case where religious instruction during regular
school hours was stricken down as unconstitutional and also cited what she
considered the most liberal interpretation of separation of church and state in
Surach v. Clauson where the U.S. Supreme Court allowed only release time
for religious instruction. Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to provide for an
exception to the rule on non-establishment of religion, because if it
were not necessary to make this exception for purposes of allowing
religious instruction, then we could just drop the amendment. But, as
a matter of fact, this is necessary because we are trying to introduce
something here which is contrary to American practices. 397 (emphasis
supplied)
"(W)ithin regular class hours" was approved.
he provision on the separation of church and state was retained but placed
under the Principles in the Declaration of Principles and State Policies in
Article II, Section 6. In opting to retain the wording of the provision, Fr.
Bernas stated, viz:
. . . It is true, I maintain, that as a legal statement the sentence 'The
separation of Church and State is inviolable,' is almost a useless
statement; but at the same time it is a harmless statement. Hence, I
am willing to tolerate it there, because, in the end, if we look at the
jurisprudence on Church and State, arguments are based not on the
statement of separation of church and state but on the nonestablishment clause in the Bill of Rights.398

The preamble changed "Divine Providence" in the 1935 and 1973

Constitutions to "Almighty God." There was considerable debate on whether
to use "Almighty God" which Commissioner Bacani said was more reflective
of Filipino religiosity, but Commissioner Rodrigo recalled that a number of
atheistic delegates in the 1971 Constitutional Convention objected to
reference to a personal God.399 "God of History", "Lord of History" and
"God" were also proposed, but the phrase "Almighty God" prevailed. Similar
to the 1935 and 1971 Constitutions, it is obvious that the 1987 Constitution is
not hostile nor indifferent to religion;400 its wall of separation is not a wall of
hostility or indifference.401
The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of
church property, salary of religious officers in government institutions,
optional religious instruction and the preamble all reveal without doubt that
the Filipino people, in adopting these constitutions, did not intend to erect a
high and impregnable wall of separation between the church and state. 402 The
strict neutrality approach which examines only whether government action is
for a secular purpose and does not consider inadvertent burden on religious
exercise protects such a rigid barrier. By adopting the above constitutional
provisions on religion, the Filipinos manifested their adherence to the
benevolent neutrality approach in interpreting the religion clauses, an
approach that looks further than the secular purposes of government action
and examines the effect of these actions on religious exercise. Benevolent
neutrality recognizes the religious nature of the Filipino people and the
elevating influence of religion in society; at the same time, it acknowledges
that government must pursue its secular goals. In pursuing these goals,
however, government might adopt laws or actions of general applicability
which inadvertently burden religious exercise. Benevolent neutrality gives
room for accommodation of these religious exercises as required by the Free
Exercise Clause. It allows these breaches in the wall of separation to uphold
religious liberty, which after all is the integral purpose of the religion clauses.
The case at bar involves this first type of accommodation where an
exemption is sought from a law of general applicability that inadvertently
burdens religious exercise.
Although our constitutional history and interpretation mandate benevolent
neutrality, benevolent neutrality does not mean that the Court ought to grant
exemptions every time a free exercise claim comes before it. But it does
mean that the Court will not look with hostility or act indifferently towards
religious beliefs and practices and that it will strive to accommodate them
when it can within flexible constitutional limits; it does mean that the Court
will not simply dismiss a claim under the Free Exercise Clause because the
conduct in question offends a law or the orthodox view for this precisely is
the protection afforded by the religion clauses of the Constitution, i.e., that in

the absence of legislation granting exemption from a law of general

applicability, the Court can carve out an exception when the religion clauses
justify it. While the Court cannot adopt a doctrinal formulation that can
eliminate the difficult questions of judgment in determining the degree of
burden on religious practice or importance of the state interest or the
sufficiency of the means adopted by the state to pursue its interest, the Court
can set a doctrine on the ideal towards which religious clause jurisprudence
should be directed.403 We here lay down the doctrine that in Philippine
jurisdiction, we adopt the benevolent neutrality approach not only because of
its merits as discussed above, but more importantly, because our
constitutional history and interpretation indubitably show that benevolent
neutrality is the launching pad from which the Court should take off in
interpreting religion clause cases. The ideal towards which this approach is
directed is the protection of religious liberty "not only for a minority,
however small- not only for a majority, however large- but for each of us" to
the greatest extent possible within flexible constitutional limits.
Benevolent neutrality is manifest not only in the Constitution but has also
been recognized in Philippine jurisprudence, albeit not expressly called
"benevolent neutrality" or "accommodation". In Aglipay, the Court not only
stressed the "elevating influence of religion in human society" but
acknowledged the Constitutional provisions on exemption from tax of church
property, salary of religious officers in government institutions, and optional
religious instruction as well as the provisions of the Administrative Code
making Thursday and Friday of the Holy Week, Christmas Day and Sundays
legal holidays. In Garces, the Court not only recognized the Constitutional
provisions indiscriminately granting concessions to religious sects and
denominations, but also acknowledged that government participation in longstanding traditions which have acquired a social character - "the barrio fiesta
is a socio-religious affair" - does not offend the Establishment Clause. In
Victoriano, the Court upheld the exemption from closed shop provisions of
members of religious sects who prohibited their members from joining
unions upon the justification that the exemption was not a violation of the
Establishment Clause but was only meant to relieve the burden on free
exercise of religion. In Ebralinag, members of the Jehovah's Witnesses were
exempt from saluting the flag as required by law, on the basis not of a statute
granting exemption but of the Free Exercise Clause without offending the
Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form and origin,
Philippine constitutional law has departed from the U.S. jurisprudence of
employing a separationist or strict neutrality approach. The Philippine
religion clauses have taken a life of their own, breathing the air of benevolent
neutrality and accommodation. Thus, the wall of separation in Philippine

jurisdiction is not as high and impregnable as the wall created by the U.S.
Supreme Court in Everson.404 While the religion clauses are a unique
American experiment which understandably came about as a result of
America's English background and colonization, the life that these clauses
have taken in this jurisdiction is the Philippines' own experiment, reflective
of the Filipinos' own national soul, history and tradition. After all, "the life of
the law. . . has been experience."
But while history, constitutional construction, and earlier jurisprudence
unmistakably show that benevolent neutrality is the lens with which the
Court ought to view religion clause cases, it must be stressed that the interest
of the state should also be afforded utmost protection. To do this, a test must
be applied to draw the line between permissible and forbidden religious
exercise. It is quite paradoxical that in order for the members of a society to
exercise their freedoms, including their religious liberty, the law must set a
limit when their exercise offends the higher interest of the state. To do
otherwise is self-defeating for unlimited freedom would erode order in the
state and foment anarchy, eventually destroying the very state its members
established to protect their freedoms. The very purpose of the social contract
by which people establish the state is for the state to protect their liberties;
for this purpose, they give up a portion of these freedoms - including the
natural right to free exercise - to the state. It was certainly not the intention of
the authors of the constitution that free exercise could be used to countenance
actions that would undo the constitutional order that guarantees free
exercise.405
The all important question then is the test that should be used in ascertaining
the limits of the exercise of religious freedom. Philippine jurisprudence
articulates several tests to determine these limits. Beginning with the first
case on the Free Exercise Clause, American Bible Society, the Court
mentioned the "clear and present danger" test but did not employ it.
Nevertheless, this test continued to be cited in subsequent cases on religious
liberty. The Gerona case then pronounced that the test of permissibility of
religious freedom is whether it violates the established institutions of society
and law. The Victoriano case mentioned the "immediate and grave danger"
test as well as the doctrine that a law of general applicability may burden
religious exercise provided the law is the least restrictive means to
accomplish the goal of the law. The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano, German went back to the
Gerona rule. Ebralinag then employed the "grave and immediate danger" test
and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went
back to the "clear and present danger" test in the maiden case of American
Bible Society. Not surprisingly, all the cases which employed the "clear and
present danger" or "grave and immediate danger" test involved, in one form

or another, religious speech as this test is often used in cases on freedom of

expression. On the other hand, the Gerona and German cases set the rule that
religious freedom will not prevail over established institutions of society and
law. Gerona, however, which was the authority cited by German has been
overruled by Ebralinag which employed the "grave and immediate danger"
test. Victoriano was the only case that employed the "compelling state
interest" test, but as explained previously, the use of the test was
inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society,
Ebralinag and Iglesia ni Cristo where the "clear and present danger" and
"grave and immediate danger" tests were appropriate as speech has easily
discernible or immediate effects. The Gerona and German doctrine, aside
from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the
present case involves purely conduct arising from religious belief. The
"compelling state interest" test is proper where conduct is involved for the
whole gamut of human conduct has different effects on the state's interests:
some effects may be immediate and short-term while others delayed and farreaching. A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore necessary.
However, not any interest of the state would suffice to prevail over the right
to religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - "the most inalienable and sacred of all
human rights", in the words of Jefferson.406 This right is sacred for an
invocation of the Free Exercise Clause is an appeal to a higher sovereignty.
The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty,407 thus the Filipinos implore the
"aid of Almighty God in order to build a just and humane society and
establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere
balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the
state can prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to do
otherwise would allow the state to batter religion, especially the less
powerful ones until they are destroyed.408 In determining which shall prevail
between the state's interest and religious liberty, reasonableness shall be the
guide.409 The "compelling state interest" serves the purpose of revering
religious liberty while at the same time affording protection to the paramount
interests of the state. This was the test used in Sherbert which involved
conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state

interest" test, by upholding the paramount interests of the state, seeks to

protect the very state, without which, religious liberty will not be preserved.
X. Application of the Religion Clauses to the Case at Bar
A. The Religion Clauses and Morality
In a catena of cases, the Court has ruled that government employees engaged
in illicit relations are guilty of "disgraceful and immoral conduct" for which
he/she may be held administratively liable.410 In these cases, there was not
one dissent to the majority's ruling that their conduct was immoral. The
respondents themselves did not foist the defense that their conduct was not
immoral, but instead sought to prove that they did not commit the alleged act
or have abated from committing the act. The facts of the 1975 case of De
Dios v. Alejo411 and the 1999 case of Maguad v. De Guzman,412 are similar
to the case at bar - i.e., the complainant is a mere stranger and the legal wife
has not registered any objection to the illicit relation, there is no proof of
scandal or offense to the moral sensibilities of the community in which the
respondent and the partner live and work, and the government employee is
capacitated to marry while the partner is not capacitated but has long been
separated in fact. Still, the Court found the government employees
administratively liable for "disgraceful and immoral conduct" and only
considered the foregoing circumstances to mitigate the penalty. Respondent
Escritor does not claim that there is error in the settled jurisprudence that an
illicit relation constitutes disgraceful and immoral conduct for which a
government employee is held liable. Nor is there an allegation that the norms
of morality with respect to illicit relations have shifted towards leniency from
the time these precedent cases were decided. The Court finds that there is no
such error or shift, thus we find no reason to deviate from these rulings that
such illicit relationship constitutes "disgraceful and immoral conduct"
punishable under the Civil Service Law. Respondent having admitted the
alleged immoral conduct, she, like the respondents in the above-cited cases,
could be held administratively liable. However, there is a distinguishing
factor that sets the case at bar apart from the cited precedents, i.e., as a
defense, respondent invokes religious freedom since her religion, the
Jehovah's Witnesses, has, after thorough investigation, allowed her conjugal
arrangement with Quilapio based on the church's religious beliefs and
practices. This distinguishing factor compels the Court to apply the religious
clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar, both
the dissenting opinion of Mme. Justice Ynares-Santiago and the separate
opinion of Mr. Justice Vitug dwell more on the standards of morality than on
the religion clauses in deciding the instant case. A discussion on morality is
in order.

At base, morality refers to, in Socrates' words, "how we ought to live" and
why. Any definition of morality beyond Socrates' simple formulation is
bound to offend one or another of the many rival theories regarding what it
means to live morally.413 The answer to the question of how we ought to live
necessarily considers that man does not live in isolation, but in society.
Devlin posits that a society is held together by a community of ideas, made
up not only of political ideas but also of ideas about the manner its members
should behave and govern their lives. The latter are their morals; they
constitute the public morality. Each member of society has ideas about what
is good and what is evil. If people try to create a society wherein there is no
fundamental agreement about good and evil, they will fail; if having
established the society on common agreement, the agreement collapses, the
society will disintegrate. Society is kept together by the invisible bonds of
common thought so that if the bonds are too loose, the members would drift
apart. A common morality is part of the bondage and the bondage is part of
the price of society; and mankind, which needs society, must pay its
price.414 This design is parallel with the social contract in the realm of
politics: people give up a portion of their liberties to the state to allow the
state to protect their liberties. In a constitutional order, people make a
fundamental agreement about the powers of government and their liberties
and embody this agreement in a constitution, hence referred to as the
fundamental law of the land. A complete break of this fundamental
agreement such as by revolution destroys the old order and creates a new
one.415 Similarly, in the realm of morality, the breakdown of the fundamental
agreement about the manner a society's members should behave and govern
their lives would disintegrate society. Thus, society is justified in taking steps
to preserve its moral code by law as it does to preserve its government and
other essential institutions.416 From these propositions of Devlin, one cannot
conclude that Devlin negates diversity in society for he is merely saying that
in the midst of this diversity, there should nevertheless be a "fundamental
agreement about good and evil" that will govern how people in a society
ought to live. His propositions, in fact, presuppose diversity hence the need
to come to an agreement; his position also allows for change of morality
from time to time which may be brought about by this diversity. In the same
vein, a pluralistic society lays down fundamental rights and principles in
their constitution in establishing and maintaining their society, and these
fundamental values and principles are translated into legislation that governs
the order of society, laws that may be amended from time to time. Hart's
argument propounded in Mr. Justice Vitug's separate opinion that, "Devlin's
view of people living in a single society as having common moral foundation
(is) overly simplistic" because "societies have always been diverse" fails to
recognize the necessity of Devlin's proposition in a democracy. Without

fundamental agreement on political and moral ideas, society will fall into
anarchy; the agreement is necessary to the existence and progress of society.
In a democracy, this common agreement on political and moral ideas is
distilled in the public square. Where citizens are free, every opinion, every
prejudice, every aspiration, and every moral discernment has access to the
public square where people deliberate the order of their life together. Citizens
are the bearers of opinion, including opinion shaped by, or espousing
religious belief, and these citizens have equal access to the public square. In
this representative democracy, the state is prohibited from determining which
convictions and moral judgments may be proposed for public deliberation.
Through a constitutionally designed process, the people deliberate and
decide. Majority rule is a necessary principle in this democratic
governance.417 Thus, when public deliberation on moral judgments is finally
crystallized into law, the laws will largely reflect the beliefs and preferences
of the majority, i.e., the mainstream or median groups. 418 Nevertheless, in the
very act of adopting and accepting a constitution and the limits it specifies -including protection of religious freedom "not only for a minority, however
small- not only for a majority, however large- but for each of us" -- the
majority imposes upon itself a self-denying ordinance. It promises not to do
what it otherwise could do: to ride roughshod over the dissenting
minorities.419 In the realm of religious exercise, benevolent neutrality that
gives room for accommodation carries out this promise, provided the
compelling interests of the state are not eroded for the preservation of the
state is necessary to the preservation of religious liberty. That is why
benevolent neutrality is necessary in a pluralistic society such as the United
States and the Philippines to accommodate those minority religions which
are politically powerless. It is not surprising that Smith is much criticized for
it blocks the judicial recourse of the minority for religious accommodations.
The laws enacted become expressions of public morality. As Justice Holmes
put it, "(t)he law is the witness and deposit of our moral life." 420 "In a liberal
democracy, the law reflects social morality over a period of
time."421Occasionally though, a disproportionate political influence might
cause a law to be enacted at odds with public morality or legislature might
fail to repeal laws embodying outdated traditional moral views. 422 Law has
also been defined as "something men create in their best moments to protect
themselves in their worst moments."423 Even then, laws are subject to
amendment or repeal just as judicial pronouncements are subject to
modification and reversal to better reflect the public morals of a society at a
given time. After all, "the life of the law...has been experience," in the words
of Justice Holmes. This is not to say though that law is all of morality. Law
deals with the minimum standards of human conduct while morality is
concerned with the maximum. A person who regulates his conduct with the

sole object of avoiding punishment under the law does not meet the higher
moral standards set by society for him to be called a morally upright
person.424 Law also serves as "a helpful starting point for thinking about a
proper or ideal public morality for a society" 425 in pursuit of moral progress.
In Magno v. Court of Appeals, et al.,426 we articulated the relationship
between law and public morality. We held that under the utilitarian theory,
the "protective theory" in criminal law, "criminal law is founded upon the
moral disapprobation x x x of actions which are immoral, i.e., which are
detrimental (or dangerous) to those conditions upon which depend the
existence and progress of human society. This disapprobation is inevitable to
the extent that morality is generally founded and built upon a certain
concurrence in the moral opinions of all. x x x That which we call
punishment is only an external means of emphasizing moral disapprobation:
the method of punishment is in reality the amount of punishment."427 Stated
otherwise, there are certain standards of behavior or moral principles which
society requires to be observed and these form the bases of criminal law.
Their breach is an offense not only against the person injured but against
society as a whole.428 Thus, even if all involved in the misdeed are consenting
parties, such as in the case at bar, the injury done is to the public morals and
the public interest in the moral order.429 Mr. Justice Vitug expresses concern
on this point in his separate opinion. He observes that certain immoral acts
which appear private and not harmful to society such as sexual congress
"between a man and a prostitute, though consensual and private, and with no
injured third party, remains illegal in this country." His opinion asks whether
these laws on private morality are justified or they constitute impingement on
one's freedom of belief. Discussion on private morality, however, is not
material to the case at bar for whether respondent's conduct, which
constitutes concubinage,430 is private in the sense that there is no injured
party or the offended spouse consents to the concubinage, the inescapable
fact is that the legislature has taken concubinage out of the sphere of private
morals. The legislature included concubinage as a crime under the Revised
Penal Code and the constitutionality of this law is not being raised in the case
at bar. In the definition of the crime of concubinage, consent of the injured
party, i.e., the legal spouse, does not alter or negate the crime unlike in
rape431 where consent of the supposed victim negates the crime. If at all, the
consent or pardon of the offended spouse in concubinage negates the
prosecution of the action,432 but does not alter the legislature's
characterization of the act as a moral disapprobation punishable by law. The
separate opinion states that, "(t)he ponencia has taken pains to distinguish
between secular and private morality, and reached the conclusion that the
law, as an instrument of the secular State should only concern itself with
secular morality." The Court does not draw this distinction in the case at bar.

The distinction relevant to the case is not, as averred and discussed by the
separate opinion, "between secular and private morality," but between public
and secular morality on the one hand, and religious morality on the other,
which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or
otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the
Philippine Islands, et al., where we explained that for those wrongs which are
not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary
Title of the New Civil Code, dealing with Human Relations, provide for the
recognition of the wrong and the concomitant punishment in the form of
damages. Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due and
observe honesty and good faith.
xxx
xxx
xxx
Art. 21. Any person who willfully causes loss or injury to another in
a manner that is contrary to morals, good customs or public policy
shall compensate the latter for the damage. (emphasis supplied)
We then cited in Velayo the Code Commission's comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved
(as it was approved), would vouchsafe adequate legal remedy for that
untold numbers of moral wrongs which is impossible for human
foresight to provide for specifically in the statutes.
But, it may be asked, would this proposed article obliterate the
boundary line between morality and law? The answer is that, in the
last analysis, every good law draws its breath of life from morals,
from those principles which are written with words of fire in the
conscience of man. If this premise is admitted, then the proposed rule
is a prudent earnest of justice in the face of the impossibility of
enumerating, one by one, all wrongs which cause damages. When it
is reflected that while codes of law and statutes have changed from
age to age, the conscience of man has remained fixed to its ancient
moorings, one can not but feel that it is safe and salutary to
transmute, as far as may be, moral norms into legal rules, thus
imparting to every legal system that enduring quality which ought to
be one of its superlative attributes.
Furthermore, there is no belief of more baneful consequence upon
the social order than that a person may with impunity cause damage
to his fellow-men so long as he does not break any law of the State,
though he may be defying the most sacred postulates of morality.
What is more, the victim loses faith in the ability of the government
to afford him protection or relief.

A provision similar to the one under consideration is embodied in

article 826 of the German Civil Code.433(emphases supplied)
The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from establishing a
religion, including the morality it sanctions. Religious morality proceeds
from a person's "views of his relations to His Creator and to the obligations
they impose of reverence to His being and character and obedience to His
Will," in accordance with this Court's definition of religion in American
Bible Society citing Davis. Religion also dictates "how we ought to live" for
the nature of religion is not just to know, but often, to act in accordance with
man's "views of his relations to His Creator."434 But the Establishment Clause
puts a negative bar against establishment of this morality arising from one
religion or the other, and implies the affirmative "establishment" of a civil
order for the resolution of public moral disputes. This agreement on a secular
mechanism is the price of ending the "war of all sects against all"; the
establishment of a secular public moral order is the social contract produced
by religious truce.435
Thus, when the law speaks of "immorality" in the Civil Service Law or
"immoral" in the Code of Professional Responsibility for lawyers 436, or
"public morals" in the Revised Penal Code,437 or "morals" in the New Civil
Code,438 or "moral character" in the Constitution,439 the distinction between
public and secular morality on the one hand, and religious morality, on the
other, should be kept in mind.440 The morality referred to in the law is public
and necessarily secular, not religious as the dissent of Mr. Justice Carpio
holds. "Religious teachings as expressed in public debate may influence the
civil public order but public moral disputes may be resolved only on grounds
articulable in secular terms."441 Otherwise, if government relies upon
religious beliefs in formulating public policies and morals, the resulting
policies and morals would require conformity to what some might regard as
religious programs or agenda. The non-believers would therefore be
compelled to conform to a standard of conduct buttressed by a religious
belief, i.e., to a "compelled religion," anathema to religious freedom.
Likewise, if government based its actions upon religious beliefs, it would
tacitly approve or endorse that belief and thereby also tacitly disapprove
contrary religious or non-religious views that would not support the policy.
As a result, government will not provide full religious freedom for all its
citizens, or even make it appear that those whose beliefs are disapproved are
second-class citizens. Expansive religious freedom therefore requires that
government be neutral in matters of religion; governmental reliance upon
religious justification is inconsistent with this policy of neutrality.442
In other words, government action, including its proscription of immorality
as expressed in criminal law like concubinage, must have a secular purpose.

That is, the government proscribes this conduct because it is "detrimental (or
dangerous) to those conditions upon which depend the existence and
progress of human society" and not because the conduct is proscribed by the
beliefs of one religion or the other. Although admittedly, moral judgments
based on religion might have a compelling influence on those engaged in
public deliberations over what actions would be considered a moral
disapprobation punishable by law. After all, they might also be adherents of a
religion and thus have religious opinions and moral codes with a compelling
influence on them; the human mind endeavors to regulate the temporal and
spiritual institutions of society in a uniform manner, harmonizing earth with
heaven.443 Succinctly put, a law could be religious or Kantian or Aquinian or
utilitarian in its deepest roots, but it must have an articulable and discernible
secular purpose and justification to pass scrutiny of the religion clauses.
Otherwise, if a law has an apparent secular purpose but upon closer
examination shows a discriminatory and prohibitory religious purpose, the
law will be struck down for being offensive of the religion clauses as in
Church of the Lukumi Babalu Aye, Inc. where the U.S. Supreme Court
invalidated an ordinance prohibiting animal sacrifice of the Santeria.
Recognizing the religious nature of the Filipinos and the elevating influence
of religion in society, however, the Philippine constitution's religion clauses
prescribe not a strict but a benevolent neutrality. Benevolent neutrality
recognizes that government must pursue its secular goals and interests but at
the same time strives to uphold religious liberty to the greatest extent
possible within flexible constitutional limits. Thus, although the morality
contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend
compelling state interests.
Mr. Justice Vitug's separate opinion embraces the benevolent neutrality
approach when it states that in deciding the case at bar, the approach should
consider that, "(a)s a rule . . . moral laws are justified only to the extent that
they directly or indirectly serve to protect the interests of the larger society. It
is only where their rigid application would serve to obliterate the value which
society seeks to uphold, or defeat the purpose for which they are enacted
would, a departure be justified." In religion clause parlance, the separate
opinion holds that laws of general applicability governing morals should
have a secular purpose of directly or indirectly protecting the interests of the
state. If the strict application of these laws (which are the Civil Service Law
and the laws on marriage) would erode the secular purposes of the law
(which the separate opinion identifies as upholding the sanctity of marriage
and the family), then in a benevolent neutrality framework, an
accommodation of the unconventional religious belief and practice (which
the separate opinion holds should be respected on the ground of freedom of

belief) that would promote the very same secular purpose of upholding the
sanctity of marriage and family through the Declaration Pledging
Faithfulness that makes the union binding and honorable before God and
men, is required by the Free Exercise Clause. The separate opinion then
makes a preliminary discussion of the values society seeks to protect in
adhering to monogamous marriage, but concludes that these values and the
purposes of the applicable laws should be thoroughly examined and evidence
in relation thereto presented in the OCA. The accommodation approach in
the case at bar would also require a similar discussion of these values and
presentation of evidence before the OCA by the state that seeks to protect its
interest on marriage and opposes the accommodation of the unconventional
religious belief and practice regarding marriage.
The distinction between public and secular morality as expressed - albeit not
exclusively - in the law, on the one hand, and religious morality, on the other,
is important because the jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at bar
should be understood only in this realm where it has authority. More
concretely, should the Court declare respondent's conduct as immoral and
hold her administratively liable, the Court will be holding that in the realm of
public morality, her conduct is reprehensible or there are state interests
overriding her religious freedom. For as long as her conduct is being judged
within this realm, she will be accountable to the state. But in so ruling, the
Court does not and cannot say that her conduct should be made reprehensible
in the realm of her church where it is presently sanctioned and that she is
answerable for her immorality to her Jehovah God nor that other religions
prohibiting her conduct are correct. On the other hand, should the Court
declare her conduct permissible, the Court will be holding that under her
unique circumstances, public morality is not offended or that upholding her
religious freedom is an interest higher than upholding public morality thus
her conduct should not be penalized. But the Court is not ruling that the
tenets and practice of her religion are correct nor that other churches which
do not allow respondent's conjugal arrangement should likewise allow such
conjugal arrangement or should not find anything immoral about it and
therefore members of these churches are not answerable for immorality to
their Supreme Being. The Court cannot speak more than what it has authority
to say. In Ballard, the U.S. Supreme Court held that courts cannot inquire
about the truth of religious beliefs. Similarly, in Fonacier, this Court declared
that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a churchare unquestionably
ecclesiastical matters which are outside the province of the civil
courts."444 But while the state, including the Court, accords such deference to
religious belief and exercise which enjoy protection under the religious

clauses, the social contract and the constitutional order are designed in such a
way that when religious belief flows into speech and conduct that step out of
the religious sphere and overlap with the secular and public realm, the state
has the power to regulate, prohibit and penalize these expressions and
embodiments of belief insofar as they affect the interests of the state. The
state's inroad on religion exercise in excess of this constitutional design is
prohibited by the religion clauses; the Old World, European and American
history narrated above bears out the wisdom of this proscription.
Having distinguished between public and secular morality and religious
morality, the more difficult task is determining which immoral acts under this
public and secular morality fall under the phrase "disgraceful and immoral
conduct" for which a government employee may be held administratively
liable. The line is not easy to draw for it is like "a line that divides land and
sea, a coastline of irregularities and indentations." 445 But the case at bar does
not require us to comprehensively delineate between those immoral acts for
which one may be held administratively liable and those to which
administrative liability does not attach. We need not concern ourselves in this
case therefore whether "laziness, gluttony, vanity, selfishness, avarice and
cowardice" are immoral acts which constitute grounds for administrative
liability. Nor need we expend too much energy grappling with the
propositions that not all immoral acts are illegal or not all illegal acts are
immoral, or different jurisdictions have different standards of morality as
discussed by the dissents and separate opinions, although these observations
and propositions are true and correct. It is certainly a fallacious argument that
because there are exceptions to the general rule that the "law is the witness
and deposit of our moral life," then the rule is not true; in fact, that there are
exceptions only affirms the truth of the rule. Likewise, the observation that
morality is relative in different jurisdictions only affirms the truth that there
is morality in a particular jurisdiction; without, however, discounting the
truth that underneath the moral relativism are certain moral absolutes such as
respect for life and truth-telling, without which no society will survive. Only
one conduct is in question before this Court, i.e., the conjugal arrangement of
a government employee whose partner is legally married to another which
Philippine law and jurisprudence consider both immoral and illegal. Lest the
Court inappropriately engage in the impossible task of prescribing
comprehensively how one ought to live, the Court must focus its attention
upon the sole conduct in question before us.
In interpreting "disgraceful and immoral conduct," the dissenting opinion of
Mme. Justice Ynares-Santiago groped for standards of morality and stated
that the "ascertainment of what is moral or immoral calls for the discovery of
contemporary community standards" but did not articulate how these
standards are to be ascertained. Instead, it held that, "(f)or those in the service

of the Government, provisions of law and court precedents . . . have to be

considered." It identified the Civil Service Law and the laws on adultery and
concubinage as laws which respondent's conduct has offended and cited a
string of precedents where a government employee was found guilty of
committing a "disgraceful and immoral conduct" for maintaining illicit
relations and was thereby penalized. As stated above, there is no dispute that
under settled jurisprudence, respondent's conduct constitutes "disgraceful and
immoral conduct." However, the cases cited by the dissent do not involve the
defense of religious freedom which respondent in the case at bar invokes.
Those cited cases cannot therefore serve as precedents in settling the issue in
the case at bar.
Mme. Justice Ynares-Santiago's dissent also cites Cleveland v. United
States446 in laying down the standard of morality, viz: "(w)hether an act is
immoral within the meaning of the statute is not to be determined by
respondent's concept of morality. The law provides the standard; the offense
is complete if respondent intended to perform, and did in fact perform, the
act which it condemns." The Mann Act under consideration in the Cleveland
case declares as an offense the transportation in interstate commerce of "any
woman or girl for the purpose of prostitution or debauchery, or for any other
immoral purpose."447 The resolution of that case hinged on the interpretation
of the phrase "immoral purpose." The U.S. Supreme Court held that the
petitioner Mormons' act of transporting at least one plural wife whether for
the purpose of cohabiting with her, or for the purpose of aiding another
member of their Mormon church in such a project, was covered by the phrase
"immoral purpose." In so ruling, the Court relied on Reynolds which held
that the Mormons' practice of polygamy, in spite of their defense of religious
freedom, was "odious among the northern and western nations of
Europe,"448 "a return to barbarism,"449 "contrary to the spirit of Christianity
and of the civilization which Christianity has produced in the Western
world,"450 and thus punishable by law.
The Cleveland standard, however, does not throw light to the issue in the
case at bar. The pronouncements of the U.S. Supreme Court that polygamy is
intrinsically "odious" or "barbaric" do not apply in the Philippines where
Muslims, by law, are allowed to practice polygamy. Unlike in Cleveland,
there is no jurisprudence in Philippine jurisdiction holding that the defense of
religious freedom of a member of the Jehovah's Witnesses under the same
circumstances as respondent will not prevail over the laws on adultery,
concubinage or some other law. We cannot summarily conclude therefore
that her conduct is likewise so "odious" and "barbaric" as to be immoral and
punishable by law.
While positing the view that the resolution of the case at bar lies more on
determining the applicable moral standards and less on religious freedom,

Mme. Justice Ynares-Santiago's dissent nevertheless discussed respondent's

plea of religious freedom and disposed of this defense by stating that "(a)
clear and present danger of a substantive evil, destructive to public morals, is
a ground for the reasonable regulation of the free exercise and enjoyment of
religious profession. (American Bible Society v. City of Manila, 101 Phil.
386 [1957]). In addition to the destruction of public morals, the substantive
evil in this case is the tearing down of morality, good order, and discipline in
the judiciary." However, the foregoing discussion has shown that the "clear
and present danger" test that is usually employed in cases involving freedom
of expression is not appropriate to the case at bar which involves purely
religious conduct. The dissent also cites Reynolds in supporting its
conclusion that respondent is guilty of "disgraceful and immoral conduct."
The Reynolds ruling, however, was reached with a strict neutrality approach,
which is not the approach contemplated by the Philippine constitution. As
discussed above, Philippine jurisdiction adopts benevolent neutrality in
interpreting the religion clauses.
In the same vein, Mr. Justice Carpio's dissent which employs strict neutrality
does not reflect the constitutional intent of employing benevolent neutrality
in interpreting the Philippine religion clauses. His dissent avers that
respondent should be held administratively liable not for "disgraceful and
immoral conduct" but "conduct prejudicial to the best interest of the service"
as she is a necessary co-accused of her partner in concubinage. The dissent
stresses that being a court employee, her open violation of the law is
prejudicial to the administration of justice. Firstly, the dissent offends due
process as respondent was not given an opportunity to defend herself against
the charge of "conduct prejudicial to the best interest of the service." In
addition, there is no evidence of the alleged prejudice to the best interest of
the service. Most importantly, the dissent concludes that respondent's plea of
religious freedom cannot prevail without so much as employing a test that
would balance respondent's religious freedom and the state's interest at stake
in the case at bar. The foregoing discussion on the doctrine of religious
freedom, however, shows that with benevolent neutrality as a framework, the
Court cannot simply reject respondent's plea of religious freedom without
even subjecting it to the "compelling state interest" test that would balance
her freedom with the paramount interests of the state. The strict neutrality
employed in the cases the dissent cites -Reynolds, Smith and People v. Bitdu
decided before the 1935 Constitution which unmistakably shows adherence
to benevolent neutrality - is not contemplated by our constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J.
Malik451 cited in Mr. Justice Carpio's dissent decisive of the immorality issue
in the case at bar. In that case, the Court dismissed the charge of immorality
against a Tausug judge for engaging in an adulterous relationship with

another woman with whom he had three children because "it (was) not
'immoral' by Muslim standards for Judge Malik to marry a second time while
his first marriage (existed)." Putting the quoted portion in its proper context
would readily show that the Sulu Islamic case does not provide a precedent
to the case at bar. Immediately prior to the portion quoted by the dissent, the
Court stressed, viz: "(s)ince Art. 180 of P.D. No. 1083, otherwise known as
the Code of Muslim Personal Laws of the Philippines, provides that the penal
laws relative to the crime of bigamy 'shall not apply to a person married x x x
under Muslim Law,' it is not 'immoral' by Muslim standards for Judge Malik
to marry a second time while his first marriage exists." 452 It was by law,
therefore, that the Muslim conduct in question was classified as an exception
to the crime of bigamy and thus an exception to the general standards of
morality. The constitutionality of P.D. No. 1083 when measured against the
Establishment Clause was not raised as an issue in the Sulu Islamic case.
Thus, the Court did not determine whether P.D. No. 1083 suffered from a
constitutional infirmity and instead relied on the provision excepting the
challenged Muslim conduct from the crime of bigamy in holding that the
challenged act is not immoral by Muslim standards. In contradistinction, in
the case at bar, there is no similar law which the Court can apply as basis for
treating respondent's conduct as an exception to the prevailing jurisprudence
on illicit relations of civil servants. Instead, the Free Exercise Clause is being
invoked to justify exemption.
B. Application of Benevolent Neutrality and the Compelling State
Interest Test to the Case at Bar
The case at bar being one of first impression, we now subject the
respondent's claim of religious freedom to the "compelling state interest" test
from a benevolent neutrality stance - i.e. entertaining the possibility that
respondent's claim to religious freedom would warrant carving out an
exception from the Civil Service Law; necessarily, her defense of religious
freedom will be unavailing should the government succeed in demonstrating
a more compelling state interest.
In applying the test, the first inquiry is whether respondent's right to religious
freedom has been burdened. There is no doubt that choosing between
keeping her employment and abandoning her religious belief and practice
and family on the one hand, and giving up her employment and keeping her
religious practice and family on the other hand, puts a burden on her free
exercise of religion. In Sherbert, the Court found that Sherbert's religious
exercise was burdened as the denial of unemployment benefits "forces her to
choose between following the precepts of her religion and forfeiting benefits,
on the one hand, and abandoning one of the precepts of her religion in order
to accept work, on the other hand." The burden on respondent in the case at
bar is even greater as the price she has to pay for her employment is not only

her religious precept but also her family which, by the Declaration Pledging
Faithfulness, stands "honorable before God and men."
The second step is to ascertain respondent's sincerity in her religious belief.
Respondent appears to be sincere in her religious belief and practice and is
not merely using the "Declaration of Pledging Faithfulness" to avoid
punishment for immorality. She did not secure the Declaration only after
entering the judiciary where the moral standards are strict and defined, much
less only after an administrative case for immorality was filed against her.
The Declaration was issued to her by her congregation after ten years of
living together with her partner, Quilapio, and ten years before she entered
the judiciary. Ministers from her congregation testified on the authenticity of
the Jehovah's Witnesses' practice of securing a Declaration and their doctrinal
or scriptural basis for such a practice. As the ministers testified, the
Declaration is not whimsically issued to avoid legal punishment for illicit
conduct but to make the "union" of their members under respondent's
circumstances "honorable before God and men." It is also worthy of notice
that the Report and Recommendation of the investigating judge annexed
letters453 of the OCA to the respondent regarding her request to be exempt
from attending the flag ceremony after Circular No. 62-2001 was issued
requiring attendance in the flag ceremony. The OCA's letters were not
submitted by respondent as evidence but annexed by the investigating judge
in explaining that he was caught in a dilemma whether to find respondent
guilty of immorality because the Court Administrator and Deputy Court
Administrator had different positions regarding respondent's request for
exemption from the flag ceremony on the ground of the Jehovah's Witnesses'
contrary belief and practice. Respondent's request for exemption from the
flag ceremony shows her sincerity in practicing the Jehovah's Witnesses'
beliefs and not using them merely to escape punishment. She is a practicing
member of the Jehovah's Witnesses and the Jehovah ministers testified that
she is a member in good standing. Nevertheless, should the government, thru
the Solicitor General, want to further question the respondent's sincerity and
the centrality of her practice in her faith, it should be given the opportunity to
do so. The government has not been represented in the case at bar from its
incipience until this point.
In any event, even if the Court deems sufficient respondent's evidence on the
sincerity of her religious belief and its centrality in her faith, the case at bar
cannot still be decided using the "compelling state interest" test. The case at
bar is one of first impression, thus the parties were not aware of the burdens
of proof they should discharge in the Court's use of the "compelling state
interest" test. We note that the OCA found respondent's defense of religious
freedom unavailing in the face of the Court's ruling in Dicdican v. Fernan, et
al., viz:

It bears emphasis that the image of a court of justice is mirrored in

the conduct, official and otherwise, of the personnel who work
thereat, from the judge to the lowest of its personnel. Court personnel
have been enjoined to adhere to the exacting standards of morality
and decency in their professional and private conduct in order to
preserve the good name and integrity of the courts of justice.
It is apparent from the OCA's reliance upon this ruling that the state interest
it upholds is the preservation of the integrity of the judiciary by maintaining
among its ranks a high standard of morality and decency. However, there is
nothing in the OCA's memorandum to the Court that demonstrates how this
interest is so compelling that it should override respondent's plea of religious
freedom nor is it shown that the means employed by the government in
pursuing its interest is the least restrictive to respondent's religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to present
evidence on the compelling interest of the state. The burden of evidence
should be discharged by the proper agency of the government which is the
Office of the Solicitor General. To properly settle the issue in the case at bar,
the government should be given the opportunity to demonstrate the
compelling state interest it seeks to uphold in opposing the respondent's
stance that her conjugal arrangement is not immoral and punishable as it
comes within the scope of free exercise protection. Should the Court prohibit
and punish her conduct where it is protected by the Free Exercise Clause, the
Court's action would be an unconstitutional encroachment of her right to
religious freedom.454 We cannot therefore simply take a passing look at
respondent's claim of religious freedom, but must instead apply the
"compelling state interest" test. The government must be heard on the issue
as it has not been given an opportunity to discharge its burden of
demonstrating the state's compelling interest which can override respondent's
religious belief and practice. To repeat, this is a case of first impression
where we are applying the "compelling state interest" test in a case involving
purely religious conduct. The careful application of the test is indispensable
as how we will decide the case will make a decisive difference in the life of
the respondent who stands not only before the Court but before her Jehovah
God.
IN VIEW WHEREOF, the case is REMANDED to the Office of the Court
Administrator. The Solicitor General is ordered to intervene in the case where
it will be given the opportunity (a) to examine the sincerity and centrality of
respondent's claimed religious belief and practice; (b) to present evidence on
the state's "compelling interest" to override respondent's religious belief and
practice; and (c) to show that the means the state adopts in pursuing its
interest is the least restrictive to respondent's religious freedom. The

rehearing should be concluded thirty (30) days from the Office of the Court
Administrator's receipt of this Decision.
SO ORDERED.
Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga, JJ., concur.
Bellosillo and Vitug, JJ., please see separate opinion.
Ynares-Santiago, and Carpio, JJ., see dissenting opinion.
Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting
opinion of J. Carpio.
Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.
Footnotes
1
Kelley, D. "'Strict Neutrality' and the Free Exercise of Religion" in
Weber, P., Equal Separation (1990), p. 17.
2
Walz v. Tax Commission of the City of New York, 397 U.S. 664
(1970), p. 668.
3
Smith, S., "The Rise and Fall of Religious Freedom in
Constitutional Discourse," University of Pennsylvania Law Review,
vol. 140(1), November 1991, pp. 149-150.
4
Concurring Opinion of Justice Stewart, Sherbert v. Verner, 374 U.S.
398, p. 416 (1963).
5
Rollo, pp. 5-6.
6
Id. at 8.
7
Id. at 19-26; TSN, October 12, 2000, pp. 3-10.
8
Id. at 101.
9
Id. at 100; Exhibit 3, Certificate of Death.
10
Id. at 10; Exhibit 1.
11
Id. at 11; Exhibit 2.
12
Id. at 27-33.
13
Id. at 37.
14
Id. at 191-194; TSN, Soledad Escritor, March 8, 2002, pp. 7-10.
15
Id. at 156-160, TSN, May 29, 2002, pp. 5-9.
16
Citing biblical passages, this article addresses the question, "Does
the validity of a marriage depend entirely upon its recognition by
civil authorities and does their validation determine how Jehovah
God, the author of marriage, views the union?" It traces the origins
of marriage to the time of the Hebrews when marriage was a family
or tribal affair. With the forming of Israel as a nation, God gave a law
containing provisions on marriage, but there was no requirement for
a license to be obtained from the priesthood nor that a priest or a
representative from government be present in the marriage to
validate it. Instead, as long as God's law was adhered to, the marriage

was valid and honorable within the community where the couple
lived. In later Bible times, marriages came to be registered, but only
after the marriage had been officiated, thereby making the
government only a record-keeper of the fact of marriage and not a
judge of its morality.
In the early centuries of the Christian congregation, marriage was
likewise chiefly a family affair and there was no requirement of
license from the religious or civil authority to make it valid and
honorable. It was conformity to God's law that was necessary for the
marriage to be viewed as honorable within the congregation. Later,
however, the civil authorities came to have more prominence in
determining the validity of a marriage while the role of the
congregation waned. Christians cannot turn their back on this reality
in desiring to make their marriage honorable "among all", i.e., in the
sight of God and men. However, the view of civil authorities
regarding the validity of marriage is relative and sometimes even
contradictory to the standards set by the Bible. For example, in some
lands, polygamy is approved while the Bible says that a man should
only have one wife. Likewise, some countries allow divorce for the
slightest reasons while others do not allow divorce. The Bible, on the
other hand, states that there is only one ground for divorce, namely,
fornication, and those divorcing for this reason become free to marry.
To obtain a balanced view of civil authority (or Caesars' authority in
Biblical terms) regarding marriage, it is well to understand the
interest of civil governments in marriage. The government is
concerned with the practical aspects of marriage such as property
rights and weakening genetic effects on children born to blood
relatives, and not with the religious or moral aspects of marriage.
Caesar's authority is to provide legal recognition and accompanying
protection of marital rights in court systems, thus a Christian desiring
this recognition and rights must adhere to Caesar's requirements.
However, God is not bound by Caesar's decisions and the Christian
"should rightly give conscientious consideration to Caesar's marriage
and divorce provisions but will always give greatest consideration to
the Supreme Authority, Jehovah God (Acts 4:19; Rom. 13:105). . .
Thus the Christian appreciates that, even though Caesar's rulings of
themselves are not what finally determine the validity of his
marriage in God's eyes, this does not thereby exempt him from the
Scriptural injunction: 'Let marriage be honorable among all.' (Heb.
13:4) He is obligated to do conscientiously whatever is within the
power to see that his marriage is accorded such honor by all." Those
who wish to be baptized members of the Christian congregation but

do not have legal recognition of their marital union should do all that
is possible to obtain such recognition, thereby removing any doubt as
to the honorableness of their union in the eyes of people.
In some cases, however, it is not possible to secure this recognition.
For instance, in countries where divorce is not allowed even on the
Scriptural ground of fornication, either because of the dominance of
one religion or other reasons, a man might have left his unfaithful
wife and lives with another woman with whom he has a family. He
may later learn the truth of God's Word and desire to be baptized as a
disciple of God's Son, but he cannot obtain divorce and remarry as
the national laws do not allow these. He might go to a land which
permits divorce and remarry under the laws of that land and add
honor to his union, but upon returning to his homeland, the law
therein might not recognize the union. If this option is not available
to that man, he should obtain a legal separation from his estranged
mate or resort to other legal remedies, then "make a written
statement to the local congregation pledging faithfulness to his
present mate and declaring his agreement to obtain a legal marriage
certificate if the estranged legal wife should die or if other
circumstances should make possible the obtaining of such
registration. If his present mate likewise seeks baptism, she would
also make such a signed statement." (p. 182) In some cases, a person
might have initiated the process of divorce where the law allows it,
but it may take a long period to finally obtain it. If upon learning
Bible truth, the person wants to be baptized, his baptism should not
be delayed by the pending divorce proceedings that would make his
present union honorable for "Bible examples indicate that
unnecessary delay in taking the step of baptism is not advisable (Acts
2:37-41; 8:34-38; 16:30-34; 22:16)." Such person should then
provide the congregation with a statement pledging faithfulness,
thereby establishing his determination to maintain his current union
in honor while he exerts effort to obtain legal recognition of the
union. Similarly, in the case of an already baptized Christian whose
spouse proves unfaithful and whose national laws do not recognize
the God-given right to divorce an adulterous mate and remarry, he
should submit clear evidence to the elders of the congregation of the
mate's infidelity. If in the future he decides to take another mate, he
can do this in an honorable way by signing declarations pledging
faithfulness where they also promise to seek legal recognition of
their union where it is feasible. This declaration will be viewed by
the congregation as "a putting of oneself on record before God and
man that the signer will be just as faithful to his or her existing

marital relationship as he or she would be if the union were one

validated by civil authorities. Such declaration is viewed as no less
binding than one made before a marriage officer representing a
'Caesar' government of the world. . . It could contain a statement
such as the following:
I, __________, do here declare that I have accepted __________ as
my mate in marital relationship; that I have done all within my
ability to obtain legal recognition of this relationship by the proper
public authorities and that it is because of having been unable to do
so that I therefore make this declaration pledging faithfulness in this
marital relationship. I recognize this relationship as a binding tie
before Jehovah God and before all persons, to be held to and honored
in full accord with the principles of God's Word. I will continue to
seek the means to obtain legal recognition of this relationship by the
civil authorities and if at any future time a change in circumstances
makes this possible I promise to legalize this union."
The declaration is signed by the declarant and by two others as
witnesses and the date of declaration is indicated therein. A copy of
the declaration is kept by the persons involved, by the congregation
to which they belong, and by the branch office of the Watch Tower
Society in that area. It is also beneficial to announce to the
congregation that a declaration was made for their awareness that
conscientious steps are being undertaken to uphold the
honorableness of the marriage relationship. It must be realized,
however, that if the declarant is unable to obtain recognition from the
civil authorities, even if he makes that declaration, "whatever
consequences result to him as far as the world outside is concerned
are his sole responsibility and must be faced by him." (p. 184) For
instance, should there be inheritance or property issues arising from
an earlier marriage, he cannot seek legal protection with regard to his
new, unrecognized union.
17
Rollo, pp. 163-183; TSN, Minister Gregorio Salazar, May 29,
2002, pp. 12-32.
18
Rollo, pp. 111, 217-222; TSN, Minister Salvador Reyes, pp. 3-8;
Exhibit 6.
19
Rollo, pp. 235-238; Memorandum for Complainant, pp. 1-4.
20
Rollo, pp. 239-240; Respondent's Memorandum, pp. 1-2; Rollo,
pp. 109-110, "Maintaining Marriage Before God and Men", pp. 184185.
21
Rollo, p, 240; Respondent's Memorandum, p. 2.
22
Report and Recommendation of Executive Judge Bonifacio Sanz
Maceda, p. 3.

23

Id. at 4.
Memorandum by Deputy Court Administrator Christopher Lock
dated August 28, 2002, p. 6.
25
A.M. No. P-96-1231, February 12, 1997.
26
Memorandum by Deputy Court Administrator Christopher Lock
dated August 28, 2002, p. 7.
27
Noonan, J., Jr. and Gaffney, Jr., Religious Freedom (2001), p. xvii.
28
Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing
Wieman, Henry Nelson, and Horton, Walter M., The Growth of
Religion (1938), p. 22.
29
Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing
Wieman, Henry Nelson, and Horton, Walter M., The Growth of
Religion (1938), p. 29.
30
Pfeffer, L., supra, p. 3, citing Hopkins, E. Washburn, Origin and
Evolution of Religion (1923), pp. 68, 206.
31
Pfeffer, L., supra, p. 4, citing Cambridge Ancient History (1928),
pp. 512-528.
32
Pfeffer, L., supra, p. 4, citing Clemen, C., Religions of the World
(1931), p. 47.
33
Pfeffer, L., supra, p. 4.
34
Pfeffer, L., supra, p. 5, citing Against Apion, Book II, paragraph
17, in Complete Works of Josephus, p. 500.
35
Pfeffer, L., supra, p. 5, citing Clemen, p. 46-47.
36
It may also be said that Moses actually used the concept of a single
all-powerful God as a means of unifying the Hebrews and
establishing them as a nation, rather than vice versa. What is
important to note, however, is that the monotheism which served as
foundation of Christianity of western civilization with its
consequences in church-state relations was established by Moses of
the Bible, not the Moses of history. Pfeffer, L., supra, p. 5.
37
Pfeffer, L., supra, pp. 5-6, citing Northcott, C., Religious Liberty
(1949), p. 24.
38
Pfeffer, L., supra, p. 7, citing 1 Kings 2:35.
39
Pfeffer, L., supra, p. 7.
40
Pfeffer, L., supra, p. 10, citing Kellett, E.E., A Short History of
Religions (1934), p. 108.
41
Pfeffer, L., supra, p. 12, citing History of Christianity, p. 168.
42
Pfeffer, L., supra, p. 13.
43
Pfeffer, L., supra, p. 13, citing Walker, W., A History of the
Christian Church (1940), p. 108.
44
Pfeffer, L., supra, p. 13, citing History of Christianity, p. 481.
24

45

Pfeffer, L., supra, p. 16, citing Encyclopedia Britannica, "Charles

the Great," 14th ed., V, p. 258.
46
Pfeffer, L., supra, p. 22.
47
Pfeffer, L., supra, p. 23.
48
Greene, E., Religion and the State (1941), p. 8.
49
Pfeffer, L., supra, p. 23, citing Wace, Henry, and Bucheim, C.A.,
Luther's Primary Works (1885), pp. 194-185.
50
Pfeffer, L., supra, p. 23, citing Acton, "History of Freedom in
Chrisitianity," in Essays on Freedom and Power (1949), p. 103.
51
Pfeffer, L., supra, pp. 24-25.
52
Pfeffer, L., supra, p. 26, citing Stokes, I, p. 100.
53
Greene, E., supra, p. 9.
54
Pfeffer, L., supra, p. 26, citing Stokes, I, p. 113.
55
Pfeffer, L., supra, p. 26.
56
Pfeffer, L., supra, p. 27, citing Garbett, C. (Archbishop of York),
Church and State in England (1950), p. 93.
57
Pfeffer, L., supra, p. 27, citing Noss, J.B., Man's Religions (1949),
pp. 674-675 and Garbett, C., pp. 61-62.
58
Greene, E., supra, p. 10, citing Tanner, Tudor Constitutional
Documents, 130-135.
59
Pfeffer, L., supra, p. 28, citing Encyclopedia of Social Sciences,
XIII, p. 243.
60
Pfeffer, L., supra, p. 28, citing Stokes, I, p. 132.
61
Everson v.Board of Education of the Township of Ewing, et al.,
330 U.S. 1 (1947), pp. 8-9.
62
Pfeffer, L., supra, p. 30, citing Religious News Service, October
31, 1950.
63
Pfeffer, L., supra, p. 30.
64
Beth, L., American Theory of Church and State (1958), p. 3.
65
Everson v. Board of Education, 330 US 1(1946), pp. 8-10.
66
Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p.
79.
67
Pfeffer, L., supra, pp. 92-93.
68
Pfeffer, L., supra, p. 96.
69
Pfeffer, L., supra, p. 95
70
Another estimate of church membership in 1775 is that in none of
the colonies was membership in excess of 35 percent of the
population. (Beth, L., American Theory of Church and State [1958],
p. 73.)
71
Grossman, J.B. and Wells, R.S., Constitutional Law & Judicial
Policy Making, Second Edition (1980), p. 1276.
72
Pfeffer, L., supra, pp. 96.

73

Pfeffer, L., supra, p. 93, citing Mecklin, J. M., The Story of

American Dissent (1934), p. 202.
74
Pfeffer, L., supra, p. 93.
75
Greene, E., supra, pp. 65-66 and Pfeffer, L., supra, p. 103, citing
Cobb, S.H., The Rise of Religious Liberty in America (1902), p. 485.
76
Pfeffer, L., supra, p. 85.
77
Blau, J., Cornerstones of Religious Freedom in America (1950), p.
36.
78
Pfeffer, L., supra, p. 87.
79
Pfeffer, L., supra, p. 86.
80
Pfeffer, L., supra, pp. 88-89.
81
Pfeffer, L., supra, p. 101.
82
Pfeffer, L., supra, p. 99.
83
Pfeffer, L., supra, p. 97. See also Locke, J., Second Treatise of
Government (edited by C.B: Macpherson), pp. 8-10.
84
Pfeffer, L., supra, p. 102, citing Humphrey, E.F., Nationalism and
Religion in America, 1774-1789 (1924), pp. 368-369.
85
Pfeffer, L., supra, p. 103.
86
Drakeman, D., Church-State Constitutional Issues (1991), p. 55.
87
Pfeffer, L., supra, p. 104, citing Beard, C. and Mary R., The Rise
of American Civilization, I (1947), p. 449.
88
Drakeman, D., supra, p. 55.
89
Pfeffer, L., supra, p. 104, citing Laski, H.J., The Ameican
Democracy (1948), p. 267.
90
Pfeffer, L., supra, p. 105, citing Henry, M., The Part Taken by
Virginia in Establishing Religious Liberty as a Foundation of the
American Government, Papers of the American Historical
Association, II, p. 26.
91
Beth, L., American Theory of Church and State (1958), pp. 61-62.
92
Pfeffer, L., supra, p. 107, citing Butts, R. Freeman, The American
Tradition in Religion and Education (1950), pp. 46-47.
93
Pfeffer, L., supra, p. 108, citing Humphrey, E. F., Nationalism and
Religion in America, 1774-1789 (1924), p. 379.
94
Pfeffer, L., supra, p. 109, citing Butts, supra, pp. 53-56.
95
Drakeman, D., supra, p. 3; Pfeffer, L., supra, p. 109, citing
Eckenrode, N.J., The Separation of Church and State in Virginia
(1910), p. 86.
96
Beth, L., supra, p. 63.
97
Id. at 81-82.
98
Id. at 74-75.
99
Beth, L., supra, p. 63.
100
Id at 63-65.

101

Smith, S., "The Rise and Fall of Religious Freedom in

Constitutional Discourse", University of Pennsylvania Law Review,
vol. 140(1), November 1991, p. 149, 160.
102
Id. at 63-65.
103
Smith, S., "The Rise and Fall of Religious Freedom in
Constitutional Discourse", University of Pennsylvania Law Review,
vol. 140(1), November 1991, p. 149, 160.
104
Beth, L., supra, pp. 63-65.
105
Id. at 69.
106
Drakeman, D., supra, p. 59.
107
Reynolds v. United States, 98 U.S. 145 (1878), pp. 163-164;
Pfeffer, L., supra, p. 92, 125, citing Kohler, M.J., "The Fathers of the
Republic and Constitutional Establishment of Religious Liberty"
(1930), pp. 692-693.
108
Beth, L., supra, p. 71.
109
Berman, H., "Religious Freedom and the Challenge of the Modern
State," Emory Law Journal, vol. 39, Winter 1990-Fall 1990, pp. 151152.
110
Monsma, S., "The Neutrality Principle and a Pluralist Concept of
Accommodation" in Weber, P., Equal Separation (1990), p. 74.
111
Berman, H., supra, pp. 151-152.
112
McCoy, T., "A Coherent Methodology for First Amendment
Speech and Religion Clause Cases," Vanderbilt Law Review, vol.
48(5), October 1995, p. 1335, 1340.
113
Weber, P., "Neutrality and first Amendment Interpretation" in
Equal Separation (1990), pp. 5-7. See also Kauper, P., Religion and
the Constitution (1964), p. 99.
114
Monsma, S., supra, p. 73.
115
See Carter, S., "The Resurrection of Religious Freedom," Harvard
Law Review (1993), vol. 107(1), p. 118, 128-129.
116
Emanuel, S., Constitutional Law (1992), p. 633.
117
Carter, S., supra, p. 118, 140.
118
Sullivan, K., "Religion and Liberal Democracy," The University
of Chicago Law Review (1992), vol. 59(1), p. 195, 214-215.
119
Kauper, P., Religion and the Constitution (1964), pp, 24-25.
120
133 U.S. 333 (1890).
121
133 U.S. 333 (1890), p. 342.
122
322 U.S. 78 (1944).
123
United States v. Ballard, 322 U.S. 78 (1944), p. 86.
124
Stephens, Jr., O.H. and Scheb, II J.M., American Constitutional
Law, Second Edition (1999), pp. 522-523.
125
367 U.S. 488 (1961).

126

380 U.S. 163 (1965).

Stephens, Jr., supra, p. 645.
128
Id. at 524.
129
Emanuel, S., supra, p. 645, citing Frazee v. Illinois Department of
Employment Security, 489 U.S. 829 (1989).
130
McCoy, T., "A Coherent Methodology for First Amendment
Speech and Religion Clause Cases," Vanderbilt Law Review, vol.
48(5), October 1995, p. 1335, 1336-1337.
131
Kelley, D. "'Strict Neutrality' and the Free Exercise of Religion" in
Weber, P., Equal Separation (1990), p. 20.
132
Kauper, P., supra, p, 13.
133
Neuhaus, R., "A New Order of Religious Freedom," The George
Washington Law Review (1992), vol. 60 (2), p. 620, 626-627.
134
McConnell, M., "Religious Freedom at a Crossroads," The
University of Chicago Law Review (1992), vol. 59(1), p. 115, 168.
135
McCoy, T., supra, p. 1335, 1336-1337.
136
Neuhaus, R., "A New Order of Religious Freedom," The George
Washington Law Review (1992), vol. 60 (2), p. 620, 626-627.
137
Monsma, S., supra, p. 88, citing Neuhaus, R., "Contending for the
Future: Overcoming the Pfefferian Inversion," in The First
Amendment Religion Liberty Clauses and American Public Life, p.
183.
138
Carter, S., supra, p. 118, 134-135.
139
Lupu, I., "The Religion Clauses and Justice Brennan in Full,"
California Law Review (1999), vol. 87(5), p. 1105, 1114.
140
Everson v. Board of Education, 330 US 1 (1946), p. 15.
141
Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
142
See McCoy, T., supra, p. 1335, 1336.
143
98 U.S. 145 (1878); Buzzard, L., Ericsson, S., The Battle for
Religious Liberty (1980), p. 49; Drakeman, Church-State
Constitutional Issues (1991), p. 2.
144
Reynolds v. United States, 98 U.S. 164 (1878), p. 163.
145
Id. at 163.
146
98 U.S. 145, 166.
147
McCoy, T., supra, p. 1335, 1344-45.
148
Nowak, J., Rotunda, R., and Young, J., Constitutional Law, 3rd ed.
(1986), p. 1069.
149
136 U.S. 1 (1890).
150
Nowak, J., Rotunda, R., and Young, J., supra, pp. 1069-1072.
151
Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p.
79.
152
367 U.S. 488 (1961).
127

153

322 U.S. 78, 86 (1944).

310 U.S. 296 (1940).
155
Id. at 310.
156
Id at 303-304.
157
319 U.S. 157 (1943).
158
340 U.S. 268 (1951).
159
452 U.S. 640 (1981).
160
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 524.
161
133 U.S. 333, 345.
162
McCoy, T., supra, p. 1335, 1344-45.
163
310 U.S. 586 (1940).
164
319 U.S. 624 (1943).
165
Id. at 634.
166
Id. at 639.
167
McCoy, T., supra, p. 1335, 1345-46.
168
See Bloostein, M., "The 'Core'-'Periphery' Dichotomy in First
Amendment Free Exercise Clause Doctrine: Goldman v. Weinberger,
Bowen v. Roy, and O'Lone v. Estate of Shabbaz,z" Cornell Law
Review, vol. 72 (4), p. 827, 828.
169
366 U.S. 599 (1961).
170
Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.
171
374 U.S. 398 (1963).
172
Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.
173
Sherbert v. Verner, 374 U.S. 398 (1963), p. 403.
174
Id. at 406.
175
Lupu, I., supra, p. 1105, 1110.
176
McCoy, T., supra, p. 1335, 1346-1347.
177
450 U.S. 707 (1981).
178
480 U.S. 136 (1987).
179
455 U.S. 252 (1982).
180
United States v. Lee, 455 U.S. 252 (1982), p. 260.
181
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 526.
182
406 U.S. 205 (1972).
183
Id. at 214-215, 219-220.
184
494 U.S. 872 (1990).
185
McConnell, M., supra, p. 685, 726.
186
McCoy, T., supra, p. 1335, 1350-1351.
187
Ducat, C., Constitutional Interpretation, vol. II (2000), pp. 1180
and 1191. See also Sullivan, K., "Religion and Liberal Democracy",
The University of Chicago Law Review (1992), vol. 59(1), p. 195,
216.
154

188

McConnell, M., "Religious Freedom at a Crossroads", The

University of Chicago Law Review (1992), vol. 59(1), p. 115, 139.
189
Sullivan, K., "Religion and Liberal Democracy," The University
of Chicago Law Review (1992), vol. 59(1), p. 195, 216.
190
Carter, S., supra, p. 118.
191
Rosenzweig, S., "Restoring Religious Freedom to the Workplace:
Title VII, RFRA and Religious Accommodation," University of
Pennsylvania Law Review (1996), vol. 144(6), p. 2513, 2516.
192
138 L.Ed. 2d 624 (1994).
193
508 U.S. 520 (1993).
194
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 529.
195
330 U.S. 1 (1946).
196
Drakeman, D., supra, p. 4-6.
197
Buzzard, L., Ericsson, S., The Battle for Religious Liberty (1980),
p. 53.
198
98 U.S. 164 (1878).
199
Reynolds v. United States, 98 U.S. 164 (1878), p. 164.
200
Id. at 164.
201
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 532.
202
Everson v. Board of Education, 330 U.S. 1 (1946), pp. 15-16.
203
Id. at 18.
204
403 U.S. 602 (1971).
205
Lemon v. Kurtzman, 403 U.S. 602 (1971), pp. 612-613.
206
Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
207
370 U.S. 421 (1962).
208
374 U.S. 203 (1963).
209
Id.
210
Id. at 222.
211
Witt, E. (ed.), supra, p. 93.
212
472 U.S. 38 (1985).
213
333 U.S. 203 (1948).
214
343 U.S. 306 (1952).
215
Zorach v. McCollum, 343 U.S. 306 (1952), p. 315.
216
366 U.S. 420 (1961).
217
Id. at 451-452.
218
463 U.S. 783 (1983).
219
Marsh v. Chambers, 463 US 783 (1983).
220
Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 540-541.
221
465 U.S. 668 (1984).
222
397 U.S. 664 (1970).
223
Id. at 673.
224
Id.

225

255

226

256

Id. at 676.
McConnell, M., "Religious Freedom at a Crossroads", The
University of Chicago Law Review (1992), vol. 59(1), p. 115, 119120.
227
Drakeman, D., supra, p. 51.
228
Id. at 53.
229
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 541.
230
Drakeman, supra, p. 52, citing Cord, R., Separation of Church and
State: Historical Fact and Current Fiction. p. 50.
231
Drakeman, supra, pp. 52 and 82, citing Gales, J. and Seaton, W.,
eds., The Debates and Proceedings in the Congress of the United
States, Compiled from Authentic Materials (Annala), vol. 1, pp. 949950.
232
Beth, L., supra, p. 74.
233
Drakeman, supra, pp. 57, 82.
234
Buzzard, L., Ericsson, S., supra, p. 46.
235
Beth, L., supra, p. 72.
236
Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
237
Beth, L., supra, p. 71.
238
The Constitution and Religion, p. 1541.
239
Id. at 1539.
240
Weber, P., "Neutrality and First Amendment Interpretation" in
Equal Separation (1990), p. 3.
241
McConnell, M., "Religious Freedom at a Crossroads", The
University of Chicago Law Review (1992), vol. 59(1), p. 115, 120.
242
Everson v. Board of Education, 330 U.S. 1 (1947), p. 18.
243
The Constitution and Religion, p. 1541, citing Kurland, Of Church
and State and the Supreme Court, 29 U.Chi.L.Rev. 1, 5 (1961).
244
Weber, P., Equal Separation (1990), p. 8, citing Kurland, P.,
Religion and the Law (1962), p. 18.
245
Smith, S., "The Rise and Fall of Religious Freedom in
Constitutional Discourse," University of Pennsylvania Law Review,
vol. 140(1), November 1991, p. 149, 186.
246
Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
247
Buzzard, L., Ericsson, S., supra, p. 60.
248
Kelley, D., supra, p. 1189.
249
Monsma, S., supra, p. 74.
250
Id. at 75.
251
Smith, S., supra, p. 149, 159.
252
Drakeman, supra, p. 54.
253
Grossman, J.B. and Wells, R.S., supra, p. 1276.
254
Smith, S., supra, p. 149, 159.

Id. at 149, 159-160.

Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
257
Id. at 1276-1277, citing Kirby, Jr., J., "Everson to Meek and
Roemer: From Separation to Dtente in Church-State Relations", 55
North Carolina Law Review (April 1977), 563-75.
258
Buzzard, L., Ericsson, S., supra, p. 51.
259
Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
260
Buzzard, L., Ericsson, S., supra, p. 61.
261
Zorach v. Clauson, 343 U.S. 306 (1951), pp. 312-314.
262
Kelley, D., supra, p. 34.
263
Id. at 34, citing Milton Yinger, J., The Scientific Study of Religion
(1970), p. 21.
264
Id., citing Talcott Parsons, Introduction, Max Weber, Sociology of
Religion (1963), pp. xxvii, xxviii.
265
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 533.
266
Berman, H., supra, p. 162.
267
The Constitution and Religion, p. 1569.
268
McCoy, T., supra, p. 1335, 1338-1339.
269
McConnell, M., "Accommodation of Religion: An Update and a
Response to the Critics", The George Washington Law Review
(1992), vol. 60 (3), p. 685, 688.
270
Id.
271
Id. at 689.
272
Id. at 690-694, 715.
273
Id. at 686.
274
Id. at 687, citing County of Allegheny v. ACLU, 492 U.S. 573,
659, 663, 679 (1989) (Kennedy, J., concurring); Lynch v. Donnelly,
465 U.S. 668, 673 (1984); Marsh v. Chambers, 463 U.S. 783, 792
(1983).
275
McConnell, M., "Religious Freedom at a Crossroads," The
University of Chicago Law Review (1992), vol. 59(1), p. 115, 139,
184.
276
Id. at 174.
277
Neuhaus, R., "A New Order of Religious Freedom," The George
Washington Law Review (1992), vol. 60 (2), p. 620, 631.
278
Buzzard, L., Ericsson, S., supra, pp. 61-62.
279
Emanuel, S., supra, pp. 633-634, citing Tribe, L., American
Constitutional Law, 2nd ed. (1988), p. 1251. See also Nowak, J.,
Rotunda, R., and Young, J., Constitutional Law, 3rd ed. (1986), pp.
1067-1069.
280
Id. at 633.
281
Walz v. Tax Commission, 397 U.S. 664 (1969), p. 673.

282

McConnell, M., "Accommodation of Religion: An Update and a

Response to the Critics", The George Washington Law Review
(1992), vol. 60 (3), p. 685, 715.
283
Buzzard, L., Ericsson, S., supra, pp. 61-63.
284
McConnell, "The Origins and Historical Understanding of Free
Exercise of Religion," Harvard Law Review , vol. 103 (1990), p.
1410, 1416-7.
285
Buzzard, L., Ericsson, S., supra, p. 70.
286
McConnell, M., "Accommodation of Religion: An Update and a
Response to the Critics," The George Washington Law Review
(1992), vol. 60 (3), p. 685, 735.
287
Buzzard, L., Ericsson, S., supra, pp. 68-71.
288
Lupu, I., supra, p. 743, 775.
289
Id. at 775.
290
Nowak, J., Rotunda, R., and Young, J., supra, p. 1069.
291
Buzzard, L., Ericsson, S., supra, p. 68.
292
Lupu, I., supra, p. 743, 776.
293
Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 544.
294
Martinez, H., "The High and Impregnable Wall of Separation
Between Church and State", Philippine Law Journal (1962), vol.
37(5), p. 748, 766.
295
Article II.
296
Bernas, J., The 1987 Constitution of the Republic of the
Philippines: A Commentary (1995), p. 284.
297
Coquia, J., Church and State Law and Relations, p. 52, citing
Article X of the Treaty of Paris. The territories referred to were
Cuba, Puerto Rico, Guam, the West Indies and the Philippine Islands.
298
Coquia, J., supra, p. 52, citing Article 5, Constitucion Politica de
la Republica Filipina promulgada el dia 22 de Enero de 1899
(Edicion oficial, Islas Filipinas, Barazoain, Bul., 1899), p. 9.
299
Bernas, J., A Historical and Juridical Study of the Philippine Bill
of Rights (1971), pp. 13, 148.
300
Coquia, J., supra, p. 77, citing Acts of the Philippine Commission,
With Philippine Organic Laws 10.
301
25 Phil. 273 (1913).
302
Id. at 276.
303
Coquia, J., supra, p. 53, citing Public Law No. 127, sec. 2(a), 73rd
Congress (1934).
304
Laurel, S., Proceedings of the Philippine Constitutional
Convention, vol. III (1966), pp. 654-655.
305
Aruego, J., The Framing of the Philippine Constitution, vol. I
(1949), p. 164.

306

Id. at 150.
Bernas, J., The Intent of the 1986 Constitution Writers (1995), p.
182.
308
Baddiri, E., "Islam and the 1987 Constitution: An Issue on the
Practice of Religion," 45 Ateneo Law Journal 161 (2001), p. 208,
citing Syed Muhammad Al-Naquib Al-Attas, Islam and Secularism
46 (1978).
309
Id. at 208, citing Lewis, B., Islam and the West 3 (1993).
310
64 Phil 201 (1937).
311
101 Phil. 386 (1957).
312
Bernas, Constitutional Rights and Social Demands, Part II, p. 268.
313
106 Phil. 2 (1959).
314
Id. at 9-10.
315
Bernas, J., The Constitution of the Republic of the Philippines: A
Commentary (1987), p. 225, Footnote 38.
316
319 U.S. 103.
317
234 SCRA 630 (1994).
318
493 U.S. 378 (1990).
319
106 Phil. 2 (1959).
320
106 Phil. 2 (1959), p. 10.
321
Id. at 11-12.
322
Id. at 14.
323
Id. at 25.
324
Id. at 24-25.
325
110 Phil 150.
326
59 SCRA 54 (1974). See also Basa v. Federacion Obrera, 61
SCRA 93 (1974); Gonzalez v. Central Azucarera de Tarlac Labor
Union, 139 SCRA (1985).
327
Victoriano v. Elizalde Rope Workers Union, Inc., et al., 59 SCRA
54 (1974), p. 72.
328
Id. at 73.
329
64 Phil 201.
330
392 US 236.
331
Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p.
74.
332
Id. at 75.
333
Id.
334
61 SCRA 93 (1974).
335
80 SCRA 350 (1977).
336
139 SCRA 30 (1985).
337
German, et al. v. Barangan, et al., 135 SCRA 514 (1985), p. 525,
citing Cantwell v. Connecticut, 310 U.S. 296.
307

338

German, et al. v. Barangan, et al., 135 SCRA 514 (1985), pp. 524525.
339
German, et al. v. Barangan, et al., 135 SCRA 514 (1985).
340
German, et al. v. Barangan, et al., 135 SCRA 514 (1985),
Dissenting Opinion of Justice Teehankee.
341
219 SCRA 256 (1993), March 1, 1993.
342
Id. at 270-271.
343
Id. at 271-272.
344
Id. at 272.
345
Id. at 272-273.
346
Id. at 270.
347
Id. at 269.
348
259 SCRA 529 (1996).
349
Id. at 543; citing Cruz, I., Constitutional Law (1991), p. 178.
350
Id., citing Cruz, I., Constitutional Law (1991), p. 544.
351
Id., citing Cruz, I., Constitutional Law (1991), p. 551, citing
Hentoff, Speech, Harm and Self-Government: Understanding the
Ambit of the Clear and Present Danger Test, 91 Col. Law Rev. No. 6,
p. 1453 (1991).
352
Id.
353
Bernas, Constitutional Rights and Social Demands, Part II, p. 314.
354
This argument was a central theme in John Locke's A Letter
Concerning Toleration, which strongly influenced the thinking of
many Americans, including Jefferson and Madison. (Smith, S., "The
Rise and Fall of Religious Freedom in Constitutional Discourse",
University of Pennsylvania Law Review, vol. 140[1], November
1991, p. 149, 155).
355
Bernas, J., The Constitution of the Republic of the Philippines: A
Commentary (1987), p. 233.
356
Id. at 234.
357
64 Phil. 201 (1937); Bernas, J., The Constitution of the Republic
of the Philippines: A Commentary (1987), p. 234.
358
An Act Appropriating the Sum of Sixty Thousand Pesos and
Making the Same Available out of any Funds in the Insular Treasury
not otherwise Appropriated for the Cost of Plates and Printing of
Postage Stamps with New Designs, and for other Purposes.
359
Aglipay v. Ruiz, 64 Phil. 201 (1937), pp. 205-206.
360
Id. at. 209-210, citing Bradfield v. Roberts, 175 U.S. 291 (1899).
361
104 SCRA 510 (1981).
362
86 SCRA 413 (1978).
363
367 U.S. 488 (1961).
364
Pamil v. Teleron, 86 SCRA 413 (1978), pp. 428-429.

365

96 Phil. 417 (1955).

45 Am. Jur. 77.
367
96 Phil 417 (1955), p. 426.
368
Id. at 441, citing American authorities.
369
96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
370
Nowak, J., Rotunda, R., and Young, J., supra, p. 1031.
371
Sherbert v. Verner, 374 U.S. 398 (1963), p. 409.
372
Walz v. Tax Commission, supra, p. 668.
373
Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p.
75.
374
Drakeman, D., supra, p. 127.
375
Buzzard, L. and Ericsson, S., supra, p. 75.
376
Bernas, J., The 1987 Constitution of the Republic of the
Philippines: A Commentary (1995), pp. 288-289.
377
Ang-Angco v. Castillo, 9 SCRA 619 (1963).
378
Martin, Statutory Construction (1979), p. 210.
379
Aruego, J., supra, pp. 331-337.
380
Bernas, J., A Historical and Juridical Study of the Philippine Bill
of Rights (1971), pp. 154-155, citing Francisco (ed.), Journal of the
Constitutional Convention of the Philippines, vol. 4, pp. 1550, 1552.
381
Aruego, J., supra, p. 337.
382
Bernas, J., A Historical and Juridical Study of the Philippine Bill
of Rights (1971), p. 153.
383
Id. at 153, citing Francisco (ed.), Journal of the Constitutional
Convention of the Philippines, vol. 4, p. 1539.
384
Id. at 153-154, citing Francisco (ed.), Journal of the Constitutional
Convention of the Philippines, vol. 4, pp. 1541-1543.
385
Aruego, J., supra, pp. 340-345.
386
Bernas, J., A Historical and Juridical Study of the Philippine Bill
of Rights (1971), pp. 156-157, citing Escareal (ed.), Constitutional
Convention Record, vol. 10 (1967), p. 29.
387
Aruego, J., The Framing of the Philippine Constitution, vol. 2
(1949), pp. 627-629.
388
Martin, supra, p. 218.
389
Aglipay v. Ruiz, supra, p. 206.
390
Tanada, L. and Fernando, E., Constitution of the Philippines, vol.
1 (1952), pp. 269-270.
391
Report of the Ad Hoc Sub-Committee on Goals, Principles and
Problems of the Committee on Church and State of the 1971
Constitutional Convention, p. 18.
392
Bernas, J., Background paper for reconsideration of the religion
provisions of the constitution (1971), pp. 41-43.
366

393

Tingson, J., Report of the Committee on Church and State of the

1971 Constitutional Convention Report, p. 5.
394
Bernas, J., The Intent of the 1986 Constitution Writers (1995), p.
406, citing Records of the Constitutional Commission, vol. II, pp.
193-194.
395
Records of the Constitutional Commission, vol. 4, p. 362.
396
Id. at 358.
397
Id. at 359.
398
Id. at 973.
399
Records of the Constitutional Commission, vol. 1, p. 102.
400
Bernas, Constitutional Rights and Social Demands, Part II (1991),
p. 268.
401
Cruz, I., Constitutional Law (1995), p. 167.
402
Martinez, H., supra, p. 768-772.
403
McConnell, M., "Religious Freedom at a Crossroads", The
University of Chicago Law Review (1992), vol. 59(1), p. 115, 169.
404
Martinez, H., supra, p. 773.
405
Neuhaus, R., supra, p. 630.
406
Smith, S., supra, p. 153, citing Jefferson, T., Freedom of Religion
at the University of Virginia, in The Complete Jefferson (Saul K.
Padover ed., 1969), p. 957, 958.
407
Neuhaus, R., supra, p. 630.
408
Carter, S., supra, pp. 140-142.
409
Cruz, I., Constitutional Law (1995), p. 178.
410
Liguid v. Camano, A.M., No. RTJ-99-1509, August 8, 2002;
Bucatcat v. Bucatcat, 380 Phil. 555 (2000); Navarro v. Navarro, 339
SCRA 709 (2000); Ecube-Badel v. Badel, 339 Phil. 510 (1997);
Nalupta v. Tapec, 220 SCRA 505 (1993); Aquino v. Navarro, 220
Phil. 49 (1985).
411
68 SCRA 354 (1975).
412
305 SCRA 469 (1999).
413
Rachels, J., The Elements of Moral Philosophy (1986), p. 1.
414
Devlin, P., The Enforcement of Morals (1965), p. 10.
415
Letter of Associate Justice Reynato S. Puno, 210 SCRA 589
(1992).
416
Devlin, P., supra, 13.
417
Neuhaus, R., supra, pp. 621, 624-625.
418
McConnell, M., "Religious Freedom at a Crossroads", The
University of Chicago Law Review (1992), vol. 59(1), p. 115, 139.
419
Neuhaus, R., supra, pp. 624-625.
420
Greenwalt, K., Conflicts of Law and Morality, p. 247, citing
Holmes, The Path of the Law, 10 Harv. L. Rev., 457, 459 (1897).

421

Id. at 247.
Greenwalt, K., supra, p. 272.
423
Buzzard, L. and Ericsson, S., supra, p. 31.
424
Devlin, P., supra, pp. 19-20.
425
Id. at 247.
426
210 SCRA 471 (1992).
427
Magno v. Court of Appeals, et al., 210 SCRA 471 (1992), p. 478,
citing Aquino, The Revised Penal Code, 1987 Edition, Vol. I, pp. 1112, citing People v. Roldan Zaballero, CA 54 O.G. 6904. Note also
Justice Pablo's view in People v. Piosca and Peremne, 86 Phil. 31.
428
Devlin, P., supra, pp. 6-7.
429
Id. at 19.
430
Article 334 of the Revised Penal Code provides, viz:
"Art. 334. Concubinage. Any husband who shall keep a mistress in
the conjugal dwelling, or shall have sexual intercourse, under
scandalous circumstances, with a woman who is not his wife, or shall
cohabit with her in any other place, shall be punished by prision
correccional in its minimum and medium period.
The concubine shall suffer the penalty of destierro."
431
Article 266-A of the Revised Penal Code.
432
Rule 110 of the Revised Rules of Criminal Procedure, as amended
provides in relevant part, viz:
"The crime of adultery and concubinage shall not be
prosecuted except upon a complaint filed by the offended
spouse. The offended party cannot institute criminal
prosecution without including the guilty parties, if both are
alive, nor, in any case, if the offended party has consented to
the offense or pardoned the offenders."
433
Velayo, et al. v. Shell Co. of the Philippine Islands, et al., 100 Phil.
186 (1956), pp. 202-203, citing Report of the Code Commission on
the Proposed Civil Code of the Philippines, pp. 40-41.
434
Carter, S., supra, p. 138.
435
Sullivan, K., supra, pp. 197-198.
436
Rule 1.01 of the Code of Professional Responsibility provides
that, "(a) lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct. (emphasis supplied)
437
Title Six of the Revised Penal Code is entitled Crimes against
Public Morals and includes therein provisions on gambling and
betting. (emphasis supplied)
438
The New Civil Code provides, viz:
"Article 6. Rights may be waived, unless the waiver is
contrary to law, public order, public policy, morals, or good
422

customs or prejudicial to a third person with a right

recognized by law.
Article 21. Any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good customs
or public policy shall compensate the latter for the damage.
Article 1306. The contracting parties may establish such
stipulations, clauses, terms and conditions as they may deem
convenient, provided that are not contrary to law, morals,
good customs, public order, or public policy.
Article 1409. The following contracts are inexistent and void
from the beginning:
(1) Those whose cause, object or purpose is contrary to law,
morals, good customs, public order or public policy; x x x"
(emphasis supplied)
439
Article XIV, Section 3 provides in relevant part, viz:
All educational institutions shall include the study of the
Constitution as part of the curricula.
They shall inculcate patriotism and nationalism, foster love
of humanity, respect for human rights, appreciation of the
role of national heroes in the historical development of the
country, teach the rights and duties of citizenship, strengthen
ethical and spiritual values, develop moral character and
personal discipline, encourage critical and creative thinking,
broaden scientific and technological knowledge, and
promote vocational efficiency. (emphasis supplied)
440
To illustrate the distinction between public or secular morality and
religious morality, we take the example of a judge. If the public
morality of a society deems that the death penalty is necessary to
keep society together and thus crystallizes this morality into law, a
judge might find himself in a conflict between public morality and
his religious morality. He might discern that after weighing all
considerations, his religious beliefs compel him not to impose the
death penalty as to do so would be immoral. If the judge refuses to
impose the death penalty where the crime warrants it, he will be
made accountable to the state which is the authority in the realm of
public morality and be held administratively liable for failing to
perform his duty to the state. If he refuses to act according to the
public morality because he finds more compelling his religious
morality where he is answerable to an authority he deems higher than
the state, then his choice is to get out of the public morality realm
where he has the duty to enforce the public morality or continue to
face the sanctions of the state for his failure to perform his duty. See

Griffin, L., "The Relevance of Religion to a Lawyer's Work: Legal

Ethics", Fordham Law Review (1998), vol. 66(4), p. 1253 for a
discussion of a similar dilemma involving lawyers.
441
Sullivan, K., supra, p. 196.
442
Smith, S., supra, pp. 184-185. For a defense of this view, see
William P. Marshall, We Know It When We See It": The Supreme
Court and Establishment, 59 S.Cal. L. Rev. 495 (1986). For an
extended criticism of this position, see Steven D. Smith, "Symbols,
Perceptions, and Doctrinal Illusions: Establishment Neutrality and
the 'No Establishment' Test", 86 Mich. L. Rev. 266 (1987).
443
Ostrom, V., "Religion and the Constitution of the American
Political System", Emory Law Journal, vol. 39(1), p. 165, citing 1 A.
Tocqueville, Democracy in America (1945), p. 305.
444
96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
445
Devlin, P., supra, p. 22.
446
329 U.S. 14 (1946).
447
Cleveland v. United States, 329 U.S. 14, p. 16.
448
Reynolds v. United States, supra, p. 164.
449
Church of Jesus Christ of L.D.S. v. United States, 136 U.S. 1.
450
Id.
451
226 SCRA 193 (1993).
452
Id. at 199.
453
Annexes "A" and "B" of the Report and Recommendation of
Executive Judge Bonifacio Sanz Maceda.
454
Cruz, I., supra, p. 176.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 117472 June 25, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LEO ECHEGARAY y PILO, accused-appellant.

PER CURIAM:p
Amidst the endless debates on whether or not the reimposition of the death
penalty is indeed a deterrent as far as the commission of heinous crimes is
concerned and while the attendant details pertaining to the execution of a
death sentence remain as yet another burning issue, we are tasked with
providing a clear-cut resolution of whether or not the herein accusedappellant deserves to forfeit his place in human society for the infliction of
the primitive and bestial act of incestuous lust on his own blood.
Before us for automatic review is the judgment of conviction, dated
September 7, 1994, for the crime of Rape, rendered after marathon hearing
by the Regional Trial Court of Quezon City, Branch 104, the dispositive
portion of which reads:
WHEREFORE, judgment is hereby rendered finding
accused LEO ECHEGARAY Y PILO guilty beyond
reasonable doubt of the crime of RAPE as charged in the
complaint, aggravated by the fact that the same was
commited by the accused who is the father/stepfather of the
complainant, he is hereby sentenced to suffer the penalty of
DEATH, as provided for under RA. No. 7659, to pay the
complainant Rodessa Echegaray the sum
of P50,000.00 as damages, plus all the accessory penalties
provided by law, without subsidiary imprisonment in case of
insolvency, and to pay the costs. 1
We note, however, that the charge had been formulated in this manner:
COMPLAINT
The undersigned accuses LEO ECHEGARAY Y PILO of the
crime of RAPE, committed as follows:

That on or about the month of April 1994, in Quezon City,

Philippines, the above-named accused, by means of force
and intimidation did then and there wilfully, unlawfully and
feloniously have carnal knowledge of the undersigned
complainant, his daughter, a minor, 10 years of age, all
against her will and without her consent, to her damage and
prejudice.
CONTRARY TO LAW 2
Upon being arraigned on August 1, 1994, the accused-appellant, assisted by
his counsel de oficio, entered the plea of "not guilty."
These are the pertinent facts of the case as summarized by the SolicitorGeneral in his brief:
This is a case of rape by the father of his ten-year old
daughter.
Complainant RODESSA ECHEGARAY is a ten-year old girl
and a fifth-grader, born on September 11, 1983. Rodessa is
the eldest of five siblings. She has three brothers aged 6, 5
and 2, respectively, and a 3-month old baby sister. Her
parents are Rosalie and Leo Echegaray, the latter being the
accused-appellant himself. The victim lives with her family
in a small house located at No. 199 Fernandez St., Barangay
San Antonio, San Francisco Del Monte, Quezon City (pp. 59, Aug. 9, 1994, TSN).
Sometime in the afternoon of April 1994, while Rodessa was
looking after her three brothers in their house as her mother
attended a gambling session in another place, she heard her
father, the accused-appellant in this case, order her brothers
to go out of the house (pp. 10-11, ibid). As soon as her
brothers left, accused-appellant Leo Echegaray approached
Rodessa and suddenly dragged her inside the room (p.
12, ibid). Before she could question the appellant, the latter

immediately, removed her panty and made her lie on the

floor (p. 13, ibid). Thereafter, appellant likewise removed his
underwear and immediately placed himself on top of
Rodessa. Subsequently, appellant forcefully inserted his
penis into Rodessa's organ causing her to suffer intense pain
(pp. 14-15, ibid). While appellant was pumping on her, he
even uttered. "Masarap ba, masarap ba?" and to which
Rodessa answered: "Tama na Papa, masakit" (p. 16, ibid).
Rodessa's plea proved futile as appellant continued with his
act. After satisfying his bestial instinct, appellant threatened
to kill her mother if she would divulge what had happened.
Scared that her mother would be killed by appellant,
Rodessa kept to herself the ordeal she suffered. She was very
afraid of appellant because the latter, most of the time, was
high on drugs (pp. 17-18, ibid.). The same sexual assault
happened up to the fifth time and this usually took place
when her mother was out of the house (p. 19, ibid.).
However, after the fifth time, Rodessa decided to inform her
grandmother, Asuncion Rivera, who in turn told Rosalie,
Radessa's mother. Rodessa and her mother proceeded to the
Barangay Captain where Rodessa confided the sexual
assaults she suffered. Thereafter, Rodessa was brought to the
precinct where she executed an affidavit (p. 21, ibid.). From
there, she was accompanied to the Philippine National Police
Crime Laboratory for medical examination (p. 22, ibid.).
Rodessa testified that the said sexual assaults happened only
during the time when her mother was pregnant. Rodessa
added that at first, her mother was on her side. However,
when appellant was detained, her mother kept on telling her.
"Kawawa naman ang Tatay mo, nakakulong" (pp. 3940,ibid.).
When Rodessa was examined by the medico-legal officer in
the person of Dra. Ma. Cristina B. Preyna, 3 the complainant
was described as physically on a non-virgin state, as

evidenced by the presence of laceration of the hymen of said

complainant (TSN, Aug. 22, 1995, pp. 8-9). 4
On the other hand, the accused-appellant's brief presents a different story:
. . . the defense presented its first witness, Rosalie
Echegaray. She asserted that the RAPE charge against the
accused was only the figment of her mothers dirty mind.
That her daughter's complaint was forced upon her by her
grandma and the answers in the sworn statement of Rodessa
were coached. That the accusation of RAPE was motivated
by Rodessa's grandmother's greed over the lot situated at the
Madrigal Estate-NHA Project, Barangay San Antonio, San
Francisco del Monte, Quezon City, which her grandmother's
paramour, Conrado Alfonso gave to the accused in order to
persuade the latter to admit that Rodessa executed an
affidavit of desistance after it turned out that her complaint
of attempted homicide was substituted with the crime of
RAPE at the instance of her mother. That when her mother
came to know about the affidavit of desistance, she placed
her granddaughter under the custody of the Barangay
Captain. That her mother was never a real mother to her.
She stated that her complaint against accused was for
attempted homicide as her husband poured alcohol on her
body and attempted to burn her. She identified the
certification issued by the NHA and Tag No. 87-0393 (Exh.
2). That the Certification based on the Masterlist (Exh. 3)
indicates that the property is co-owned by accused and
Conrado Alfonso. That Rodessa is her daughter sired by
Conrado Alfonso, the latter being the paramour of her
mother. That Conrado Alfonso waived his right and
participation over the lot in favor of the accused in
consideration of the latter's accepting the fact that he is the
father of Rodessa to simulate the love triangle and to conceal
the nauseating sex orgies from Conrado Alfonso's real wife.

Accused testified in his behalf and stated that the

grandmother of the complainant has a very strong motive in
implicating him to the crime of RAPE since she was
interested to become the sole owner of a property awarded to
her live-in partner by the Madrigal Estate-NHA Project. That
he could not have committed the imputed crime because he
considers Rodessa as his own daughter. That he is a paintercontractor and on the date of the alleged commission of the
crime, he was painting the house of one Divina Ang of
Barangay Vitalis, Paraaque, Metro Manila (Exh. 4). The
travel time between his work place to his residence is three
(3) hours considering the condition of traffic. That the
painting contract is evidenced by a document denominated
"Contract of Services" duly accomplished (see submarkings
of Exh. 4). He asserted that he has a big sexual organ which
when used to a girl 11 years old like Rodessa, the said
female organ will be "mawawarak." That it is abnormal to
report the imputed commission of the crime to the
grandmother of the victim.
Accused further stated that her (sic) mother-in-law trumpedup a charge of drug pushing earlier and he pleaded guilty to a
lesser offense of using drugs. The decretal portion of the
judgment of conviction ordering the accused to be confined
at the Bicutan Rehabilitation Center irked the grandmother
of Rodessa because it was her wish that accused should be
meted the death penalty.
Accused remain steadfast in his testimony perorating the
strong motive of Rodessa's grandmother in implicating him
in this heinous crime because of her greed to become the
sole owner of that piece of property at the National Housing
Authority-Madrigal Project, situated at San Francisco del
Monte, Quezon City, notwithstanding rigid crossexamination. He asserted that the imputed offense is far from
his mind considering that he treated Rodessa as his own
daughter. He categorically testified that he was in his

painting job site on the date and time of the alleged

commission of the crime.
Mrs. Punzalan was presented as third defense witness. She
said that she is the laundry woman and part time baby sitter
of the family of accused. That at one time, she saw Rodessa
reading sex books and the Bulgar newspaper. That while
hanging washed clothes on the vacant lot, she saw Rodessa
masturbating by tinkering her private parts. The
masturbation took sometime.
This sexual fling of Rodessa were corroborated by Silvestra
Echegaray, the fourth and last witness for the defense. She
stated that she tried hard to correct the flirting tendency of
Rodessa and that she scolded her when she saw Rodessa
viewing an X-rated tape. Rodessa according to her was fond
of going with friends of ill-repute. That (sic) she
corroborated the testimony of Mrs. Punzalan by stating that
she herself saw Rodessa masturbating inside the room of her
house. 5
In finding the accused-appellant guilty beyond reasonable doubt of the crime
of rape, the lower court dismissed the defense of alibi and lent credence to
the straightforward testimony of the ten-year old victim to whom no ill
motive to testify falsely against accused-appellant can be attributed. The
lower court likewise regarded as inconsequential the defense of the accusedappellant that the extraordinary size of his penis could not have insinuated
itself into the victim's vagina and that the accused is not the real father of the
said victim.
The accused-appellant now reiterates his position in his attempt to seek a
reversal of the lower court's verdict through the following assignment of
errors:
1. THE LOWER COURT FAILED TO
APPRECIATE THE SINISTER MOTIVE
OF PRIVATE COMPLAINANT'S

GRANDMOTHER? THAT
PRECIPITATED THE FILING OF THE
CHARGE OF RAPE, HENCE IT ERRED
IN HOLDING ACCUSED GUILTY AS
CHARGED.
2. THE COURT BELOW OVERLOOKED
THE FACT THAT THE HEALED
LACERATIONS AT 3 AND 7 O'CLOCK
COULD NOT HAVE BEEN DUE TO THE
PUMPING OF THE PENIS OF ACCUSED
TO THE VAGINA OF PRIVATE
COMPLAINANT, HENCE IT ERRED IN
HOLDING THAT ACCUSED
COMMITTED THE CRIME CHARGED,
NOTWITHSTANDING VEHEMENT
DENIAL.
3. THE COURT A QUO WHIMSICALLY
IGNORED THE DEFENSE OF ALIBI
THAT ACCUSED WAS IN PARAAQUE
ON THE DATE AND TIME OF THE
IMPUTED CRIME HENCE, IT ERRED IN
HOLDING THAT ALIBI IS NOT
SUSTAINABLE IN THE CASE AT BAR. 6
Considering that a rape charge, in the light of the reimposition of the death
penalty, requires a thorough and judicious examination of the circumstances
relating thereto, this Court remains guided by the following principles in
evaluating evidence in cases of this nature: (a) An accusation for rape can be
made with facility; it is difficult to prove but more difficult for the accused
though innocent to disprove; (b) In view of the intrinsic nature of the crime
of rape where only two persons are involved, the testimony of the
complainant must be scrutinized with extreme caution; and (c) The evidence
for the prosecution must stand and fall on its own merits, and cannot be
allowed to draw strength from the weakness of the evidence for the defense. 7

Anent the first assigned error, no amount of persuasion can convince this
Court to tilt the scales of justice in favor of the accused-appellant
notwithstanding that he cries foul insisting that the rape charge was merely
concocted and strongly motivated by greed over a certain lot situated at the
NHA-Madrigal Estate Housing Project, Barangay San Antonio, San
Francisco del Monte, Quezon City. The accused-appellant theorizes that
prosecution witness Asuncion Rivera, the maternal grandmother of the victim
Rodessa, concocted the charge of rape so that, in the event that the accusedappellant shall be meted out a death sentence, title to the lot will be
consolidated in her favor. Indeed, the lot in question is co-owned by the
accused-appellant and Conrado Alfonso, the live-in partner of Asuncion
Rivera, according to the records of the National Housing Authority (Exh.
"3"). The accused-appellant would want us to believe that the rape charge
was fabricated by Asuncion Rivera in order to eliminate the accusedappellant from being a co-owner. So, the live-in partners would have the
property for their own. 8
We believe, as did the Solicitor-General, that no grandmother would be so
callous as to instigate her 10-year old granddaughter to file a rape case
against her own father simply on account of her alleged interest over the
disputed lot. 9
It is a well-entrenched jurisprudential rule that the testimony of a rape victim
is credible where she has no motive to testify against the accused. 10
We find no flaws material enough to discredit the testimony of the ten-year
old Rodessa which the trial court found convincing enough and unrebutted
by the defense. The trial court not surprisingly noted that Rodessa's narration
in detail of her father's monstrous acts had made her cry. 11 Once again, we
rule that:
. . . The testimony of the victim who was only 12 years old at
the time of the rape as to the circumstances of the rape must
be given weight, for testimony of young and immature rape
victims are credible (People v. Guibao, 217 SCRA 64
[1993]). No woman especially one of tender age, practically
only a girl, would concoct a story of defloration, allow an

examination of her private parts and thereafter expose

herself to a public trial, if she were not motivated solely by
the desire to have the culprit apprehended and punished
(People v. Guibao, supra). 12
The accused-appellant points out certain inconsistencies in the testimonies of
the prosecution witnesses in his attempt to bolster his claim that the rape
accusation against him is malicious and baseless. Firstly, Rodessa's testimony
that the accused-appellant was already naked when he dragged her inside the
room is inconsistent with her subsequent testimony that the said accusedappellant was still wearing short pants when she was dragged inside the
room. Secondly, Rodessa's sworn statement before the police investigator
which indicated that, while the accused was executing pumping acts, he
uttered the words "Masarap ba?", differ from her testimony in court wherein
she related that, when the accused took out his penis from her vagina, the
accused said "Masarap, tapos na." Thirdly, the victim's grandmother,
Asuncion Rivera, recounted in her sworn statement that it was the accused
who went to see her to apprise her of the rape committed on her
granddaughter. However, in her testimony in court , Asuncion Rivera claimed
that she was the one who invited the accused-appellant to see her in her
house so as to tell her a secret. 13 These alleged discrepancies merely pertain
to minor details which in no way pose serious doubt as to the credibility of
the prosecution witnesses. Whether or not the accused was naked when he
dragged Rodessa inside the room where he sexually assaulted her bears no
significant effect on Rodessa's testimony that she was actually raped by the
accused-appellant. Moreover, a conflicting account of whatever words were
uttered by the accused-appellant after he forcefully inserted his penis into
Rodessa's private organ against her will cannot impair the prosecution's
evidence as a whole. A determination of which version earmarks the truth as
to how the victim's grandmother learned about the rape is inconsequential to
the judgment of conviction.

coherent and intrinsically believable. Inaccuracies may in

fact suggest that the witness is telling the truth and has not
been rehearsed as it is not to he expected that he will be able
to remember every single detail of an incident with perfect
or total recall.
After due deliberation, this Court finds that the trial judge's assessment of the
credibility of the prosecution witnesses deserves our utmost respect in the
absence of arbitrariness.
With respect to the second assigned error, the records of the instant case are
bereft of clear and concrete proof of the accused-appellant's claim as to the
size of his penis and that if that be the fact, it could not have merely caused
shallow healed lacerations at 3:00 and 7:00 o'clock. 15 In his testimony, the
accused-appellant stated that he could not have raped Rodessa because of
the size of his penis which could have ruptured her vagina had he actually
done so. 16 This Court gives no probative value on the accused-appellant's
self-serving statement in the light of our ruling in the case
of People v. Melivo, supra, 17 that:
The vaginal wall and the hymenal membrane are elastic
organs capable of varying degrees of distensibility. The
degree of distensibility of the female reproductive organ is
normally limited only by the character and size of the pelvic
inlet, other factors being minor. The female reprodructive
canal being capable of allowing passage of a regular fetus,
there ought to be no difficulty allowing the entry of objects
of much lesser size, including the male reproductive organ,
which even in its largest dimensions, would still be
considerably smaller than the full-term fetus.
xxx xxx xxx

As we have pronounced in the case of People v. Jaymalin:

14

This Court has stated time and again that minor

inconsistencies in the narration of the witness do not detract
from its essential credibility as long as it is on the whole

In the case at bench, the presence of healed lacerations in

various parts of he vaginal wall, though not as extensive as
appellant might have expected them to be, indicate
traumatic injury to the area within the period when the

incidents were supposed to have occurred. (At pp. 13-14,

emphasis supplied)
In rape cases, a broken hymen is not an essential element thereof. 18 A mere
knocking at the doors of the pudenda, so to speak, by the accused's penis
suffices to constitute the crime of rape as full entry into the victim's vagina is
not required to sustain a conviction. 19 In the case, Dr. Freyra, the medicolegal examiner, categorically testified that the healed lacerations of Rodessa
on her vagina were consistent with the date of the commission of the rape as
narrated by the victim to have taken place in April, 1994. 20
Lastly, the third assigned error deserves scant consideration. The accusedappellant erroneously argues that the Contract of Services (Exhibit 4) offered
as evidence in support of the accused-appellant's defense of alibi need not be
corroborated because there is no law expressly requiring so. 21 In view of our
finding that the prosecution witnesses have no motive to falsely testify
against the accused-appellant, the defense of alibi, in this case,
uncorroborated by other witnesses, should be completely
disregarded. 22 More importantly, the defense of alibi which is inherently
weak becomes even weaker in the face of positive identification of the
accused-appellant as perpetrator of the crime of rape by his victim,
Rodessa. 23
The Contract of Services whereby the accused-appellant obligated himself to
do some painting job at the house of one Divina Ang in Paraaque, Metro
Manila, within 25 days from April 4, 1994, is not proof of the whereabouts of
the accused-appellant at the time of the commission of the offense.
The accused-appellant in this case is charged with Statutory Rape on the
basis of the complaint, dated July 14, 1994. The gravamen of the said
offense, as stated in paragraph 3, Article 335 of the Revised Penal Code, is
the carnal knowledge of a woman below twelve years old. 24 Rodessa
positively identified his father accused-appellant, as the culprit of Statutory
Rape. Her account of how the accused-appellant succeeded in consummating
his grievous and odious sexual assault on her is free from any substantial
self-contradiction. It is highly inconceivable that it is rehearsed and
fabricated upon instructions from Rodessa's maternal grandmother Asuncion

Rivera as asserted by the accused-appellant. The words of Chief Justice

Enrique M. Fernando, speaking for the Court, more than two decades ago,
are relevant and worth reiterating, thus:
. . . it is manifest in the decisions of this Court that where the
offended parties are young and immature girls like the victim
in this case, (Cited cases omitted) there is marked receptivity
on its, part to tend credence to their version of what
transpired. It is not to be wondered at. The state, as parens
patria, is under the obligation to minimize the risk of harm to
those, who, because of their minority, are as yet unable to
take care of themselves fully. Those of tender years deserve
its utmost protection. Moreover, the injury in cases of rape is
not inflicted on the unfortunate victim alone. The
consternation it causes her family must also be taken into
account It may reflect a failure to abide by the announced
concern in the fundamental law for such institution There is
all the more reason then for the rigorous application of the
penal law with its severe penalty for this offense, whenever
warranted. It has been aptly remarked that with the advance
in civilization, the disruption in public peace and order it
represents defies explanation, much more so in view of what
currently appears to be a tendency for sexual permissiveness.
Where the prospects of relationship based on consent are
hardly minimal, self-restraint should even be more
marked. 25
Under Section 11 of Republic Act No. 7659 often referred to as the Death
Penalty Law, Art. 335 of the Revised Penal Code was amended, to wit:
The death penalty shall also be imposed if the crime of rape
is committed with any of the following attendant
circumstances:
1. When the victim is under eigthteen (18) years of age and
the offender is a parent, ascendant, step-parent, guardian,

relative by consanguinity or affinity within the third civil

degree, or thecommon-law spouse of the parent of the victim.

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

Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban
and Torres, Jr., JJ., concur.

xxx xxx xxx

Footnotes
(Emphasis supplied)
1 Records, p. 53.
Apparently, as a last glimpse of hope, the accused-appellant questions the
penalty imposed by the trial court by declaring that he is neither a father,
stepfather or grandfather of Rodessa although he was a confirmed lover of
Rodessa's mother. 26 On direct examination, he admitted that before the
charge of rape was riled against him, he had treated Rodessa as his real
daughter and had provided for her food, clothing, shelter and
education. 27 The Court notes that Rodessa uses the surname of the accusedappellant, not Rivera (her mother's maiden name) nor Alfonso (her
grandmother's live-in partner). Moreover, Rodessa's mother stated during the
cross-examination that she, the accused-appellant, and her five children,
including Rodessa, had been residing in one house only. 28 At any rate, even
if he were not the father, stepfather or grandfather of Rodessa, this disclaimer
cannot save him from the abyss where perpetrators of heinous crimes ought
to be, as mandated by law. Considering that the accused-appellant is a
confirmed lover of Rodessa's mother, 29 he falls squarely within the
aforequoted portion of the Death Penalty Law under the term "common-law
spouse of the parent of the victim."
The fact that the ten-year old Rodessa referred to the accused-appellant as
"Papa" is reason enough to conclude that accused-appellant is either the
father or stepfather of Rodessa. Thus, the act of sexual assault perpetrated by
the accused on his young victim has become all the more repulsive and
perverse. The victim's tender age and the accused-appellant's moral
ascendancy and influence over her are factors which forced Rodessa to
succumb to the accused's selfish and bestial craving. The law has made it
inevitable under the circumstances of this case that the accused-appellant
face the supreme penalty of death. WHEREFORE, we AFFIRM the decision
of the Regional Trial Court of Quezon City, Branch 104.
SO ORDERED.

2 Records, p. 1.
3 The name of the medico-legal officer as per Medico-Legal Report
No. M-0980-94 (Exhibit "6") reads Ma. Cristina B. Freyra.
4 Rollo, pp. 87-90.
5 Rollo, pp. 45-48.
6 Rollo, p. 49.
7 People v. Apolonio Melivo y Valete, G.R. No. 113029,
promulgated on Feb. 8, 1996, citing People v. Matrimonio, 215
SCRA 613 [1992]; People v. Aldana 175 SCRA 635 [1989]; People
v. Capilitan, 313 SCRA 313 [1990].
8 TSN, August 30, 1994, p. 13.
9 Rollo, p. 93.
10 People v. Matamorosa, 231 SCRA 509, 515 [1994], citing People
v. Palicte, 229 SCRA 543 [1994], and People v. Cabilao, 210 SCRA
326 [1992].
11 RTC, Decision, p. 6; Records, p. 50.
12 People v. Espinoza, 247 SCRA 66, 72-73 [1995].
13 Rollo, pp. 53-54.

14 214 SCRA 685-690-691 [1992], citing People v. Ansing (196

SCRA 374 [1991]).

28 TSN, August 29, 1994, pp. 28-29.

29 Rollo, p. 50.

15 Rollo, p. 58.
16 TSN, August 30, 1994. p. 19.
17 See note No. 7.
18 People v. Salinas, 232 SCRA 274, 278-279 [1994]; People v.
Madrilano, 227 SCRA 363, [1993].
19 People v. Abella, 228 SCRA 662, 666 [1993]; People v. Tesimo,
204 SCRA 535, 555-556 [1991]; People v. Castillo, 197 SCRA 657,
662 [1991].
20 TSN, August 22, 1994, pp. 8-9.
21 Rollo, p. 65.
22 People v. Gapasan, 243 SCRA 53, 62 [1995].
23 People v. Torres, 247 SCRA 212, 217 [1995]; People v. Tayco,
235 SCRA 610, 521 [1994]; People v. Molina, 213 SCRA 52, 65
[1992].
24 People v. Samillano, 207 SCRA 50, 53-54 [1992] citing People v.
Alegado, 201 SCRA 37 [1991]; People v. Puedan, 196 SCRA 388
[1991]; People v. Mangalinao, 182 SCRA 329 [1990].
25 People v. Baylon, 57 SCRA 114, 120-121 [1974] see also People
v. Cabadas, 208 SCRA 787, 794 [1992]; People v. Sulte, 232 SCRA
421, 425 [1994].
26 Rollo, p. 38.
27 TSN, August 30, 1994, p. 13, 15-16.

Republic of the Philippines

SUPREME COURT
Baguio City
EN BANC
G.R. No. 180016
April 29, 2014
LITO CORPUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This is to resolve the Petition for Review on Certiorari, under Rule 45 of the
Rules of Court, dated November 5, 2007, of petitioner Lito Corpuz
(petitioner), seeking to reverse and set aside the Decision 1 dated March 22,
2007 and Resolution2 dated September 5, 2007 of the Court of Appeals (CA),
which affirmed with modification the Decision3 dated July 30, 2004 of the
Regional Trial Court (RTC), Branch 46, San Fernando City, finding the
petitioner guilty beyond reasonable doubt of the crime of Estafa under Article
315, paragraph (1), sub-paragraph (b) of the Revised Penal Code.
The antecedent facts follow.
Private complainant Danilo Tangcoy and petitioner met at the Admiral
Royale Casino in Olongapo City sometime in 1990. Private complainant was
then engaged in the business of lending money to casino players and, upon
hearing that the former had some pieces of jewelry for sale, petitioner
approached him on May 2, 1991 at the same casino and offered to sell the
said pieces of jewelry on commission basis. Private complainant agreed, and
as a consequence, he turned over to petitioner the following items: an 18k
diamond ring for men; a woman's bracelet; one (1) men's necklace and
another men's bracelet, with an aggregate value of P98,000.00, as evidenced
by a receipt of even date. They both agreed that petitioner shall remit the
proceeds of the sale, and/or, if unsold, to return the same items, within a
period of 60 days. The period expired without petitioner remitting the
proceeds of the sale or returning the pieces of jewelry. When private
complainant was able to meet petitioner, the latter promised the former that
he will pay the value of the said items entrusted to him, but to no avail.
Thus, an Information was filed against petitioner for the crime of estafa,
which reads as follows:

That on or about the fifth (5th) day of July 1991, in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, after having received from one Danilo Tangcoy, one (1)
men's diamond ring, 18k, worth P45,000.00; one (1) three-baht men's
bracelet, 22k, worth P25,000.00; one (1) two-baht ladies' bracelet, 22k,
worth P12,000.00, or in the total amount of Ninety-Eight Thousand Pesos
(P98,000.00), Philippine currency, under expressed obligation on the part of
said accused to remit the proceeds of the sale of the said items or to return
the same, if not sold, said accused, once in possession of the said items, with
intent to defraud, and with unfaithfulness and abuse of confidence, and far
from complying with his aforestated obligation, did then and there wilfully,
unlawfully and feloniously misappropriate, misapply and convert to his own
personal use and benefit the aforesaid jewelries (sic) or the proceeds of the
sale thereof, and despite repeated demands, the accused failed and refused to
return the said items or to remit the amount of Ninety- Eight Thousand Pesos
(P98,000.00), Philippine currency, to the damage and prejudice of said
Danilo Tangcoy in the aforementioned amount.
CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his counsel, entered a
plea of not guilty. Thereafter, trial on the merits ensued.
The prosecution, to prove the above-stated facts, presented the lone
testimony of Danilo Tangcoy. On the other hand, the defense presented the
lone testimony of petitioner, which can be summarized, as follows:
Petitioner and private complainant were collecting agents of Antonio
Balajadia, who is engaged in the financing business of extending loans to
Base employees. For every collection made, they earn a commission.
Petitioner denied having transacted any business with private complainant.
However, he admitted obtaining a loan from Balajadia sometime in 1989 for
which he was made to sign a blank receipt. He claimed that the same receipt
was then dated May 2, 1991 and used as evidence against him for the
supposed agreement to sell the subject pieces of jewelry, which he did not
even see.
After trial, the RTC found petitioner guilty beyond reasonable doubt of the
crime charged in the Information. The dispositive portion of the decision
states:
WHEREFORE, finding accused LITO CORPUZ GUILTY beyond
reasonable doubt of the felony of Estafa under Article 315, paragraph one
(1), subparagraph (b) of the Revised Penal Code;
there being no offsetting generic aggravating nor ordinary mitigating
circumstance/s to vary the penalty imposable;
accordingly, the accused is hereby sentenced to suffer the penalty of
deprivation of liberty consisting of an imprisonment under the Indeterminate

Sentence Law of FOUR (4) YEARS AND TWO (2) MONTHS of Prision
Correccional in its medium period AS MINIMUM, to FOURTEEN (14)
YEARS AND EIGHT (8) MONTHS of Reclusion Temporal in its minimum
period AS MAXIMUM; to indemnify private complainant Danilo Tangcoy
the amount of P98,000.00 as actual damages, and to pay the costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the latter denied the appeal of
petitioner and affirmed the decision of the RTC, thus:
WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated
July 30, 2004 of the RTC of San Fernando City (P), Branch 46, is hereby
AFFIRMED with MODIFICATION on the imposable prison term, such that
accused-appellant shall suffer the indeterminate penalty of 4 years and 2
months of prision correccional, as minimum, to 8 years of prision mayor, as
maximum, plus 1 year for each additional P10,000.00, or a total of 7 years.
The rest of the decision stands.
SO ORDERED.
Petitioner, after the CA denied his motion for reconsideration, filed with this
Court the present petition stating the following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING
THE ADMISSION AND APPRECIATION BY THE LOWER COURT OF
PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS, WHICH ARE
MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE
RULE;
B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE LOWER COURT'S FINDING THAT THE CRIMINAL
INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE
ALTHOUGH THE SAME DID NOT CHARGE THE OFFENSE UNDER
ARTICLE 315 (1) (B) OF THE REVISED PENAL CODE IN THAT 1. THE INFORMATION DID NOT FIX A PERIOD
WITHIN WHICH THE SUBJECT [PIECES OF] JEWELRY
SHOULD BE RETURNED, IF UNSOLD, OR THE
MONEY TO BE REMITTED, IF SOLD;
2. THE DATE OF THE OCCURRENCE OF THE CRIME
ALLEGED IN THE INFORMATION AS OF 05 JULY 1991
WAS MATERIALLY DIFFERENT FROM THE ONE
TESTIFIED TO BY THE PRIVATE COMPLAINANT
WHICH WAS 02 MAY 1991;
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE LOWER COURT'S FINDING THAT DEMAND TO RETURN THE
SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE
PROCEEDS, IF SOLD AN ELEMENT OF THE OFFENSE WAS
PROVED;

D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING

THE LOWER COURT'S FINDING THAT THE PROSECUTION'S CASE
WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH 1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO
(2) VERSIONS OF THE INCIDENT;
2. THE VERSION OF THE PETITIONER ACCUSED IS
MORE STRAIGHTFORWARD AND LOGICAL,
CONSISTENT WITH HUMAN EXPERIENCE;
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN
AND APPLIED TO THIS CASE;
4. PENAL STATUTES ARE STRICTLY CONSTRUED
AGAINST THE STATE.
In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG)
stated the following counter-arguments:
The exhibits were properly admitted inasmuch as petitioner failed to object to
their admissibility.
The information was not defective inasmuch as it sufficiently established the
designation of the offense and the acts complained of.
The prosecution sufficiently established all the elements of the crime
charged.
This Court finds the present petition devoid of any merit.
The factual findings of the appellate court generally are conclusive, and carry
even more weight when said court affirms the findings of the trial court,
absent any showing that the findings are totally devoid of support in the
records, or that they are so glaringly erroneous as to constitute grave abuse of
discretion.4 Petitioner is of the opinion that the CA erred in affirming the
factual findings of the trial court. He now comes to this Court raising both
procedural and substantive issues.
According to petitioner, the CA erred in affirming the ruling of the trial court,
admitting in evidence a receipt dated May 2, 1991 marked as Exhibit "A" and
its submarkings, although the same was merely a photocopy, thus, violating
the best evidence rule. However, the records show that petitioner never
objected to the admissibility of the said evidence at the time it was identified,
marked and testified upon in court by private complainant. The CA also
correctly pointed out that petitioner also failed to raise an objection in his
Comment to the prosecution's formal offer of evidence and even admitted
having signed the said receipt. The established doctrine is that when a party
failed to interpose a timely objection to evidence at the time they were
offered in evidence, such objection shall be considered as waived. 5
Another procedural issue raised is, as claimed by petitioner, the formally
defective Information filed against him. He contends that the Information
does not contain the period when the pieces of jewelry were supposed to be

returned and that the date when the crime occurred was different from the
one testified to by private complainant. This argument is untenable. The CA
did not err in finding that the Information was substantially complete and in
reiterating that objections as to the matters of form and substance in the
Information cannot be made for the first time on appeal. It is true that the
gravamen of the crime of estafa under Article 315, paragraph 1, subparagraph
(b) of the RPC is the appropriation or conversion of money or property
received to the prejudice of the owner6 and that the time of occurrence is not
a material ingredient of the crime, hence, the exclusion of the period and the
wrong date of the occurrence of the crime, as reflected in the Information, do
not make the latter fatally defective. The CA ruled:
x x x An information is legally viable as long as it distinctly states the
statutory designation of the offense and the acts or omissions constitutive
thereof. Then Section 6, Rule 110 of the Rules of Court provides that a
complaint or information is sufficient if it states the name of the accused;
the designation of the offense by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended party; the
approximate time of the commission of the offense, and the place wherein
the offense was committed. In the case at bar, a reading of the subject
Information shows compliance with the foregoing rule. That the time of the
commission of the offense was stated as " on or about the fifth (5th) day of
July, 1991" is not likewise fatal to the prosecution's cause considering that
Section 11 of the same Rule requires a statement of the precise time only
when the same is a material ingredient of the offense. The gravamen of the
crime of estafa under Article 315, paragraph 1 (b) of the Revised Penal Code
(RPC) is the appropriation or conversion of money or property received to
the prejudice of the offender. Thus, aside from the fact that the date of the
commission thereof is not an essential element of the crime herein charged,
the failure of the prosecution to specify the exact date does not render the
Information ipso facto defective. Moreover, the said date is also near the due
date within which accused-appellant should have delivered the proceeds or
returned the said [pieces of jewelry] as testified upon by Tangkoy, hence,
there was sufficient compliance with the rules. Accused-appellant, therefore,
cannot now be allowed to claim that he was not properly apprised of the
charges proferred against him.7
It must be remembered that petitioner was convicted of the crime of Estafa
under Article 315, paragraph 1 (b) of the RPC, which reads:
ART. 315. Swindling (estafa). Any person who shall defraud another by
any of the means mentioned hereinbelow.
1. With unfaithfulness or abuse of confidence, namely:
xxxx

(b) By misappropriating or converting, to the prejudice of another, money,

goods, or any other personal property received by the offender in trust or on
commission, or for administration, or under any other obligation involving
the duty to make delivery of or to return the same, even though such
obligation be totally or partially guaranteed by a bond; or by denying having
received such money, goods, or other property; x x x
The elements of estafa with abuse of confidence are as follows: (a) that
money, goods or other personal property is received by the offender in trust,
or on commission, or for administration, or under any other obligation
involving the duty to make delivery of, or to return the same; (b) that there be
misappropriation or conversion of such money or property by the offender or
denial on his part of such receipt; (c) that such misappropriation or
conversion or denial is to the prejudice of another; and (d) that there is a
demand made by the offended party on the offender.8
Petitioner argues that the last element, which is, that there is a demand by the
offended party on the offender, was not proved. This Court disagrees. In his
testimony, private complainant narrated how he was able to locate petitioner
after almost two (2) months from the time he gave the pieces of jewelry and
asked petitioner about the same items with the latter promising to pay them.
Thus:
PROS. MARTINEZ
q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction
could have been finished on 5 July 1991, the question is what happens (sic)
when the deadline came?
a I went looking for him, sir.
q For whom?
a Lito Corpuz, sir.
q Were you able to look (sic) for him?
a I looked for him for a week, sir.
q Did you know his residence?
a Yes, sir.
q Did you go there?
a Yes, sir.
q Did you find him?
a No, sir.
q Were you able to talk to him since 5 July 1991?
a I talked to him, sir.
q How many times?
a Two times, sir.
q What did you talk (sic) to him?
a About the items I gave to (sic) him, sir.
q Referring to Exhibit A-2?

a Yes, sir, and according to him he will take his obligation and I asked him
where the items are and he promised me that he will pay these amount, sir.
q Up to this time that you were here, were you able to collect from him
partially or full?
a No, sir.9
No specific type of proof is required to show that there was
demand.10 Demand need not even be formal; it may be verbal.11 The specific
word "demand" need not even be used to show that it has indeed been made
upon the person charged, since even a mere query as to the whereabouts of
the money [in this case, property], would be tantamount to a demand. 12 As
expounded in Asejo v. People:13
With regard to the necessity of demand, we agree with the CA that demand
under this kind of estafa need not be formal or written. The appellate court
observed that the law is silent with regard to the form of demand in estafa
under Art. 315 1(b), thus:
When the law does not qualify, We should not qualify. Should a written
demand be necessary, the law would have stated so. Otherwise, the word
"demand" should be interpreted in its general meaning as to include both
written and oral demand. Thus, the failure of the prosecution to present a
written demand as evidence is not fatal.
In Tubb v. People, where the complainant merely verbally inquired about the
money entrusted to the accused, we held that the query was tantamount to a
demand, thus:
x x x [T]he law does not require a demand as a condition precedent to the
existence of the crime of embezzlement. It so happens only that failure to
account, upon demand for funds or property held in trust, is circumstantial
evidence of misappropriation. The same way, however, be established by
other proof, such as that introduced in the case at bar.14
In view of the foregoing and based on the records, the prosecution was able
to prove the existence of all the elements of the crime. Private complainant
gave petitioner the pieces of jewelry in trust, or on commission basis, as
shown in the receipt dated May 2, 1991 with an obligation to sell or return
the same within sixty (60) days, if unsold. There was misappropriation when
petitioner failed to remit the proceeds of those pieces of jewelry sold, or if no
sale took place, failed to return the same pieces of jewelry within or after the
agreed period despite demand from the private complainant, to the prejudice
of the latter.
Anent the credibility of the prosecution's sole witness, which is questioned
by petitioner, the same is unmeritorious. Settled is the rule that in assessing
the credibility of witnesses, this Court gives great respect to the evaluation of
the trial court for it had the unique opportunity to observe the demeanor of
witnesses and their deportment on the witness stand, an opportunity denied

the appellate courts, which merely rely on the records of the case. 15 The
assessment by the trial court is even conclusive and binding if not tainted
with arbitrariness or oversight of some fact or circumstance of weight and
influence, especially when such finding is affirmed by the CA. 16 Truth is
established not by the number of witnesses, but by the quality of their
testimonies, for in determining the value and credibility of evidence, the
witnesses are to be weighed not numbered.17
As regards the penalty, while this Court's Third Division was deliberating on
this case, the question of the continued validity of imposing on persons
convicted of crimes involving property came up. The legislature apparently
pegged these penalties to the value of the money and property in 1930 when
it enacted the Revised Penal Code. Since the members of the division
reached no unanimity on this question and since the issues are of first
impression, they decided to refer the case to the Court en banc for
consideration and resolution. Thus, several amici curiae were invited at the
behest of the Court to give their academic opinions on the matter. Among
those that graciously complied were Dean Jose Manuel Diokno, Dean
Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate President, and
the Speaker of the House of Representatives. The parties were later heard on
oral arguments before the Court en banc, with Atty. Mario L. Bautista
appearing as counsel de oficio of the petitioner.
After a thorough consideration of the arguments presented on the matter, this
Court finds the following:
There seems to be a perceived injustice brought about by the range of
penalties that the courts continue to impose on crimes against property
committed today, based on the amount of damage measured by the value of
money eighty years ago in 1932. However, this Court cannot modify the said
range of penalties because that would constitute judicial legislation. What the
legislature's perceived failure in amending the penalties provided for in the
said crimes cannot be remedied through this Court's decisions, as that would
be encroaching upon the power of another branch of the government. This,
however, does not render the whole situation without any remedy. It can be
appropriately presumed that the framers of the Revised Penal Code (RPC)
had anticipated this matter by including Article 5, which reads:
ART. 5. Duty of the court in connection with acts which should be repressed
but which are not covered by the law, and in cases of excessive penalties. Whenever a court has knowledge of any act which it may deem proper to
repress and which is not punishable by law, it shall render the proper
decision, and shall report to the Chief Executive, through the Department of
Justice, the reasons which induce the court to believe that said act should be
made the subject of penal legislation.

In the same way, the court shall submit to the Chief Executive, through the
Department of Justice, such statement as may be deemed proper, without
suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive
penalty, taking into consideration the degree of malice and the injury caused
by the offense.18
The first paragraph of the above provision clearly states that for acts bourne
out of a case which is not punishable by law and the court finds it proper to
repress, the remedy is to render the proper decision and thereafter, report to
the Chief Executive, through the Department of Justice, the reasons why the
same act should be the subject of penal legislation. The premise here is that a
deplorable act is present but is not the subject of any penal legislation, thus,
the court is tasked to inform the Chief Executive of the need to make that act
punishable by law through legislation. The second paragraph is similar to the
first except for the situation wherein the act is already punishable by law but
the corresponding penalty is deemed by the court as excessive. The remedy
therefore, as in the first paragraph is not to suspend the execution of the
sentence but to submit to the Chief Executive the reasons why the court
considers the said penalty to be non-commensurate with the act committed.
Again, the court is tasked to inform the Chief Executive, this time, of the
need for a legislation to provide the proper penalty.
In his book, Commentaries on the Revised Penal Code,19 Guillermo B.
Guevara opined that in Article 5, the duty of the court is merely to report to
the Chief Executive, with a recommendation for an amendment or
modification of the legal provisions which it believes to be harsh. Thus:
This provision is based under the legal maxim "nullum crimen, nulla poena
sige lege," that is, that there can exist no punishable act except those
previously and specifically provided for by penal statute.
No matter how reprehensible an act is, if the law-making body does not deem
it necessary to prohibit its perpetration with penal sanction, the Court of
justice will be entirely powerless to punish such act.
Under the provisions of this article the Court cannot suspend the execution of
a sentence on the ground that the strict enforcement of the provisions of this
Code would cause excessive or harsh penalty. All that the Court could do in
such eventuality is to report the matter to the Chief Executive with a
recommendation for an amendment or modification of the legal provisions
which it believes to be harsh.20
Anent the non-suspension of the execution of the sentence, retired Chief
Justice Ramon C. Aquino and retired Associate Justice Carolina C. GrioAquino, in their book, The Revised Penal Code,21 echoed the above-cited
commentary, thus:

The second paragraph of Art. 5 is an application of the humanitarian

principle that justice must be tempered with mercy. Generally, the courts
have nothing to do with the wisdom or justness of the penalties fixed by law.
"Whether or not the penalties prescribed by law upon conviction of
violations of particular statutes are too severe or are not severe enough, are
questions as to which commentators on the law may fairly differ; but it is the
duty of the courts to enforce the will of the legislator in all cases unless it
clearly appears that a given penalty falls within the prohibited class of
excessive fines or cruel and unusual punishment." A petition for clemency
should be addressed to the Chief Executive.22
There is an opinion that the penalties provided for in crimes against property
be based on the current inflation rate or at the ratio of P1.00 is equal
to P100.00 . However, it would be dangerous as this would result in
uncertainties, as opposed to the definite imposition of the penalties. It must
be remembered that the economy fluctuates and if the proposed imposition of
the penalties in crimes against property be adopted, the penalties will not
cease to change, thus, making the RPC, a self-amending law. Had the framers
of the RPC intended that to be so, it should have provided the same, instead,
it included the earlier cited Article 5 as a remedy. It is also improper to
presume why the present legislature has not made any moves to amend the
subject penalties in order to conform with the present times. For all we know,
the legislature intends to retain the same penalties in order to deter the further
commission of those punishable acts which have increased tremendously
through the years. In fact, in recent moves of the legislature, it is apparent
that it aims to broaden the coverage of those who violate penal laws. In the
crime of Plunder, from its original minimum amount of P100,000,000.00
plundered, the legislature lowered it to P50,000,000.00. In the same way, the
legislature lowered the threshold amount upon which the Anti-Money
Laundering Act may apply, from P1,000,000.00 to P500,000.00.
It is also worth noting that in the crimes of Theft and Estafa, the present
penalties do not seem to be excessive compared to the proposed imposition
of their corresponding penalties. In Theft, the provisions state that:
Art. 309. Penalties. Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium periods,
if the value of the thing stolen is more than 12,000 pesos but does not
exceed 22,000 pesos, but if the value of the thing stolen exceeds the
latter amount the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each additional ten
thousand pesos, but the total of the penalty which may be imposed
shall not exceed twenty years. In such cases, and in connection with
the accessory penalties which may be imposed and for the purpose of

the other provisions of this Code, the penalty shall be termed prision
mayor or reclusion temporal, as the case may be.
2. The penalty of prision correccional in its medium and maximum
periods, if the value of the thing stolen is more than 6,000 pesos but
does not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and medium
periods, if the value of the property stolen is more than 200 pesos but
does not exceed 6,000 pesos.
4. Arresto mayor in its medium period to prision correccional in its
minimum period, if the value of the property stolen is over 50 pesos
but does not exceed 200 pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos but
does not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if such value
does not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is
committed under the circumstances enumerated in paragraph 3 of the
next preceding article and the value of the thing stolen does not
exceed 5 pesos. If such value exceeds said amount, the provision of
any of the five preceding subdivisions shall be made applicable.
8. Arresto menor in its minimum period or a fine not exceeding 50
pesos, when the value of the thing stolen is not over 5 pesos, and the
offender shall have acted under the impulse of hunger, poverty, or the
difficulty of earning a livelihood for the support of himself or his
family.
In a case wherein the value of the thing stolen is P6,000.00, the aboveprovision states that the penalty is prision correccional in its minimum and
medium periods (6 months and 1 day to 4 years and 2 months). Applying the
proposal, if the value of the thing stolen is P6,000.00, the penalty is
imprisonment of arresto mayor in its medium period to prision correccional
minimum period (2 months and 1 day to 2 years and 4 months). It would
seem that under the present law, the penalty imposed is almost the same as
the penalty proposed. In fact, after the application of the Indeterminate
Sentence Law under the existing law, the minimum penalty is still lowered
by one degree; hence, the minimum penalty is arresto mayor in its medium
period to maximum period (2 months and 1 day to 6 months), making the
offender qualified for pardon or parole after serving the said minimum period
and may even apply for probation. Moreover, under the proposal, the
minimum penalty after applying the Indeterminate Sentence Law is arresto
menor in its maximum period to arresto mayor in its minimum period (21
days to 2 months) is not too far from the minimum period under the existing

law. Thus, it would seem that the present penalty imposed under the law is
not at all excessive. The same is also true in the crime of Estafa. 23
Moreover, if we apply the ratio of 1:100, as suggested to the value of the
thing stolen in the crime of Theft and the damage caused in the crime of
Estafa, the gap between the minimum and the maximum amounts, which is
the basis of determining the proper penalty to be imposed, would be too wide
and the penalty imposable would no longer be commensurate to the act
committed and the value of the thing stolen or the damage caused:
I. Article 309, or the penalties for the crime of Theft, the value would be
modified but the penalties are not changed:
1. P12,000.00 to P22,000.00 will become P1,200,000.00
to P2,200,000.00, punished by prision mayor minimum to prision
mayor medium (6 years and 1 day to 10 years).
2. P6,000.00 to P12,000.00 will become P600,000.00
to P1,200,000.00, punished by prision correccional medium and to
prision correccional maximum (2 years, 4 months and 1 day to 6
years).24
3. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00,
punishable by prision correccional minimum to prision correccional
medium (6 months and 1 day to 4 years and 2 months).
4. P50.00 to P200.00 will become P5,000.00 to P20,000.00,
punishable by arresto mayor medium to prision correccional
minimum (2 months and 1 day to 2 years and 4 months).
5. P5.00 to P50.00 will become P500.00 to P5,000.00, punishable by
arresto mayor (1 month and 1 day to 6 months).
6. P5.00 will become P500.00, punishable by arresto mayor
minimum to arresto mayor medium.
x x x x.
II. Article 315, or the penalties for the crime of Estafa, the value would also
be modified but the penalties are not changed, as follows:
1st. P12,000.00 to P22,000.00, will become P1,200,000.00
to P2,200,000.00, punishable by prision correccional maximum to
prision mayor minimum (4 years, 2 months and 1 day to 8 years). 25
2nd. P6,000.00 to P12,000.00 will become P600,000.00
to P1,200,000.00, punishable by prision correccional minimum to
prision correccional medium (6 months and 1 day to 4 years and 2
months).26
3rd. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00,
punishable by arresto mayor maximum to prision correccional
minimum (4 months and 1 day to 2 years and 4 months).
4th. P200.00 will become P20,000.00, punishable by arresto mayor
maximum (4 months and 1 day to 6 months).

An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed

amici curiae, is that the incremental penalty provided under Article 315 of the
RPC violates the Equal Protection Clause.
The equal protection clause requires equality among equals, which is
determined according to a valid classification. The test developed by
jurisprudence here and yonder is that of reasonableness, 27 which has four
requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class. 28
According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest
on substantial distinctions asP10,000.00 may have been substantial in the
past, but it is not so today, which violates the first requisite; the IPR was
devised so that those who commit estafa involving higher amounts would
receive heavier penalties; however, this is no longer achieved, because a
person who steals P142,000.00 would receive the same penalty as someone
who steals hundreds of millions, which violates the second requisite; and, the
IPR violates requisite no. 3, considering that the IPR is limited to existing
conditions at the time the law was promulgated, conditions that no longer
exist today.
Assuming that the Court submits to the argument of Dean Diokno and
declares the incremental penalty in Article 315 unconstitutional for violating
the equal protection clause, what then is the penalty that should be applied in
case the amount of the thing subject matter of the crime exceeds P22,000.00?
It seems that the proposition poses more questions than answers, which leads
us even more to conclude that the appropriate remedy is to refer these matters
to Congress for them to exercise their inherent power to legislate laws.
Even Dean Diokno was of the opinion that if the Court declares the IPR
unconstitutional, the remedy is to go to Congress. Thus:
xxxx
JUSTICE PERALTA:
Now, your position is to declare that the incremental penalty should be struck
down as unconstitutional because it is absurd.
DEAN DIOKNO:
Absurd, it violates equal protection, Your Honor, and cruel and unusual
punishment.
JUSTICE PERALTA:
Then what will be the penalty that we are going to impose if the amount is
more than Twenty-Two Thousand (P22,000.00) Pesos.
DEAN DIOKNO:

Well, that would be for Congress to ... if this Court will declare the
incremental penalty rule unconstitutional, then that would ... the void should
be filled by Congress.
JUSTICE PERALTA:
But in your presentation, you were fixing the amount at One Hundred
Thousand (P100,000.00) Pesos ...
DEAN DIOKNO:
Well, my presen ... (interrupted)
JUSTICE PERALTA:
For every One Hundred Thousand (P100,000.00) Pesos in excess of TwentyTwo Thousand (P22,000.00) Pesos you were suggesting an additional penalty
of one (1) year, did I get you right?
DEAN DIOKNO:
Yes, Your Honor, that is, if the court will take the route of statutory
interpretation.
JUSTICE PERALTA:
Ah ...
DEAN DIOKNO:
If the Court will say that they can go beyond the literal wording of the law...
JUSTICE PERALTA:
But if we de ... (interrupted)
DEAN DIOKNO:
....then....
JUSTICE PERALTA:
Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the
court cannot fix the amount ...
DEAN DIOKNO:
No, Your Honor.
JUSTICE PERALTA:
... as the equivalent of one, as an incremental penalty in excess of TwentyTwo Thousand (P22,000.00) Pesos.
DEAN DIOKNO:
No, Your Honor.
JUSTICE PERALTA:
The Court cannot do that.
DEAN DIOKNO:
Could not be.
JUSTICE PERALTA:
The only remedy is to go to Congress...
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:

... and determine the value or the amount.

DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
That will be equivalent to the incremental penalty of one (1) year in excess of
Twenty-Two Thousand (P22,000.00) Pesos.
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
The amount in excess of Twenty-Two Thousand (P22,000.00) Pesos.
Thank you, Dean.
DEAN DIOKNO:
Thank you.
x x x x29
Dean Diokno also contends that Article 315 of the Revised Penal Code
constitutes cruel and unusual punishment. Citing Solem v. Helm,30 Dean
Diokno avers that the United States Federal Supreme Court has expanded the
application of a similar Constitutional provision prohibiting cruel and
unusual punishment, to the duration of the penalty, and not just its form. The
court therein ruled that three things must be done to decide whether a
sentence is proportional to a specific crime, viz.; (1) Compare the nature and
gravity of the offense, and the harshness of the penalty; (2) Compare the
sentences imposed on other criminals in the same jurisdiction, i.e., whether
more serious crimes are subject to the same penalty or to less serious
penalties; and (3) Compare the sentences imposed for commission of the
same crime in other jurisdictions.
However, the case of Solem v. Helm cannot be applied in the present case,
because in Solem what respondent therein deemed cruel was the penalty
imposed by the state court of South Dakota after it took into account the
latters recidivist statute and not the original penalty for uttering a "no
account" check. Normally, the maximum punishment for the crime would
have been five years imprisonment and a $5,000.00 fine. Nonetheless,
respondent was sentenced to life imprisonment without the possibility of
parole under South Dakotas recidivist statute because of his six prior felony
convictions. Surely, the factual antecedents of Solem are different from the
present controversy.
With respect to the crime of Qualified Theft, however, it is true that the
imposable penalty for the offense is high. Nevertheless, the rationale for the
imposition of a higher penalty against a domestic servant is the fact that in
the commission of the crime, the helper will essentially gravely abuse the
trust and confidence reposed upon her by her employer. After accepting and
allowing the helper to be a member of the household, thus entrusting upon

such person the protection and safekeeping of the employers loved ones and
properties, a subsequent betrayal of that trust is so repulsive as to warrant the
necessity of imposing a higher penalty to deter the commission of such
wrongful acts.
There are other crimes where the penalty of fine and/or imprisonment are
dependent on the subject matter of the crime and which, by adopting the
proposal, may create serious implications. For example, in the crime of
Malversation, the penalty imposed depends on the amount of the money
malversed by the public official, thus:
Art. 217. Malversation of public funds or property; Presumption of
malversation. Any public officer who, by reason of the duties of his office,
is accountable for public funds or property, shall appropriate the same or
shall take or misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public funds, or
property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and maximum
periods, if the amount involved in the misappropriation or
malversation does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods,
if the amount involved is more than two hundred pesos but does not
exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion
temporal in its minimum period, if the amount involved is more than
six thousand pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium and maximum
periods, if the amount involved is more than twelve thousand pesos
but is less than twenty-two thousand pesos. If the amount exceeds
the latter, the penalty shall be reclusion temporal in its maximum
period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of
perpetual special disqualification and a fine equal to the amount of the funds
malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put such missing funds or
property to personal use.
The above-provisions contemplate a situation wherein the Government loses
money due to the unlawful acts of the offender. Thus, following the proposal,
if the amount malversed is P200.00 (under the existing law), the amount now
becomes P20,000.00 and the penalty is prision correccional in its medium
and maximum periods (2 years 4 months and 1 day to 6 years). The penalty

may not be commensurate to the act of embezzlement ofP20,000.00

compared to the acts committed by public officials punishable by a special
law, i.e., Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act,
specifically Section 3,31 wherein the injury caused to the government is not
generally defined by any monetary amount, the penalty (6 years and 1 month
to 15 years)32under the Anti-Graft Law will now become higher. This should
not be the case, because in the crime of malversation, the public official takes
advantage of his public position to embezzle the fund or property of the
government entrusted to him.
The said inequity is also apparent in the crime of Robbery with force upon
things (inhabited or uninhabited) where the value of the thing unlawfully
taken and the act of unlawful entry are the bases of the penalty imposable,
and also, in Malicious Mischief, where the penalty of imprisonment or fine is
dependent on the cost of the damage caused.
In Robbery with force upon things (inhabited or uninhabited), if we increase
the value of the thing unlawfully taken, as proposed in the ponencia, the sole
basis of the penalty will now be the value of the thing unlawfully taken and
no longer the element of force employed in entering the premises. It may
likewise cause an inequity between the crime of Qualified Trespass to
Dwelling under Article 280, and this kind of robbery because the former is
punishable by prision correccional in its medium and maximum periods (2
years, 4 months and 1 day to 6 years) and a fine not exceeding P1,000.00
(P100,000.00 now if the ratio is 1:100) where entrance to the premises is
with violence or intimidation, which is the main justification of the penalty.
Whereas in the crime of Robbery with force upon things, it is punished with
a penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is
unarmed without the penalty of Fine despite the fact that it is not merely the
illegal entry that is the basis of the penalty but likewise the unlawful taking.
Furthermore, in the crime of Other Mischiefs under Article 329, the highest
penalty that can be imposed is arresto mayor in its medium and maximum
periods (2 months and 1 day to 6 months) if the value of the damage caused
exceeds P1,000.00, but under the proposal, the value of the damage will now
become P100,000.00 (1:100), and still punishable by arresto mayor (1 month
and 1 day to 6 months). And, if the value of the damaged property does not
exceed P200.00, the penalty is arresto menor or a fine of not less than the
value of the damage caused and not more than P200.00, if the amount
involved does not exceed P200.00 or cannot be estimated. Under the
proposal, P200.00 will now become P20,000.00, which simply means that
the fine of P200.00 under the existing law will now become P20,000.00. The
amount of Fine under this situation will now become excessive and afflictive
in nature despite the fact that the offense is categorized as a light felony
penalized with a light penalty under Article 26 of the RPC. 33 Unless we also

amend Article 26 of the RPC, there will be grave implications on the penalty
of Fine, but changing the same through Court decision, either expressly or
impliedly, may not be legally and constitutionally feasible.
There are other crimes against property and swindling in the RPC that may
also be affected by the proposal, such as those that impose imprisonment
and/or Fine as a penalty based on the value of the damage caused, to wit:
Article 311 (Theft of the property of the National Library and National
Museum), Article 312 (Occupation of real property or usurpation of real
rights in property), Article 313 (Altering boundaries or landmarks), Article
316 (Other forms of swindling), Article 317 (Swindling a minor), Article 318
(Other deceits), Article 328 (Special cases of malicious mischief) and Article
331 (Destroying or damaging statues, public monuments or paintings). Other
crimes that impose Fine as a penalty will also be affected, such as: Article
213 (Frauds against the public treasury and similar offenses), Article 215
(Prohibited Transactions),
Article 216 (Possession of prohibited interest by a public officer), Article 218
(Failure of accountable officer to render accounts), Article 219 (Failure of a
responsible public officer to render accounts before leaving the country).
In addition, the proposal will not only affect crimes under the RPC. It will
also affect crimes which are punishable by special penal laws, such as Illegal
Logging or Violation of Section 68 of Presidential Decree No. 705, as
amended.34 The law treats cutting, gathering, collecting and possessing
timber or other forest products without license as an offense as grave as and
equivalent to the felony of qualified theft.35 Under the law, the offender shall
be punished with the penalties imposed under Articles 309 and 310 36 of the
Revised Penal Code, which means that the penalty imposable for the offense
is, again, based on the value of the timber or forest products involved in the
offense. Now, if we accept the said proposal in the crime of Theft, will this
particular crime of Illegal Logging be amended also in so far as the penalty is
concerned because the penalty is dependent on Articles 309 and 310 of the
RPC? The answer is in the negative because the soundness of this particular
law is not in question.
With the numerous crimes defined and penalized under the Revised Penal
Code and Special Laws, and other related provisions of these laws affected
by the proposal, a thorough study is needed to determine its effectivity and
necessity. There may be some provisions of the law that should be amended;
nevertheless, this Court is in no position to conclude as to the intentions of
the framers of the Revised Penal Code by merely making a study of the
applicability of the penalties imposable in the present times. Such is not
within the competence of the Court but of the Legislature which is
empowered to conduct public hearings on the matter, consult legal luminaries
and who, after due proceedings, can decide whether or not to amend or to

revise the questioned law or other laws, or even create a new legislation
which will adopt to the times.
Admittedly, Congress is aware that there is an urgent need to amend the
Revised Penal Code. During the oral arguments, counsel for the Senate
informed the Court that at present, fifty-six (56) bills are now pending in the
Senate seeking to amend the Revised Penal Code, 37 each one proposing much
needed change and updates to archaic laws that were promulgated decades
ago when the political, socio-economic, and cultural settings were far
different from todays conditions.
Verily, the primordial duty of the Court is merely to apply the law in such a
way that it shall not usurp legislative powers by judicial legislation and that
in the course of such application or construction, it should not make or
supervise legislation, or under the guise of interpretation, modify, revise,
amend, distort, remodel, or rewrite the law, or give the law a construction
which is repugnant to its terms.38 The Court should apply the law in a manner
that would give effect to their letter and spirit, especially when the law is
clear as to its intent and purpose. Succinctly put, the Court should shy away
from encroaching upon the primary function of a co-equal branch of the
Government; otherwise, this would lead to an inexcusable breach of the
doctrine of separation of powers by means of judicial legislation.
Moreover, it is to be noted that civil indemnity is, technically, not a penalty
or a Fine; hence, it can be increased by the Court when appropriate. Article
2206 of the Civil Code provides:
Art. 2206. The amount of damages for death caused by a crime or quasidelict shall be at least three thousand pesos, even though there may have
been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity
of the deceased, and the indemnity shall be paid to the heirs of the
latter; such indemnity shall in every case be assessed and awarded by
the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at the
time of his death;
(2) If the deceased was obliged to give support according to the
provisions of Article 291, the recipient who is not an heir called to
the decedent's inheritance by the law of testate or intestate
succession, may demand support from the person causing the death,
for a period not exceeding five years, the exact duration to be fixed
by the court;
(3) The spouse, legitimate and illegitimate descendants and
ascendants of the deceased may demand moral damages for mental
anguish by reason of the death of the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind

of monetary restitution or compensation to the victim for the damage or
infraction that was done to the latter by the accused, which in a sense only
covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where
a person dies, in addition to the penalty of imprisonment imposed to the
offender, the accused is also ordered to pay the victim a sum of money as
restitution. Clearly, this award of civil indemnity due to the death of the
victim could not be contemplated as akin to the value of a thing that is
unlawfully taken which is the basis in the imposition of the proper penalty in
certain crimes. Thus, the reasoning in increasing the value of civil indemnity
awarded in some offense cannot be the same reasoning that would sustain the
adoption of the suggested ratio. Also, it is apparent from Article 2206 that the
law only imposes a minimum amount for awards of civil indemnity, which
is P3,000.00. The law did not provide for a ceiling. Thus, although the
minimum amount for the award cannot be changed, increasing the amount
awarded as civil indemnity can be validly modified and increased when the
present circumstance warrants it. Corollarily, moral damages under Article
222039 of the Civil Code also does not fix the amount of damages that can be
awarded. It is discretionary upon the court, depending on the mental anguish
or the suffering of the private offended party. The amount of moral damages
can, in relation to civil indemnity, be adjusted so long as it does not exceed
the award of civil indemnity.
In addition, some may view the penalty provided by law for the offense
committed as tantamount to cruel punishment. However, all penalties are
generally harsh, being punitive in nature. Whether or not they are excessive
or amount to cruel punishment is a matter that should be left to lawmakers. It
is the prerogative of the courts to apply the law, especially when they are
clear and not subject to any other interpretation than that which is plainly
written.
Similar to the argument of Dean Diokno, one of Justice Antonio Carpios
opinions is that the incremental penalty provision should be declared
unconstitutional and that the courts should only impose the penalty
corresponding to the amount of P22,000.00, regardless if the actual amount
involved exceeds P22,000.00. As suggested, however, from now until the law
is properly amended by Congress, all crimes of Estafa will no longer be
punished by the appropriate penalty. A conundrum in the regular course of
criminal justice would occur when every accused convicted of the crime of
estafa will be meted penalties different from the proper penalty that should
be imposed. Such drastic twist in the application of the law has no legal basis
and directly runs counter to what the law provides.
It should be noted that the death penalty was reintroduced in the dispensation
of criminal justice by the Ramos Administration by virtue of Republic Act

No. 765940 in December 1993. The said law has been questioned before this
Court. There is, arguably, no punishment more cruel than that of death. Yet
still, from the time the death penalty was re-imposed until its lifting in June
2006 by Republic Act No. 9346,41 the Court did not impede the imposition of
the death penalty on the ground that it is a "cruel punishment" within the
purview of Section 19 (1),42Article III of the Constitution. Ultimately, it was
through an act of Congress suspending the imposition of the death penalty
that led to its non-imposition and not via the intervention of the Court.
Even if the imposable penalty amounts to cruel punishment, the Court cannot
declare the provision of the law from which the proper penalty emanates
unconstitutional in the present action. Not only is it violative of due process,
considering that the State and the concerned parties were not given the
opportunity to comment on the subject matter, it is settled that the
constitutionality of a statute cannot be attacked collaterally because
constitutionality issues must be pleaded directly and not collaterally,43 more
so in the present controversy wherein the issues never touched upon the
constitutionality of any of the provisions of the Revised Penal Code.
Besides, it has long been held that the prohibition of cruel and unusual
punishments is generally aimed at the form or character of the punishment
rather than its severity in respect of duration or amount, and applies to
punishments which public sentiment has regarded as cruel or obsolete, for
instance, those inflicted at the whipping post, or in the pillory, burning at the
stake, breaking on the wheel, disemboweling, and the like. Fine and
imprisonment would not thus be within the prohibition.44
It takes more than merely being harsh, excessive, out of proportion, or severe
for a penalty to be obnoxious to the Constitution. The fact that the
punishment authorized by the statute is severe does not make it cruel and
unusual. Expressed in other terms, it has been held that to come under the
ban, the punishment must be "flagrantly and plainly oppressive," "wholly
disproportionate to the nature of the offense as to shock the moral sense of
the community."45
Cruel as it may be, as discussed above, it is for the Congress to amend the
law and adapt it to our modern time.
The solution to the present controversy could not be solved by merely
adjusting the questioned monetary values to the present value of money
based only on the current inflation rate. There are other factors and variables
that need to be taken into consideration, researched, and deliberated upon
before the said values could be accurately and properly adjusted. The effects
on the society, the injured party, the accused, its socio-economic impact, and
the likes must be painstakingly evaluated and weighed upon in order to arrive
at a wholistic change that all of us believe should be made to our existing
law. Dejectedly, the Court is ill-equipped, has no resources, and lacks

sufficient personnel to conduct public hearings and sponsor studies and

surveys to validly effect these changes in our Revised Penal Code. This
function clearly and appropriately belongs to Congress. Even Professor
Tadiar concedes to this conclusion, to wit:
xxxx
JUSTICE PERALTA:
Yeah, Just one question. You are suggesting that in order to determine the
value of Peso you have to take into consideration several factors.
PROFESSOR TADIAR:
Yes.
JUSTICE PERALTA:
Per capita income.
PROFESSOR TADIAR:
Per capita income.
JUSTICE PERALTA:
Consumer price index.
PROFESSOR TADIAR:
Yeah.
JUSTICE PERALTA:
Inflation ...
PROFESSOR TADIAR:
Yes.
JUSTICE PERALTA:
... and so on. Is the Supreme Court equipped to determine those factors?
PROFESSOR TADIAR:
There are many ways by which the value of the Philippine Peso can be
determined utilizing all of those economic terms.
JUSTICE PERALTA:
Yeah, but ...
PROFESSOR TADIAR:
And I dont think it is within the power of the Supreme Court to pass upon
and peg the value to One Hundred (P100.00) Pesos to ...
JUSTICE PERALTA:
Yeah.
PROFESSOR TADIAR:
... One (P1.00.00) Peso in 1930.
JUSTICE PERALTA:
That is legislative in nature.
PROFESSOR TADIAR:
That is my position that the Supreme Court ...
JUSTICE PERALTA:
Yeah, okay.

PROFESSOR TADIAR:
... has no power to utilize the power of judicial review to in order to adjust, to
make the adjustment that is a power that belongs to the legislature.
JUSTICE PERALTA:
Thank you, Professor.
PROFESSOR TADIAR:
Thank you.46
Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno
echoes the view that the role of the Court is not merely to dispense justice,
but also the active duty to prevent injustice. Thus, in order to prevent
injustice in the present controversy, the Court should not impose an obsolete
penalty pegged eighty three years ago, but consider the proposed ratio of
1:100 as simply compensating for inflation. Furthermore, the Court has in the
past taken into consideration "changed conditions" or "significant changes in
circumstances" in its decisions.
Similarly, the Chief Justice is of the view that the Court is not delving into
the validity of the substance of a statute. The issue is no different from the
Courts adjustment of indemnity in crimes against persons, which the Court
had previously adjusted in light of current times, like in the case of People v.
Pantoja.47 Besides, Article 10 of the Civil Code mandates a presumption that
the lawmaking body intended right and justice to prevail.
With due respect to the opinions and proposals advanced by the Chief Justice
and my Colleagues, all the proposals ultimately lead to prohibited judicial
legislation. Short of being repetitious and as extensively discussed above, it
is truly beyond the powers of the Court to legislate laws, such immense
power belongs to Congress and the Court should refrain from crossing this
clear-cut divide. With regard to civil indemnity, as elucidated before, this
refers to civil liability which is awarded to the offended party as a kind of
monetary restitution. It is truly based on the value of money. The same
cannot be said on penalties because, as earlier stated, penalties are not only
based on the value of money, but on several other factors. Further, since the
law is silent as to the maximum amount that can be awarded and only pegged
the minimum sum, increasing the amount granted as civil indemnity is not
proscribed. Thus, it can be adjusted in light of current conditions.
Now, with regard to the penalty imposed in the present case, the CA modified
the ruling of the RTC. The RTC imposed the indeterminate penalty of four
(4) years and two (2) months of prision correccional in its medium period, as
minimum, to fourteen (14) years and eight (8) months of reclusion temporal
in its minimum period, as maximum. However, the CA imposed the
indeterminate penalty of four (4) years and two (2) months of prision
correccional, as minimum, to eight (8) years of prision mayor, as maximum,
plus one (1) year for each additionalP10,000.00, or a total of seven (7) years.

In computing the penalty for this type of estafa, this Court's ruling in Cosme,
Jr. v. People48 is highly instructive, thus:
With respect to the imposable penalty, Article 315 of the Revised Penal Code
provides:
ART. 315 Swindling (estafa). - Any person who shall defraud another by any
of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000 but
does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the
penalty provided in this paragraph shall be imposed in its maximum period,
adding one year for each additional 10,000 pesos; but the total penalty which
may be imposed shall not exceed twenty years. In such case, and in
connection with the accessory penalties which may be imposed and for the
purpose of the other provisions of this Code, the penalty shall be termed
prision mayor or reclusion temporal, as the case may be.
The penalty prescribed by Article 315 is composed of only two, not three,
periods, in which case, Article 65 of the same Code requires the division of
the time included in the penalty into three equal portions of time included in
the penalty prescribed, forming one period of each of the three portions.
Applying the latter provisions, the maximum, medium and minimum periods
of the penalty prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years
Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days 49
To compute the maximum period of the prescribed penalty, prisin
correccional maximum to prisin mayor minimum should be divided into
three equal portions of time each of which portion shall be deemed to form
one period in accordance with Article 6550 of the RPC.51 In the present case,
the amount involved is P98,000.00, which exceeds P22,000.00, thus, the
maximum penalty imposable should be within the maximum period of 6
years, 8 months and 21 days to 8 years of prision mayor. Article 315 also
states that a period of one year shall be added to the penalty for every
additional P10,000.00 defrauded in excess of P22,000.00, but in no case shall
the total penalty which may be imposed exceed 20 years.
Considering that the amount of P98,000.00 is P76,000.00 more than
the P22,000.00 ceiling set by law, then, adding one year for each
additional P10,000.00, the maximum period of 6 years, 8 months and 21 days
to 8 years of prision mayor minimum would be increased by 7 years. Taking
the maximum of the prescribed penalty, which is 8 years, plus an additional 7
years, the maximum of the indeterminate penalty is 15 years.
Applying the Indeterminate Sentence Law, since the penalty prescribed by
law for the estafa charge against petitioner is prision correccional maximum

to prision mayor minimum, the penalty next lower would then be prision
correccional in its minimum and medium periods.
Thus, the minimum term of the indeterminate sentence should be anywhere
from 6 months and 1 day to 4 years and 2 months.
One final note, the Court should give Congress a chance to perform its
primordial duty of lawmaking. The Court should not pre-empt Congress and
usurp its inherent powers of making and enacting laws. While it may be the
most expeditious approach, a short cut by judicial fiat is a dangerous
proposition, lest the Court dare trespass on prohibited judicial legislation.
WHEREFORE, the Petition for Review on Certiorari dated November 5,
2007 of petitioner Lito Corpuz is hereby DENIED. Consequently, the
Decision dated March 22, 2007 and Resolution dated September 5, 2007 of
the Court of Appeals, which affirmed with modification the Decision dated
July 30, 2004 of the Regional Trial Court, Branch 46, San Fernando City,
finding petitioner guilty beyond reasonable doubt of the crime of Estafa
under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal
Code, are hereby AFFIRMED with MODIFICATION that the penalty
imposed is the indeterminate penalty of imprisonment ranging from THREE
(3) YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision
correccional, as minimum, to FIFTEEN (15) YEARS of reclusion temporal
as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision
be furnished the President of the Republic of the Philippines, through the
Department of Justice.
Also, let a copy of this Decision be furnished the President of the Senate and
the Speaker of the House of Representatives.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
See Concurring and Dissenting Opinion
MARIA LOURDES P.A. SERENO
Chief Justice
See Dissenting Opinion
ANTONIO T. CARPIO
Associate Justice

PRESBITERO J.
VELASCO, JR.
Associate Justice

TERESITA J. LEONARDODE CASTRO

Associate Justice

See: Concurring Opinion

ARTURO D. BRION
Associate Justice

I take no part due to prior

action in the CA
LUCAS P. BERSAMIN*
Associate Justice

I join the Dissent of J. Abad

MARIANO C. DEL
CASTILLO
Associate Justice

See Dissenting Opinion

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA,
JR.
Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

BVIENVENIDO L. REYES
Associate Justice

No Part
ESTELA M. PERLASBERNABE*
Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court.
MARIA LOURDES P. A. SERENO
Chief Justice
Footnotes
* No part.
1
Penned by Associate Justice Estela M. Perlas-Bernabe (now a
member of the Supreme Court), with Associate Justices Rodrigo V.
Cosico and Lucas P. Bersamin (now a member of the Supreme
Court), concurring; rollo, pp. 31-41.
2
Rollo, p. 43.
3
Id. at 48-52.
4
Libuit v. People, 506 Phil. 591, 599 (2005).
5
Blas v. Angeles- Hutalla, 482 Phil. 485, 501 (2004).
6
Quinto v. People, 365 Phil. 259, 270 (1999).
7
Rollo, p. 37. (Citations omitted.)
8
Diaz v. People, 585 Phil. 318, 332 (2008), citing Pangilinan v.
Court of Appeals, 378 Phil. 670, 675 (1999).

TSN, December 17, 1992, pp. 9-10. (Emphasis supplied.)

Tan v. People, 542 Phil. 188, 201 (2007).
11
Id., citing Lee v. People, 495 Phil. 239, 250 (2005).
12
Id.
13
555 Phil. 106 (2007).
14
Id. at 114. (Citations omitted.)
15
Cosme, Jr. v. People, 538 Phil. 52, 66 (2006), citing People v.
Garillo, 446 Phil. 163, 174-175 (2003).
16
Id., citing Sullon v. People, 500 Phil. 39, 45 (2005) ; People v.
Bulan, 498 Phil. 586, 598 (2005).
17
Id. at 67, citing People v. Gaspar, 376 Phil. 762, 779 (1999).
18
Emphasis supplied.
19
Third Edition, 1940.
20
Id. at 16. (Emphasis supplied)
21
1997 Edition.
22
Id. at 93, citing United States v. Valera Ang Y, 26 Phil. 598 (1914);
People v. Salazar y Gabriel, 102 Phil. 1184 (1958); Tiu Ua, 51 O.G.
1863; Limaco, 99 Phil. 35 (1956), and People v. Del Rosario y
Natividad, 62 Phil. 824 (1936). (Emphasis supplied.)
23
Art. 315. Swindling (estafa). Any person who shall defraud
another by any of the means mentioned hereinbelow shall be
punished by:
1st. The penalty of prision correccional in its
maximum period to prision mayor in its minimum
period, if the amount of the fraud is over 12,000
pesos but does not exceed 22,000 pesos, and if such
amount exceeds the latter sum, the penalty provided
in this paragraph shall be imposed in its maximum
period, adding one year for each additional 10,000
pesos; but the total penalty which may be imposed
shall not exceed twenty years. In such cases, and in
connection with the accessory penalties which may
be imposed under the provisions of this Code, the
penalty shall be termed prision mayor or reclusion
temporal, as the case may be.
2nd. The penalty of prision correccional in its
minimum and medium periods, if the amount of the
fraud is over 6,000 pesos but does not exceed 12,000
pesos;
3rd. The penalty of arresto mayor in its maximum
period to prision correccional in its minimum period
10

if such amount is over 200 pesos but does not

exceed 6,000 pesos; and
4th. By arresto mayor in its maximum period, if such
amount does not exceed 200 pesos, provided that in
the four cases mentioned, the fraud be committed by
any of the following means:
1. With unfaithfulness or abuse of confidence, namely:
(a) By altering the substance, quantity, or quality or
anything of value which the offender shall deliver by
virtue of an obligation to do so, even though such
obligation be based on an immoral or illegal
consideration.
(b) By misappropriating or converting, to the
prejudice of another, money, goods, or any other
personal property received by the offender in trust or
on commission, or for administration, or under any
other obligation involving the duty to make delivery
of or to return the same, even though such obligation
be totally or partially guaranteed by a bond; or by
denying having received such money, goods, or
other property.
(c) By taking undue advantage of the signature of
the offended party in blank, and by writing any
document above such signature in blank, to the
prejudice of the offended party or of any third
person.
2. By means of any of the following false pretenses or
fraudulent acts executed prior to or simultaneously with the
commission of the fraud:
(a) By using fictitious name, or falsely pretending to
possess power, influence, qualifications, property,
credit, agency, business or imaginary transactions, or
by means of other similar deceits.
(b) By altering the quality, fineness or weight of
anything pertaining to his art or business.
(c) By pretending to have bribed any Government
employee, without prejudice to the action for
calumny which the offended party may deem proper
to bring against the offender. In this case, the
offender shall be punished by the maximum period
of the penalty.

(d) [By post-dating a check, or issuing a check in

payment of an obligation when the offender therein
were not sufficient to cover the amount of the check.
The failure of the drawer of the check to deposit the
amount necessary to cover his check within three (3)
days from receipt of notice from the bank and/or the
payee or holder that said check has been dishonored
for lack of insufficiency of funds shall be prima
facie evidence of deceit constituting false pretense or
fraudulent act. (As amended by R.A. 4885, approved
June 17, 1967.)]
(e) By obtaining any food, refreshment or
accommodation at a hotel, inn, restaurant, boarding
house, lodging house, or apartment house and the
like without paying therefor, with intent to defraud
the proprietor or manager thereof, or by obtaining
credit at hotel, inn, restaurant, boarding house,
lodging house, or apartment house by the use of any
false pretense, or by abandoning or surreptitiously
removing any part of his baggage from a hotel, inn,
restaurant, boarding house, lodging house or
apartment house after obtaining credit, food,
refreshment or accommodation therein without
paying for his food, refreshment or accommodation.
3. Through any of the following fraudulent means:
(a) By inducing another, by means of deceit, to sign
any document.
(b) By resorting to some fraudulent practice to
insure success in a gambling game.
(c) By removing, concealing or destroying, in whole
or in part, any court record, office files, document or
any other papers.
24
May be entitled to Probation.
25
May be entitled to Probation if the maximum penalty imposed is 6
years.
26
May be entitled to Probation.
27
Quinto v. Commission on Elections, G.R. No. 189698, February
22, 2010, 613 SCRA 385, 414.
28
People v. Cayat, 68 Phil. 12, 18 (1939).
29
TSN, Oral Arguments, February 25, 2014, pp. 192-195.
30
463 U.S. 277 (1983)

31

Section 3. Corrupt practices of public officers. - In addition to acts

or omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and
are hereby declared to be unlawful:
(a) Persuading, inducing or influencing another public
officer to perform an act constituting a violation of rules and
regulations duly promulgated by competent authority or an
offense in connection with the official duties of the latter, or
allowing himself to be persuaded, induced, or influenced to
commit such violation or offense.
(b) Directly or indirectly requesting or receiving any gift,
present, share, percentage, or benefit, for himself or for any
other person, in connection with any contract or transaction
between the Government and any other part, wherein the
public officer in his official capacity has to intervene under
the law.
(c) Directly or indirectly requesting or receiving any gift,
present or other pecuniary or material benefit, for himself or
for another, from any person for whom the public officer, in
any manner or capacity, has secured or obtained, or will
secure or obtain, any Government permit or license, in
consideration for the help given or to be given, without
prejudice to Section thirteen of this Act.
(d) Accepting or having any member of his family accept
employment in a private enterprise which has pending
official business with him during the pendency thereof or
within one year after its termination.
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of
offices or government corporations charged with the grant of
licenses or permits or other concessions.
(f) Neglecting or refusing, after due demand or request,
without sufficient justification, to act within a reasonable
time on any matter pending before him for the purpose of
obtaining, directly or indirectly, from any person interested
in the matter some pecuniary or material benefit or
advantage, or for the purpose of favoring his own interest or

giving undue advantage in favor of or discriminating against

any other interested party.
(g) Entering, on behalf of the Government, into any contract
or transaction manifestly and grossly disadvantageous to the
same, whether or not the public officer profited or will profit
thereby.
(h) Director or indirectly having financing or pecuniary
interest in any business, contract or transaction in connection
with which he intervenes or takes part in his official
capacity, or in which he is prohibited by the Constitution or
by any law from having any interest.
(i) Directly or indirectly becoming interested, for personal
gain, or having a material interest in any transaction or act
requiring the approval of a board, panel or group of which he
is a member, and which exercises discretion in such
approval, even if he votes against the same or does not
participate in the action of the board, committee, panel or
group.
Interest for personal gain shall be presumed against those
public officers responsible for the approval of manifestly
unlawful, inequitable, or irregular transaction or acts by the
board, panel or group to which they belong.
(j) Knowingly approving or granting any license, permit,
privilege or benefit in favor of any person not qualified for
or not legally entitled to such license, permit, privilege or
advantage, or of a mere representative or dummy of one who
is not so qualified or entitled.
(k) Divulging valuable information of a confidential
character, acquired by his office or by him on account of his
official position to unauthorized persons, or releasing such
information in advance of its authorized release date.
The person giving the gift, present, share, percentage or
benefit referred to in subparagraphs (b) and (c); or offering
or giving to the public officer the employment mentioned in
subparagraph (d); or urging the divulging or untimely release
of the confidential information referred to in subparagraph
(k) of this section shall, together with the offending public
officer, be punished under Section nine of this Act and shall
be permanently or temporarily disqualified in the discretion
of the Court, from transacting business in any form with the
Government.
32
R.A. No. 3019, Sec. 9.

33

Art. 26. When afflictive, correctional, or light penalty. A fine,

whether imposed as a single of as an alternative penalty, shall be
considered an afflictive penalty, if it exceeds 6,000 pesos; a
correctional penalty, if it does not exceed 6,000 pesos but is not less
than 200 pesos; and a light penalty if it less than 200 pesos.
34
Revised Forestry Code, as amended by E.O. No. 277, Series of
1987.
35
Taopa v. People, 592 Phil. 341, 345 (2005).
36
Art. 310. Qualified theft. The crime of theft shall be punished
by the penalties next higher by two degrees than those respectively
specified in the next preceding article, if committed by a domestic
servant, or with grave abuse of confidence, or if the property stolen
is motor vehicle, mail matter or large cattle or consists of coconuts
taken from the premises of the plantation or fish taken from a
fishpond or fishery, or if property is taken on the occasion of fire,
earthquake, typhoon, volcanic erruption, or any other calamity,
vehicular accident or civil disturbance.
37
TSN, Oral Arguments, February 25, 2014, p. 167.
38
People v. Quijada, 328 Phil. 505, 548 (1996).
39
Art. 2220. Willful injury to property may be a legal ground for
awarding moral damages if the court should find that, under the
circumstances, such damages are justly due. The same rule applies to
breaches of contract where the defendant acted fraudulently or in bad
faith.
40
AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN
HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE
REVISED PENAL LAWS, AS AMENDED, OTHER SPECIAL
PENAL LAWS, AND FOR OTHER PURPOSES.
41
AN ACT PROHIBITING THE IMPOSITION OF DEATH
PENALTY IN THE PHILIPPINES.
42
Section 19.
1. Excessive fines shall not be imposed, nor cruel, degrading
or inhuman punishment inflicted. x x x.
43
Gutierrez v. Department of Budget and Management, G.R. No.
153266, 159007, 159029, 170084, 172713, 173119, 176477, 177990,
A.M. No. 06-4-02-SB, March 18, 2010, 616 SCRA 1, 25.
44
People v. De la Cruz, 92 Phil. 906, 908 (1953); People v. Tongko,
353 Phil. 37, 43 (1998).
45
People v. Estoista, 93 Phil. 647, 655 (1953); People v. Dionisio,
No. L-15513, March 27, 1968, 22 SCRA 1299, 1301-1302.
46
TSN, Oral Arguments, February 25, 2014, pp. 183-185.
47
No. L-18793, October 11, 1968, 25 SCRA 468.

48

Supra note 15.

Id. at 71-72.
50
ART. 65. Rule in Cases in Which the Penalty is Not Composed of
Three Periods. In cases in which the penalty prescribed by law is
not composed of three periods, the courts shall apply the rules
contained in the foregoing articles, dividing into three equal portions
the time included in the penalty prescribed, and forming one period
of each of the three portions.
51
People v. Temporada, G.R. No. 173473, December 17, 2008, 574
SCRA 258, 284.
49

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. Nos. L-32613-14 December 27, 1972

PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First
Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO
alias "Bob," and NILO S. TAYAG alias Romy Reyes alias
"Taba,"respondents.
Solicitor R. Mutuc for respondent Feliciano Co.
Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p
I. Statement of the Case

Posed in issue in these two cases is the constitutionality of the AntiSubversion

Act, 1 which outlaws the Communist Party of the Philippines and other
"subversive associations," and punishes any person who "knowingly,
willfully and by overt acts affiliates himself with, becomes or remains a
member" of the Party or of any other similar "subversive" organization.
On March 5, 1970 a criminal complaint for violation of section 4 of the AntiSubversion Act was filed against the respondent Feliciano Co in the Court of
First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted a
preliminary investigation and, finding a prima facie case against Co, directed
the Government prosecutors to file the corresponding information. The
twice-amended information, docketed as Criminal Case No. 27, recites:
That on or about May 1969 to December 5, 1969, in the
Municipality of Capas, Province of Tarlac, Philippines, and
within the jurisdiction of this Honorable Court, the
abovenamed accused, feloniously became an officer and/or
ranking leader of the Communist Party of the Philippines, an
outlawed and illegal organization aimed to overthrow the
Government of the Philippines by means of force, violence,
deceit, subversion, or any other illegal means for the purpose
of establishing in the Philippines a totalitarian regime and
placing the government under the control and domination of
an alien power, by being an instructor in the Mao Tse Tung
University, the training school of recruits of the New
People's Army, the military arm of the said Communist Party
of the Philippines.
That in the commission of the above offense, the following
aggravating circumstances are present, to wit:
(a) That the crime has been committed in contempt of or
with insult to public authorities;
(b) That the crime was committed by a band; and afford
impunity.

(c) With the aid of armed men or persons who insure or

afford impunity.
Co moved to quash on the ground that the Anti-Subversion Act is a bill of
attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed with the
same court, sharing the respondent Nilo Tayag and five others with
subversion. After preliminary investigation was had, an information was
filed, which, as amended, reads:
The undersigned provincial Fiscal of Tarlac and State
Prosecutors duly designated by the Secretary of Justice to
collaborate with the Provincial Fiscal of Tarlac, pursuant to
the Order dated June 5, above entitled case, hereby accuse
Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR
GARCIA, RENATO (REY) CASIPE, ABELARDO
GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias
COMMANDER MELODY and several JOHN DOES,
whose identities are still unknown, for violation of
REPUBLIC ACT No. 1700, otherwise known as the AntiSubversion Law, committed as follows:
That in or about March 1969 and for sometime prior thereto
and thereafter, in the Province of Tarlac, within the
jurisdiction of this Honorable Court, and elsewhere in the
Philippines, the above-named accused knowingly, willfully
and by overt acts organized, joined and/or remained as
offices and/or ranking leaders, of the KABATAANG
MAKABAYAN, a subversive organization as defined in
Republic Act No. 1700; that BENJAMIN BIE and
COMMANDER MELODY, in addition thereto, knowingly,
willfully and by over acts joined and/or remained as a
member and became an officer and/or ranking leader not
only of the Communist Party of the Philippines but also of
the New People's Army, the military arm of the Communist
Party of the Philippines; and that all the above-named

accused, as such officers and/or ranking leaders of the

aforestated subversive organizations, conspiring,
confederating and mutually helping one another, did then
and there knowingly, willfully and feloniously commit
subversive and/or seditious acts, by inciting, instigating and
stirring the people to unite and rise publicly and
tumultuously and take up arms against the government,
and/or engage in rebellious conspiracies and riots to
overthrow the government of the Republic of the Philippines
by force, violence, deceit, subversion and/or other illegal
means among which are the following:
1. On several occasions within the province of Tarlac, the
accused conducted meetings and/or seminars wherein the
said accused delivered speeches instigating and inciting the
people to unite, rise in arms and overthrow the Government
of the Republic of the Philippines, by force, violence, deceit,
subversion and/or other illegal means; and toward this end,
the said accused organized, among others a chapter of the
KABATAANG MAKABAYAN in barrio Motrico, La Paz,
Tarlac for the avowed purpose of undertaking or promoting
an armed revolution, subversive and/or seditious
propaganda, conspiracies, and/or riots and/or other illegal
means to discredit and overthrow the Government of the
Republic of the Philippines and to established in the
Philippines a Communist regime.
2. The accused NILO TAYAG alias ROMY REYES alias
TABA, together with FRANCISCO PORTEM alias KIKO
Gonzales and others, pursued the above subversive and/or
seditious activities in San Pablo City by recruiting members
for the New People's Army, and/or by instigating and
inciting the people to organize and unite for the purpose of
overthrowing the Government of the Republic of the
Philippines through armed revolution, deceit, subversion
and/or other illegal means, and establishing in the
Philippines a Communist Government.

That the following aggravating circumstances attended the

commission of the offense: (a) aid of armed men or persons
to insure or afford impunity; and (b) craft, fraud, or disguise
was employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of the
statute on the grounds that (1) it is a bill of attainder; (2) it is vague; (3) it
embraces more than one subject not expressed in the title thereof; and (4) it
denied him the equal protection of the laws.
Resolving the constitutional issues raised, the trial court, in its resolution of
September 15, 1970, declared the statute void on the grounds that it is a bill
of attainder and that it is vague and overboard, and dismissed the
informations against the two accused. The Government appealed. We
resolved to treat its appeal as a special civil action for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of attainder
or ex port facto law shall be enacted." 2A bill of attainder is a legislative act
which inflicts punishment without trial. 3 Its essence is the substitution of a
legislative for a judicial determination of guilt. 4 The constitutional ban
against bills of attainder serves to implement the principle of separation of
powers 5 by confining legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the judicial
function. 7 History in perspective, bills of attainder were employed to
suppress unpopular causes and political minorities, 8 and it is against this evil
that the constitutional prohibition is directed. The singling out of a definite
class, the imposition of a burden on it, and a legislative intent, suffice to
stigmatizea statute as a bill of attainder. 9
In the case at bar, the Anti-Subversion Act was condemned by the court a
quo as a bill of attainder because it "tars and feathers" the Communist Party
of the Philippines as a "continuing menace to the freedom and security of the
country; its existence, a 'clear, present and grave danger to the security of the
Philippines.'" By means of the Act, the trial court said, Congress usurped "the
powers of the judge," and assumed "judicial magistracy by pronouncing the

guilt of the CCP without any of the forms or safeguards of judicial trial."
Finally, according to the trial court, "if the only issue [to be determined] is
whether or not the accused is a knowing and voluntary member, the law is
still a bill of attainder because it has expressly created a presumption of
organizational guilt which the accused can never hope to overthrow."
1. When the Act is viewed in its actual operation, it will be seen that it does
not specify the Communist Party of the Philippines or the members thereof
for the purpose of punishment. What it does is simply to declare the Party to
be an organized conspiracy for the overthrow of the Government for the
purposes of the prohibition, stated in section 4, against membership in the
outlawed organization. The term "Communist Party of the Philippines"
issued solely for definitional purposes. In fact the Act applies not only to the
Communist Party of the Philippines but also to "any other organization
having the same purpose and their successors." Its focus is not on individuals
but on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S. Federal
Labor-Management Reporting and Disclosure Act of 1959 11 which, in U.S.
vs. Brown, 12 was held to be a bill of attainder and therefore unconstitutional.
Section 504 provided in its pertinent parts as follows:
(a) No person who is or has been a member of the
Communist
Party ... shall serve
(1) as an officer, director, trustee, member of any executive
board or similar governing body, business agent, manager,
organizer, or other employee (other than as an employee
performing exclusively clerical or custodial duties) of any
labor organization.
during or for five years after the termination of his
membership in the Communist Party....

(b) Any person who willfully violates this section shall be

fined not more than $10,000 or imprisoned for not more than
one year, or both.
This statute specified the Communist Party, and imposes disability and
penalties on its members. Membership in the Party, without more, ipso
facto disqualifies a person from becoming an officer or a member of the
governing body of any labor organization. As the Supreme Court of the
United States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor
Management Reporting and Disclosure Act plainly
constitutes a bill of attainder. Congress undoubtedly
possesses power under the Commerce Clause to enact
legislation designed to keep from positions affecting
interstate commerce persons who may use of such positions
to bring about political strikes. In section 504, however,
Congress has exceeded the authority granted it by the
Constitution. The statute does not set forth a generally
applicable rule decreeing that any person who commits
certain acts or possesses certain characteristics (acts and
characteristics which, in Congress' view, make them likely to
initiate political strikes) shall not hold union office, and
leaves to courts and juries the job of deciding what persons
have committed the specified acts or possessed the specified
characteristics. Instead, it designates in no uncertain terms
the persons who possess the feared characteristics and
therefore cannot hold union office without incurring criminal
liability members of the Communist Party.
Communist Party v. Subversive Activities Control Board,
367 US 1, 6 L ed 2d 625, 81 S CT 1357, lend a support to
our conclusion. That case involved an appeal from an order
by the Control Board ordering the Communist Party to
register as a "Communist-action organization," under the
Subversive Activities Control Act of 1950, 64 Stat 987, 50
USC sec. 781 et seq. (1958 ed). The definition of

"Communist-action organization" which the Board is to

apply is set forth in sec. 3 of the Act:

existing Government by force deceit, and other illegal means and place the
country under the control and domination of a foreign power.

[A]ny organization in the United States ... which (i)is

substantially directed, dominated, or controlled by the
foreign government or foreign organization controlling the
world Communist movement referred to in section 2 of this
title, and(ii) operates primarily to advance the objectives of
such world Communist movement... 64 Stat 989, 50 USC
sec. 782 (1958 ed.)

As to the claim that under the statute organizationl guilt is nonetheless

imputed despite the requirement of proof of knowing membership in the
Party, suffice it to say that is precisely the nature of conspiracy, which has
been referred to as a "dragneet device" whereby all who participate in the
criminal covenant are liable. The contention would be correct if the statute
were construed as punishing mere membership devoid of any specific intent
to further the unlawful goals of the Party. 13 But the statute specifically
required that membership must be knowing or active, with specific intent to
further the illegal objectives of the Party. That is what section 4 means when
it requires that membership, to be unlawful, must be shown to have been
acquired "knowingly, willfully and by overt acts." 14 The ingredient of
specific intent to pursue the unlawful goals of the Party must be shown by
"overt acts." 15 This constitutes an element of "membership" distinct from the
ingredient of guilty knowledge. The former requires proof of direct
participation in the organization's unlawful activities, while the latter requires
proof of mere adherence to the organization's illegal objectives.

A majority of the Court rejected the argument that the Act

was a bill of attainder, reasoning that sec. 3 does not specify
the persons or groups upon which the deprivations setforth in
the Act are to be imposed, but instead sets forth a general
definition. Although the Board has determined in 1953 that
the Communist Party was a "Communist-action
organization," the Court found the statutory definition not to
be so narrow as to insure that the Party would always come
within it:
In this proceeding the Board had found, and the Court of
Appeals has sustained its conclusion, that the Communist
Party, by virtud of the activities in which it now engages,
comes within the terms of the Act. If the Party should at
anytime choose to abandon these activities, after it is once
registered pursuant to sec. 7, the Act provides adequate
means of relief. (367 US, at 87, 6 L ed 2d at 683)
Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally
unnecessary to charge Communists in court, as the law alone, without more,
would suffice to secure their punishment. But the undeniable fact is that their
guilt still has to be judicially established. The Government has yet to prove at
the trial that the accused joined the Party knowingly, willfully and by overt
acts, and that they joined the Party, knowing its subversive character and
with specific intent to further its basic objective, i.e., to overthrow the

2. Even assuming, however, that the Act specifies individuals and not
activities, this feature is not enough to render it a bill of attainder. A statute
prohibiting partners or employees of securities underwriting firms from
serving as officers or employees of national banks on the basis of a
legislative finding that the persons mentioned would be subject to the
temptation to commit acts deemed inimical to the national economy, has
been declared not to be a bill of attainder. 16 Similarly, a statute requiring
every secret, oath-bound society having a membership of at least twenty to
register, and punishing any person who becomes a member of such society
which fails to register or remains a member thereof, was declared valid even
if in its operation it was shown to apply only to the members of the Ku Klux
Klan. 17
In the Philippines the validity of section 23 (b) of the Industrial Peace
Act, 18 requiring labor unions to file with the Department of Labor affidavits
of union officers "to the effect that they are not members of the Communist
Party and that they are not members of any organization which teaches the

overthrow of the Government by force or by any illegal or unconstitutional

method," was upheld by this Court. 19
Indeed, it is only when a statute applies either to named individuals or to
easily ascertainable members of a group in such a way as to inflict
punishment on them without a judicial trial does it become a bill of
attainder. 20 It is upon this ground that statutes which disqualified those who
had taken part in the rebellion against the Government of the United States
during the Civil War from holding office, 21 or from exercising their
profession, 22 or which prohibited the payment of further compensation to
individuals named in the Act on the basis of a finding that they had engages
in subversive activities, 23 or which made it a crime for a member of the
Communist Party to serve as an officer or employee of a labor union, 24 have
been invalidated as bills of attainder.
But when the judgment expressed in legislation is so universally
acknowledged to be certain as to be "judicially noticeable," the legislature
may apply its own rules, and judicial hearing is not needed fairly to make
such determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature
passed a law requiring every secret, oath-bound society with a membership
of at least twenty to register, and punishing any person who joined or
remained a member of such a society failing to register. While the statute did
not specify the Ku Klux Klan, in its operation the law applied to the KKK
exclusively. In sustaining the statute against the claim that it discriminated
against the Ku Klux Klan while exempting other secret, oath-bound
organizations like masonic societies and the Knights of Columbus, the
United States Supreme Court relied on common knowledge of the nature and
activities of the Ku Klux Klan. The Court said:
The courts below recognized the principle shown in the
cases just cited and reached the conclusion that the
classification was justified by a difference between the two
classes of associations shown by experience, and that the
difference consisted (a) in a manifest tendency on the part of
one class to make the secrecy surrounding its purpose and

membership a cloak for acts and conduct inimical to

personal rights and public welfare, and (b) in the absence of
such a tendency on the part of the other class. In pointing out
this difference one of the courts said of the Ku Klux Klan,
the principal association in the included class: "It is a matter
of common knowledge that this organization functions
largely at night, its members disguised by hoods and gowns
and doing things calculated to strike terror into the minds of
the people;" and later said of the other class: "These
organizations and their purposes are well known, many of
them having been in existence for many years. Many of them
are oath-bound and secret. But we hear no complaint against
them regarding violation of the peace or interfering with the
rights of others." Another of the courts said: "It is a matter of
common knowledge that the association or organization of
which the relator is concededly a member exercises activities
tending to the prejudice and intimidation of sundry classes of
our citizens. But the legislation is not confined to this
society;" and later said of the other class: "Labor unions have
a recognized lawful purpose. The benevolent orders
mentioned in the Benevolent Orders Law have already
received legislative scrutiny and have been granted special
privileges so that the legislature may well consider them
beneficial rather than harmful agencies." The third court,
after recognizing "the potentialities of evil in secret
societies," and observing that "the danger of certain
organizations has been judicially demonstrated," meaning
in that state, said: "Benevolent orders, labor unions and
college fraternities have existed for many years, and, while
not immune from hostile criticism, have on the whole
justified their existence."
We assume that the legislature had before it such information
as was readily available including the published report of a
hearing, before a committee of the House of Representatives
of the 57th Congress relating to the formation, purposes and
activities of the Klu Klux Klan. If so it was advised

putting aside controverted evidence that the order was a

revival of the Ku Klux Klan of an earlier time with
additional features borrowed from the Know Nothing and
the A. P. A. orders of other periods; that its memberships was
limited to native-born, gentile, protestant whites; that in part
of its constitution and printed creed it proclaimed the widest
freedom for all and full adherence to the Constitution of the
United States; in another exacted of its member an oath to
shield and preserve "white supremacy;" and in still another
declared any person actively opposing its principles to be "a
dangerous ingredient in the body politic of our country and
an enemy to the weal of our national commonwealth;" that it
was conducting a crusade against Catholics, Jews, and
Negroes, and stimulating hurtful religious and race
prejudices; that it was striving for political power and
assuming a sort of guardianship over the administration of
local, state and national affairs; and that at times it was
taking into its own hands the punishment of what some of its
members conceived to be crimes.27
In the Philippines the character of the Communist Party has been the object
of continuing scrutiny by this Court. In 1932 we found the Communist Party
of the Philippines to be an illegal association. 28 In 1969 we again found that
the objective of the Party was the "overthrow of the Philippine Government
by armed struggle and to establish in the Philippines a communist form of
government similar to that of Soviet Russia and Red China." 29 More
recently, in Lansang vs. Garcia, 30 we noted the growth of the Communist
Party of the Philippines and the organization of Communist fronts among
youth organizations such as the Kabataang Makabayan (KM) and the
emergence of the New People's Army. After meticulously reviewing the
evidence, we said: "We entertain, therefore, no doubts about the existence of
a sizeable group of men who have publicly risen in arms to overthrow the
government and have thus been and still are engaged in rebellion against the
Government of the Philippines.
3. Nor is it enough that the statute specify persons or groups in order that it
may fall within the ambit of the prohibition against bills of attainder. It is also

necessary that it must apply retroactively and reach past conduct. This
requirement follows from the nature of a bill of attainder as a legislative
adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of
attainder was ... doubly objectionable because of its ex post factofeatures.
This is the historic explanation for uniting the two mischiefs in one
clause 'No Bill of Attainder or ex post facto law shall be passed.' ...
Therefore, if [a statute] is a bill of attainder it is also an ex post facto law. But
if it is not an ex post facto law, the reasons that establish that it is not are
persuasive that it cannot be a bill of attainder." 31
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court
upheld the validity of the Charter of the City of Los Angeles which provided:
... [N]o person shall hold or retain or be eligible for any
public office or employment in the service of the City of Los
Angeles, in any office or department thereof, either elective
or appointive, who has within five (5) years prior to the
effective date of this section advised, advocated, or taught, or
who may, after this section becomes effective, become a
member of or affiliated with any group, society, association,
organization or party which advises, advocates or teaches or
has within said period of five (5) years advised, advocated,
or taught the overthrow by force or violence of the
Government of the United States of America or of the State
of California.
In upholding the statute, the Court stressed the prospective application of the
Act to the petitioner therein, thus:
... Immaterial here is any opinion we might have as to the
charter provision insofar as it purported to apply
restrospectively for a five-year period to its effective date.
We assume that under the Federal Constitution the Charter
Amendment is valid to the extent that it bars from the city's
public service persons who, subsequently to its adoption in
1941, advise, advocate, or reach the violent overthrow of the
Government or who are or become affiliated with any group

doing so. The provisions operating thus prospectively were a

reasonable regulation to protect the municipal service by
establishing an employment qualification of loyalty to the
State and the United States.
... Unlike the provisions of the charter and ordinance under
which petitioners were removed, the statute in the Lovett
case did not declare general and prospectively operative
standards of qualification and eligibility for public
employment. Rather, by its terms it prohibited any further
payment of compensationto named individuals or
employees. Under these circumstances, viewed against the
legislative background, the statutewas held to have imposed
penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress thereby
assumed judicial magistracy, them it mustbe demonstrated that the statute
claimed to be a bill of attainderreaches past conduct and that the penalties it
imposesare inescapable. As the U.S. Supreme Court observedwith respect to
the U.S. Federal Subversive Activities ControlAct of 1950:
Nor is the statute made an act of "outlawry" or of attainderby
the fact that the conduct which it regulates is describedwith
such particularity that, in probability, few organizationswill
come within the statutory terms. Legislatures may act tocurb
behaviour which they regard as harmful to the public
welfare,whether that conduct is found to be engaged in by
manypersons or by one. So long as the incidence of
legislation issuch that the persons who engage in the
regulated conduct, bethey many or few, can escape
regulation merely by altering thecourse of their own present
activities, there can be no complaintof an attainder. 33
This statement, mutatis mutandis, may be said of theAnti-Subversion Act.
Section 4 thereof expressly statesthat the prohibition therein applies only to
acts committed"After the approval of this Act." Only those who
"knowingly,willfully and by overt acts affiliate themselves with,become or

remain members of the Communist Party of thePhilippines and/or its

successors or of any subversive association"after June 20, 1957, are
punished. Those whowere members of the Party or of any other subversive
associationat the time of the enactment of the law, weregiven the opportunity
of purging themselves of liability byrenouncing in writing and under oath
their membershipin the Party. The law expressly provides that such
renunciationshall operate to exempt such persons from penalliability. 34 The
penalties prescribed by the Act are thereforenot inescapable.
III. The Act and the Requirements of Due Process
1. As already stated, the legislative declaration in section 2 of the Act that the
Communist Party of the Philippinesis an organized conspiracy for the
overthrow of theGovernment is inteded not to provide the basis for a
legislativefinding of guilt of the members of the Party butrather to justify the
proscription spelled out in section 4. Freedom of expression and freedom of
association are sofundamental that they are thought by some to occupy
a"preferred position" in the hierarchy of constitutional values. 35 Accordingly,
any limitation on their exercise mustbe justified by the existence of a
substantive evil. This isthe reason why before enacting the statute in question
Congressconducted careful investigations and then stated itsfindings in the
preamble, thus:
... [T]he Communist Party of the Philippines
althoughpurportedly a political party, is in fact an organized
conspiracyto overthrow the Government of the Republic of
the Philippinesnot only by force and violence but also by
deceit, subversionand other illegal means, for the purpose of
establishing in thePhilippines a totalitarian regime subject to
alien dominationand control;
... [T]he continued existence and activities of the
CommunistParty of the Philippines constitutes a clear,
present andgrave danger to the security of the Philippines;
... [I]n the face of the organized, systematice and
persistentsubversion, national in scope but international in

direction,posed by the Communist Party of the Philippines

and its activities,there is urgent need for special legislation to
cope withthis continuing menace to the freedom and security
of the country.
In truth, the constitutionality of the Act would be opento question if, instead
of making these findings in enactingthe statute, Congress omitted to do so.
In saying that by means of the Act Congress has assumed judicial magistracy,
the trial courd failed to takeproper account of the distinction
between legislative fact and adjudicative fact. Professor Paul Freund
elucidatesthe crucial distinction, thus:
... A law forbidding the sale of beverages containingmore
than 3.2 per cent of alcohol would raise a question of
legislativefact, i.e., whether this standard has a reasonable
relationto public health, morals, and the enforcement
problem. Alaw forbidding the sale of intoxicating beverages
(assuming itis not so vague as to require supplementation by
rule-making)would raise a question of adjudicative fact, i.e.,
whether thisor that beverage is intoxicating within the
meaning of the statuteand the limits on governmental action
imposed by the Constitution. Of course what we mean by
fact in each case is itselfan ultimate conclusion founded on
underlying facts and oncriteria of judgment for weighing
them.
A conventional formulation is that legislative facts those
facts which are relevant to the legislative judgment will
not be canvassed save to determine whether there is a
rationalbasis for believing that they exist, while
adjudicativefacts those which tie the legislative enactment
to the litigant are to be demonstrated and found according
to the ordinarystandards prevailing for judicial trials. 36
The test formulated in Nebbia vs. new York, 37 andadopted by this Court
in Lansang vs. Garcia, 38 is that 'if laws are seen to have a reasonable relation

to a proper legislative purpose, and are neither arbitrary nor discriminatory,

the requirements of due process are satisfied, and judicial determination to
that effect renders a court functus officio." The recital of legislative findings
implements this test.
With respect to a similar statement of legislative findingsin the U.S. Federal
Subversive Activities Control Actof 1950 (that "Communist-action
organizations" are controlledby the foreign government controlling the
worldCommunist movement and that they operate primarily to"advance the
objectives of such world Communist movement"),the U.S. Supreme Court
said:
It is not for the courts to reexamine the validity of
theselegislative findings and reject them....They are the
productof extensive investigation by Committes of Congress
over morethan a decade and a half. Cf. Nebbia v. New York,
291 U.S.502, 516, 530. We certainly cannot dismiss them as
unfoundedirrational imaginings. ... And if we accept them, as
we mustas a not unentertainable appraisal by Congress of the
threatwhich Communist organizations pose not only to
existing governmentin the United States, but to the United
States as asovereign, independent Nation. ...we must
recognize that thepower of Congress to regulate Communist
organizations of thisnature is
extensive. 39
This statement, mutatis mutandis, may be said of thelegislative findings
articulated in the Anti-Subversion Act.
That the Government has a right to protect itself againstsubversion is a
proposition too plain to require elaboration.Self-preservation is the "ultimate
value" of society. It surpasses and transcendes every other value, "forif a
society cannot protect its very structure from armedinternal attack, ...no
subordinate value can be protected" 40 As Chief Justice Vinson so aptly said
in Dennis vs. United States: 41

Whatever theoretical merit there may be to the argumentthat

there is a 'right' to rebellion against dictatorial governmentsis
without force where the existing structure of government
provides for peaceful and orderly change. We rejectany
principle of governmental helplessness in the face of
preparationfor revolution, which principle, carried to its
logical conclusion,must lead to anarchy. No one could
conceive that it isnot within the power of Congress to
prohibit acts intended tooverthrow the government by force
and violence.
2. By carefully delimiting the reach of the Act to conduct (as explicitly
described in sectin 4 thereof), Congressreaffirmed its respect for the rule that
"even throughthe governmental purpose be legitimate and substantial,that
purpose cannot be pursued by means that broadly stiflefundamental personal
liberties when the end can be more narrowly achieved." 42 The requirement
of knowing membership,as distinguished from nominalmembership, hasbeen
held as a sufficient basis for penalizing membershipin a subversive
organization. 43 For, as has been stated:
Membership in an organization renders aid and
encouragement to the organization; and when membership is
acceptedor retained with knowledge that the organization is
engaged inan unlawful purpose, the one accepting or
retaining membershipwith such knowledge makes himself a
party to the unlawfulenterprise in which it is engaged. 44
3. The argument that the Act is unconstitutionallyoverbroad because section
2 merely speaks of "overthrow"of the Government and overthrow may be
achieved by peaceful means, misconceives the function of the
phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is
merely a legislative declaration; the definitionsof and the penalties prescribed
for the different acts prescribedare stated in section 4 which requires that
membershipin the Communist Party of the Philippines, to be unlawful, must
be acquired "knowingly, willfully and by overt acts." Indeed, the first
"whereas" clause makes clear thatthe overthrow contemplated is "overthrow
not only by forceand violence but also be deceit, subversion and other

illegalmeans." The absence of this qualificatio in section 2 appearsto be due

more to an oversight rather than to deliberateomission.
Moreover, the word "overthrow' sufficiently connotesthe use of violent and
other illegal means. Only in a metaphoricalsense may one speak of peaceful
overthrow ofgovernments, and certainly the law does not speak in
metaphors.In the case of the Anti-Subversion Act, the use ofthe word
"overthrow" in a metaphorical sense is hardlyconsistent with the clearly
delineated objective of the "overthrow,"namely, "establishing in the
Philippines a totalitarianregime and place [sic] the Government under
thecontrol and domination of an alien power." What thisCourt once said in a
prosecution for sedition is appropos: "The language used by the appellant
clearly imported anoverthrow of the Government by violence, and it should
beinterpreted in the plain and obvious sense in which it wasevidently
intended to be understood. The word 'overthrow'could not have been
intended as referring to an ordinarychange by the exercise of the elective
franchise. The useof the whip [which the accused exhorted his audience to
useagainst the Constabulary], an instrument designed toleave marks on the
sides of adversaries, is inconsistentwith the mild interpretation which the
appellant wouldhave us impute to the language."45
IV. The Act and the Guaranty of Free Expression
As already pointed out, the Act is aimed against conspiracies to overthrow
the Government by force, violence orother illegal means. Whatever interest
in freedom of speechand freedom of association is infringed by the
prohibitionagainst knowing membership in the Communist Party ofthe
Philippines, is so indirect and so insubstantial as to beclearly and heavily
outweighed by the overriding considerationsof national security and the
preservartion of democraticinstitutions in his country.
The membership clause of the U.S. Federal Smith Actis similar in many
respects to the membership provision ofthe Anti-Subversion Act. The former
provides:
Whoever organizes or helps or attempts to organize
anysociety, group, or assembly of persons who teach,

advocate, orencourage the overthrow or destruction of any

such governmentby force or violence; or becomes or is a
member of, or affiliatedwith, any such society, group or
assembly of persons, knowingthe purpose thereof
Shall be fined not more than $20,000 or imprisoned notmore
than twenty years, or both, and shall be ineligible for
emplymentby the United States or any department or
agencythereof, for the five years next following his
conviction.... 46
In sustaining the validity of this provision, the "Court said in Scales vs.
United States: 47
It was settled in Dennis that advocacy with which we arehere
concerned is not constitutionally protected speech, and itwas
further established that a combination to promote
suchadvocacy, albeit under the aegis of what purports to be a
politicalparty, is not such association as is protected by the
firstAmendment. We can discern no reason why
membership, whenit constitutes a purposeful form of
complicity in a group engagingin this same forbidden
advocacy, should receive anygreater degree of protection
from the guarantees of that Amendment.
Moreover, as was held in another case, where the problemsof
accommodating the exigencies of self-preservationand the values of liberty
are as complex and intricate as inthe situation described in the legislative
findings stated inthe U.S. Federal Subversive Activities Control Act of
1950,the legislative judgment as to how that threat may best bemet
consistently with the safeguards of personal freedomsis not to be set aside
merely because the judgment of judgeswould, in the first instance, have
chosen other methods. 48 For in truth, legislation, "whether it restrains
freedom tohire or freedom to speak, is itself an effort at compromisebetween
the claims of the social order and individual freedom,and when the
legislative compromise in either case isbrought to the judicial test the court
stands one step removedfrom the conflict and its resolution through law." 49

V. The Act and its Title

The respondent Tayag invokes the constitutional commandthat "no bill which
may be enacted into law shall embrace more than one subject which shall be
expressed in the title of the bill." 50
What is assailed as not germane to or embraced in thetitle of the Act is the
last proviso of section 4 which reads:
And provided, finally, That one who conspires with anyother
person to overthrow the Government of the Republic ofthe
Philippines, or the government of any of its political
subdivisionsby force, violence, deceit, subversion or illegal
means,for the purpose of placing such Government or
political subdivisionunder the control and domination of any
lien power, shallbe punished by prision
correccional to prision mayor with allthe accessory penalties
provided therefor in the same code.
It is argued that the said proviso, in reality, punishes notonly membership in
the Communist Party of the Philippinesor similar associations, but as well
"any conspiracyby two persons to overthrow the national or any local
governmentby illegal means, even if their intent is not to establisha
totalitarian regime, burt a democratic regime, evenif their purpose is not to
place the nation under an aliencommunist power, but under an alien
democratic power likethe United States or England or Malaysia or even an
anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist Party
of the Philippines and SimilarAssociations, Penalizing Membership Therein,
and forOther Purposes"), has a short title. Section 1 providesthat "This Act
shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the
statuteunequivocally indicates that the subject matter is subversionin general
which has for its fundamental purpose the substitutionof a foreign totalitarian
regime in place of theexisting Government and not merely subversion by
Communistconspiracies..

The title of a bill need not be a catalogue or an indexof its contents, and need
not recite the details of the Act. 51 It is a valid title if it indicates in broad but
clear termsthe nature, scope, and consequences of the proposed lawand its
operation. 52 A narrow or technical construction isto be avoided, and the
statute will be read fairly and reasonablyin order not to thwart the legislative
intent. We holdthat the Anti-Subversion Act fully satisfies these
requirements.

ACCORDINGLY, the questioned resolution of September15, 1970 is set

aside, and these two cases are herebyremanded to the court a quo for trial on
the merits. Costs de oficio.

VI. Conclusion and Guidelines

Makasiar and Antonio, JJ., took no part.

In conclusion, even as we uphold the validity of theAnti-Subversion Act, we

cannot overemphasize the needfor prudence and circumspection in its
enforcement, operatingas it does in the sensitive area of freedom of
expressionand belief. Accordingly, we set the following basic guidelines to
be observed in any prosecution under the Act.The Government, in addition to
proving such circumstancesas may affect liability, must establish the
following elementsof the crime of joining the Communist Party of the
Philippinesor any other subversive association:
(1) In the case of subversive organizations other thanthe Communist Party of
the Philippines, (a) that thepurpose of the organization is to overthrow the
presentGovernment of the Philippines and to establish in thiscountry a
totalitarian regime under the domination of aforeign power; (b) that the
accused joined such organization;and (c) that he did so knowingly, willfully
and byovert acts; and
(2) In the case of the Communist Party of the Philippines,(a) that the CPP
continues to pursue the objectiveswhich led Congress in 1957 to declare it to
be an organizedconspiracy for the overthrow of the Government by
illegalmeans for the purpose of placing the country under thecontrol of a
foreign power; (b) that the accused joined theCPP; and (c) that he did so
willfully, knowingly and byovert acts.
We refrain from making any pronouncement as to thecrime or remaining a
member of the Communist Party ofthe Philippines or of any other subversive
association: weleave this matter to future determination.

Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.

Concepcion, C.J., concurs in the result.

Separate Opinions

FERNANDO, J., dissenting:

It is with regard that I find myself unable to join therest of my brethren in the
decision reached upholding thevalidity of the Anti-Subversion Act. 1 It is to
be admittedthat the learned and scholarly opinbion of Justice Castro hasthe
impress of conscientious and painstaking scrutiny ofthe constitutional issues
raised. What is more, the stressin the concluding portion thereof on basic
guidelines thatwill assure in the trial of those prosecuted under suchAct
respect for their constitutional rights is to be commended.Nonetheless, my
own reading of the decisionscited, interpreting the bill of attainder
clause 2 coupled withthe fears, perhaps induced by a too-latitudinarian
constructionof the guarantees of freedom of belief and expression 3 as well as
freedom of association 4 as to impermissible inroadsto which they may be
exposed, compels a differentconclusion. Hence this dissent.
1. There is to be sure no thought on my part that theequally pressing concern
of state safety and security shouldbe ignored. The political branches of the

governmentwould lay themselves oepn to a justifiable indictment

fornegligence had they been remiss in their obligation tosafeguard the nation
against its sworn enemies. In a simplerera, where the overthrow of the
government wasusually through the rising up in arms, with weapons farless
sophisticated than those now in existence, there wasno constitutional issue of
the magnitude that now confrontsus. Force has to be met with force. It was as
clearcutas that. Advances in science as well as more subtlemethods of
inducing disloyalty and weakening the senseof allegiance have introduced
complexities in coping withsuch problems. There must be then, and I am the
firstto recognize it, a greater understanding for the governmentalresponde to
situations of that character. It is inthat light that the validity of the AntiSubversion Act isto be appraised. From ny standpoint, and I am not
presumptuousenough to claim that it is the only perspectiveor that is the most
realistic, I feel that there was an insufficientappreciation of the compulsion of
the constitutionalcommands against bills of attainder and abridgmentof free
speech. I am comforted by the thought that evenhad my view prevailed, all
that it would mean is that anew legislation, more in comformity to my way of
thinkingto what is ordained by the fundamental law, wouldhave to be
enacted. No valid fear need be entertained thenthat a setback would be
occasioned to legitilate state effortsto stem the tide of subversive activities, in
whateverform manifested.
2. The starting point in any inquiry as to the significanceof the bill of
attainder clause is the meaning attachedto it by the Constitutional Convention
of 1934 and by the people who adopted it. As was explained by the then
Delegate, later Justice, Jose P. Laurel in his address on November19, 1934 as
Chairman of the Committee on the Bill of Rights quoted in the opinion of the
Court: "A billof attainder is a legislative act which inflicts punishment
without judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356).
In England, the Bill of Attainder was an act of Parliament by which a man
was tried, convictedand sentenced to death without a jury, without ahearing
in court, without hearing the witnesses againsthim and without regard to the
rules of evidence. His bloodwas attainted or corrupted, rendering him devoid
of allheritable quality of acquiring and disposing property bydescent. (Ex
parte Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less
than death, the act wasknown as a 'bill of pains and penalties.' Bills of
attainder, like ex post facto laws, were favorite methods of Stuartoppression.

Once, the name of Thomas Jefferson was includedin a bill of attainder

presented to Parliament becauseof his reform activities." 5 Two American
SupremeCourt decision were thus in the minds of the framers.They are
Cummings v. Missouri 6 and Ex parte Garland. 7 They speak unequivocally.
Legislative acts, no matter whattheir form, that apply either to named
individuals or easilyascertainable members of a group in such a way as to
inflicton them punishment amounting to a deprivation ofany right, civil or
political, without judicial trial are billsof attainder prohibited by the
Constitution. 8
Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for
refusing to take the loyalty oath requiredby the state Constitution of Missouri
of 1865. Undersuch a provision, lawyers, doctors, ministers, and
otherprofessionals must disavow that they had ever, "by act orword,"
manifested a "desire" for the success of the nation'senemies or a sympathy"
with the rebels of the AmericanCivil War. If they swore falsely, they were
guilty of perjury.If they engaged in their professions without theoath, they
were criminally liable. The United States Supreme Court condemned the
provision as a bill of attainder,identified as any legislative act inflicting
punishment withoutjudicial trial. The deprivation of any right, civil
orpolitical, previously enjoyed, amounted to a punishment.Why such a
conclusion was unavoidable was explained inthe opinion of Justice Field
thus: "A bill of attainder isa legislative act, which inflicts punishment without
a judicialtrial. If the punishment be less than death, the actis termed a bill of
pains and penalties. Within the meaningof the Constitution, bills of attainder
include bills ofpains and penalties. In these cases the legislative body,
inaddition to its legitimate functions, exercises the powersand office of
judge; it assumes, in the language of thetextbooks, judicial magistracy; it
pronounces upon theguilt of the party, without any of the forms or
safeguardsof trial; it determines the sufficiency of the proofs
produced,whether conformable to the rules of evidence orotherwise; and it
fixes the degree of punishment in accordancewith its own notions of the
enormity of the offense. ... If the clauses of the 2d article of the
Constitutionof Missouri, to which we have referred, had in termsdeclared
that Mr. Cummings was guilty, or should be heldguilty, of having been in
armed hostility to the UnitedStates, or of having entered that state to avoid
beingenrolled or drafted into the military service of the UnitedStates, and,

therefore, should be deprived of the right topreach as a priest of the Catholic

church, or to teach inany institution of learning, there could be no question
thatthe clauses would constitute a bill of attainder within themeaning of the
Federal Constitution. If these clauses, insteadof mentioning his name, had
declared that all priestsand clergymen within the state of Missouri were
guiltyof these acts, or should be held guilty of them, and hencebe subjected
to the like deprivation, the clause would beequally open to objection. And
further, it these clauseshad declared that all such priests and clergymen
shouldbe so held guilty, and be thus deprived, provided they didnot, by a day
designated, do certain specified acts, theywould be no less within the
inhibition of the Federal Constitution.In all these cases there would be the
legislativeenactment creating the deprivation, without any of theordinary
forms and guards provided for the security ofthe citizen in the administration
of justice by the establishedtribunales." 10
On the very same day that the ruling in Cummings washanded down, Ex
parte Garland 11 was also decided. Thatwas a motion for leave to practrice as
an attorney beforethe American Supreme Court. Petitioner Garland
wasadmitted to such bar at the December term of 1860. Underthe previous
rules of such Court, all that was necessarywas that the applicant have three
years practice in the statecourts to which he belonged. In March 1865, the
rule waschanged by the addition of a clause requiring that an oathbe taken
under the Congressional acts of 1862 and 1865to the effect that such
candidate for admission to the barhad never voluntarily borne arms against
the UnitedStates. Petitioner Garland could not in conscience subscribeto such
an oath, but he was able to show a presidentialpardon extended on July 15,
1865. With such actof clemency, he moved that he be allowed to continue
inpractice contending that the test oath requirement wasunconstitutional as a
bill of attainder and that at any rate,he was pardoned. The same ruling was
announced by theCourt again through Justice Field. Thus: "In the
exclusionwhich the statute adjudges, it imposes a punishmentfor some of the
acts specified which were not punishableat the time they were committedl;
and for other of the actsit adds a new punishment to that before prescribed,
andit is thus brought within the further inhibition of the Consitutionagainst
the passage of an ex post facto law. Inthe case of Cummings v. Missouri, just
decided, ... wehave had occasion to consider at length the meaning of abill of
attainder and of an ex post facto law in the clauseof the Constitution

forbidding their passage by the states,and it is unnecessary to repeat here

what we there said.A like prohibition is contained in the Constitution
againstenactments of this kind by Congress; and the argumentpresented in
that case against certain clauses of the Constitutionof Missouri is equally
applicable to the act ofCongress under consideration in this case." 12
There was a reiteration of the Cummings and Garlanddoctrine in United
States v. Lovett, 13 decided in 1946.There it was shown that in 1943 the
respondents, Lovett,Watson, and Dodd, were and had been for several
yearsworking for the government. The government agencies,which had
lawfully employed them, were fully satisfiedwith the quality of their work
and wished to keep thememployed on their jobs. Over their protest, Congress
providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943,
by way of an amendment attached to theHouse Bill, that after November 15,
1943, no salary orcompensation should be paid respondent out of any
moneythen or thereafter appropriated except for services as jurorsor members
of the armed forces, unless they wereprior to November 15, 1943, again
appointed to jobs bythe President with the advide and consent of the
Senate.Notwithstanding such Congressional enactment, and thefailure of the
President to reappoint the respondents, theagencies, kept all the respondents
at work on their jobs forvarying periods after November 15, 1943, but their
compensationwas discontinued after that date. Respondentsbrought this
action in the Court of Claims for the salariesto which they felt entitled. The
Ameican Supreme Courtstated that its inquiry was thus confined to whether
theaction in the light of proper construction of the Act presenteda justificiable
controversy, and, if so, whether Section304 is a bill of attainder insofar as the
respondents wereconcerned.
After holding that there was a juditiciable, view theAmerican Supreme Court
in an opinion by Justice Blackcategorically affirmed: "We hold that Section
304 fallsprecisely within the category of Congressional actionswhich the
Constitution barred by providing that 'No Billof Attainder or ex post Law
shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill
of attainder is a legislative act which inflicts punishmentwithout a judicial
trial. If the punishment be lessthan death, the act is termed a bill of pains and
penalties.Within the meaning of the Constitution, bills of attainderinclude
bills of pains and penalties.' ... On the sameday the Cummings case was

decided, the Court, in Exparte Garland, also held invalid on the same grounds
anAct of Congress which required attorneys practicing beforethis Court to
take a similar oath. Neither of thesecases has ever been overruled. They stand
for the propositionthat legislative acts, no matter what their form,that apply
either to named individuals or to easily ascertainablemembers of a group in
such a way as to inflictpunishment on them without a judicial trial are billsof
attainder prohibited by the Constitution. Adherenceto this principle requires
invalidation of Section 304. Wedo adhere to it." 14
United States v. Brown 15 a 1965 decision was the firstcase to review a
conviction under the Labor-ManagementReporting and Disclosure Act of
1959, making it a crimefor a member of the Communist Party to serve as
anofficer ir, except in clerical or custodial positions, anemployee of a labor
union. Respondent Brown, a longshoremanon the San Francisco docks, and
an open andavowed Communist, for more than a quarter of a centurywas
elected to the Executive Board of Local 10 of theInternational
Longshoremen's and Warehousemen's Unionfor consecutive one-year terms
in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a onecountindictment returned in a district court of California withservicing as a
member of an executive board of a labororganization while a member of the
Communist Party, inwillful violation of the above provision. The question
ofits validity under the bill of attainder clause was thusproperly raised for
adjudication. While convicted in thelower court, the Court of Appeals for the
Ninth Circuitreversed. It was sustained by the American SupremeCourt. As
noted in the opinion by Chief Justice Warren,"the wide variation in form,
purpose and effect of ante-Constitutionbills of attainder indicates that the
properscope of the Bill of Attainder Clause, and its relevance tocontemporary
problems, must ultimately be sought by attemptingto discern the reasons for
its inclusion in theConstitution, and the evils it was desinged to eliminate.The
best available evidence, the writings of the architectsof our constitutional
system, indicates that the Bill ofAttainder Clause was inteded not as a
narrow, technical(and therefore soon to be outmoded) prohibition, but
ratheras an implementation of the separation of powers, ageneral safeguard
against legislative exercise of the judicialfunction, or more simply trial by
legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief
Justice Warren continued: "Under the line of casesjust outlined, Sec. 504 of
the Labor Management Reportingand Disclosure Act plainly constitutes a bill

of attainder. Congress undoubtedly possesses power under theCommerce

Clause to enact legislation designed to keepfrom positions affecting interstate
commerce persons whomay use such positions to bring about political
strikes. In Sec. 504, however, Congress has exceeded the authoritygranted it
by the Constitution. The statute does not setforth a generally applicable rule
decreeing that any personwho commits certain acts or possesses certain
characteristics (acts and characteristics whhich, in Congress'view, make them
likely to initiate political strikes) shallnot hold union office, and leave to
courts and juries thejob of deciding what persons have committed the
specifiedacts or possessed the specified characteristics. Instead,it designates
in no uncertain terms the personswho possess the fearec characteristics and
therefore cannothold union office without incurring criminal liability
members of the Communist Party." 17
Even Communist Party v. Subversive Activities ControlBoard, 18 where the
provision of the Subversive ActivitiesControl Act of 1950 requiring the
Communist Party ofthe United States to register was sustained, the opinionof
Justice Frankfurter for the Court, speaking for a five-manmajority, did
indicate adherence to the Cummingsprinciple. Had the American Communist
Party been outlawed,the outcome certainly would have been different.Thus:
"The Act is not a bill of attainder. It attaches notto specified organizations but
to described activities inwhich an organization may or may not engage. The
singlingout of an individual for legislatively prescribed
punishmentconstitutes an attainder whether the individualis called by name
or described in terms of conduct which,because it is past conduct, operates
only as a designationof particular persons. ... The Subversive Activities
ControlAct is not of that king. It requires the registrationonly of
organizations which, after the date of the Act,are found to be under the
direction, domination, or controlof certain foreign powers and to operate
primarily toadvance certain objectives. This finding must be madeafter full
administrative hearing, subject to judicial reviewwhich opens the record for
the reviewing court'sdetermination whether the administrative findings as
tofact are supported by the preponderance of the evidence.Present activity
constitutes an operative element to whichthe statute attaches legal
consequences, not merely a pointof reference for the ascertainment of
particularly personsineluctably designated by the legislature." 19

The teaching of the above cases, which I find highlypersuasive considering

what appeared to be in the mindsof the framers of the 1934 Constitutional
Conventionyields for me the conclusion that the Anti-SubversionAct falls
within the ban of the bill of attainder clause. Itshould be noted that three
subsequent cases upholding theCummings and Garland doctrine were
likewise cited in theopinion of the Court. The interpretation accorded to
themby my brethren is, of course, different but I am unable togo along with
them especially in the light of the categoricallanguage appearing in Lovett.
This is not to lose sightof the qualification that for them could deprive such
aholding of its explicit character as shown by this excerptfrom the opinion of
the Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would
be totally unnecessaryto charge communists in court, as the law
alone,without more, would suffice to secure their conviction andpunishment.
But the fact is that their guilt still has to bejudicially estblished. The
Government has yet to proveat the trial that the accused joined the Party
knowingly,willfully and by overt acts, and that they joined the Partyknowing
its subversive character and with specific intentto further its objective, i.e., to
overthrow the existing Governmentby force, deceit, and other illegal means
and placeit under the control and domination of a foreign power. 20While not
implausible, I find difficulty in yielding acceptance.In Cummings, there was
a criminal prosecution ofthe Catholic priest who refused to take the loyalty
oath.Again in Brown, there was an indictment of the laborleader who,
judging by his membership in the CommunistParty, did transgress the
statutory provision subsequentlyfound offensive to the bill attainder clause. If
the constructionI would place on theoff-repeated pronouncementof the
American Supreme Court is correct, then the merefact that a criminal case
would have to be instituted wouldnot save the statute. It does seem clear to
me that fromthe very title of the Anti-Subversion Act, "to outlaw the
Communist Party of the Philippines and similar associations,"not to mention
other specific provisions, the taintof invalidity is quite marked. Hence, my
inability to concurin the judgment reached as the statute not suffering
fromany fatal infirmity in view of the Constitutional prohibitionagainst bills
of attainder.
3. This brings me to the question of the alleged repugnancyof the AntiSubversion Act to the intellectual libertysafeguarded by the Constitution in
terms of the free speechand free assocition guarantees. 21 It is to be admitted

thatat the time of the enactment of Republic Act No. 1700,the threat that
Communism, the Russian brand then, didpose was a painful reality for
Congressional leaders andthe then President. Its shadow fell squarely across
thelives of all. Subversion then could neither be denied notdisparaged. There
was, in the expert opinion of those conversantwith such mattes, a danger to
out national existenceof no mean character. Nonetheless, the remedies toward
off such menace must not be repugnant to our Constitution.We are legally
precluded from acting in anyother way. The apprehension justly felt is no
warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to
be, but not at the expense of constitutional ideals.
One of them, certainly highly-prized of the utmost significance,is the right to
dissent. One can differ, evenobject; one can express dissatisfaction with
things as theyare. There are timew when one not only can but must.Such
dissent can take the form of the most critical andthe most disparaging
remarks. They may give offense tothose in authority, to those who wield
powe and influence.Nevertheless, they are entitled to constitutional
protection.Insofar as the content of such dissent is concerned, thelimits are
hardly discernible. It cannot be confined totrivial matters or to such as are
devoid of too much significance.It can reach the heart of things. Such
dissentmay, for those not so adventurous in the realm of ideas,possess a
subversive tinge. Even those who oppose a democraticform of government
cannot be silenced. This is trueespecially in centers of learning where
scholars competentin their line may, as a result of their studies, assert thata
future is bleak for the system of government now favoredby Western
democracies. There may be doubts entertainedby some as to the lawfulness
of their exercisingthis right to dissent to the point of advocary of such
adrastic change. Any citizen may do so without fear thatthereby he incurs the
risk of a penal sanction. That ismerely to affirm the truth of this ringing
declaration fromJefferson: "If there be any among us who would wish
todissolve this union or to change its republican form, letthem stand
undisturbed as monuments of the safety withwhich error of opinion may be
tolerated where reason isleft free to combat it." 22 As was so well put by the
philosopher,Sidney Hook: "Without holding the right to theexpression of
heresy at any time and place to be absolute for even the right to nonheretical speech cannot beabsolute it still seems wise to tolerate the
expression evenof Communist, fascist and other heresies, lest in

outlawingthem we include other kings of heresies, and deprive ourselvesof

the opportunity to acquite possibly sounder ideasthan our own." 23
The line is to be drawn, however, where the wordsamount to an incitement to
commit the crime of seditionor rebellion. The state has been reached, to
follow theformulation of Cardozo, where thought merges into action.Thus is
loyalty shown to the freedom of speech or pressordained by the Constitution.
It does not bar the expressionof views affecting the very life of the state, even
ifopposed to its fundamental presuppositions. It allows, ifit does not require
as a matter of fact, that unorthodoxideas be freely ventilated and fully heard.
Dissent is notdisloyalty.
Such an approach is reinforced by the well-settled constitutionalprinciple
"that even though the governmental purposesbe legitimate and substantial,
they cannot be pursuedby means that broadly stifle fundamental
personalliberties when the end can be more narrowly achieved.For precision
of regulation is the touchstone in an areaso closely related to our most
precious freedoms." 24 This is so for "a governmental purpose to control or
prevent activities constitutionally subject to state regulation may notbe
achieved by means which sweep unnecessarily broadlyand thereby invade
the area of protected freedoms." 25 It isindispensable then that "an over
breadth" in the applicabilityof the statute be avoided. If such be the case, then
theline dividing the valid from the constitutionally infirm hasbeen crossed.
That for me is the conclusion to be drawnfrom the wording of the AntiSubversion Act.
There is to my mind support for the stand I take inthe dissent of Justice Black
in the Communist Party casediscussed above. What is to be kept in view is
that a legislativemeasure certainly less drastic in its treatment ofthe
admittedly serious Communist problem was found inthe opinion of this noted
jurist offensive to the FirstAmendment of the American Constitution
safeguardingfree speech. Thus: "If there is one thing certain aboutthe First
Amendment it is that this Amendment was designedto guarantee the freest
interchange of ideas aboutall public matters and that, of course, means the
interchangeof all ideas, however such ideas may be viewed inother countries
and whatever change in the existing structureof government it may be hoped
that these ideas willbring about. Now, when this country is trying to

spreadthe high ideals of democracy all over the world ideals that are
revolutionary in many countries seems to be aparticularly inappropriate
time to stifle First Amendmentfreedoms in this country. The same arguments
that areused to justify the outlawry of Communist ideas here couldbe used to
justify an outlawry of the ideas of democracyin other countries." 26 Further he
stated: "I believe with theFramers of the First Amendment that the internal
securityof a nation like ours does not and cannot be made todepend upon the
use of force by Government to make allthe beliefs and opinions of the people
fit into a commonmold on any single subject. Such enforced conformity
ofthought would tend only to deprive our people of the boldspirit of
adventure and progress which has brought thisNation to its present greatness.
The creation of publicopinion by groups, organizations, societies, clubs, and
partieshas been and is a necessary part of our democraticsociety. Such
groups, like the Sons of Liberty and theAmerican Corresponding Societies,
played a large part increating sentiment in this country that led the people
ofthe Colonies to want a nation of their own. The Father ofthe Constitution
James Madison said, in speakingof the Sedition Act aimed at crushing
the Jefferson Party,that had that law been in effect during the period
beforethe Revolution, the United States might well have continuedto be
'miserable colonies, groaning under a foreign yoke.'In my judgment, this
country's internal security can betterbe served by depending upon the
affection of the peoplethan by attempting to instill them with fear and
dreadof the power of Government. The Communist Party hasnever been
more than a small group in this country. Andits numbers had been dwindling
even before the Governmentbegan its campaign to destroy the Party by force
oflaw. This was because a vast majority of the Americanpeople were against
the Party's policies and overwhelminglyrejected its candidates year after year.
That is the trueAmerican way of securing this Nation against dangerousideas.
Of course that is not the way to protect the Nationagainst actions of violence
and treason. The Foundersdrew a distinction in our Constitution which we
would bewise to follow. They gave the Government the fullest powerto
prosecute overt actions in violation of valid lawsbut withheld any power to
punish people for nothing morethan advocacy of their views." 27
With the sentiments thus expressed uppermost in mymind and congenial to
my way of thinking, I cannot sharethe conclusion reached by my breathren as

to the Anti-Subversion Act successfully meeting the test of validity onfree

speech and freedom of association grounds.
4. It could be that this approach to the constitutionalquestions involved arises
from an appraisal of the challengedstatute which for me is susceptible of an
interpretationthat it does represent a defeatist attitude on thepart of those of
us, who are devotees at the shrine of aliberal-democratic state. That certainly
could not havebeen the thought of its framers; nonetheless, such an
assumptionis not devoid of plausibility for why resort tothis extreme measure
susceptible as it is to what apparentlyare not unfounded attacks on
constitutional grounds?Is this not to ignore what previously was accepted as
anobvious truth, namely that the light of liberalism sendsits shafts in many
directions? It can illuminate, and itcan win the hearts and minds of men. It if
difficult forme to accept the view then that a resort to outlawry
isindispensable, that suppression is the only answer to whatis an admitted
evil. There could have been a greater exposureof the undesirability of the
communist creed, itscontradictions and arbitrarines, its lack of fealty to
reason,its inculcation of disloyalty, and its subservience tocentralized
dictation that brooks no opposition. It is thus,in a realistic sense, a
manifestation of the fear of freethought and the will to suppress it. For better,
of course,is the propaganda of the deed. What the communists promise,this
government can fulfill. It is up to it then to takeremedial measures to
alleviate the condition of our countrymenwhose lives are in a condition of
destitution andmisery. It may not be able to change matters radically.At least,
it should take earnest steps in that direction.What is important for those at the
bottom of the economicpyramid is that they are not denied the opportunity
for abetter life. If they, or at least their children, cannot evenlook forward to
that, then a constitutional regime is nothingbut a mockery and a tragic
illusion. Such a response,I am optimistic enough to believe, has the merit of
thinning,if not completely eliminating, the embattled ranksand outposts of
ignorance, fanaticism and error. That forme would be more in accordance
with the basic propositionof our polity. This is not therefore to preach a
doctrine of object surrender to the forces apparently bent on the adoption of a
way of life so totally opposed to the deeply felt traditions of our people. This
is, for me at least, an affirmation of the vitality of the democratic creed, with
an expression of regret that it could not have been more impressively set
forth in language worthy of the subject.

It is in the light of the views above expressed that I find myself unable to
yield concurrence to the ably-written opinion of Justice Castro for the Court
sustaining the validity of the Anti-Subversion Act.

Separate Opinions
FERNANDO, J., dissenting:
It is with regard that I find myself unable to join therest of my brethren in the
decision reached upholding thevalidity of the Anti-Subversion Act. 1 It is to
be admittedthat the learned and scholarly opinbion of Justice Castro hasthe
impress of conscientious and painstaking scrutiny ofthe constitutional issues
raised. What is more, the stressin the concluding portion thereof on basic
guidelines thatwill assure in the trial of those prosecuted under suchAct
respect for their constitutional rights is to be commended.Nonetheless, my
own reading of the decisionscited, interpreting the bill of attainder
clause 2 coupled withthe fears, perhaps induced by a too-latitudinarian
constructionof the guarantees of freedom of belief and expression 3 as well as
freedom of association 4 as to impermissible inroadsto which they may be
exposed, compels a differentconclusion. Hence this dissent.
1. There is to be sure no thought on my part that theequally pressing concern
of state safety and security shouldbe ignored. The political branches of the
governmentwould lay themselves oepn to a justifiable indictment
fornegligence had they been remiss in their obligation tosafeguard the nation
against its sworn enemies. In a simplerera, where the overthrow of the
government wasusually through the rising up in arms, with weapons farless
sophisticated than those now in existence, there wasno constitutional issue of
the magnitude that now confrontsus. Force has to be met with force. It was as
clearcutas that. Advances in science as well as more subtlemethods of
inducing disloyalty and weakening the senseof allegiance have introduced
complexities in coping withsuch problems. There must be then, and I am the
firstto recognize it, a greater understanding for the governmentalresponde to

situations of that character. It is inthat light that the validity of the AntiSubversion Act isto be appraised. From ny standpoint, and I am not
presumptuousenough to claim that it is the only perspectiveor that is the most
realistic, I feel that there was an insufficientappreciation of the compulsion of
the constitutionalcommands against bills of attainder and abridgmentof free
speech. I am comforted by the thought that evenhad my view prevailed, all
that it would mean is that anew legislation, more in comformity to my way of
thinkingto what is ordained by the fundamental law, wouldhave to be
enacted. No valid fear need be entertained thenthat a setback would be
occasioned to legitilate state effortsto stem the tide of subversive activities, in
whateverform manifested.
2. The starting point in any inquiry as to the significanceof the bill of
attainder clause is the meaning attachedto it by the Constitutional Convention
of 1934 and by the people who adopted it. As was explained by the then
Delegate, later Justice, Jose P. Laurel in his address on November19, 1934 as
Chairman of the Committee on the Bill of Rights quoted in the opinion of the
Court: "A billof attainder is a legislative act which inflicts punishment
without judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356).
In England, the Bill of Attainder was an act of Parliament by which a man
was tried, convictedand sentenced to death without a jury, without ahearing
in court, without hearing the witnesses againsthim and without regard to the
rules of evidence. His bloodwas attainted or corrupted, rendering him devoid
of allheritable quality of acquiring and disposing property bydescent. (Ex
parte Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less
than death, the act wasknown as a 'bill of pains and penalties.' Bills of
attainder, like ex post facto laws, were favorite methods of Stuartoppression.
Once, the name of Thomas Jefferson was includedin a bill of attainder
presented to Parliament becauseof his reform activities." 5 Two American
SupremeCourt decision were thus in the minds of the framers.They are
Cummings v. Missouri 6 and Ex parte Garland. 7 They speak unequivocally.
Legislative acts, no matter whattheir form, that apply either to named
individuals or easilyascertainable members of a group in such a way as to
inflicton them punishment amounting to a deprivation ofany right, civil or
political, without judicial trial are billsof attainder prohibited by the
Constitution. 8

Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for

refusing to take the loyalty oath requiredby the state Constitution of Missouri
of 1865. Undersuch a provision, lawyers, doctors, ministers, and
otherprofessionals must disavow that they had ever, "by act orword,"
manifested a "desire" for the success of the nation'senemies or a sympathy"
with the rebels of the AmericanCivil War. If they swore falsely, they were
guilty of perjury.If they engaged in their professions without theoath, they
were criminally liable. The United States Supreme Court condemned the
provision as a bill of attainder,identified as any legislative act inflicting
punishment withoutjudicial trial. The deprivation of any right, civil
orpolitical, previously enjoyed, amounted to a punishment.Why such a
conclusion was unavoidable was explained inthe opinion of Justice Field
thus: "A bill of attainder isa legislative act, which inflicts punishment without
a judicialtrial. If the punishment be less than death, the actis termed a bill of
pains and penalties. Within the meaningof the Constitution, bills of attainder
include bills ofpains and penalties. In these cases the legislative body,
inaddition to its legitimate functions, exercises the powersand office of
judge; it assumes, in the language of thetextbooks, judicial magistracy; it
pronounces upon theguilt of the party, without any of the forms or
safeguardsof trial; it determines the sufficiency of the proofs
produced,whether conformable to the rules of evidence orotherwise; and it
fixes the degree of punishment in accordancewith its own notions of the
enormity of the offense. ... If the clauses of the 2d article of the
Constitutionof Missouri, to which we have referred, had in termsdeclared
that Mr. Cummings was guilty, or should be heldguilty, of having been in
armed hostility to the UnitedStates, or of having entered that state to avoid
beingenrolled or drafted into the military service of the UnitedStates, and,
therefore, should be deprived of the right topreach as a priest of the Catholic
church, or to teach inany institution of learning, there could be no question
thatthe clauses would constitute a bill of attainder within themeaning of the
Federal Constitution. If these clauses, insteadof mentioning his name, had
declared that all priestsand clergymen within the state of Missouri were
guiltyof these acts, or should be held guilty of them, and hencebe subjected
to the like deprivation, the clause would beequally open to objection. And
further, it these clauseshad declared that all such priests and clergymen
shouldbe so held guilty, and be thus deprived, provided they didnot, by a day
designated, do certain specified acts, theywould be no less within the

inhibition of the Federal Constitution.In all these cases there would be the
legislativeenactment creating the deprivation, without any of theordinary
forms and guards provided for the security ofthe citizen in the administration
of justice by the establishedtribunales." 10
On the very same day that the ruling in Cummings washanded down, Ex
parte Garland 11 was also decided. Thatwas a motion for leave to practrice as
an attorney beforethe American Supreme Court. Petitioner Garland
wasadmitted to such bar at the December term of 1860. Underthe previous
rules of such Court, all that was necessarywas that the applicant have three
years practice in the statecourts to which he belonged. In March 1865, the
rule waschanged by the addition of a clause requiring that an oathbe taken
under the Congressional acts of 1862 and 1865to the effect that such
candidate for admission to the barhad never voluntarily borne arms against
the UnitedStates. Petitioner Garland could not in conscience subscribeto such
an oath, but he was able to show a presidentialpardon extended on July 15,
1865. With such actof clemency, he moved that he be allowed to continue
inpractice contending that the test oath requirement wasunconstitutional as a
bill of attainder and that at any rate,he was pardoned. The same ruling was
announced by theCourt again through Justice Field. Thus: "In the
exclusionwhich the statute adjudges, it imposes a punishmentfor some of the
acts specified which were not punishableat the time they were committedl;
and for other of the actsit adds a new punishment to that before prescribed,
andit is thus brought within the further inhibition of the Consitutionagainst
the passage of an ex post facto law. Inthe case of Cummings v. Missouri, just
decided, ... wehave had occasion to consider at length the meaning of abill of
attainder and of an ex post facto law in the clauseof the Constitution
forbidding their passage by the states,and it is unnecessary to repeat here
what we there said.A like prohibition is contained in the Constitution
againstenactments of this kind by Congress; and the argumentpresented in
that case against certain clauses of the Constitutionof Missouri is equally
applicable to the act ofCongress under consideration in this case." 12
There was a reiteration of the Cummings and Garlanddoctrine in United
States v. Lovett, 13 decided in 1946.There it was shown that in 1943 the
respondents, Lovett,Watson, and Dodd, were and had been for several
yearsworking for the government. The government agencies,which had

lawfully employed them, were fully satisfiedwith the quality of their work
and wished to keep thememployed on their jobs. Over their protest, Congress
providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943,
by way of an amendment attached to theHouse Bill, that after November 15,
1943, no salary orcompensation should be paid respondent out of any
moneythen or thereafter appropriated except for services as jurorsor members
of the armed forces, unless they wereprior to November 15, 1943, again
appointed to jobs bythe President with the advide and consent of the
Senate.Notwithstanding such Congressional enactment, and thefailure of the
President to reappoint the respondents, theagencies, kept all the respondents
at work on their jobs forvarying periods after November 15, 1943, but their
compensationwas discontinued after that date. Respondentsbrought this
action in the Court of Claims for the salariesto which they felt entitled. The
Ameican Supreme Courtstated that its inquiry was thus confined to whether
theaction in the light of proper construction of the Act presenteda justificiable
controversy, and, if so, whether Section304 is a bill of attainder insofar as the
respondents wereconcerned.
After holding that there was a juditiciable, view theAmerican Supreme Court
in an opinion by Justice Blackcategorically affirmed: "We hold that Section
304 fallsprecisely within the category of Congressional actionswhich the
Constitution barred by providing that 'No Billof Attainder or ex post Law
shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill
of attainder is a legislative act which inflicts punishmentwithout a judicial
trial. If the punishment be lessthan death, the act is termed a bill of pains and
penalties.Within the meaning of the Constitution, bills of attainderinclude
bills of pains and penalties.' ... On the sameday the Cummings case was
decided, the Court, in Exparte Garland, also held invalid on the same grounds
anAct of Congress which required attorneys practicing beforethis Court to
take a similar oath. Neither of thesecases has ever been overruled. They stand
for the propositionthat legislative acts, no matter what their form,that apply
either to named individuals or to easily ascertainablemembers of a group in
such a way as to inflictpunishment on them without a judicial trial are billsof
attainder prohibited by the Constitution. Adherenceto this principle requires
invalidation of Section 304. Wedo adhere to it." 14

United States v. Brown 15 a 1965 decision was the firstcase to review a

conviction under the Labor-ManagementReporting and Disclosure Act of
1959, making it a crimefor a member of the Communist Party to serve as
anofficer ir, except in clerical or custodial positions, anemployee of a labor
union. Respondent Brown, a longshoremanon the San Francisco docks, and
an open andavowed Communist, for more than a quarter of a centurywas
elected to the Executive Board of Local 10 of theInternational
Longshoremen's and Warehousemen's Unionfor consecutive one-year terms
in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a onecountindictment returned in a district court of California withservicing as a
member of an executive board of a labororganization while a member of the
Communist Party, inwillful violation of the above provision. The question
ofits validity under the bill of attainder clause was thusproperly raised for
adjudication. While convicted in thelower court, the Court of Appeals for the
Ninth Circuitreversed. It was sustained by the American SupremeCourt. As
noted in the opinion by Chief Justice Warren,"the wide variation in form,
purpose and effect of ante-Constitutionbills of attainder indicates that the
properscope of the Bill of Attainder Clause, and its relevance tocontemporary
problems, must ultimately be sought by attemptingto discern the reasons for
its inclusion in theConstitution, and the evils it was desinged to eliminate.The
best available evidence, the writings of the architectsof our constitutional
system, indicates that the Bill ofAttainder Clause was inteded not as a
narrow, technical(and therefore soon to be outmoded) prohibition, but
ratheras an implementation of the separation of powers, ageneral safeguard
against legislative exercise of the judicialfunction, or more simply trial by
legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief
Justice Warren continued: "Under the line of casesjust outlined, Sec. 504 of
the Labor Management Reportingand Disclosure Act plainly constitutes a bill
of attainder. Congress undoubtedly possesses power under theCommerce
Clause to enact legislation designed to keepfrom positions affecting interstate
commerce persons whomay use such positions to bring about political
strikes. In Sec. 504, however, Congress has exceeded the authoritygranted it
by the Constitution. The statute does not setforth a generally applicable rule
decreeing that any personwho commits certain acts or possesses certain
characteristics (acts and characteristics whhich, in Congress'view, make them
likely to initiate political strikes) shallnot hold union office, and leave to
courts and juries thejob of deciding what persons have committed the

specifiedacts or possessed the specified characteristics. Instead,it designates

in no uncertain terms the personswho possess the fearec characteristics and
therefore cannothold union office without incurring criminal liability
members of the Communist Party." 17
Even Communist Party v. Subversive Activities ControlBoard, 18 where the
provision of the Subversive ActivitiesControl Act of 1950 requiring the
Communist Party ofthe United States to register was sustained, the opinionof
Justice Frankfurter for the Court, speaking for a five-manmajority, did
indicate adherence to the Cummingsprinciple. Had the American Communist
Party been outlawed,the outcome certainly would have been different.Thus:
"The Act is not a bill of attainder. It attaches notto specified organizations but
to described activities inwhich an organization may or may not engage. The
singlingout of an individual for legislatively prescribed
punishmentconstitutes an attainder whether the individualis called by name
or described in terms of conduct which,because it is past conduct, operates
only as a designationof particular persons. ... The Subversive Activities
ControlAct is not of that king. It requires the registrationonly of
organizations which, after the date of the Act,are found to be under the
direction, domination, or controlof certain foreign powers and to operate
primarily toadvance certain objectives. This finding must be madeafter full
administrative hearing, subject to judicial reviewwhich opens the record for
the reviewing court'sdetermination whether the administrative findings as
tofact are supported by the preponderance of the evidence.Present activity
constitutes an operative element to whichthe statute attaches legal
consequences, not merely a pointof reference for the ascertainment of
particularly personsineluctably designated by the legislature." 19
The teaching of the above cases, which I find highlypersuasive considering
what appeared to be in the mindsof the framers of the 1934 Constitutional
Conventionyields for me the conclusion that the Anti-SubversionAct falls
within the ban of the bill of attainder clause. Itshould be noted that three
subsequent cases upholding theCummings and Garland doctrine were
likewise cited in theopinion of the Court. The interpretation accorded to
themby my brethren is, of course, different but I am unable togo along with
them especially in the light of the categoricallanguage appearing in Lovett.
This is not to lose sightof the qualification that for them could deprive such

aholding of its explicit character as shown by this excerptfrom the opinion of

the Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would
be totally unnecessaryto charge communists in court, as the law
alone,without more, would suffice to secure their conviction andpunishment.
But the fact is that their guilt still has to bejudicially estblished. The
Government has yet to proveat the trial that the accused joined the Party
knowingly,willfully and by overt acts, and that they joined the Partyknowing
its subversive character and with specific intentto further its objective, i.e., to
overthrow the existing Governmentby force, deceit, and other illegal means
and placeit under the control and domination of a foreign power. 20While not
implausible, I find difficulty in yielding acceptance.In Cummings, there was
a criminal prosecution ofthe Catholic priest who refused to take the loyalty
oath.Again in Brown, there was an indictment of the laborleader who,
judging by his membership in the CommunistParty, did transgress the
statutory provision subsequentlyfound offensive to the bill attainder clause. If
the constructionI would place on theoff-repeated pronouncementof the
American Supreme Court is correct, then the merefact that a criminal case
would have to be instituted wouldnot save the statute. It does seem clear to
me that fromthe very title of the Anti-Subversion Act, "to outlaw the
Communist Party of the Philippines and similar associations,"not to mention
other specific provisions, the taintof invalidity is quite marked. Hence, my
inability to concurin the judgment reached as the statute not suffering
fromany fatal infirmity in view of the Constitutional prohibitionagainst bills
of attainder.
3. This brings me to the question of the alleged repugnancyof the AntiSubversion Act to the intellectual libertysafeguarded by the Constitution in
terms of the free speechand free assocition guarantees. 21 It is to be admitted
thatat the time of the enactment of Republic Act No. 1700,the threat that
Communism, the Russian brand then, didpose was a painful reality for
Congressional leaders andthe then President. Its shadow fell squarely across
thelives of all. Subversion then could neither be denied notdisparaged. There
was, in the expert opinion of those conversantwith such mattes, a danger to
out national existenceof no mean character. Nonetheless, the remedies toward
off such menace must not be repugnant to our Constitution.We are legally
precluded from acting in anyother way. The apprehension justly felt is no

warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to

be, but not at the expense of constitutional ideals.
One of them, certainly highly-prized of the utmost significance,is the right to
dissent. One can differ, evenobject; one can express dissatisfaction with
things as theyare. There are timew when one not only can but must.Such
dissent can take the form of the most critical andthe most disparaging
remarks. They may give offense tothose in authority, to those who wield
powe and influence.Nevertheless, they are entitled to constitutional
protection.Insofar as the content of such dissent is concerned, thelimits are
hardly discernible. It cannot be confined totrivial matters or to such as are
devoid of too much significance.It can reach the heart of things. Such
dissentmay, for those not so adventurous in the realm of ideas,possess a
subversive tinge. Even those who oppose a democraticform of government
cannot be silenced. This is trueespecially in centers of learning where
scholars competentin their line may, as a result of their studies, assert thata
future is bleak for the system of government now favoredby Western
democracies. There may be doubts entertainedby some as to the lawfulness
of their exercisingthis right to dissent to the point of advocary of such
adrastic change. Any citizen may do so without fear thatthereby he incurs the
risk of a penal sanction. That ismerely to affirm the truth of this ringing
declaration fromJefferson: "If there be any among us who would wish
todissolve this union or to change its republican form, letthem stand
undisturbed as monuments of the safety withwhich error of opinion may be
tolerated where reason isleft free to combat it." 22 As was so well put by the
philosopher,Sidney Hook: "Without holding the right to theexpression of
heresy at any time and place to be absolute for even the right to nonheretical speech cannot beabsolute it still seems wise to tolerate the
expression evenof Communist, fascist and other heresies, lest in
outlawingthem we include other kings of heresies, and deprive ourselvesof
the opportunity to acquite possibly sounder ideasthan our own." 23
The line is to be drawn, however, where the wordsamount to an incitement to
commit the crime of seditionor rebellion. The state has been reached, to
follow theformulation of Cardozo, where thought merges into action.Thus is
loyalty shown to the freedom of speech or pressordained by the Constitution.
It does not bar the expressionof views affecting the very life of the state, even

ifopposed to its fundamental presuppositions. It allows, ifit does not require

as a matter of fact, that unorthodoxideas be freely ventilated and fully heard.
Dissent is notdisloyalty.
Such an approach is reinforced by the well-settled constitutionalprinciple
"that even though the governmental purposesbe legitimate and substantial,
they cannot be pursuedby means that broadly stifle fundamental
personalliberties when the end can be more narrowly achieved.For precision
of regulation is the touchstone in an areaso closely related to our most
precious freedoms." 24 This is so for "a governmental purpose to control or
prevent activities constitutionally subject to state regulation may notbe
achieved by means which sweep unnecessarily broadlyand thereby invade
the area of protected freedoms." 25 It isindispensable then that "an over
breadth" in the applicabilityof the statute be avoided. If such be the case, then
theline dividing the valid from the constitutionally infirm hasbeen crossed.
That for me is the conclusion to be drawnfrom the wording of the AntiSubversion Act.
There is to my mind support for the stand I take inthe dissent of Justice Black
in the Communist Party casediscussed above. What is to be kept in view is
that a legislativemeasure certainly less drastic in its treatment ofthe
admittedly serious Communist problem was found inthe opinion of this noted
jurist offensive to the FirstAmendment of the American Constitution
safeguardingfree speech. Thus: "If there is one thing certain aboutthe First
Amendment it is that this Amendment was designedto guarantee the freest
interchange of ideas aboutall public matters and that, of course, means the
interchangeof all ideas, however such ideas may be viewed inother countries
and whatever change in the existing structureof government it may be hoped
that these ideas willbring about. Now, when this country is trying to
spreadthe high ideals of democracy all over the world ideals that are
revolutionary in many countries seems to be aparticularly inappropriate
time to stifle First Amendmentfreedoms in this country. The same arguments
that areused to justify the outlawry of Communist ideas here couldbe used to
justify an outlawry of the ideas of democracyin other countries." 26 Further he
stated: "I believe with theFramers of the First Amendment that the internal
securityof a nation like ours does not and cannot be made todepend upon the
use of force by Government to make allthe beliefs and opinions of the people

fit into a commonmold on any single subject. Such enforced conformity

ofthought would tend only to deprive our people of the boldspirit of
adventure and progress which has brought thisNation to its present greatness.
The creation of publicopinion by groups, organizations, societies, clubs, and
partieshas been and is a necessary part of our democraticsociety. Such
groups, like the Sons of Liberty and theAmerican Corresponding Societies,
played a large part increating sentiment in this country that led the people
ofthe Colonies to want a nation of their own. The Father ofthe Constitution
James Madison said, in speakingof the Sedition Act aimed at crushing
the Jefferson Party,that had that law been in effect during the period
beforethe Revolution, the United States might well have continuedto be
'miserable colonies, groaning under a foreign yoke.'In my judgment, this
country's internal security can betterbe served by depending upon the
affection of the peoplethan by attempting to instill them with fear and
dreadof the power of Government. The Communist Party hasnever been
more than a small group in this country. Andits numbers had been dwindling
even before the Governmentbegan its campaign to destroy the Party by force
oflaw. This was because a vast majority of the Americanpeople were against
the Party's policies and overwhelminglyrejected its candidates year after year.
That is the trueAmerican way of securing this Nation against dangerousideas.
Of course that is not the way to protect the Nationagainst actions of violence
and treason. The Foundersdrew a distinction in our Constitution which we
would bewise to follow. They gave the Government the fullest powerto
prosecute overt actions in violation of valid lawsbut withheld any power to
punish people for nothing morethan advocacy of their views." 27
With the sentiments thus expressed uppermost in mymind and congenial to
my way of thinking, I cannot sharethe conclusion reached by my breathren as
to the Anti-Subversion Act successfully meeting the test of validity onfree
speech and freedom of association grounds.
4. It could be that this approach to the constitutionalquestions involved arises
from an appraisal of the challengedstatute which for me is susceptible of an
interpretationthat it does represent a defeatist attitude on thepart of those of
us, who are devotees at the shrine of aliberal-democratic state. That certainly
could not havebeen the thought of its framers; nonetheless, such an
assumptionis not devoid of plausibility for why resort tothis extreme measure

susceptible as it is to what apparentlyare not unfounded attacks on

constitutional grounds?Is this not to ignore what previously was accepted as
anobvious truth, namely that the light of liberalism sendsits shafts in many
directions? It can illuminate, and itcan win the hearts and minds of men. It if
difficult forme to accept the view then that a resort to outlawry
isindispensable, that suppression is the only answer to whatis an admitted
evil. There could have been a greater exposureof the undesirability of the
communist creed, itscontradictions and arbitrarines, its lack of fealty to
reason,its inculcation of disloyalty, and its subservience tocentralized
dictation that brooks no opposition. It is thus,in a realistic sense, a
manifestation of the fear of freethought and the will to suppress it. For better,
of course,is the propaganda of the deed. What the communists promise,this
government can fulfill. It is up to it then to takeremedial measures to
alleviate the condition of our countrymenwhose lives are in a condition of
destitution andmisery. It may not be able to change matters radically.At least,
it should take earnest steps in that direction.What is important for those at the
bottom of the economicpyramid is that they are not denied the opportunity
for abetter life. If they, or at least their children, cannot evenlook forward to
that, then a constitutional regime is nothingbut a mockery and a tragic
illusion. Such a response,I am optimistic enough to believe, has the merit of
thinning,if not completely eliminating, the embattled ranksand outposts of
ignorance, fanaticism and error. That forme would be more in accordance
with the basic propositionof our polity. This is not therefore to preach a
doctrine of object surrender to the forces apparently bent on the adoption of a
way of life so totally opposed to the deeply felt traditions of our people. This
is, for me at least, an affirmation of the vitality of the democratic creed, with
an expression of regret that it could not have been more impressively set
forth in language worthy of the subject.
It is in the light of the views above expressed that I find myself unable to
yield concurrence to the ably-written opinion of Justice Castro for the Court
sustaining the validity of the Anti-Subversion Act.
Footnotes
1 Rep. Act. No. 1700, 12 Laws & Res. 102 (1957). The text
of the statute is hereunder reproduced in full:

"AN ACT TO OUTLAW THE COMMUNIST PARTY OF

THE PHILIPPINES AND SIMILAR ASSOCIATIONS
PENALIZING MEMBERSHIP THEREIN, AND FOR
OTHER PURPOSES.
"WHEREAS, the Communist Party of the Philippines,
although purportedly a political party, is in fact an organized
conspiracy to overthrow the Government of the Republic of
the Philippines not only by force and violence but also by
deceit, subversion and other illegal means, for the purpose of
establishing in the Philippines a totalitarian regime subject to
alien domination and control;
"WHEREAS, the continued existence and activities of the
Communist Party of the Philippines constitutes a clear,
present and grave danger to the security of the Philippines;
and
"WHEREAS, in the face of the organized, systematic and
persistent subversion, national in scope but international in
direction, posed by the Communist Party of the Philippines
and its activities, there is urgent need for special legislation
to cope with this continuing menace to the freedom and
security of the country: Now, therefore,
"Be it enacted by the Senate and House of Representatives of
the Philippines in Congress assembled:
"Section 1. This Act shall be known as Anti-Subversion Act.
"Section 2. The Congress hereby declares the Communist
Party of the Philippines to be an organized conspiracy to
overthrow the Government of the Republic of the
Philippines for the purpose of establishing in the Philippines
a totalitarian regime and place the Government under the
control and domination of an alien power. The said party and

any other organization having the same purpose and their

successors are hereby declared illegal and outlawed.

all the accessory penalties provided therefor in the same

Code.

Section 3. As used in this Act, the term 'Communist Party of

the Philippines' shall me and and include the organizations
now known as the Communist Party of the Philippines and
its military arm, theHukbong Mapagpalayang Bayan,
formerly known as HUKBALAHAPS, and any successors of
such organizations.

"Section 5. No prosecution under this Act shall be made

unless the city or provincial fiscal, or any special attorney or
prosecutor duly designated by the Secretary of Justice as the
case may be, finds after due investigation of the facts, that
a prima facie case for violation of this Act exists against the
accused, and thereafter presents an information in court
against the said accused in due form, and certifies under oath
that he has conducted a proper preliminary investigation
thereof, with notice, whenever it is possible to give the same,
to the party concerned, who shall have the right to be
represented by counsel, to testify, to have compulsory
process for obtaining witness in his favor, and to crossexamine witnesses against him: Provided, That the
preliminary investigation of any offense defined and
penalized herein by prision mayor to death shall be
conducted by the property Court of First Instance.

"Section 4. After the approval of this Act, whoever

knowingly, willfully and by overt acts affiliates himself with,
becomes or remains a member of the Communist Party of
the Philippines and/or its successor or of any subversive
association as defined in section two hereof shall be
punished by the penalty of arresto mayor and shall be
disqualified permanently from holding any public office,
appointive and elective, and from exercising the right to
vote; in case of a second conviction, the principal penalty
shall be prision correccional, and in all subsequent
convictions the penalty of prision mayor shall be imposed;
and any alien convicted under this Act shall be deported
immediately after he shall have served the sentence imposed
upon him: Provided, That if such member is an officer or a
ranking leader of the Communist Party of the Philippines or
of any subversive association as defined in section two
hereof, or if such member takes up arms against the
Government he shall be punished by prision mayor to deal
with all the accessory penalties provided therefor in the
Revised Penal Code: And provided, finally, That one who
conspires with any other person to overthrow the
Government of the Republic of the Philippines or the
government of any of its political subdivisions by force,
violence, deceit, subversion or other illegal means, for the
purpose of placing such Government or political subdivision
under the control and domination of any alien power, shall
be punished by prision correccional to prision mayor with

"Section 6. Any person who knowingly furnishes false

evidence in any action brought under this Act shall be
punished by prision correccional.
"Section 7. No person shall be convicted of any of the
offenses penalized herein with prision mayor to death unless
on the testimony of at least two witnesses to the same overt
act or on confession of the accused in open court.
"Section 8. Within thirty days after the approval of this Act,
any person who is a member of the Communist Party of the
Philippines or of any such association or conspiracy, who
desires to renounce such membership may do so in writing
and under oath before a municipal or city mayor, a provincial
governor, or a person authorized by law to administer oaths.
Such renunciation shall exempt such person or persons from
the penal sanction of this Act, but the same shall in no way

exempt him from liability for criminal acts or for any

violation of the existing laws of the Republic of the
Philippines committed before this Act takes effect.
"Section 9. Nothing in this Act shall be interpreted as a
restriction to freedom of thought, of assembly and of
association for purposes not contrary to law as guaranteed by
the Constitution.
"Approved, June 20, 1957."
2 Delegate Jose P. Laurel (of the 1934 Constitutional
Convention) referred to the Anglo-American origin of this
right thus:
"No ex post facto law or bill of attainder shall be enacted.
This provision is found in the American Federal Constitution
(Art. 1, Sec. 9) and is applicable to the States (id. Sec. 10).
An ex post facto law is a law which makes an act punishable
in a manner in which it was not punishable when committed.
It creates or aggravates the crime or increases the
punishment, or changes the rules of evidence for the purpose
of conviction. The prohibition against the passage of ex post
facto laws is an additional bulwark of personal security
protecting the citizen from punishment by legislative act
which has a retrospective operation.
"The phrase ex post facto has a technical meaning and refers
to crimes and criminal proceedings. It is in this sense that it
was used in England. It was in this sense that the convention
of 1787 understood it. (Calder v. Bull, supra; Watson v.
Mercer, 8 Pet. 88, 110; Suterlee v. Mathewson, 2 Peters, 380;
Kring v. Missouri, 107 U.S. 221.) This interpretation was
upheld by our Supreme Court (U.S. vs. Ang Ken Ko, 6 Phil.
376.).

"A bill of attainder is a legislative act which inflicts

punishment without judicial trial. (Cummings vs. United
States, 4 Wall. 277, 18 L. ed. 356.) In England, the Bill of
Attainder was an act of Parliament by which a man was
tried, convicted and sentenced to death without a jury,
without a hearing in court, without hearing the witnesses
against him and without regard to the rules of evidence. His
blood was attained or corrupted, rendering him devoid of all
heritable quality of acquiring and disposing property by
descent. (Ex parte Garland, 4 Wall. 333, 18 L. ed 366.) If the
penalty imposed was less than death, the act was known as a
"bill of pains and penalties." Bills of attainder, like ex post
facto laws, were favorite methods of Stuart oppression.
Once, the name of Thomas Jefferson was included in a bill
of attainder presented to Parliament because of his reform
activities.
"Often, such bills were 'stimulated by ambition or personal
resentment, and vindictive malice.' (Calder v. Bull, supra.) A
well known case illustrating the ruthless manner in which a
bill of attainder was resorted to was that of Thomas
Wentworth, chief adviser of Charles I. He was brought to
impeachment charged with attempting to subvert the liberties
of England. He defended himself so ably that his enemies,
fearing his acquittal, withdrew the impeachment and a bill of
attainder was passed instead. Wentworth was beheaded. Bills
of attainder were also passed in the Colonies (North, The
Constitution of the U.S., its Sources and Applications, p. 85.)
The prohibition in the Bill of Rights, therefore, seeks to
present acts of violence and injustice brought about the
passage of such bills." (3 J. Laurel, Proceedings of the
Constitutional Convention 661-663 [1966]).

3 Cummings vs. United States, 4 Wall. (71 U.S.) 277

(1867); accord, Ex parte Garland, 4 Wall. (71 U.S.) 333
(1867). This definition was adopted by this Court in People
vs. Carlos, 78 Phil. 535, 544 (1947) and in People vs.
Montenegro, 91 Phil. 883,885 (1952).
4 De Veau vs. Braisted, 363 U.S. 144, 160 (1960); United
States vs. Lovett, 328 U.S. 303, 615, (1946).
5 Chief Justice Warren referred to the Bill of Attainder
Chause as an implementation of the separation of powers, "a
general safeguard against legislative exercise of judicial
function, or more simply, trial by legislature." United States
vs. Brown, 381 U.S. 437 (1964).
6 "It is the peculiar province of the legislature to prescribe
general rules for the government of society; the application
of those rules to individuals in society would seem to be the
duty of other departments." Fletcher vs. Peck, 6 Cranch (10
U.S.)87, 136 (1810).
7 "The legislative body in enacting bills of attainder
exercises the powers and office of judge, it pronounces upon
the guilt of the party, without any of the forms or safeguards
of trial...it fixes the degree of punishment in accordance with
its own notions of the enormity of the offense." Cummings
vs. Missouri, supra note 3.
8 Bills of this sort, says Mr. Justice Story, have been most
usually passed in England in times of rebellion or gross
subserviency to the crown, or of violent political
excitements; periods, in which all nations are most liable (as
well as free as the enslabe) to forget their duties, and to
trample upon the rights and liberties of others." Comm. sec.
1344, in re Young Sing Hee, 36 Fed. 347, 440. During the
American revolution legislative punishments had been
continued by state legislatures, when numerous bills of

attainder were enacted against the Torries. 1C.

Antieu, Modern Constitutional Law, 425.
9 C. Antieu, supra note 8 at 423.
10 The Supreme Court of the United States said in Fleming
vs. Nestor, 363 U.S. 603, 613-14 (1960):
"In determining whether legislation which bases a
disqualification on the happening of a certain past event
imposes a punishment, the Court has sought to discern the
objects on which the enactment in question was focused.
Where the source of legislative concern can be thought to be
the activity or status from which the individual is barred, the
disqualification is not punishment even though it may bear
harshly upon one affected."
11 73 Stat. 536, 29 U.S.C. sec. 504 (1958 ed. Supp. IV).
12 381 U.S. 437 (1965) (5-4 vote).
13 Keyishian vs. Board of Regents, 385 U.S. 589
(1967);Elfbrandt vs. Russell, 384 U.S. 11 (1966).
14 Cf . Scales vs. United States, 367 U.S. 203 (1961); Noto
vs. United States, 367 U.S. 290 (1961).
15 During the Senate deliberations on the bill, Senator Cea
remarked: "I have inserted the words 'overt acts' because we
are punishing membership in the Communist Party. I would
like that membership to be proved by overt acts, by positive
acts, because it may happen that one's name may appear in
the list of members." Senate Cong. Rec. May 22, 1957, p.
1900.
16 Board of Governors of Federal Reserve System vs.
Agnew, 329 U.S. 441.

17 New York ex rel. Bryant vs. Zimmerman, 278 U.S.

63(1928).
18 Repealed by Rep. Act 4241.
19 Philippine Ass'n of Free Labor Unions vs. Secretary of
Labor, Feb. 27, 1969, 27 SCRA 40.
20 United States vs. Lovett, 328 U.S. 303 (1946).
21 Cummings vs. Missouri, 4 Wall. (71 U.S.) 277 (1867).

32 341 U.S. 716 (1951).

33 Communist Party vs. Subversive Activities Control
Board, 367 U.S. 1 (1960).
34 Sec. 8.
35 E. g., Kovacs vs. Cooper, 336 U.S. 77 (1949); Vera vs.
Arca, L-25721, May 26, 1969, 28 SCRA 351.
36 Freund, Review of Facts in Constitutional Cases, in
Supreme Court and Supreme Law 47-48 (Cahn ed. 1954).

22 Ex parte Garland, 4 Wall. (71 U.S.) 333 (1867).

37 291 U.S. 502, 537 (1934).
23 United States vs. Lovett, 328 U.S. 303 (1946).
38 L-33964, Dec. 11, 1971, 41 SCRA 448.
24 United States vs. Brown, 381 U.S. 437 (1965).
39 Communist Party vs. S.A.C. Board, 367 U.S. 94 (1961).
25 The Bounds of Legislative Specification: A Suggested
Approach to the Bill of Attainder Clause, 72 Yale L. J. 330,
351-54(1962).

40 Dennis vs. United States, 341 U.S. 494, 509 (1951).

41 Id. at 501.

26 278 U.S. 63 (1928).

42 Shelton vs. Tucker, 364 U.s. 479 (1960).
27 Id. at 75-77.
28 People vs. Evangelista, 57 Phil. 375 (1932); see
also People vs. Evangelista, 57 Phil., 372 (1932); People vs.
Capadocia, 57 Phil. 364 (1932); People vs. Evangelista, 57
Phil. 354 (1932); People vs. Feleo, 57 Phil. 451 (1932);
People vs. nabong, 57 Phil. 455 (1932).

43 Scales vs. United States, 367 U.S. 203 (1961); see also
Noto vs. United States, 367 U.S. 290 (1961).
44 Frankfeld vs. United States, 198 F. 2d 879 (4th Cir. 1952).
45 People vs. nabong, 57 Phil. 455, 458 (1932).

29 People vs. Lava, L-4974-78, May 16, 1969.

46 18 U.S.C. sec. 2385. (emphasis added).

30 L-33864, Dec. 11, 1971, 42 SCRA 448.

47 367 U.S. 203 (1961).

31 United States vs. Lovett, 328 U.S. 303, 318 (1946).

48 Communist Party vs. Subversive Activities Control

Board, 367 U.S. 1 (1961).

9 4 Wall. 277 (1867).

10 Ibid, 323, 325.

49 P. A. Freud, The Supreme Court of the United States 75

(1961).

11 4 Wall. 333 (1867).

50 Const., art VI, Sec. 21 (1).

12 Ibid, 377-378.

51 Government vs. Hongkong & Shaihai Banking Corp., 66

Phil. 483 (1938).

13 328 US 303.
14 Ibid, 315-316.

52 Lindasan vs. Commission on Elections, L-28089, Oct. 25,

1967, 21 SCRA 496.

15 381 US 437.

FERNANDO, J., concurring:

16 Ibid, 442.

1 Rep. Act No. 1700 (1957)..

17 Ibid, 449-450.

2 According to Art. III, Sec. 1, par. 11: "No ex post facto law
or bill of attainder shall be enacted."

18 367 US 1 (1961).
19 Ibid, 86-87.

3 According to Art. III, Sec. 1, par. 8: "No law shall be

passed abridging the freedom of speech, or of the press, or
the right of the people peacebly to assemble and petition the
Government for redress of grievances."
4 According to Art. III, Sec. 1 par. 4: "The liberty of abode
and of changing the same within the limits prescribed by law
shall not be impaired."
5 Footnote 2, p. 9 of Opinion of the Court.
6 4 Wall. 277 (1867).

20 Opinion of the Court, p. 15.

21 According to Art. III, Sec. 1, par. 6: "The right to form
associations or societies for purposes not contrary to law
shall not be abridged." Paragraph 8 of this section reads as
follows: "No law shall be passed abridging the freedom of
speech, or of the press, or the right of the people peacebly to
assemble and petition the Government for redress of
grievances."
22 Jefferson's First Instance Address, March 4, 1801, in
Padover, ed., The Complete Jefferson, 385 (1943).

7 4 Wall. 333 (1867).

23 Hook, Heresy, Yes-Conspiracy, No. 71 (1953).
8 Cf. United States v. A Lovett, 328 US 303 )1946).

24 Gonzalez v. Commission on Elections, 27 SCRA

835,871(1969) citing Shelton v. Tucker, 364 US 479 (1960)
and NAACP v. Button, 371 US 415 (1963).
25 NAACP vs. Alabama, 377 US 288 (1964).
26 Communist Party v. Subversive Activities Control Board,
367 US 1, 148.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18208

February 14, 1922

THE UNITED STATES, plaintiff-appellee,

vs.
VICENTE DIAZ CONDE and APOLINARIA R. DE
CONDE, defendants-appellants.
Araneta & Zaragoza for appellants.
Attorney-General Villareal for appellee.
JOHNSON, J.:

It appears from the record that on the 6th day of May, 1921, a complaint was
presented in the Court of First Instance of the city of Manila, charging the
defendants with a violation of the Usury Law (Act No. 2655). Upon said
complaint they were each arrested, arraigned, and pleaded not guilty. The
cause was finally brought on for trial on the 1st day of September, 1921. At
the close of the trial, and after a consideration of the evidence adduced, the
Honorable M. V. del Rosario, judge, found that the defendants were guilty of
the crime charged in the complaint and sentenced each of them to pay a fine
of P120 and, in case of insolvency, to suffer subsidiary imprisonment in
accordance with the provisions of the law. From that sentence each of the
defendants appealed to this court.
The appellants now contend: (a) That the contract upon which the alleged
usurious interest was collected was executed before Act No. 2655 was
adopted; (b) that at the time said contract was made (December 30, 1915),
there was no usury law in force in the Philippine Islands; (c) that said Act
No. 2655 did not become effective until the 1st day of May, 1916, or four
months and a half after the contract in question was executed; (d) that said
law could have no retroactive effect or operation, and (e) that said law
impairs the obligation of a contract, and that for all of said reasons the
judgment imposed by the lower court should be revoked; that the complaint
should be dismissed, and that they should each be discharged from the
custody of the law.
The essential facts constituting the basis of the criminal action are not in
dispute, and may be stated as follows: (1) That on the 30th day of December,
1915, the alleged offended persons Bartolome Oliveros and Engracia Lianco
executed and delivered to the defendants a contract (Exhibit B) evidencing
the fact that the former had borrowed from the latter the sum of P300, and (2)
that, by virtue of the terms of said contract, the said Bartolome Oliveros and
Engracia Lianco obligated themselves to pay to the defendants interest at the
rate of five per cent (5%) per month, payable within the first ten days of each
and every month, the first payment to be made on the 10th day of January,
1916. There were other terms in the contract which, however, are not
important for the decision in the present case.

The lower court, in the course of its opinion, stated that at the time of the
execution and delivery of said contract (Exhibit B), there was no law in force
in the Philippine Islands punishing usury; but, inasmuch as the defendants
had collected a usurious rate of interest after the adoption of the Usury Law
in the Philippine Islands (Act No. 2655), they were guilty of a violation of
that law and should be punished in accordance with its provisions.
The law, we think, is well established that when a contract contains an
obligation to pay interest upon the principal, the interest thereby becomes
part of the principal and is included within the promise to pay. In other
words, the obligation to pay interest on money due under a contract, be it
express or implied, is a part of the obligation of the contract. Laws adopted
after the execution of a contract, changing or altering the rate of interest,
cannot be made to apply to such contract without violating the provisions of
the constitution which prohibit the adoption of a law "impairing the
obligation of contract." (8 Cyc., 996; 12 Corpus Juris, 1058-1059.)
The obligation of the contract is the law which binds the parties to perform
their agreement if it is not contrary to the law of the land, morals or public
order. That law must govern and control the contract in every aspect in which
it is intended to bear upon it, whether it affect its validity, construction, or
discharge. Any law which enlarges, abridges, or in any manner changes the
intention of the parties, necessarily impairs the contract itself. If a law
impairs the obligation of a contract, it is prohibited by the Jones Law, and is
null and void. The laws in force in the Philippine Islands prior to any
legislation by the American sovereignty, prohibited the Legislature from
giving to any penal law a retroactive effect unless such law was favorable to
the person accused. (Articles 21 and 22, Penal Code.)
A law imposing a new penalty, or a new liability or disability, or giving a
new right of action, must not be construed as having a retroactive effect. It is
an elementary rule of contract that the laws in force at the time the contract
was made must govern its interpretation and application. Laws must be
construed prospectively and not retrospectively. If a contract is legal at its
inception, it cannot be rendered illegal by any subsequent legislation. If that
were permitted then the obligations of a contract might be impaired, which is
prohibited by the organic law of the Philippine Islands. (U.S. vs. Constantino

Tan Quingco Chua, 39 Phil., 552; Aguilar vs. Rubiato and Gonzales Vila, 40
Phil., 570.)
Ex post facto laws, unless they are favorable to the defendant, are prohibited
in this jurisdiction. Every law that makes an action, done before the passage
of the law, and which was innocent when done, criminal, and punishes such
action, is an ex post facto law. In the present case Act No. 2655 made an act
which had been done before the law was adopted, a criminal act, and to make
said Act applicable to the act complained of would be to give it an ex post
facto operation. The Legislature is prohibited from adopting a law which will
make an act done before its adoption a crime. A law may be given a
retroactive effect in civil action, providing it is curative in character, but ex
post facto laws are absolutely prohibited unless its retroactive effect is
favorable to the defendant.
For the reason, therefore, that the acts complained of in the present case were
legal at the time of their occurrence, they cannot be made criminal by any
subsequent or ex post facto legislation. What the courts may say, considering
the provisions of article 1255 of the Civil Code, when a civil action is
brought upon said contract, cannot now be determined. A contract may be
annulled by the courts when it is shown that it is against morals or public
order.
For all of the foregoing reasons, we are of the opinion, and so decide, that the
acts complained of by the defendants did not constitute a crime at the time
they were committed, and therefore the sentence of the lower court should
be, and is hereby, revoked; and it is hereby ordered and decreed that the
complaint be dismissed, and that the defendants be discharged from the
custody of the law, with costs de oficio. So ordered.
Araullo, C.J., Street, Malcolm, Avancea, Ostrand, Johns and Romualdez,
JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-1960

November 26, 1948
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FLORENTINO ABILONG, defendant-appellant.
Carlos Perfecto for appellant.
Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Manuel
Tomacruz for appellee.
MONTEMAYOR, J.:
Florentino Abilong was charged in the Court of First Instance of Manila with
evasion of service of sentence under the following information:
That on or about the 17th day of September, 1947, in the City of
Manila, Philippines, the said accused, being then a convict sentenced
and ordered to serve two (2) years, four (4) months and one (1) day
of destierro during which he should not enter any place within the
radius of 100 kilometers from the City of Manila, by virtue of final
judgment rendered by the municipal court on April 5, 1946, in
criminal case No. B-4795 for attempted robbery, did then and there
wilfully, unlawfully and feloniously evade the service of said
sentence by going beyond the limits made against him and commit
vagrancy.
Contrary to law.
Upon arraignment he pleaded guilty and was sentenced to two (2) years, four
(4) months and one (1) day ofprision correccional, with the accessory
penalties of the law and to pay the costs. He is appealing from that decision
with the following assignment of error:
1. The lower court erred in imposing a penalty on the accused under
article 157 of the Revised Penal Code, which does not cover evasion
of service of "destierro."
Counsel for the appellant contends that a person like the accused evading a
sentence of destierro is not criminally liable under the provisions of the
Revised Penal Code, particularly article 157 of the said Code for the reason
that said article 157 refers only to persons who are imprisoned in a penal
institution and completely deprived of their liberty. He bases his contention
on the word "imprisonment" used in the English text of said article which in
part reads as follows:
Evasion of service of sentence. The penalty of prision
correccional in its medium and maximum periods shall be imposed
upon any convict who shall evade service of his sentence by
escaping during the term of his imprisonment by reason of final
judgment.
The Solicitor General in his brief says that had the original text of the
Revised Penal Code been in the English language, then the theory of the

appellant could be uphold. However, it is the Spanish text that is controlling

in case of doubt. The Spanish text of article 157 in part reads thus:
ART. 157. Quebrantamiento de sentencia. Sera castigado con
prision correccional en sus grados medio y maximo el sentenciado
que quebrantare su condena, fugandose mientras estuviere sufriendo
privacion de libertad por sentencia firme; . . . .
We agree with the Solicitor General that inasmuch as the Revised Penal Code
was originally approved and enacted in Spanish, the Spanish text governs
(People vs. Manaba, 58 Phil., 665, 668). It is clear that the word
"imprisonment" used in the English text is a wrong or erroneous translation
of the phrase "sufriendo privacion de libertad" used in the Spanish text. It is
equally clear that although the Solicitor General impliedly admits destierro as
not constituting imprisonment, it is a deprivation of liberty, though partial, in
the sense that as in the present case, the appellant by his sentence
of destierro was deprived of the liberty to enter the City of Manila. This view
has been adopted in the case of People vs. Samonte, No. 36559 (July 26,
1932; 57 Phil., 968) wherein this Court held, as quoted in the brief of the
Solicitor General that "it is clear that a person under sentence of destierro is
suffering deprivation of his liberty and escapes from the restrictions of the
penalty when he enters the prohibited area." Said ruling in that case was
ratified by this Court, though, indirectly in the case of People vs. Jose de
Jesus, (45 Off. Gaz. Supp. to No. 9, p. 370)1, where it was held that one
evades the service of his sentence of destierrowhen he enters the prohibited
area specified in the judgment of conviction, and he cannot invoke the
provisions of the Indeterminate Sentence Law which provides that its
provisions do not apply to those who shall have escaped from confinement or
evaded sentence.
In conclusion we find and hold that the appellant is guilty of evasion of
service of sentence under article 157 of the Revised Penal Code (Spanish
text), in that during the period of his sentence of destierro by virtue of final
judgment wherein he was prohibited from entering the City of Manila, he
entered said City.
Finding no reversible error in the decision appealed from, the same is hereby
affirmed with costs against the appellant. So ordered.
Moran, C. J., Paras, Feria, Pablo, Bengzon and Tuason, JJ., concur.
Separate Opinions
PERFECTO, J., dissenting:
The legal question raised in this case is whether or not appellant, for having
violated his judgment of destierrorendered by the Municipal Court of

Manila, can be sentenced under article 157 of the Revised Penal Code which
reads as follows:
Evasion of service of sentence. The penalty of prision
correccional in its medium and maximum periods shall be imposed
upon any convict who shall evade service of his sentence by
escaping during the term of his imprisonment by reason of final
judgment. However, if such evasion or escape shall have taken place
by means of unlawful entry, by breaking doors, windows, gates,
walls, roofs, or floors, or by using picklocks, false keys, disguise,
deceit, violence or intimidation, or through connivance with other
convicts or employees of the penal institution, the penalty shall
be prision correccional in its maximum period.
Appellant invokes in his favor the negative opinion of author Guillermo
Guevara (Revised Penal Code, 1946, p. 322). This negative position is
supported by another author, Ambrosio Padilla (Revised Penal Code
annotated, p. 474).
The prosecution invokes the decision of this Court in People vs. De Jesus, L1411,2promulgated April 16, 1948, but said decision has no application
because in said case the legal question involved in the case at bar was not
raised. The Supreme Court did not consider the question of interpretation of
the wording of article 157. Undoubtedly, there was occasion for considering
the question, but the Court nevertheless failed to do so. This failure to see the
question, at the time, is only an evidence that the tribunal is composed of
human beings for whom infallibility is beyond reach.
The prosecution maintains that appellant's contention, supported by two
authors who have considered the question, although tenable under the
English text of article 157, is not so under the Spanish text, which is the one
controlling because the Revised Penal Code was originally enacted by the
Legislature in Spanish.
There is no quarrel, therefore, that under the above quoted English text, the
appellant is entitled to acquittal. The question now is whether or not the
Spanish text conveys a thing different from that which can be read in the
English text. The Spanish text reads as follows:
ART. 157. Quebrantamiento de sentencia. Sera castigado con
prision correccional en sus grados medio y maximo el sentenciado
que quebrantare su condena, fugandose mientras estuviere sufriendo
privacion de libertad por sentencia firme; pero si la evasion o fuga se
hubiere llevado a efecto con escalamiento, fractura de puertas,
ventanas, verjas, paredes, techos o suelos, o empleado ganzuas,
llaves falsas, disfraz, engano, violencia o intimidacion, o poniendose
de acuerdo con otros sentenciados o dependientes del

establecimiento donde a hallare recluido la pena sera prision

correccional en su grado maximo.
The question boils down to the words "fugandose mientras estuviere
sufriendo privacion de libertad por sentencia firme," which are translated into
English "by escaping during the term of his imprisonment by reason of final
judgment." The prosecution contends that the words "privacion de libertad"
in the Spanish text is not the same as the word "imprisonment" in the English
text, and that while "imprisonment" cannot include destierro, "privacion de
libertad" may include it.
The reason is, however, the result of a partial point of view because it
obliterates the grammatical, logical, ideological function of the words
"fugandose" and "by escaping" in the Spanish and English texts, respectively.
There should not be any question that, whatever meaning we may want to
give to the words "privacion de libertad," it has to be conditioned by the verb
"fugandose," (by escaping). "Privacion de libertad" cannot be considered
independently of "fugandose."
There seems to be no question that the Spanish "fugandose" is correctly
translated into the English "by escaping." Now, is there any sense in escaping
from destierro or banishment, where there is no enclosure binding the
hypothetical fugitive? "Fugandose" is one of the forms of the Spanish verb
"fugar," to escape. The specific idea of "evasion" or "escape" is reiterated by
the use of said words after the semi-colon in the Spanish text and after the
first period in the English text. Either the verb "to escape" or the substantive
noun "escape" essentially pre-supposes some kind of imprisonment or
confinement, except figuratively, and Article 157 does not talk in metaphors
or parables.
"To escape" means "to get away, as by flight or other conscious effort; to
break away, get free, or get clear, from or out of detention, danger,
discomfort, or the like; as to escape from prison. To issue from confinement
or enclosure of any sort; as gas escapes from the mains." (Webster's New
International Dictionary.)
"Escape" means "act of escaping, or fact or having escaped; evasion of or
deliverance from injury or any evil; also the means of escape. The unlawful
departure of a prisoner from the limits of his custody. When the prisoner gets
out of prison and unlawfully regains his liberty, it is an actual escape."
(Webster's New International Dictionary.)
"Evasion" means "escape." (Webster's New International Dictionary.) .
The "destierro" imposed on appellant banished him from Manila alone, and
he was free to stay in all the remaining parts of the country, and to go and
stay in any part of the globe outside the country. With freedom to move all
over the world, it is farfetched to allege that he is in any confinement from
which he could escape.

The words "privacion de libertad" have been correctly translated into the
English "imprisonment," which gives the idea exactly conveyed by
"privacion de libertad" in the Spanish text. Undoubtedly, the drafters of the
latter could have had used a more precise Spanish word, but the literary error
cannot be taken as a pretext to give to the less precise words a broader
meaning than is usually given to them.
"Privacion de libertad," literally meaning "deprivation of liberty or freedom,"
has always been used by jurist using the Spanish language to mean
"imprisonment." They have never given them the unbounded philosophical
scope that would lead to irretrievable absurdities.
Under that unlimited scope, no single individual in the more than two billion
inhabitants of the world can be considered free, as the freest citizen of the
freest country is subject to many limitations or deprivations of liberty. Under
the prosecution's theory, should an accused, sentenced to pay a fine of one
peso, evade the payment of it, because the fine deprives him of liberty to
dispose of his one peso, he will be liable to be punished under article 157 of
the Revised Penal Code to imprisonment of from more that two years to six
years. The iniquity and cruelty of such situation are too glaring and violent to
be entertained for a moment under our constitutional framework.
There is no gainsaying the proposition that to allow the violation of a
sentence of destierro without punishment is undesirable, but even without
applying article 157 of the Revised Penal Code, the act of the appellant
cannot remain unpunished, because his violation of the sentence
of destierro may be punished as contempt of court, for which imprisonment
up to six months is provided.
It is deplorable that article 157 should not provide for a situation presented in
this case, but the gap cannot be filled by this Court without encroaching upon
the legislative powers of Congress.
Perhaps it is better that evasions of sentence be punished, as provided by the
old Penal Code, by an increased in the evaded penalty. This will be more
reasonable that the penalties provided by article 157, which appear to be
disproportionate and arbitrary, because they place on equal footing the evader
of a sentence of one day of imprisonment and a life-termer, one who commits
an insignificant offense and one who perpetrates the most heinous crime. At
any rate, this is a problem for Congress to solve.
The appealed decision should be set aside.
BRIONES, J., concurring:
I concur in the foregoing dissenting opinion, because evidently the word
"fugandose" in the Spanish text refers to imprisonment, not to destierro.
Footnotes

1
2

80 Phil., 746.
80 Phil., 746.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-3246
November 29, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ABELARDO FORMIGONES, defendant-appellant.
Luis Contreras for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Felix V.
Makasiar for appellee.
MONTEMAYOR, J.:
This is an appeal from the decision of the Court of First Instance of
Camarines Sur finding the appellant guilty of parricide and sentencing him
to reclusion perpetua, to indemnify the heirs of the deceased in the amount of
P2,000, and to pay the costs. The following facts are not disputed.
In the month of November, 1946, the defendant Abelardo Formigones was
living on his farm in Bahao, Libmanan, municipality of Sipocot, Camarines
Sur, with his wife, Julia Agricola, and his five children. From there they went
to live in the house of his half-brother, Zacarias Formigones, in the barrio of
Binahian of the same municipality of Sipocot, to find employment as
harvesters of palay. After about a month's stay or rather on December 28,
1946, late in the afternoon, Julia was sitting at the head of the stairs of the
house. The accused, without any previous quarrel or provocation whatsoever,
took his bolo from the wall of the house and stabbed his wife, Julia, in the
back, the blade penetrating the right lung and causing a severe hemorrhage
resulting in her death not long thereafter. The blow sent Julia toppling down
the stairs to the ground, immediately followed by her husband Abelardo who,
taking her up in his arms, carried her up the house, laid her on the floor of the
living room and then lay down beside her. In this position he was found by
the people who came in response to the shouts for help made by his eldest
daughter, Irene Formigones, who witnessed and testified to the stabbing of
her mother by her father.
Investigated by the Constabulary, defendant Abelardo signed a written
statement, Exhibit D, wherein he admitted that he killed The motive was
admittedly of jealousy because according to his statement he used to have
quarrels with his wife for the reason that he often saw her in the company of
his brother Zacarias; that he suspected that the two were maintaining illicit
relations because he noticed that his had become indifferent to him
(defendant).

During the preliminary investigation conducted by the justice of the peace of

Sipocot, the accused pleaded guilty, as shown by Exhibit E. At the trial of the
case in the Court of First Instance, the defendant entered a plea of not guilty,
but did not testify. His counsel presented the testimony of two guards of the
provincial jail where Abelardo was confined to the effect that his conduct
there was rather strange and that he behaved like an insane person; that
sometimes he would remove his clothes and go stark naked in the presence of
his fellow prisoners; that at times he would remain silent and indifferent to
his surroundings; that he would refused to take a bath and wash his clothes
until forced by the prison authorities; and that sometimes he would sing in
chorus with his fellow prisoners, or even alone by himself without being
asked; and that once when the door of his cell was opened, he suddenly
darted from inside into the prison compound apparently in an attempt to
regain his liberty.
The appeal is based merely on the theory that the appellant is an imbecile and
therefore exempt from criminal liability under article 12 of the Revised Penal
Code. The trial court rejected this same theory and we are inclined to agree
with the lower court. According to the very witness of the defendant, Dr.
Francisco Gomez, who examined him, it was his opinion that Abelardo was
suffering only from feeblemindedness and not imbecility and that he could
distinguish right from wrong.
In order that a person could be regarded as an imbecile within the meaning of
article 12 of the Revised Penal Code so as to be exempt from criminal
liability, he must be deprived completely of reason or discernment and
freedom of the will at the time of committing the crime. The provisions of
article 12 of the Revised Penal Code are copied from and based on paragraph
1, article 8, of the old Penal Code of Spain. Consequently, the decisions of
the Supreme Court of Spain interpreting and applying said provisions are
pertinent and applicable. We quote Judge Guillermo Guevara on his
Commentaries on the Revised Penal Code, 4th Edition, pages 42 to 43:
The Supreme Court of Spain held that in order that this exempting
circumstances may be taken into account, it is necessary that there be
a complete deprivation of intelligence in committing the act, that is,
that the accused be deprived of reason; that there be no responsibility
for his own acts; that he acts without the least discernment; 1 that
there be a complete absence of the power to discern, or that there be
a total deprivation of freedom of the will. For this reason, it was held
that the imbecility or insanity at the time of the commission of the
act should absolutely deprive a person of intelligence or freedom of
will, because mere abnormality of his mental faculties does not
exclude imputability.2

The Supreme Court of Spain likewise held that deaf-muteness cannot

be equaled to imbecility or insanity.
The allegation of insanity or imbecility must be clearly proved.
Without positive evidence that the defendant had previously lost his
reason or was demented, a few moments prior to or during the
perpetration of the crime, it will be presumed that he was in a normal
condition. Acts penalized by law are always reputed to be voluntary,
and it is improper to conclude that a person acted unconsciously, in
order to relieve him from liability, on the basis of his mental
condition, unless his insanity and absence of will are proved.
As to the strange behaviour of the accused during his confinement, assuming
that it was not feigned to stimulate insanity, it may be attributed either to his
being feebleminded or eccentric, or to a morbid mental condition produced
by remorse at having killed his wife. From the case of United
States vs. Vaquilar (27 Phil. 88), we quote the following syllabus:
Testimony of eye-witnesses to a parricide, which goes no further
than to indicate that the accused was moved by a wayward or
hysterical burst of anger or passion, and other testimony to the effect
that, while in confinement awaiting trial, defendant acted
absentmindedly at times, is not sufficient to establish the defense of
insanity. The conduct of the defendant while in confinement appears
to have been due to a morbid mental condition produced by remorse.
After a careful study of the record, we are convinced that the appellant is not
an imbecile. According to the evidence, during his marriage of about 16
years, he has not done anything or conducted himself in anyway so as to
warrant an opinion that he was or is an imbecile. He regularly and dutifully
cultivated his farm, raised five children, and supported his family and even
maintained in school his children of school age, with the fruits of his work.
Occasionally, as a side line he made copra. And a man who could feel the
pangs of jealousy to take violent measure to the extent of killing his wife
whom he suspected of being unfaithful to him, in the belief that in doing so
he was vindicating his honor, could hardly be regarded as an imbecile.
Whether or not his suspicions were justified, is of little or no import. The fact
is that he believed her faithless.
But to show that his feeling of jealousy had some color of justification and
was not a mere product of hallucination and aberrations of a disordered mind
as that an imbecile or a lunatic, there is evidence to the following effect. In
addition to the observations made by appellant in his written statement
Exhibit D, it is said that when he and his wife first went to live in the house
of his half brother, Zacarias Formigones, the latter was living with his
grandmother, and his house was vacant. However, after the family of
Abelardo was settled in the house, Zacarias not only frequented said house

but also used to sleep there nights. All this may have aroused and even partly
confirmed the suspicions of Abelardo, at least to his way of thinking.
The appellant has all the sympathies of the Court. He seems to be one of
those unfortunate beings, simple, and even feebleminded, whose faculties
have not been fully developed. His action in picking up the body of his wife
after she fell down to the ground, dead, taking her upstairs, laying her on the
floor, and lying beside her for hours, shows his feeling of remorse at having
killed his loved one though he thought that she has betrayed him. Although
he did not exactly surrender to the authorities, still he made no effort to flee
and compel the police to hunt him down and arrest him. In his written
statement he readily admitted that he killed his wife, and at the trial he made
no effort to deny or repudiate said written statement, thus saving the
government all the trouble and expense of catching him, and insuring his
conviction.
Although the deceased was struck in the back, we are not prepared to find
that the aggravating circumstance of treachery attended the commission of
the crime. It seems that the prosecution was not intent or proving it. At least
said aggravating circumstance was not alleged in the complaint either in the
justice of the peace court or in the Court of First Instance. We are inclined to
give him the benefit of the doubt and we therefore declined to find the
existence of this aggravating circumstance. On the other hand, the fact that
the accused is feebleminded warrants the finding in his favor of the
mitigating circumstance provided for in either paragraph 8 or paragraph 9 of
article 13 of the Revised Penal Code, namely that the accused is "suffering
some physical defect which thus restricts his means of action, defense, or
communication with his fellow beings," or such illness "as would diminish
the exercise of his will power." To this we may add the mitigating
circumstance in paragraph 6 of the same article, that of having acted upon
an impulse so powerful as naturally to have produced passion or obfuscation.
The accused evidently killed his wife in a fit of jealousy.
With the presence of two mitigating circumstances without any aggravating
circumstance to offset them, at first we thought of the possible applicability
of the provisions of article 64, paragraph 5 of the Revised Penal Code for the
purpose of imposing the penalty next lower to that prescribed by article 246
for parricide, which is reclusion perpetua to death. It will be observed
however, that article 64 refers to the application of penalties which contain
three periods whether it be a single divisible penalty or composed of three
different penalties, each one of which forms a period in accordance with the
provisions of articles 76 and 77, which is not true in the present case where
the penalty applicable for parricide is composed only of two indivisible
penalties. On the other hand, article 63 of the same Code refers to the
application of indivisible penalties whether it be a single divisible penalty, or

two indivisible penalties like that of reclusion perpetua to death. It is

therefore clear that article 63 is the one applicable in the present case.
Paragraph 2, rule 3 of said article 63 provides that when the commission of
the act is attended by some mitigating circumstance and there is no
aggravating circumstance, the lesser penalty shall be applied. Interpreting a
similar legal provision the Supreme Court in the case of United States vs.
Guevara (10 Phil. 37), involving the crime of parricide, in applying article
80, paragraph 2 (rule 3 of the old Penal Code) which corresponds to article
63, paragraph 2 (rule 3 of the present Revised Penal Code), thru Chief Justice
Arellano said the following:
And even though the court should take into consideration the
presence of two mitigating circumstances of a qualifying nature,
which it can not afford to overlook, without any aggravating one, the
penalty could not be reduced to the next lower to that imposed by
law, because, according to a ruling of the court of Spain, article 80
above-mentioned does not contain a precept similar to that contained
in Rule 5 of article 81 (now Rule 5, art. 64 of the Rev. Penal Code.)
(Decision of September 30, 1879.)
Yet, in view of the excessive penalty imposed, the strict application
of which is inevitable and which, under the law, must be sustained,
this court now resorts to the discretional power conferred by
paragraph 2 of article 2 of the Penal Code; and.
Therefore, we affirm the judgment appealed from with costs, and
hereby order that a proper petition be filed with the executive branch
of the Government in order that the latter, if it be deemed proper in
the exercise of the prerogative vested in it by the sovereign
power, may reduce the penalty to that of the next lower.
Then, in the case of People vs. Castaeda (60 Phil. 604), another parricide
case, the Supreme Court in affirming the judgment of conviction sentencing
defendant to reclusion perpetua, said that notwithstanding the numerous
mitigating circumstances found to exist, inasmuch as the penalty for parricide
as fixed by article 246 of the Revised Penal Code is composed of two
indivisible penalties, namely, reclusion perpetua to death, paragraph 3 of
article 63 of the said Code must be applied. The Court further observed:
We are likewise convinced that appellant did not have that malice
nor has exhibited such moral turpitude as requires life imprisonment,
and therefore under the provisions of article 5 of the Revised Penal
Code, we respectfully invite the attention of the Chief Executive to
the case with a view to executive clemency after appellant has served
an appreciable amount of confinement.
In conclusion, we find the appellant guilty of parricide and we hereby affirm
the judgment of the lower court with the modification that the appellant will

be credited with one-half of any preventive imprisonment he has undergone.

Appellant will pay costs.
Following the attitude adopted and the action taken by this same court in the
two cases above cited, and believing that the appellant is entitled to a lighter
penalty, this case should be brought to the attention of the Chief Executive
who, in his discretion may reduce the penalty to that next lower to reclusion
perpetua to death or otherwise apply executive clemency in the manner he
sees fit.
Moran, Bengzon, C. J., Paras, Feria, Pablo, Tuason, Reyes, and Jugo, JJ.,
concur.
PADILLA, J.:
I concur in the result.
Footnotes
1
Decision of Supreme Court of Spain of November 21, 1891; 47 Jur.
Crim., 413.
2
Decision of Supreme Court of Spain of April 20, 1911; 86 Jur.
Crim., 94, 97.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-35748

December 14, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants.
Teofilo Mendoza for appellants.
Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:
Martin Atienza and Romana Silvestre appeal to this court from the judgment
of the Court of First Instance of Bulacan convicting them upon the
information of the crime of arson as follows: The former as principal by
direct participation, sentenced to fourteen years, eight months, and one day
of cadena temporal, in accordance with paragraph 2 of article 550, Penal
Code; and the latter as accomplice, sentenced to six years and one day
ofpresidio mayor; and both are further sentenced to the accessories of the
law, and to pay each of the persons whose houses were destroyed by the fire,
jointly and severally, the amount set forth in the information, with costs.
Counsel appointed by the court to defend the accused- appellants de oficio,
after delivering his argument, prayed for the affirmance of the judgment with
reference to the appellant Martin Atienza, and makes the following
assignments of error with reference to Romana Silvestre, to wit:
1. The lower court erred in convincing Romana Silvestre as
accomplice of the crime charged in the information.
2. Finally, the court erred in not acquitting said defendant from the
information upon the ground of insufficient evidence, or at the least,
of reasonable doubt.
The following facts were proved at the hearing beyond a reasonable doubt:
Romana Silvestre, wife of Domingo Joaquin by her second marriage,
cohabited with her codefendant Martin Atienza from the month of March,
1930, in the barrio of Masocol, municipality of Paombong, Province of
Bulacan. On May 16, 1930, the complaining husband, Domingo Joaquin,
filed with the justice of the peace for that municipality, a sworn complaint for
adultery, supported by affidavits of Gerardo Cabigao and Castor de la Cruz
(Exhibit B). On the same date, May 16, 1930, the said accused were arrested
on a warrant issued by said justice of the peace. On the 20th of the month,
they were released on bail, each giving a personal bond of P6,000. Pending
the preliminary investigation of the case, the two defendants begged the
municipal president of Paombong, Francisco Suerte Felipe, to speak to the

complaint, Domingo Joaquin, urging him to withdraw the complaint, the two
accused binding themselves to discontinue cohabitation, and promising not to
live again in the barrio of Masocol; Martin Atienza voluntarily signed the
promise (Exhibit A). The municipal president transmitted the defendants'
petition to the complaining husband, lending it his support. Domingo Joaquin
acceded to it, and on May 20, 1930, filed a motion for the dismissal of his
complaint. In consideration of this petition, the justice of the peace of
Paombong dismissed the adultery case commenced against the accused, and
cancelled the bonds given by them, with the costs against the complainant.
The accused then left the barrio of Masocol and went to live in that of Santo
Nio, in the same municipality of Paombong.
About November 20, 1930, the accused Romana Silvestre met her son by her
former marriage, Nicolas de la Cruz, in the barrio of Santo Nio, and under
pretext of asking him for some nipa leaves, followed him home to the village
of Masocol, and remained there. The accused, Martin Atienza, who had
continued to cohabit with said Romana Silvestre, followed her and lived in
the home of Nicolas de la Cruz. On the night of November 25, 1930, while
Nicolas de la Cruz and his wife, Antonia de la Cruz, were gathered together
with the appellants herein after supper, Martin Atienza told said couple to
take their furniture out of the house because he was going to set fire to it.
Upon being asked by Nicolas and Antonia why he wanted to set fire to the
house, he answered that that was the only way he could be revenged upon the
people of Masocol who, he said, had instigated the charge of adultery against
him and his codefendant, Romana Silvestre. As Martin Atienza was at that
time armed with a pistol, no one dared say anything to him, not even Romana
Silvestre, who was about a meter away from her codefendant. Alarmed at
what Martin Atienza had said, the couple left the house at once to
communicate with the barrio lieutenant, Buenaventura Ania, as to what they
had just heard Martin Atienza say; but they had hardly gone a hundred arms'
length when they heard cries of "Fire! Fire!" Turning back they saw their
home in flames, and ran back to it; but seeing that the fire had assumed
considerable proportions, Antonia took refuge in the schoolhouse with her 1
year old babe in her arms, while Nicolas went to the home of his parents-inlaw, took up the furniture he had deposited there, and carried it to the
schoolhouse. The fire destroyed about forty-eight houses. Tomas Santiago

coming from the barrio artesian well, and Tomas Gonzalez, teacher at the
barrio school of Masocol, and Felipe Clemente, an old man 61 years of age,
coming from their homes, to the house on fire, saw Martin Atienza going
away from the house where the fire started, and Romana Silvestre leaving
it.lawphil.net
As stated in the beginning, counsel appointed by this court to defend the
accused-appellant de oficio, prays for the affirmance of the judgment
appealed from with reference to defendant Martin Atienza. The facts related
heretofore, proved beyond a reasonable doubt at the hearing, justify this
petition of the de oficio counsel, and establish beyond a reasonable doubt
said defendant's guilt of arson as charged, as principal by direct participation.
With respect to the accused-appellant Romana Silvestre, the only evidence of
record against her are: That, being married, she lived adulterously with her
codefendant Martin Atienza, a married man; that both were denounced for
adultery by Domingo Joaquin, Romana Silvestre's second husband; that in
view of the petition of the accused, who promised to discontinue their life
together, and to leave the barrio of Masocol, and through the good offices of
the municipal president of Paombong, the complaining husband asked for the
dismissal of the complaint; that in pursuance of their promise, both of the
accused went to lived in the barrio of Santo Nio, in the same municipality;
that under pretext for some nipa leaves from her son by her former marriage,
Nicolas de la Cruz, who had gone to the barrio of Santo Nio, Romana
Silvestre followed him to his house in the barrio of Masocol on November
23, 1930, and remained there; that her codefendant, Martin Atienza followed
her, and stayed with his coaccused in the same house; that on the night of
November 25, 1930, at about 8 o'clock, while all were gathered together at
home after supper, Martin Atienza expressed his intention of burning the
house as the only means of taking his revenge on the Masocol resident, who
had instigated Domingo Joaquin to file the complaint for adultery against
them, which compelled them to leave the barrio of Masocol; that Romana
Silvestre listened to her codefendant's threat without raising a protest, and did
not give the alarm when the latter set fire to the house. Upon the strength of
these facts, the court below found her guilty of arson as accomplice.

Article 14 of the Penal Code, considered in connection with article 13,

defines an accomplice to be one who does not take a direct part in the
commission of the act, who does not force or induce other to commit it, nor
cooperates in the commission of the act by another act without which it
would not have been accomplished, yet cooperates in the execution of the act
by previous or simultaneous actions.
Now then, which previous or simultaneous acts complicate Romana Silvestre
in the crime of arson committed by her codefendant Martin Atienza? Is it her
silence when he told the spouses, Nicolas de la Cruz and Antonia de la Cruz,
to take away their furniture because he was going to set fire to their house as
the only means of revenging himself on the barrio residents, her passive
presence when Martin Atienza set fire to the house, where there is no
evidence of conspiracy or cooperation, and her failure to give the alarm when
the house was already on fire?
The complicity which is penalized requires a certain degree of cooperation,
whether moral, through advice, encouragement, or agreement, or material,
through external acts. In the case of the accused-appellant Romana Silvestre,
there is no evidence of moral or material cooperation, and none of an
agreement to commit the crime in question. Her mere presence and silence
while they are simultaneous acts, do not constitute cooperation, for it does
not appear that they encouraged or nerved Martin Atienza to commit the
crime of arson; and as for her failure to give the alarm, that being a
subsequent act it does not make her liable as an accomplice.
The trial court found the accused-appellant Martin Atienza guilty of arson,
defined and penalized in article 550, paragraph 2, of the Penal Code, which
reads as follows:
ART. 550. The penalty of cadena temporal shall be imposed upon:
xxx

xxx

xxx

2. Any person who shall set fire to any inhabited house or any
building in which people are accustomed to meet together, without
knowing whether or not such building or house was occupied at the

time, or any freight train in motion, if the damage caused in such

cases shall exceed six thousand two hundred and fiftypesetas.
While the defendant indeed knew that besides himself and his codefendant,
Romana Silvestre, there was nobody in De la Cruz's house at the moment of
setting fire to it, he cannot be convicted merely arson less serious than what
the trial court sentenced him for, inasmuch as that house was the means of
destroying the others, and he did not know whether these were occupied at
the time or not. If the greater seriousness of setting fire to an inhabited house,
when the incendiary does not know whether there are people in it at the time,
depends upon the danger to which the inmates are exposed, not less serious is
the arson committed by setting fire to inhabited houses by means of another
inhabited house which the firebrand knew to be empty at the moment of
committing the act, if he did not know whether there were people or not in
the others, inasmuch as the same danger exists.
With the evidence produced at the trial, the accused-appellant Martin Atienza
might have been convicted of the crime of arson in the most serious degree
provided for in article 549 of the Penal Code, if the information had alleged
that at the time of setting fire to the house, the defendant knew that the other
houses were occupied, taking into account that barrio residents are
accustomed to retire at the tolling of the bell for the souls in purgatory, i.e., at
8 o'clock at night.
For all the foregoing considerations, we are of the opinion and so hold, that:
(1) Mere passive presence at the scene of another's crime, mere silence and
failure to give the alarm, without evidence of agreement or conspiracy, do
not constitute the cooperation required by article 14 of the Penal Code for
complicity in the commission of the crime witnessed passively, or with
regard to which one has kept silent; and (2) he who desiring to burn the
houses in a barrio, without knowing whether there are people in them or not,
sets fire to one known to be vacant at the time, which results in destroying
the rest, commits the crime of arson, defined and penalized in article 550,
paragraph 2, Penal Code.
By virtue wherefore, the judgment appealed from is modified as follows: It is
affirmed with reference to the accused-appellant Martin Atienza, and

reversed with reference to the accused-appellant Romana Silvestre, who is

hereby acquitted with
one-half of the costs de oficio. So ordered.
Avancea, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez,
and Imperial, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32126 July 6, 1978
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NEMESIO TALINGDAN, MAGELLAN TOBIAS, AUGUSTO
BERRAS, PEDRO BIDES and TERESA DOMOGMA,accusedappellants.

PER CURIAM:
Appeal from the conviction for the crime of murder and the sentence of life
imprisonment, with indemnity to the offended party, the heirs of the deceased
Bernardo Bagabag, in the amount of P12,000, rendered by the Court of First
Instance of Abra in its Criminal Case No. 686, of all the accused the namely,
Nemesio Talingdan, Magellan Tobias, Augusta Berras, Pedro Bides and
Teresa Domogma, the last being the supposed wife of the deceased, who,
because no certificate nor any other proof of their marriage could be
presented by the prosecution, could not be charged with parricide.
Prior to the violent death of Bernardo Bagabag on the night of June 24, 1967,
he and appellant Teresa Domogma and their children, arrived together in
their house at Sobosob, Salapadan, Abra, some 100 meters distant from the

municipal building of the place. For sometime, however, their relationship

had been strained and beset with troubles, for Teresa had deserted their
family home a couple of times and each time Bernardo took time out to look
for her. On two (2) different occasions, appellant Nemesis Talingdan had
visited Teresa in their house while Bernardo was out at work, and during
those visits Teresa had made Corazon, their then 12-year old daughter living
with them, go down the house and leave them. Somehow, Bernardo had
gotten wind that illicit relationship was going on between Talingdan and
Teresa, and during a quarrel between him and Teresa, he directly charged the
latter that should she get pregnant, the child would not be his. About a month
or so before Bernardo was killed, Teresa had again left their house and did
not come back for a period of more than three (3) weeks, and Bernardo came
to know later that she and Talingdan were seen together in the town of
Tayum Abra during that time; then on Thursday night, just two (2) days
before he was gunned down, Bernardo and Teresa had a violent quarrel;
Bernardo slapped Teresa several times; the latter went down the house and
sought the help of the police, and shortly thereafter, accused Talingdan came
to the vicinity of Bernardo's house and called him to come down; but
Bernardo ignored him, for accused Talingdan was a policeman at the time
and was armed, so the latter left the place, but not without warning Bernardo
that someday he would kin him. Between 10:00 and 11:00 o'clock the
following Friday morning, Bernardo's daughter, Corazon, who was then in a
creek to wash clothes saw her mother, Teresa, meeting with Talingdan and
their co-appellants Magellan Tobias, Augusto Berras and Pedro Bides in a
small hut owned by Bernardo, some 300 to 400 meters away from the latter's
house; as she approached them, she heard one of them say "Could he elude a
bullet"; and when accused Teresa Domogma noticed the presence of her
daughter, she shoved her away saying "You tell your father that we will kill
him".
Shortly after the sun had set on the following day, a Saturday, June 24, 1967,
while the same 12-year old daughter of Bernardo was cooking food for
supper in the kitchen of their house, she saw her mother go down the house
through the stairs and go to the yard where she again met with the other
appellants. As they were barely 3-4 meters from the place where the child
was in the "batalan", she heard them conversing in subdued tones, although
she could not discern what they were saying. She was able to recognize all of

them through the light coming from the lamp in the kitchen through the open
"batalan" and she knows them well for they are all residents of Sobosob and
she used to see them almost everytime. She noted that the appellants had
long guns at the time. Their meeting did not last long, after about two (2)
minutes Teresa came up the house and proceeded to her room, while the
other appellants went under an avocado tree nearby. As supper was then
ready, the child caged her parents to eat, Bernardo who was in the room
adjoining the kitchen did not heed his daughter's call to supper but continued
working on a plow, while Teresa also excused herself by saying she would
first put her small baby to sleep. So Corazon ate supper alone, and as soon as
she was through she again called her parents to eat. This time, she informed
her father about the presence of persons downstairs, but Bernardo paid no
heed to what she said. He proceeded to the kitchen and sat himself on the
floor near the door. Corazon stayed nearby watching him. At that moment, he
was suddenly fired upon from below the stairs of the "batalan". The four
accused then climbed the stairs of the "batalan" carrying their long guns and
seeing that Bernardo was still alive, Talingdan and Tobias fired at him again.
Bides and Berras did not fire their guns at that precise time, but when
Corazon tried to call for help Bides warned her, saying "You call for help and
I will kill you", so she kept silent. The assailants then fled from the scene,
going towards the east.
The first to come to the aid of the family was Corazon's male teacher who
lived nearby. Teresa came out of her "silid" later; she pulled Corazon aside
and questioned her, and when Corazon informed her that she recognized the
killers of her father to be her co-appellants herein, she warned her not to
reveal the matter to anyone, threatening to kill her if she ever did so. Still
later on, other persons arrived and helped fix and dress the lifeless body of
the victim, Bernardo, autopsy on which was performed in his own house by
the Municipal Health Officer of the place on June 26, 1967, about 36 hours
after death; burial took place on the same day. The victim's brother who came
from Manila arrived one day after the burial followed by their mother who
came from La Paz, Abra where she resides. Corazon, who had not earlier
revealed the Identities of the killers of her father because she was afraid of
her own mother, was somehow able to reveal the circumstances surrounding
his killing to these immediate relatives of hers, and the sworn statement she

thereafter executed on August 5, 1967 (Exh. B) finally led to the filing of the
information for murder against the herein five (5) appellants.
On the other hand, according to the evidence for the defense: Teresa prior to
her marriage with Bernardo, was a resident of the town of Manabo, Abra.
She has a sister in Manila and two (2) brothers in America who love her
dearly, that is why said brothers of hers had been continuously and regularly
sending her monthly $100.00 in checks, starting from the time she was still
single up to the time of her husband's violent death on June 24, 1967, and
thereafter. After their marriage, they moved to and resided in her husband's
place in Sallapadan, Abra, bringing with them three (3) carabaos and two (2)
horses, which Bernardo and she used in tilling a parcel of land in said place,
separate and distinct from the parcel of land worked on by Bernardo's parents
and their other children. She and Bernardo lived in their own house which
was about 4-5 meters away from the house of her parents-in-law. She loved
Bernardo dearly, they never quarreled, and her husband never maltreated her;
although sometimes she had to talk to Bernardo when he quarrels with his
own mother who wanted that Bernardo's earnings be given to her, (the
mother) which Bernardo never did, and at those times, Bernardo would
admonish Teresa "You leave me alone". Her in-laws also hated her because
her mother-in-law could not get the earnings of Bernardo for the support of
her other son, Juanito, in his schooling. On his part, Juanito also disliked her
because she did not give him any of the carpentry tools which her brothers in
America were sending over to her. She never left their conjugal home for any
long period of time as charged by her mother-in-law, and if she ever did leave
the house to go to other places they were only during those times when she
had to go to Bangued to cash her dollar checks with the PNB branch there,
and even on said trips, she was sometimes accompanied by Bernardo, or if
she had to go alone and leaves Sallapadan in the morning, she rode in a
weapons carrier along with merchants going to Bangued in the morning and
always rode back with them to Sallapadan in the afternoon of the same day
because the weapons carrier is owned by a resident of Sallapadan who waits
for them. Teresa came to know Talingdan only when the latter became a
policeman in Sallapadan, as whenever any of the carabaos and horses they
brought from Manabo to Sallapadan got lost, she and Bernardo would go and
report the matter to the Mayor who would then refer the matter to his
policemen, one of whom is Talingdan, so that they may help locate the lost

animals; Teresa knew Talingdan well because they are neighbors, the latter's
home being only about 250-300 meters away from theirs. But illicit
relationship had never existed between them.
Early in the evening of June 24, 1967, Teresa was in the kitchen of their
house cooking their food for supper. Two of the children, Corazon and Judit,
were with her. Her husband, Bernardo, was then in the adjoining room
making a plow. He had to make the plow at that time of the night because at
daytime he worked as a carpenter in the convent. As soon as the food was
ready, she and the children moved over to the adjoining room where
Bernardo was to call him for supper, and he then proceeded to the kitchen to
eat. Teresa and the two children were about to follow him to the kitchen
when suddenly they heard more than five (5) or six (6) successive gun shots
coming from near their "batalan". They were all so terrified that they
immediately cried for help, albeit she did not know yet at that precise time
that her husband was shot, as she and the children were still in the other room
on their way to the kitchen, about three (3) meters away from Bernardo. But
soon Teresa heard her husband crying in pain, and as soon as she reached
him, she took Bernardo into her arms. She did not see the killers of her
husband, as the night was then very dark and it was raining. Bernardo was in
her arms when the first group of people who responded to their cry for help
arrived. Among them were the chief of police, some members of the
municipal council and appellant Tobias who even advised Teresa not to carry
the lifeless body of Bernardo to avoid abortion as she was then six (6)
months pregnant. The chief of police then conducted an investigation of the
surroundings and he found some empty shells and foot prints on the ground
some meters away from the "batalan". He also found some bullet holes on
the southern walls of said "batalan" and on the nothern wallings of the
kitchen. Later, Teresa requested some persons to relay the information about
the death of her husband to her relatives in Manabo, Abra, and they in turn
passed on the news to Bernardo's mother and her family in La Paz, Abra,
where they were then residing, as they have left their house in Sallapadan
about two (2) months previous after they lost the land they used to till there
in a case with the natives called Tingians. Two (2) PC soldiers arrived in the
afternoon of June 26, 1967, and after Bernardo's remains was autopsied and
he was buried under their house, they conducted an investigation, but she did
not give them any information relative to the Identity of the persons who shot

her husband because she did not really see them. Her mother-in-law and a
brother-in-law, Juanita Bagabag, arrived later, the former from the town of
La Paz, Abra, and the latter from Manila, and after the usual nine (9) days
mourning was over, they left Sallapadan, taking Teresa's children under their
custody. Teresa suspects that since her mother-in-law and her brother-in-law
have axes to grind against her and they have her daughter, Corazon, under
their custody, they had forced the said child to testify against her. She further
declared that her late husband, Bernardo, had enemies during his lifetime, as
he had quarrels with some people over the land they work on.
Furthermore, the defense presented evidence to the effect that: Talingdan was
not in Sallapadan at the time of the killing of Bernardo on June 24, 1967;
being a policeman of the place at the time, he was one of the two (2)
policemen who escorted and acted as bodyguard of the Mayor, when the
latter attended the cursillo in Bangued, all of them leaving Sallapadan on
June 22 and returning thereto four (4) days later on June 26, hence, he could
not have anything to do with the said killing. On the other hand, Tobias
claimed to be in the house of one Mrs. Bayongan in Sallapadan on the date of
said killing, but he was one of the persons who was called upon by the chief
of police of the place to accompany him in answer to the call for help of the
wife of the victim. The other two appellants Bides and Berras also alleged
that they were in the same house of Mrs. Bayongan on that date; they are
tillers of the land of said Mrs. Bayongan and had been staying in her house
for a long time. They were sleeping when the chief of police came that
evening and asked Tobias, who was then municipal secretary, to accompany
him to the place of the shooting. They did not join them, but continued
sleeping. They never left the said house of Mrs. Bayongan, which is about
250-300 meters away from the place of the killing, that evening of June 24,
1967.
After carefully weighing the foregoing conflicting evidence of the
prosecution and defense, We have no doubt in Our mind that in that fatal
evening of June 24, 1967, appellants Nemesio Talingdan, Magellan Tobias,
Augusto Berras and Pedro Bides, all armed with long firearms and acting
inconspiracy with each other gunned down Bernardo as the latter was sitting
by the supper table in their house at Sobosob, Sallapadan, Abra. They were
actually seen committing the offense by the witness Corazon. She was the

one who prepared the food and was watching her father nearby. They were
all known to her, for they were all residents of Sobosob and she used to see
them often before that night. Although only Talingdan and Tobias continued
firing at her father after they had climbed the stairs of the "batalan", it was
Bides who threatened her that he would kill her if she called for help. Berras
did not fire any shot then. But even before the four appellants went up the
"batalan", they already fired shots from downstairs.
We also fully believe Corazon's testimony that two nights before, or on
Thursday, June 22, 1967, the deceased Bernardo and appellant Teresa had a
violent quarrel during which he slapped her several times. She went to seek
the help of the police, and it was appellant Talingdan, a policeman of their
town, who went to the vicinity of their house and challenged her father to
come down, but the latter refused because the former was a policeman and
was armed. And so, Talingdan left after shouting to her father that "If I will
find you someday, I will kill you."
We likewise accept as truthful, Corazon's declaration regarding the amorous
relationship between her mother and appellant Talingdan, as already related
earlier above. So also her testimony that in the morning following the quarrel
between her father and her mother and the threat made by Talingdan to the
former, between 10:00 and 11:00 o'clock, she saw all the herein four male
accused-appellants meeting with her mother in a small hut some 300 or 400
meters away from their house, near where she was then washing clothes, and
that on said occasion she overheard one of them ask "Could (sic) he elude a
bullet?", We have our doubts, however, as to whether or not her mother did
say to her in shoving her away upon seeing her approach, "You tell your
father we will kill him." If it were true that there was really such a message,
it is to be wondered why she never relayed the same to her father, specially
when she again saw the said appellants on the very night in question shortly
before the shooting talking together in subdued tones with her mother and
holding long arms. Moreover, it is quite unnatural that such a warning could
have been done in such a manner.
Accordingly, it is Our conclusion from the evidence related above and which
We have carefully reviewed that appellants Nemesio Talingdan, Magellan
Tobias, Augusto Berras and Pedro Bides are guilty of murder qualified by

treachery, as charged, and that they committed the said offense in conspiracy
with each other, with evident premeditation and in the dwelling of the
offended party. In other words, two aggravating circumstances attended the
commission of the offense, namely, evident premeditation and that it was
committed in the dwelling of the victim. No mitigating circumstance has
been proven.
Appellants insist in their brief that the lone testimony of Corazon suffered
from vital contradictions and inconsistencies and badges of falsehood
because of patently unnatural circumstances alleged by her. We do not agree.
As the Solicitor General has well pointed out, the fact that the witness varied
on cross-examination the exact time of some of the occurrences she
witnessed, such as, (1) whether it was before or after Bernardo had began
eating when he was shot; (2) whether it was before or after seeing her
mother's meeting with her co-accused in the morning of Friday, June 23,
1967, that she went to wash clothes; and (3) whether or not the accused were
already upstairs or still downstairs when they first fired their guns, cannot
alter the veracity of her having seen appellants in the act of mercilessly and
cold-bloodedly shooting her father to death.
Contrary to the contention of appellants, there was nothing inherently
unnatural in the circumstances related by her. We agree with the following
rebuttal of the Solicitor General:
Appellants also attempt to buttress their attack against the
credibility of Corazon Bagabag by pointing out five
supposed unnatural declarations in her testimony; First, she
said that her father, appeared unconcerned when she
informed him of the presence of people downstairs. But as
correctly observed by the prosecuting fiscal the witness does
not know then "the mentality of her father" (p. 62, t.s.n.,
hearing of March 29, 1968). Second, Corazon also declared
that the accused conversed that Saturday night preceding the
day the crime charged was committed in a lighted place
although there was a place which was unlighted in the same
premises. But this only proves that the accused were too
engrossed in their conversation, unmindful of whether the

place where they were talking was lighted or not, and

unmindful even of the risk of recognition. Third, witness
declared that Pedro Bides and Augusto Berras did not fire
their guns. Even if these accused did withhold their fire,
however, since they were privies to the same criminal
design, would this alter their culpability? Should the witness
Corazon Bagabag be discredited for merely stating an
observation on her part which is not inherently unnatural?
Fourth, Corazon also declared that only three bullets from
the guns of the four male accused found their mark on the
body of her father. But would this not merely prove that not
all the accused were good shots? And fifth, the witness
declared that her father was still able to talk after he was shot
yet Dr. Jose Dalisan declared that his death was
instantaneous It is respectfully submitted, however, that the
doctor's opinion could yield to the positive testimony of
Corazon Bagabag in this regard without in the least affecting
the findings of said doctor as regards the cause of the death
of the deceased. As thus viewed, there are no evident badges
of falsehood in the whole breadth and length of Corazon
Bagabag's testimony. (Pp. 9-10, People's Brief.)
Why and how Corazon could have concocted her version of the killing of her
father, if it were not basically true, is hardly conceivable, considering she
was hardly thirteen (13) years old when she testified, an age when according
to Moore, a child , is, as a rule, but little influenced by the suggestion of
others" because "he has already got some principles, lying is distasteful to
him, because he thinks it is mean, he is no stranger to the sentiment of selfrespect, and he never loses an opportunity of being right in what he affirms."
(II Moore on Facts, pp. 1055-1056.) No cogent explanation has been offered
why she would attribute the assault on her father to three other men, aside
from Talingdan whom she knew had relations with her mother, were she
merely making-up her account of how he was shot, no motive for her to do
so having been shown.
Demolishing the theory of the accused that such testimony was taught to her
by her uncle, His Honor pointed out that said "testimony, both direct and

cross, would show that she was constant, firm and steady in her answers to
questions directed to her." We have Ourselves read said testimony and We are
convinced of the sincerity and truthfulness of the witness. We cannot,
therefore, share appellants' apprehension in their Seventh Assignment of
Error that the grave imputation of a mother's infidelity and her suggested
participation in the killing of her husband, would if consistently impressed in
the mind of their child, constitute a vicious poison enough to make the child,
right or wrong, a willing instrument in any scheme to get even with her
wicked mother. We feel Corazon was too young to he affected by the
infidelity of her mother in the manner the defense suggests. We are
convinced from a reading of her whole testimony that it could not have been
a fabrication. On the whole, it is too consistent for a child of thirteen years to
be able to substantially maintain throughout her stay on the witness stand
without any fatal flaw, in the face of severe and long cross-interrogations, if
she had not actually witnessed the event she had described. We reject the
possibility of her having been "brainwashed or coached" to testify as she did.
The second to the sixth assignments of error in the appeal brief do not merit
serious consideration. Anent these alleged errors, suffice it to say that the
following refutations of the Solicitor General are well taken:
Appellants also decry that the trial court allegedly failed to
consider the testimony of Dr. Dalisan that the distance
between the assailants and the deceased could have been 4 to
5 meters when the shots were fired. But the appellants
overlook the testimony of Corazon Bagabag that when the
first shot was fired, the gunman was about 3- meters from
her father (p. 60, t.s.n., hearing of March 29, 1968), which
disproves the theory of the defense that the killers fired from
a stonepile under anavocado tree some 4 to 5 meters away
from the deceased's house. Appellants also insist that the
Court a quo ignored the testimonies of defense witness Cpl.
Bonifacio Hall and Chief of Police Rafael Berras on their
having found bullet marks on the southern walling of the
house of the deceased, as well as empty cal. 30 carbine shells
under the aforementioned avocado tree. The trial court,

however, made the following apt observations on the

testimony of defense witness Cpl. Bonifacio Hall:
This witness stated that we went to the house of the deceased
to investigate the crime after the deceased had already been
buried; that he investigated the widow as well as the
surroundings of the house where the deceased was shot. He
found empty shells of carbine under the avocado tree. He
stated that the 'batalan' of the house of the deceased has a
siding of about 1- meters high and that he saw bullet holes
on the top portion of the wall directly pointing to the open
door of the 'batalan' of the house of the deceased. When the
court asked the witness what could have been the position of
the assailant in shooting the deceased, he stated that the
assailant might have been standing. The assailant could not
have made a bullet hole on the top portion of the sidings of
the 'batalan' because the 'batalan' is only 1- meters high,
and further, when asked as to the level of the ground in
relation to the top sidings of the 'batalan,' he answered that it
is in the same level with the ground. If this is true, it is
impossible for the assailant to make a bullet hole at the top
portion sidings of the 'batalan,' hence, the testimony of this
witness who is a PC corporal is of no consequence and
without merit. The court is puzzled to find a PC corporal
testifying for the defense in this case, which case was filed
by another PC sergeant belonging to the same unit and
assigned in the same province of Abra (pp. 324- 325, rec.).
As regards the empty shells also found in the vicinity of the
shooting, suffice it to state that no testimony has been
presented, expert or otherwise, linking said shells to the
bullets that were fired during the shooting incident. Surmises
in this respect surely would not overcome the positive
testimony of Corazon Bagabag that the accused shot her
father as they came up the 'batalan' of their house. (Pp. 1112, People's Brief.)

At the trial, the four male appellants tried to prove that they were not at the
scene of the crime when it happened. This defense of alibi was duly
considered by the trial court, but it was properly brushed aside as untenable.
In their brief, no mention thereof is made, which goes to show that in the
mind of the defense itself,. it cannot be successfully maintained and they do
not, therefore, insist on it. Nonetheless, it would do well for this Court to
specifically affirm the apt pertinent ratiocination of His Honor in reference
thereto thus:
This defense, therefore, is alibi which, in the opinion of the
court, can not stand firmly in the face of a positive and
unwavering testimony of the prosecution witness who
pointed out to the accused as the authors of the crime. This is
so because, first, according to the three accused Bides,
Tobias and Berras they were sleeping at 8:00 o'clock that
night in the house of Mrs. Bayongan which is only 250
meters away from the scene of the crime. Granting, for the
sake of argument, but without admitting, that they were
already sleeping at 8:00 o'clock in the house of Mrs.
Bayongan, Corazon Bagabag clearly stated that her father
was gunned down at sunset which is approximately between
6:00 and 6:30 in the evening, hence, the accused Tobias,
Berras and Bides could have committed the crime and went
home to sleep in the house of Mrs. Bayongan after the
commission of the crime. According to Pedro Bides, the
house of Mrs. Bayongan is only 250 meters away from the
house of the victim. Second, the three accused have failed
miserably to present the testimony of Mrs. Bayongan, the
owner of the house where they slept that night to corroborate
or bolster their defense of alibi. (Pp. 27A-28A, Annex of
Appellants' Brief.)
xxx xxx xxx
Nemesio Talingdan, alias Oming, the last of the accused,
also in his defense of alibi, stated that on June 22, 1967, he
accompanied Mayor Gregorio Banawa of Sallapadan to

Bangued, together with policeman Cresencio Martinez for

the purpose of attending a cursillo in Bangued They started
in Sallapadan in the early morning of June 22, 1967 and
arrived in Bangued the same day. According to him, he went
to accompany the mayor to the cursillo house near the
Bangued Cathedral and after conducting the mayor to the
cursillo house, he went to board in the house of the cousin of
Mayor Banawa near the Filoil Station at Bangued, Abra.
From that time, he never saw the mayor until after they went
home to Sallapadan on June 26th.
This kind of alibi could not gain much weight because he
could have returned anytime on the evening of June 22 or
anytime before the commission of the offense to Sallapadan
and commit the crime on the 24th at sunset, then returned to
Bangued, Abra to fetch the mayor and bring him back to
Sallapadan on the 26th.
The irony of this defense of alibi is that the mayor who was
alleged to have been accompanied by witness-accused is still
living and very much alive. As a matter of fact, Mayor
Gregorio Banawa is still the mayor of Sallapadan, Abra, and
also policeman Cresencio Martinez, another policeman who
accompanied the mayor to Bangued, is also still living and
still a policeman of Sallapadan. Why were not the mayor and
the policeman presented to corroborate or deny the
testimony of Nemesio Talingdan?
Conrado B. Venus, Municipal Judge of Penarrubia Abra, and
a member of the Cursillo Movement, was presented as
rebuttal witness for the prosecution. On the witness stand, he
stated that he belongs to Cursillo No. 3 of the Parish of
Bangued, Abra, and said cursillo was held on October 20 to
23, 1966, at the St. Joseph Seminary in Galicia, Pidigan
Abra, and not on June 23 to 26, 1967. As a matter of fact,
Mayor Banawa of Sallapadan also attended the cursillo held
on October 20 to 23, 1966, as could be seen in his 'Guide

Book' where the signature of Gregorio Banawa appears

because they both attended Cursillo No. 3 of the Parish of
Bangued.
(To) this testimony of the rebuttal witness belies partly, if not
in full, the testimony of accused Nemesio Talingdan. (Pp.
29A-30A, Annex of Appellants' Brief.)
Coming now to the particular case of appellant Teresa Domogma, as to
whom the Solicitor General has submitted a recommendation of acquittal, We
find that she is not as wholly innocent in law as she appears to the Counsel of
the People. It is contended that there is no evidence proving that she actually
joined in the conspiracy to kill her husband because there is no showing of
'actual cooperation" on her part with her co-appellants in their culpable acts
that led to his death. If at all, what is apparent, it is claimed, is "mere
cognizance, acquiescence or approval" thereof on her part, which it is argued
is less than what is required for her conviction as a conspirator per People vs.
Mahlon, 99 Phil. 1068. We do not see it exactly that way.
True it is that the proof of her direct participation in the conspiracy is not
beyond reasonable doubt, for which reason, sue cannot have the same
liability as her co-appellants. Indeed, she had no hand at all in the actual
shooting of her husband. Neither is it clear that she helped directly in the
planning and preparation thereof, albeit We are convinced that she knew it
was going to be done and did not object. (U.S. vs. Romulo, 15 Phil. 408, 411414.) It is not definitely shown that she masterminded it either by herself
alone or together with her co-appellant Talingdan. At best, such conclusion
could be plain surmise, suspicion and conjecture, not really includible. After
all, she had been having her own unworthy ways with him for quite a long
time, seemingly without any need of his complete elimination. Why go to so
much trouble for something she was already enjoying, and not even very
surreptitiously? In fact, the only remark Bernardo had occasion to make to
Teresa one time was "If you become pregnant, the one in your womb is not
my child." The worst he did to her for all her faults was just to slap her.
But this is not saying that she is entirely free from criminal liability. There is
in the record morally convincing proof that she is at the very least an

accessory to the offense committed by her co-accused. She was inside the
room when her husband was shot. As she came out after the shooting, she
inquired from Corazon if she was able to recognize the assailants of her
father. When Corazon Identified appellants Talingdan, Tobias, Berras and
Bides as the culprits, Teresa did not only enjoin her daughter not to reveal
what she knew to anyone, she went to the extent of warning her, "Don't tell it
to anyone. I will kill you if you tell this to somebody." Later, when the peace
officers who repaired to their house to investigate what happened, instead of
helping them with the information given to her by Corazon, she claimed she
had no suspects in mind. In other words, whereas, before the actual shooting
of her husband, she was more or less passive in her attitude regarding her coappellants' conspiracy, known to her, to do away with him, after Bernardo
was killed, she became active in her cooperation with them. These
subsequent acts of her constitute "concealing or assisting in the escape of the
principal in the crime" which makes her liable as an accessory after the fact
under paragraph 3 of Article 19 of the Revised Penal Code.
As already indicated earlier, the offense committed by appellants was murder
qualified by treachery. It being obvious that appellants deliberately chose
nighttime to suddenly and without warning assault their victim, taking
advantage of their number and arms, it is manifest that they employed
treachery to insure success in attaining their malevolent objective. In
addition, it is indisputable that appellants acted with evident premeditation.
Talingdan made the threat to kill Bernardo Thursday night, then he met with
his co-accused to work out their conspiracy Friday and again on Saturday
evening just before the actual shooting. In other words, they had motive
Talingdan's taking up the cudgels for his paramour, Teresa and enough time
to meditate, and desist, if they were not resolved to proceed with their
objective. Finally, they committed the offense in the dwelling of the offended
party.
In these premises, the crime committed by the male appellants being murder,
qualified by treachery, and attended by the generic aggravating
circumstances of evident premeditation and that the offense was committed
in the dwelling of the offended party, the Court has no alternative under the
law but to impose upon them the capital penalty. However, as to appellant
Teresa, she is hereby found guilty only as an accessory to the same murder.

WHEREFORE, with the above finding of guilt beyond reasonable doubt of

the appellants Nemesio Talingdan, Magellan Tobias, Augusto Berras and
Pedro Bides of the crime of murder with two aggravating circumstances,
without any mitigating circumstance to offset them, they are each hereby
sentenced to DEATH to be executed in accordance with law. Guilty beyond
reasonable doubt as accessory to the same murder, appellant Teresa
Domogma is hereby sentenced to suffer the indeterminate penalty of five (5)
years of prision correccional as minimum to eight (8) years of prision
mayor as maximum, with the accessory penalties of the law. In all other
respects, the judgment of the trial court is affirmed, with costs against
appellants.
Barredo, Muoz Palma, Aquino, Concepcion, Jr., Santos, Fernandez and
Guerrero, JJ., concur.
Antonio, Fernando, JJ., took no part.

Separate Opinions

MAKASIAR, J., dissenting:

I dissent insofar as the liability of the accused Teresa Domogma who should
be convicted, not merely as an accessory, but of parricide as principal and
meted the death penalty, is concerned. A marriage certificate is not
indispensable to establish the fact of marriage; because the presumption that
the deceased and the accused Teresa were married subsists by reason of the
fact that they had been living together for about thirteen (13) years as
evidenced by the birth of the child-witness Corazon, who was 12 years old at
the time her father was killed on June 24, 1967 by the accused-appellants,
and who was 13 years of age when she testified. They have other children
aside from Corazon.

That appellant Teresa is a co-conspirator, not merely an accessory after the

fact has been clearly demonstrated by the testimony of her own daughter,
Corazon, who declared categorically that she plotted with her co-appellants
the assassination of her own husband whom she betrayed time and time again
by her repeated illicit relations with her co-accused Nemesio Talingdan, a
town policeman and their neighbor. The record is abundant with evidence
that Teresa, without a feeling for shame and unnaturally lacking any concern
for her minor children of tender age, deserted several times their family home
to live with and continue with her immoral relations with appellant Talingdan
with whom at one time she cohabited for more than three (3) weeks. Her
patient husband had to look for her and to beg her to return each time she left
the family abode for the embrace of her lover.
We should believe Corazon's statement that between 10 and 11 o'clock
Friday morning, she saw her mother, appellant Teresa, meeting with her other
co-appellants in a small hut owned by her father some 300 to 400 meters
away from the latter's house near the creek where she was then washing
clothes; that she heard one of the conspirators say "Could he elude a bullet?";
that when her mother noticed her presence, her mother shoved her away
saying, "You tell your father that we will kill him"; that in the evening of the
following day, Saturday, June 24, 1967, while she was cooking supper in
their house, she saw her mother go down the stairs and meet the other
appellants in the yard about 3 to 4 meters from where she was in the
"batalan"; that she heard them conversing in subdued tones; that she was able
to recognize all of them by the light coming from the kitchen lamp through
the open "batalan"; that she knows all of them very well as they are all
residents of their barrio and she used to see them almost everyday; that she
noted that appellants were armed with long guns; that their meeting did not
last long; that after about 2 minutes her mother, appellant Teresa, came up the
house and proceed to her room while the other appellants hid under an
avocado tree nearby; that when supper was ready she called her parents to
eat; that her father did not heed her call but continued working on a plow
while her mother excused herself by saying she would first put her small
baby to sleep; that she (Corazon) ate alone after which she again called her
parents to eat; that about this time she informed her father about the presence
of persons downstairs but her father paid no heed to what she said; that her
father proceeded to the kitchen and sat on the floor near the door while

Corazon stayed nearby watching him; that at the that moment her father was
shot from below the stairs of the "batalan"; that the four accused then went
up the stairs of the "batalan" with their long guns and, upon seeing that her
father was still alive, appellants Talingdan and Tobias fired at him again; that
when she (Corazon) tried to call for help, appellant Bides warned her saying
"You call for help and I will kill you"; and that thereafter, the assailants fled
towards the east.
The foregoing testimony of 13-year old Corazon should be accorded belief in
the same way that credence was given to her statement that, upon her
mother's inquiry immediately after the shooting as to whether she recognized
the assailants of her father, she (Corazon) readily told her mother that she
Identified appellants Talingdan, Tobias, Berras and Bides as the culprits; for
which reason her mother warned her "Don't tell it to anyone. I will kill you if
you tell this to somebody."
On Thursday or two days before Bernardo was shot, he and Teresa had a
quarrel during which Bernardo slapped Teresa several times by reason of
which Teresa left the house and sought the help of the police. Shortly
thereafter appellant Talingdan came and called Bernardo to come down.
When Bernardo ignored him because Talingdan was a policeman and was
then armed, appellant Talingdan left after warning Bernardo that someday he
would kill him.
Can there be a clearer demonstration of the active cooperation of Teresa in
the conspiracy against the life of her husband? The majority opinion admits
that Teresa was a paramour of appellant Talingdan; hence, she wanted
freedom from her husband, the victim, so that she could enjoy the company
of her lover, appellant Talingdan.
From the evidence on record, appellant Teresa had no moral compunction in
deserting her family and her children for the company of her lover. As
heretofore stated, she did this several times and continued to do so until the
violent death of her husband even as she was carrying a six-month old baby
in her womb, the paternity of which her husband denied.
CASTRO, CJ., concurring:

Concurs, with the observations, however, that the evidence points to the
appellant Teresa Domogma as a co-principal and that she should therefore
also be held guilty of murder and sentenced to death.
TEEHANKEE, J., concurring:
Concurs, but join in the partial dissent of Mr. Justice Makasiar insofar as the
penal liability of the accused Teresa Domogma is concerned.
Separate Opinions
MAKASIAR, J., dissenting:
I dissent insofar as the liability of the accused Teresa Domogma who should
be convicted, not merely as an accessory, but of parricide as principal and
meted the death penalty, is concerned. A marriage certificate is not
indispensable to establish the fact of marriage; because the presumption that
the deceased and the accused Teresa were married subsists by reason of the
fact that they had been living together for about thirteen (13) years as
evidenced by the birth of the child-witness Corazon, who was 12 years old at
the time her father was killed on June 24, 1967 by the accused-appellants,
and who was 13 years of age when she testified. They have other children
aside from Corazon.
That appellant Teresa is a co-conspirator, not merely an accessory after the
fact has been clearly demonstrated by the testimony of her own daughter,
Corazon, who declared categorically that she plotted with her co-appellants
the assassination of her own husband whom she betrayed time and time again
by her repeated illicit relations with her co-accused Nemesio Talingdan, a
town policeman and their neighbor. The record is abundant with evidence
that Teresa, without a feeling for shame and unnaturally lacking any concern
for her minor children of tender age, deserted several times their family home
to live with and continue with her immoral relations with appellant Talingdan
with whom at one time she cohabited for more than three (3) weeks. Her
patient husband had to look for her and to beg her to return each time she left
the family abode for the embrace of her lover.

We should believe Corazon's statement that between 10 and 11 o'clock

Friday morning, she saw her mother, appellant Teresa, meeting with her other
co-appellants in a small hut owned by her father some 300 to 400 meters
away from the latter's house near the creek where she was then washing
clothes; that she heard one of the conspirators say "Could he elude a bullet?";
that when her mother noticed her presence, her mother shoved her away
saying, "You tell your father that we will kill him"; that in the evening of the
following day, Saturday, June 24, 1967, while she was cooking supper in
their house, she saw her mother go down the stairs and meet the other
appellants in the yard about 3 to 4 meters from where she was in the
"batalan"; that she heard them conversing in subdued tones; that she was able
to recognize all of them by the light coming from the kitchen lamp through
the open "batalan"; that she knows all of them very well as they are all
residents of their barrio and she used to see them almost everyday; that she
noted that appellants were armed with long guns; that their meeting did not
last long; that after about 2 minutes her mother, appellant Teresa, came up the
house and proceed to her room while the other appellants hid under an
avocado tree nearby; that when supper was ready she called her parents to
eat; that her father did not heed her call but continued working on a plow
while her mother excused herself by saying she would first put her small
baby to sleep; that she (Corazon) ate alone after which she again called her
parents to eat; that about this time she informed her father about the presence
of persons downstairs but her father paid no heed to what she said; that her
father proceeded to the kitchen and sat on the floor near the door while
Corazon stayed nearby watching him; that at the that moment her father was
shot from below the stairs of the "batalan"; that the four accused then went
up the stairs of the "batalan" with their long guns and, upon seeing that her
father was still alive, appellants Talingdan and Tobias fired at him again; that
when she (Corazon) tried to call for help, appellant Bides warned her saying
"You call for help and I will kill you"; and that thereafter, the assailants fled
towards the east.
The foregoing testimony of 13-year old Corazon should be accorded belief in
the same way that credence was given to her statement that, upon her
mother's inquiry immediately after the shooting as to whether she recognized
the assailants of her father, she (Corazon) readily told her mother that she
Identified appellants Talingdan, Tobias, Berras and Bides as the culprits; for

which reason her mother warned her "Don't tell it to anyone. I will kill you if
you tell this to somebody."
On Thursday or two days before Bernardo was shot, he and Teresa had a
quarrel during which Bernardo slapped Teresa several times by reason of
which Teresa left the house and sought the help of the police. Shortly
thereafter appellant Talingdan came and called Bernardo to come down.
When Bernardo ignored him because Talingdan was a policeman and was
then armed, appellant Talingdan left after warning Bernardo that someday he
would kill him.

SECOND DIVISION

G.R. No. 97471 February 17, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE
AMURAO y PUNO, alias "Enry," accused-appellants.

Can there be a clearer demonstration of the active cooperation of Teresa in

the conspiracy against the life of her husband? The majority opinion admits
that Teresa was a paramour of appellant Talingdan; hence, she wanted
freedom from her husband, the victim, so that she could enjoy the company
of her lover, appellant Talingdan.

The Solicitor General for plaintiff-appellee.

From the evidence on record, appellant Teresa had no moral compunction in

deserting her family and her children for the company of her lover. As
heretofore stated, she did this several times and continued to do so until the
violent death of her husband even as she was carrying a six-month old baby
in her womb, the paternity of which her husband denied.

REGALADO, J.:

CASTRO, CJ., concurring:

Concurs, with the observations, however, that the evidence points to the
appellant Teresa Domogma as a co-principal and that she should therefore
also be held guilty of murder and sentenced to death.
TEEHANKEE, J., concurring:
Concurs, but join in the partial dissent of Mr. Justice Makasiar insofar as the
penal liability of the accused Teresa Domogma is concerned.
Republic of the Philippines
SUPREME COURT
Manila

Edward C. Castaeda for accused-appellants.

The primal issue for resolution in this case is whether accused-appellants

committed the felony of kidnapping for ransom under Article 267 of the
Revised Penal Code, as charged in the information; or a violation of
Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of
1974), as contended by the Solicitor General and found by the trial court; or
the offense of simple robbery punished by Paragraph 5, Article 294 of the
Revised Penal Code, as claimed by the defense.
In an information dated and filed on May 31, 1989 in the Regional Trial
Court of Quezon City, Branch 103, as Criminal Case No. Q-57404 thereof,
appellants were charged with kidnapping for ransom allegedly committed in
the following manner:
That on or about the 13th day of January, 1988 in Quezon
City, Philippines and within the jurisdiction of this
Honorable Court, the said accused, being then private
individuals, conspiring together, confederating with and
mutually helping each other, did, then and there, wilfully,

unlawfully and feloniously kidnap and carry away one

MARIA DEL SOCORRO SARMIENTO y MUTUC * for
the purpose of extorting ransom, to the damage and
prejudice of the said offended party in such amount as may
be awarded to her under the provisions of the Civil Code. 1
On a plea of not guilty when arraigned, 2 appellants went to trial which
ultimately resulted in a judgment promulgated on September 26, 1990
finding them guilty of robbery with extortion committed on a highway,
punishable under Presidential Decree No. 532, with this disposition in
the fallo thereof:
ACCORDINGLY, judgment is hereby rendered finding the
accused ISABELO PUNO and ENRIQUE AMURAO
GUILTY as principals of robbery with extortion committed
on a highway and, in accordance with P.D. 532, they are both
sentenced to a jail term of reclusion perpetua.
The two accused are likewise ordered to pay jointly and
severally the offended private victim Ma. Socorro M.
Sarmiento the sum of P7,000.00 as actual damages and
P3,000.00 as temperate damages. 3
Before us now in this appeal, appellants contend that the court a quo erred
(1) in convicting them under Presidential Decree No. 532 since they were not
expressly charged with a crime therein; (2) in applying Sections 4 and 5,
Rule 120 of the Rules of Court since the charge under said presidential
decree is not the offense proved and cannot rightly be used as the offense
proved which is necessarily included in the offense charged. 4
For the material antecedents of this case, we quote with approval the
following counter-statement of facts in the People's brief 5 which adopted the
established findings of the court a quo, documenting the same with page
references to the transcripts of the proceedings, and which we note are
without any substantial divergence in the version proffered by the defense.

This is a prosecution for kidnapping for ransom allegedly

done on January 13, 1988 by the two accused (tsn, Jan. 8,
1990, p. 7).
Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in
Araneta Avenue, Quezon City called Nika Cakes and
Pastries. She has a driver of her own just as her husband
does (Ibid., pp. 4-6).
At around 5:00 in the afternoon of January 13, 1988, the
accused Isabelo Puno, who is the personal driver of Mrs.
Sarmiento's husband (who was then away in Davao
purportedly on account of local election there) arrived at the
bakeshop. He told Mrs. Socorro that her own driver Fred had
to go to Pampanga on an emergency (something bad befell a
child), so Isabelo will temporary (sic) take his place (Id., pp.
8-9).
Mrs. Socorro's time to go home to Valle Verde in Pasig came
and so she got into the Mercedes Benz of her husband with
Isabelo on (sic) the wheel. After the car turned right in (sic) a
corner of Araneta Avenue, it stopped. A young man, accused
Enrique Amurao, boarded the car beside the driver (Id., pp.
9-10).
Once inside, Enrique clambered on top of the back side of
the front seat and went onto where Ma. Socorro was seated
at the rear. He poke (sic) a gun at her (Id., p. 10).
Isabelo, who earlier told her that Enrique is his nephew
announced, "ma'm, you know, I want to get money from
you." She said she has money inside her bag and they may
get it just so they will let her go. The bag contained
P7,000.00 and was taken (Id., pp. 11-14).
Further on, the two told her they wanted P100,000.00 more.
Ma. Socorro agreed to give them that but would they drop

her at her gas station in Kamagong St., Makati where the

money is? The car went about the Sta. Mesa area.
Meanwhile, Ma. Socorro clutched her Rosary and prayed.
Enrique's gun was menacingly storing (sic) at her soft bread
(sic) brown, perfumed neck. He said he is an NPA and
threatened her (Id., p.15).

Appellants further testified that they brought the Mercedez Benz car to
Dolores, San Fernando, Pampanga and parked it near a barangay or police
outpost. They thereafter ate at a restaurant and divided their loot. 8 Much
later, when he took the stand at the trial of this case, appellant Puno tried to
mitigate his liability by explaining that he was in dire need of money for the
medication of his ulcers. 9

The car sped off north towards the North superhighway.

There Isabelo, Beloy as he is called, asked Ma. Socorro to
issue a check for P100,000.00. Ma. Socorro complied. She
drafted 3 checks in denominations of two for P30 thousand
and one for P40 thousand. Enrique ordered her to swallow a
pill but she refused (Id., pp. 17-23).

On these relatively simple facts, and as noted at the start of this opinion,
three theories have been advanced as to what crime was committed by
appellants. The trial court cohered with the submission of the defense that the
crime could not be kidnapping for ransom as charged in the information. We
likewise agree.

Beloy turned the car around towards Metro Manila. Later, he

changed his mind and turned the car again towards
Pampanga. Ma. Socorro, according to her, jumped out of the
car then, crossed to the other side of the superhighway and,
after some vehicles ignored her, she was finally able to flag
down a fish vendors van. Her dress had blood because,
according to Ma. Socorro, she fell down on the ground and
was injured when she jumped out of the car. Her dress was
torn too (Id., pp. 23-26).
On reaching Balintawak, Ma. Socorro reported the matter to
CAPCOM (Id., p. 27).
Both accused were, day after, arrested. Enrique was arrested
trying to encash Ma. Socorro's P40,000.00 check at PCI
Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13) 6
As observed by the court below, the defense does not dispute said narrative
of complainant, except that, according to appellant Puno, he stopped the car
at North Diversion and freely allowed complainant to step out of the car. He
even slowed the car down as he drove away, until he saw that his employer
had gotten a ride, and he claimed that she fell down when she stubbed her toe
while running across the highway. 7

Prefatorily, it is worth recalling an accepted tenet in criminal law that in the

determination of the crime for which the accused should be held liable in
those instances where his acts partake of the nature of variant offenses, and
the same holds true with regard to the modifying or qualifying circumstances
thereof, his motive and specific intent in perpetrating the acts complained of
are invaluable aids in arriving at a correct appreciation and accurate
conclusion thereon.
Thus, to illustrate, the motive of the accused has been held to be relevant or
essential to determine the specific nature of the crime as, for instance,
whether a murder was committed in the furtherance of rebellion in which
case the latter absorbs the former, or whether the accused had his own
personal motives for committing the murder independent of his membership
in the rebellious movement in which case rebellion and murder would
constitute separate offenses. 10 Also, where injuries were inflicted on a person
in authority who was not then in the actual performance of his official duties,
the motive of the offender assumes importance because if the attack was by
reason of the previous performance of official duties by the person in
authority, the crime would be direct assault; otherwise, it would only be
physical injuries. 11
In the case at bar, there is no showing whatsoever that appellants had any
motive, nurtured prior to or at the time they committed the wrongful acts
against complainant, other than the extortion of money from her under the

compulsion of threats or intimidation. This much is admitted by both

appellants, without any other esoteric qualification or dubious justification.
Appellant Puno, as already stated, candidly laid the blame for his
predicament on his need for funds for, in his own testimony, "(w)hile we
were along the way Mam (sic) Corina was telling me "Beloy, I know your
family very well and I know that your (sic) not (a) bad person, why are you
doing this?" I told her "Mam, (sic), because I need money and I had an ulcer
and that I have been getting an (sic) advances from our office but they
refused to give me any bale (sic). . . ." 12
With respect to the specific intent of appellants vis-a-vis the charge that they
had kidnapped the victim, we can rely on the proverbial rule of ancient
respectability that for this crime to exist, there must be indubitable proof that
the actual intent of the malefactors was to deprive the offended party of her
liberty, 13 and not where such restraint of her freedom of action was merely
an incident in the commission of another offense primarily intended by the
offenders. Hence, as early as United States vs. Ancheta, 14 and consistently
reiterated thereafter, 15 it has been held that the detention and/or forcible
taking away of the victims by the accused, even for an appreciable period of
time but for the primary and ultimate purpose of killing them, holds the
offenders liable for taking their lives or such other offenses they committed
in relation thereto, but the incidental deprivation of the victims' liberty does
not constitute kidnapping or serious illegal detention.
That appellants in this case had no intention whatsoever to kidnap or deprive
the complainant of her personal liberty is clearly demonstrated in the
veritably confessional testimony of appellant Puno:
Q At what point did Mrs. Sarmiento handed
(sic) the bag containing the P7,000.00 to
your nephew?
A Santo Domingo Exit.
Q And how about the checks, where were
you already when the checks was (sic) being
handed to you?

A Also at the Sto. Domingo exit when she

signed the checks.
Q If your intention was just to robbed (sic)
her, why is it that you still did not allow her
to stay at Sto. Domingo, after all you
already received the money and the checks?
A Because we had an agreement with her
that when she signed the checks we will take
her to her house at Villa (sic) Verde.
Q And why did you not bring her back to
her house at Valle Verde when she is (sic)
already given you the checks?
A Because while we were on the way back I
(sic) came to my mind that if we reach
Balintawak or some other place along the
way we might be apprehended by the police.
So when we reached Santa Rita exit I told
her "Mam (sic) we will already stop and
allow you to get out of the car." 16
Neither can we consider the amounts given to appellants as equivalent to or
in the nature of ransom, considering the immediacy of their obtention thereof
from the complainant personally. Ransom, in municipal criminal law, is the
money, price or consideration paid or demanded for redemption of a captured
person or persons, a payment that releases from captivity. 17 It can hardly be
assumed that when complainant readily gave the cash and checks demanded
from her at gun point, what she gave under the circumstances of this case can
be equated with or was in the concept of ransom in the law of kidnapping.
These were merely amounts involuntarily surrendered by the victim upon the
occasion of a robbery or of which she was summarily divested by appellants.
Accordingly, while we hold that the crime committed is robbery as defined in
Article 293 of the Code, we, however, reject the theory of the trial court that

the same constitutes the highway robbery contemplated in and punished by

Presidential Decree No. 532.

still holds sway in criminal law, that highway robbers (ladrones) and
brigands are synonymous. 20

The lower court, in support of its theory, offers this ratiocination:

Harking back to the origin of our law on brigandage (bandolerismo) in order

to put our discussion thereon in the proper context and perspective, we find
that a band of brigands, also known as highwaymen or freebooters, is more
than a gang of ordinary robbers. Jurisprudence on the matter reveals that
during the early part of the American occupation of our country, roving bands
were organized for robbery and pillage and since the then existing law
against robbery was inadequate to cope with such moving bands of outlaws,
the Brigandage Law was passed. 21

The court agrees that the crime is robbery. But it is also clear
from the allegation in the information that the victim was
carried away and extorted for more money. The accused
admitted that the robbery was carried on from Araneta
Avenue up to the North Superhighway. They likewise
admitted that along the way they intimidated Ma. Socorro to
produce more money that she had with her at the time for
which reason Ma. Socorro, not having more cash, drew out
three checks. . . .
In view of the foregoing the court is of the opinion that the
crimes committed is that punishable under P.D. 532 (AntiPiracy and Anti-Highway Robbery Law of 1974) under
which where robbery on the highway is accompanied by
extortion the penalty is reclusion perpetua. 18
The Solicitor General concurs, with the observation that pursuant to the
repealing clause in Section 5 of said decree, "P.D. No- 532 is a modification
of the provisions of the Revised Penal Code, particularly Article 267 which
are inconsistent with it." 19 Such opinion and complementary submission
consequently necessitate an evaluation of the correct interplay between and
the legal effects of Presidential Decree No. 532 on the pertinent Provisions of
the Revised Penal Code, on which matter we are not aware that any
definitive pronouncement has as yet been made.
Contrary to the postulation of the Solicitor General, Presidential Decree No.
532 is not a modification of Article 267 of the Revised Penal Code on
kidnapping and serious illegal detention, but of Articles 306 and 307 on
brigandage. This is evident from the fact that the relevant portion thereof
which treats of "highway robbery" invariably uses this term in the alternative
and synonymously with brigandage, that is, as "highway
robbery/brigandage." This is but in line with our previous ruling, and which

The following salient distinctions between brigandage and robbery are

succinctly explained in a treatise on the subject and are of continuing
validity:
The main object of the Brigandage Law is to prevent the
formation of bands of robbers. The heart of the offense
consists in the formation of a band by more than three armed
persons for the purpose indicated in art. 306. Such formation
is sufficient to constitute a violation of art. 306. It would not
be necessary to show, in a prosecution under it, that a
member or members of the band actually committed robbery
or kidnapping or any other purpose attainable by violent
means. The crime is proven when the organization and
purpose of the band are shown to be such as are
contemplated by art 306. On the other hand, if robbery is
committed by a band, whose members were not primarily
organized for the purpose of committing robbery or
kidnapping, etc., the crime would not be brigandage, but
only robbery. Simply because robbery was committed by a
band of more than three armed persons, it would not follow
that it was committed by a band of brigands. In the Spanish
text of art. 306, it is required that the band "sala a los campos
para dedicarse a robar." 22 (Emphasis supplied).

In fine, the purpose of brigandage is, inter alia, indiscriminate highway

robbery. If the purpose is only a particular robbery, the crime is only robbery,
or robbery in band if there are at least four armed participants. 23 The martial
law legislator, in creating and promulgating Presidential Decree No. 532 for
the objectives announced therein, could not have been unaware of that
distinction and is presumed to have adopted the same, there being no
indication to the contrary. This conclusion is buttressed by the rule on
contemporaneous construction, since it is one drawn from the time when and
the circumstances under which the decree to be construed originated.
Contemporaneous exposition or construction is the best and strongest in the
law. 24

Indeed, it is hard to conceive of how a single act of robbery against a

particular person chosen by the accused as their specific victim could be
considered as committed on the "innocent and defenseless inhabitants who
travel from one place to another," and which single act of depredation would
be capable of "stunting the economic and social progress of the people" as to
be considered "among the highest forms of lawlessness condemned by the
penal statutes of all countries," and would accordingly constitute an obstacle
"to the economic, social, educational and community progress of the people,
" such that said isolated act would constitute the highway robbery or
brigandage contemplated and punished in said decree. This would be an
exaggeration bordering on the ridiculous.

Further, that Presidential Decree No. 532 punishes as highway robbery or

brigandage only acts of robbery perpetrated by outlaws indiscriminately
against any person or persons on Philippine highways as defined therein, and
not acts of robbery committed against only a predetermined or particular
victim, is evident from the preambular clauses thereof, to wit:

True, Presidential Decree No. 532 did introduce amendments to Articles 306
and 307 of the Revised Penal Code by increasing the penalties, albeit limiting
its applicability to the offenses stated therein when committed on the
highways and without prejudice to the liability for such acts if committed.
Furthermore, the decree does not require that there be at least four armed
persons forming a band of robbers; and the presumption in the Code that said
accused are brigands if they use unlicensed firearms no longer obtains under
the decree. But, and this we broadly underline, the essence of brigandage
under the Code as a crime of depredation wherein the unlawful acts are
directed not only against specific, intended or preconceived victims, but
against any and all prospective victims anywhere on the highway and
whosoever they may potentially be, is the same as the concept of brigandage
which is maintained in Presidential Decree No. 532, in the same manner as it
was under its aforementioned precursor in the Code and, for that matter,
under the old Brigandage Law. 25

WHEREAS, reports from law-enforcement agencies reveal

that lawless elements are still committing acts of depredation
upon the persons and properties of innocent and defenseless
inhabitants who travel from one place to another, thereby
disturbing the peace, order and tranquility of the nation
andstunting the economic and social progress of the people:
WHEREAS, such acts of depredations
constitute . . . highway robbery/brigandage which are
among the highest forms of lawlessness condemned by the
penal statutes of all countries;
WHEREAS, it is imperative that said lawless elements be
discouraged from perpetrating such acts of depredaions by
imposing heavy penalty on the offenders, with the end in
view of eliminating all obstacles to the economic, social,
educational and community progress of the people.
(Emphasis supplied).

Erroneous advertence is nevertheless made by the court below to the fact that
the crime of robbery committed by appellants should be covered by the said
amendatory decree just because it was committed on a highway. Aside from
what has already been stressed regarding the absence of the requisite
elements which thereby necessarily puts the offense charged outside the
purview and intendment of that presidential issuance, it would be absurd to
adopt a literal interpretation that any unlawful taking of property committed
on our highways would be covered thereby. It is an elementary rule of
statutory construction that the spirit or intent of the law should not be

subordinated to the letter thereof. Trite as it may appear, we have perforce to

stress the elementary caveat that he who considers merely the letter of an
instrument goes but skin deep into its meaning, 26 and the fundamental rule
that criminal justice inclines in favor of the milder form of liability in case of
doubt.
If the mere fact that the offense charged was committed on a highway would
be the determinant for the application of Presidential Decree No. 532, it
would not be farfetched to expect mischievous, if not absurd, effects on the
corpus of our substantive criminal law. While we eschew resort to a reductio
ad absurdum line of reasoning, we apprehend that the aforestated theory
adopted by the trial court falls far short of the desideratum in the
interpretation of laws, that is, to avoid absurdities and conflicts. For, if a
motor vehicle, either stationary or moving on a highway, is forcibly taken at
gun point by the accused who happened to take a fancy thereto, would the
location of the vehicle at the time of the unlawful taking necessarily put the
offense within the ambit of Presidential Decree No. 532, thus rendering
nugatory the categorical provisions of the Anti-Carnapping Act of
1972? 27 And, if the scenario is one where the subject matter of the unlawful
asportation is large cattle which are incidentally being herded along and
traversing the same highway and are impulsively set upon by the accused,
should we apply Presidential Decree No. 532 and completely disregard the
explicit prescriptions in the Anti-Cattle Rustling Law of 1974? 28
We do not entertain any doubt, therefore, that the coincidental fact that the
robbery in the present case was committed inside a car which, in the natural
course of things, was casually operating on a highway, is not within the
situation envisaged by Section 2(e) of the decree in its definition of terms.
Besides, that particular provision precisely defines "highway
robbery/brigandage" and, as we have amply demonstrated, the single act of
robbery conceived and committed by appellants in this case does not
constitute highway robbery or brigandage.
Accordingly, we hold that the offense committed by appellants is simple
robbery defined in Article 293 and punished under Paragraph 5 of Article 294
of the Revised Penal Code with prision correccional in its maximum period
to prision mayor in its medium period. Appellants have indisputably acted in

conspiracy as shown by their concerted acts evidentiary of a unity of thought

and community of purpose. In the determination of their respective liabilities,
the aggravating circumstances of craft 29 shall be appreciated against both
appellants and that of abuse of confidence shall be further applied against
appellant Puno, with no mitigating circumstance in favor of either of them.
At any rate, the intimidation having been made with the use of a firearm, the
penalty shall be imposed in the maximum period as decreed by Article 295 of
the Code.
We further hold that there is no procedural obstacle to the conviction of
appellants of the crime of simple robbery upon an information charging them
with kidnapping for ransom, since the former offense which has been proved
is necessarily included in the latter offense with which they are
charged. 30 For the former offense, it is sufficient that the elements of
unlawful taking, with intent to gain, of personal property through
intimidation of the owner or possessor thereof shall be, as it has been, proved
in the case at bar. Intent to gain (animus lucrandi) is presumed to be alleged
in an information where it is charged that there was unlawful taking
(apoderamiento) and appropriation by the offender of the things subject of
the robbery. 31
These foregoing elements are necessarily included in the information filed
against appellants which, as formulated, allege that they wilfully, unlawfully
and feloniously kidnapped and extorted ransom from the complainant. Such
allegations, if not expressly but at the very least by necessary implication,
clearly convey that the taking of complainant's money and checks
(inaccurately termed as ransom) was unlawful, with intent to gain, and
through intimidation. It cannot be logically argued that such a charge of
kidnapping for ransom does not include but could negate the presence of any
of the elements of robbery through intimidation of persons. 32
WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE
and another one is rendered CONVICTING accused-appellants Isabelo Puno
y Guevarra and Enrique Amurao y Puno of robbery as Punished in Paragraph
5 of Article 294, in relation to Article 295, of the Revised Penal Code and
IMPOSING on each of them an indeterminate sentence of four (4) years and
two (2) months of prision correccional, as minimum, to ten (10) years

of prision mayor, as maximum, and jointly and severally pay the offended
party, Maria del Socorro M. Sarmiento, the amounts of P7,000.00 as actual
damages and P20,000.00 as moral damages, with costs.

11 People vs. Cadag, et al., 2 SCRA 388 (1961).

SO ORDERED.

13 For this reason, kidnapping and serious illegal detention

are jointly provided for in Article 267 under Chapter One,
Title Nine, Book Two of the Revised Penal Code on Crimes
Against Liberty.

Narvasa, C.J., Feliciano, Nocon and Campos, Jr., JJ., concur.

12 TSN, August, 30, 1990, 11.

14 1 Phil. 165 (1902); see also U.S. vs. De Leon, 1 Phil. 163
(1902).

# Footnotes
* Complainant testified under the name of "Corina Mutuc
Sarmiento" but made the clarification that her baptismal
name is "Maria del Socorro Mutuc Sarmiento" (TSN,
January 8, 1990, 4).

15 People vs. Remalante, 92 Phil. 48 (1952); People vs.

Guerrero, 103 Phil. 1136 (1958); People vs. Ong, et al., 62
SCRA 174 (1975); People vs. Ty Sui Wong, et al., 83 SCRA
125 (1978); People vs. Jimenez, et al., 105 SCRA 721
(1981).

1 Original Record, 1.
16 TSN, August 13, 1990, 21-22.
2 Ibid., 72.
3 Ibid., 137; per Judge Jaime N. Salazar, Jr.

17 Keith vs. State, 120 Fla. 847, 163 So. 136; People vs.
Akiran, et al., 18 SCRA 239, 246 (1966).

4 Appellant's Brief, 5; Rollo, 47.

18 Original Record, 136.

5 Brief for the Plaintiff-Appellee; Rollo, 68-84.

19 Rollo, 79.

6 Ibid., 73-75.
7 TSN, August 13, 1990, 14-15.

20 U.S. vs. Ibaez, 19 Phil. 463 (1911). Art. 306 of the Code
also specifically refers to them as "highway robbers or
brigands."

8 Ibid., id., 16; September 5, 1990, 18, 25-26.

21 U.S. vs. Carlos, 15 Phil. 47 (1910).

9 Ibid., id., 11.

22 Aquino, R.C., The Revised Penal Code, Volume Three,

1989 ed., p. 174, citing U.S. vs. Decusin, 2 Phil. 536 (1903)
and U.S. vs. Maao, 2 Phil. 718 (1903).

10 People vs. Geronimo, 100 Phil. 90 (1956).

23 U.S. vs. Feliciano, 3 Phil. 422 (1904).

24 Contemporanea expositio est optima et fortissima in
lege (2 Inst. 11; Black's Law Dictionary, Fourth Edition,
390).
25 Act 518, as amended by Act 2036.
26 Qui haeret in litera haeret in cortice (Co. Litt. 289;
Broom, Max. 685; Black's Law Dictionary, Fourth Edition,
1413).
27 Republic Act No. 6539.
28 Presidential Decree No. 533.
29 People vs. San Pedro, 95 SCRA 306 (1980); People vs.
Masilang, 142 SCRA 673 (1986).
30 Section 4, Rule 120, 1985 Rules of Criminal Procedure.
31 U.S. vs. San Pedro, 4 Phil. 405 (1905); U.S. vs. alabot, 38
Phil. 698 (1918).
32 See Section 5, Rule 120, 1985 Rules of Criminal
Procedure.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5272
March 19, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited
to the testimony of the accused himself, because from the very nature of
these facts and from the circumstances surrounding the incident upon which
these proceedings rest, no other evidence as to these facts was available
either to the prosecution or to the defense. We think, however, that, giving
the accused the benefit of the doubt as to the weight of the evidence touching
those details of the incident as to which there can be said to be any doubt, the
following statement of the material facts disclose by the record may be taken
to be substantially correct:
The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No.
27," Fort Mc Kinley, Rizal Province, and at the same place Pascual
Gualberto, deceased, was employed as a house boy or muchacho. "Officers'
quarters No. 27" as a detached house situates some 40 meters from the
nearest building, and in August, 19087, was occupied solely as an officers'
mess or club. No one slept in the house except the two servants, who jointly
occupied a small room toward the rear of the building, the door of which
opened upon a narrow porch running along the side of the building, by which
communication was had with the other part of the house. This porch was
covered by a heavy growth of vines for its entire length and height. The door
of the room was not furnished with a permanent bolt or lock, and occupants,
as a measure of security, had attached a small hook or catch on the inside of
the door, and were in the habit of reinforcing this somewhat insecure means
of fastening the door by placing against it a chair. In the room there was but
one small window, which, like the door, opened on the porch. Aside from the
door and window, there were no other openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who had
received for the night, was suddenly awakened by some trying to force open
the door of the room. He sat up in bed and called out twice, "Who is there?"
He heard no answer and was convinced by the noise at the door that it was
being pushed open by someone bent upon forcing his way into the room. Due
to the heavy growth of vines along the front of the porch, the room was very
dark, and the defendant, fearing that the intruder was a robber or a thief,
leaped to his feet and called out. "If you enter the room, I will kill you." At
that moment he was struck just above the knee by the edge of the chair which
had been placed against the door. In the darkness and confusion the
defendant thought that the blow had been inflicted by the person who had
forced the door open, whom he supposed to be a burglar, though in the light
of after events, it is probable that the chair was merely thrown back into the
room by the sudden opening of the door against which it rested. Seizing a
common kitchen knife which he kept under his pillow, the defendant struck
out wildly at the intruder who, it afterwards turned out, was his roommate,
Pascual. Pascual ran out upon the porch and fell down on the steps in a

desperately wounded condition, followed by the defendant, who immediately

recognized him in the moonlight. Seeing that Pascual was wounded, he
called to his employers who slept in the next house, No. 28, and ran back to
his room to secure bandages to bind up Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to the date
of the incident just described, one of which took place in a house in which
the defendant was employed as cook; and as defendant alleges, it was
because of these repeated robberies he kept a knife under his pillow for his
personal protection.
The deceased and the accused, who roomed together and who appear to have
on friendly and amicable terms prior to the fatal incident, had an
understanding that when either returned at night, he should knock at the door
and acquiant his companion with his identity. Pascual had left the house early
in the evening and gone for a walk with his friends, Celestino Quiambao and
Mariano Ibaez, servants employed at officers' quarters No. 28, the nearest
house to the mess hall. The three returned from their walk at about 10
o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual
going on to his room at No. 27. A few moments after the party separated,
Celestino and Mariano heard cries for assistance and upon returning to No.
27 found Pascual sitting on the back steps fatally wounded in the stomach,
whereupon one of them ran back to No. 28 and called Liuetenants Jacobs and
Healy, who immediately went to the aid of the wounded man.
The defendant then and there admitted that he had stabbed his roommate, but
said that he did it under the impression that Pascual was "a ladron" because
he forced open the door of their sleeping room, despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of Pascuals
suggests itself, unless it be that the boy in a spirit of mischief was playing a
trick on his Chinese roommate, and sought to frightened him by forcing his
way into the room, refusing to give his name or say who he was, in order to
make Ah Chong believe that he was being attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was conveyed to
the military hospital, where he died from the effects of the wound on the
following day.
The defendant was charged with the crime of assassination, tried, and found
guilty by the trial court of simple homicide, with extenuating circumstances,
and sentenced to six years and one day presidio mayor, the minimum penalty
prescribed by law.
At the trial in the court below the defendant admitted that he killed his
roommate, Pascual Gualberto, but insisted that he struck the fatal blow
without any intent to do a wrongful act, in the exercise of his lawful right of
self-defense.
Article 8 of the Penal Code provides that

The following are not delinquent and are therefore exempt from
criminal liability:
xxx
xxx
xxx
4 He who acts in defense of his person or rights, provided there are
the following attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or repel
it.
(3) Lack of sufficient provocation on the part of the person defending
himself.
Under these provisions we think that there can be no doubt that defendant
would be entitle to complete exception from criminal liability for the death of
the victim of his fatal blow, if the intruder who forced open the door of his
room had been in fact a dangerous thief or "ladron," as the defendant
believed him to be. No one, under such circumstances, would doubt the right
of the defendant to resist and repel such an intrusion, and the thief having
forced open the door notwithstanding defendant's thrice-repeated warning to
desist, and his threat that he would kill the intruder if he persisted in his
attempt, it will not be questioned that in the darkness of the night, in a small
room, with no means of escape, with the thief advancing upon him despite
his warnings defendant would have been wholly justified in using any
available weapon to defend himself from such an assault, and in striking
promptly, without waiting for the thief to discover his whereabouts and
deliver the first blow.
But the evidence clearly discloses that the intruder was not a thief or a
"ladron." That neither the defendant nor his property nor any of the property
under his charge was in real danger at the time when he struck the fatal blow.
That there was no such "unlawful aggression" on the part of a thief or
"ladron" as defendant believed he was repelling and resisting, and that there
was no real "necessity" for the use of the knife to defend his person or his
property or the property under his charge.
The question then squarely presents it self, whether in this jurisdiction one
can be held criminally responsible who, by reason of a mistake as to the
facts, does an act for which he would be exempt from criminal liability if the
facts were as he supposed them to be, but which would constitute the crime
of homicide or assassination if the actor had known the true state of the facts
at the time when he committed the act. To this question we think there can be
but one answer, and we hold that under such circumstances there is no
criminal liability, provided always that the alleged ignorance or mistake or
fact was not due to negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or mistake
of fact is sufficient to negative a particular intent which under the law is a

necessary ingredient of the offense charged (e.g., in larcerny, animus furendi;

in murder, malice; in crimes intent) "cancels the presumption of intent," and
works an acquittal; except in those cases where the circumstances demand a
conviction under the penal provisions touching criminal negligence; and in
cases where, under the provisions of article 1 of the Penal Code one
voluntarily committing a crime or misdeamor incurs criminal liability for any
wrongful act committed by him, even though it be different from that which
he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited;
McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240;
Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509;
Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the only
question worthy of consideration is whether malice or criminal intent is an
essential element or ingredient of the crimes of homicide and assassination as
defined and penalized in the Penal Code. It has been said that since the
definitions there given of these as well as most other crimes and offense
therein defined, do not specifically and expressly declare that the acts
constituting the crime or offense must be committed with malice or with
criminal intent in order that the actor may be held criminally liable, the
commission of the acts set out in the various definitions subjects the actor to
the penalties described therein, unless it appears that he is exempted from
liability under one or other of the express provisions of article 8 of the code,
which treats of exemption. But while it is true that contrary to the general
rule of legislative enactment in the United States, the definitions of crimes
and offenses as set out in the Penal Code rarely contain provisions expressly
declaring that malice or criminal intent is an essential ingredient of the crime,
nevertheless, the general provisions of article 1 of the code clearly indicate
that malice, or criminal intent in some form, is an essential requisite of all
crimes and offense therein defined, in the absence of express provisions
modifying the general rule, such as are those touching liability resulting from
acts negligently or imprudently committed, and acts done by one voluntarily
committing a crime or misdemeanor, where the act committed is different
from that which he intended to commit. And it is to be observed that even
these exceptions are more apparent than real, for "There is little distinction,
except in degree, between a will to do a wrongful thing and indifference
whether it is done or not. Therefore carelessness is criminal, and within
limits supplies the place of the affirmative criminal intent" (Bishop's New
Criminal Law, vol. 1, s. 313); and, again, "There is so little difference
between a disposition to do a great harm and a disposition to do harm that
one of them may very well be looked upon as the measure of the other. Since,
therefore, the guilt of a crime consists in the disposition to do harm, which
the criminal shows by committing it, and since this disposition is greater or

less in proportion to the harm which is done by the crime, the consequence is
that the guilt of the crime follows the same proportion; it is greater or less
according as the crime in its own nature does greater or less harm" (Ruth.
Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having
proceeded from a corrupt mid, is to be viewed the same whether the
corruption was of one particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions
punished by law.
Acts and omissions punished by law are always presumed to be
voluntarily unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall
incur criminal liability, even though the wrongful act committed be
different from that which he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the word
"voluntary" as used in this article, say that a voluntary act is a free,
intelligent, and intentional act, and roundly asserts that without intention
(intention to do wrong or criminal intention) there can be no crime; and that
the word "voluntary" implies and includes the words "con malicia," which
were expressly set out in the definition of the word "crime" in the code of
1822, but omitted from the code of 1870, because, as Pacheco insists, their
use in the former code was redundant, being implied and included in the
word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime can
only be said to exempt from criminal responsibility when the act which was
actually intended to be done was in itself a lawful one, and in the absence of
negligence or imprudence, nevertheless admits and recognizes in his
discussion of the provisions of this article of the code that in general without
intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have
shown above, the exceptions insisted upon by Viada are more apparent than
real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared
that where there is no intention there is no crime . . . in order to
affirm, without fear of mistake, that under our code there can be no
crime if there is no act, an act which must fall within the sphere of
ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio
169.)
And to the same effect are various decisions of the supreme court of Spain,
as, for example in its sentence of May 31, 1882, in which it made use of the
following language:

It is necessary that this act, in order to constitute a crime, involve all

the malice which is supposed from the operation of the will and an
intent to cause the injury which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that
"considering that, whatever may be the civil effects of the inscription of his
three sons, made by the appellant in the civil registry and in the parochial
church, there can be no crime because of the lack of the necessary element or
criminal intention, which characterizes every action or ommission punished
by law; nor is he guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use of
the following language:
. . . Considering that the moral element of the crime, that is, intent or
malice or their absence in the commission of an act defined and
punished by law as criminal, is not a necessary question of fact
submitted to the exclusive judgment and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to be an
essential element of the various crimes and misdemeanors therein defined
becomes clear also from an examination of the provisions of article 568,
which are as follows:
He who shall execute through reckless negligence an act that, if done
with malice, would constitute a grave crime, shall be punished with
the penalty of arresto mayor in its maximum degree, to prision
correccional in its minimum degrees if it shall constitute a less grave
crime.
He who in violation of the regulations shall commit a crime through
simple imprudence or negligence shall incur the penalty of arresto
mayor in its medium and maximum degrees.
In the application of these penalties the courts shall proceed
according to their discretion, without being subject to the rules
prescribed in article 81.
The provisions of this article shall not be applicable if the penalty
prescribed for the crime is equal to or less than those contained in the
first paragraph thereof, in which case the courts shall apply the next
one thereto in the degree which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent to the
words "criminal intent," and the direct inference from its provisions is that
the commission of the acts contemplated therein, in the absence of malice
(criminal intent), negligence, and imprudence, does not impose any criminal
liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to
approximate in meaning the word "willful" as used in English and American
statute to designate a form of criminal intent. It has been said that while the

word "willful" sometimes means little more than intentionally or designedly,

yet it is more frequently understood to extent a little further and approximate
the idea of the milder kind of legal malice; that is, it signifies an evil intent
without justifiable excuse. In one case it was said to mean, as employed in a
statute in contemplation, "wantonly" or "causelessly;" in another, "without
reasonable grounds to believe the thing lawful." And Shaw, C. J., once said
that ordinarily in a statute it means "not merely `voluntarily' but with a bad
purpose; in other words, corruptly." In English and the American statutes
defining crimes "malice," "malicious," "maliciously," and "malice
aforethought" are words indicating intent, more purely technical than
"willful" or willfully," but "the difference between them is not great;" the
word "malice" not often being understood to require general malevolence
toward a particular individual, and signifying rather the intent from our legal
justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and
cases cited.)
But even in the absence of express words in a statute, setting out a condition
in the definition of a crime that it be committed "voluntarily," willfully,"
"maliciously" "with malice aforethought," or in one of the various modes
generally construed to imply a criminal intent, we think that reasoning from
general principles it will always be found that with the rare exceptions
hereinafter mentioned, to constitute a crime evil intent must combine with an
act. Mr. Bishop, who supports his position with numerous citations from the
decided cases, thus forcely present this doctrine:
In no one thing does criminal jurisprudence differ more from civil
than in the rule as to the intent. In controversies between private
parties the quo animo with which a thing was done is sometimes
important, not always; but crime proceeds only from a criminal
mind. So that
There can be no crime, large or small, without an evil mind. In other
words, punishment is the sentence of wickedness, without which it
can not be. And neither in philosophical speculation nor in religious
or mortal sentiment would any people in any age allow that a man
should be deemed guilty unless his mind was so. It is therefore a
principle of our legal system, as probably it is of every other, that the
essence of an offense is the wrongful intent, without which it can not
exists. We find this doctrine confirmed by
Legal maxims. The ancient wisdom of the law, equally with the
modern, is distinct on this subject. It consequently has supplied to us
such maxims as Actus non facit reum nisi mens sit rea, "the act itself
does not make man guilty unless his intention were so;" Actus me
incito factus non est meus actus, "an act done by me against my will

is not my act;" and others of the like sort. In this, as just said,
criminal jurisprudence differs from civil. So also
Moral science and moral sentiment teach the same thing. "By
reference to the intention, we inculpate or exculpate others or
ourselves without any respect to the happiness or misery actually
produced. Let the result of an action be what it may, we hold a man
guilty simply on the ground of intention; or, on the dame ground, we
hold him innocent." The calm judgment of mankind keeps this
doctrine among its jewels. In times of excitement, when vengeance
takes the place of justice, every guard around the innocent is cast
down. But with the return of reason comes the public voice that
where the mind is pure, he who differs in act from his neighbors does
not offend. And
In the spontaneous judgment which springs from the nature given by
God to man, no one deems another to deserve punishment for what
he did from an upright mind, destitute of every form of evil. And
whenever a person is made to suffer a punishment which the
community deems not his due, so far from its placing an evil mark
upon him, it elevates him to the seat of the martyr. Even infancy
itself spontaneously pleads the want of bad intent in justification of
what has the appearance of wrong, with the utmost confidence that
the plea, if its truth is credited, will be accepted as good. Now these
facts are only the voice of nature uttering one of her immutable
truths. It is, then, the doctrine of the law, superior to all other
doctrines, because first in nature from which the law itself proceeds,
that no man is to be punished as a criminal unless his intent is wrong.
(Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent
departure from this doctrine of abstract justice result from the adoption of the
arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law
excuses no man"), without which justice could not be administered in our
tribunals; and compelled also by the same doctrine of necessity, the courts
have recognized the power of the legislature to forbid, in a limited class of
cases, the doing of certain acts, and to make their commission criminal
without regard to the intent of the doer. Without discussing these exceptional
cases at length, it is sufficient here to say that the courts have always held
that unless the intention of the lawmaker to make the commission of certain
acts criminal without regard to the intent of the doer is clear and beyond
question the statute will not be so construed (cases cited in Cyc., vol. 12, p.
158, notes 76 and 77); and the rule that ignorance of the law excuses no man
has been said not to be a real departure from the law's fundamental principle
that crime exists only where the mind is at fault, because "the evil purpose

need not be to break the law, and if suffices if it is simply to do the thing
which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and
cases cited.)
But, however this may be, there is no technical rule, and no pressing
necessity therefore, requiring mistake in fact to be dealt with otherwise that
in strict accord with the principles of abstract justice. On the contrary, the
maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact
is, in all cases of supposed offense, a sufficient excuse"). (Brown's Leg.
Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any
such mistake of fact as shows the act committed to have proceeded from no
sort of evil in the mind necessarily relieves the actor from criminal liability
provided always there is no fault or negligence on his part; and as laid down
by Baron Parke, "The guilt of the accused must depend on the circumstances
as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs.Anderson,
44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509;
Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles,
55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question
as to whether he honestly, in good faith, and without fault or negligence fell
into the mistake is to be determined by the circumstances as they appeared to
him at the time when the mistake was made, and the effect which the
surrounding circumstances might reasonably be expected to have on his
mind, in forming the intent, criminal or other wise, upon which he acted.
If, in language not uncommon in the cases, one has reasonable cause
to believe the existence of facts which will justify a killing or, in
terms more nicely in accord with the principles on which the rule is
founded, if without fault or carelessness he does believe them he
is legally guiltless of the homicide; though he mistook the facts, and
so the life of an innocent person is unfortunately extinguished. In
other words, and with reference to the right of self-defense and the
not quite harmonious authorities, it is the doctrine of reason and
sufficiently sustained in adjudication, that notwithstanding some
decisions apparently adverse, whenever a man undertakes selfdefense, he is justified in acting on the facts as they appear to him. If,
without fault or carelessness, he is misled concerning them, and
defends himself correctly according to what he thus supposes the
facts to be the law will not punish him though they are in truth
otherwise, and he was really no occassion for the extreme measures.
(Bishop's New Criminal Law, sec. 305, and large array of cases there
cited.)
The common illustration in the American and English textbooks of the
application of this rule is the case where a man, masked and disguised as a

footpad, at night and on a lonely road, "holds up" his friends in a spirit of
mischief, and with leveled pistol demands his money or his life, but is killed
by his friend under the mistaken belief that the attack is a real one, that the
pistol leveled at his head is loaded, and that his life and property are in
imminent danger at the hands of the aggressor. No one will doubt that if the
facts were such as the slayer believed them to be he would be innocent of the
commission of any crime and wholly exempt from criminal liability,
although if he knew the real state of the facts when he took the life of his
friend he would undoubtedly be guilty of the crime of homicide or
assassination. Under such circumstances, proof of his innocent mistake of the
facts overcomes the presumption of malice or criminal intent, and (since
malice or criminal intent is a necessary ingredient of the "act punished by
law" in cases of homicide or assassination) overcomes at the same time the
presumption established in article 1 of the code, that the "act punished by
law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the
person slain had a felonious design against him, and under that
supposition killed him, although it should afterwards appear that
there was no such design, it will not be murder, but it will be either
manslaughter or excusable homicide, according to the degree of
caution used and the probable grounds of such belief. (Charge to the
grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report
of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as
follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly
toward him, with an outstretched arms and a pistol in his hand, and
using violent menaces against his life as he advances. Having
approached near enough in the same attitude, A, who has a club in
his hand, strikes B over the head before or at the instant the pistol is
discharged; and of the wound B dies. It turns out the pistol was
loaded with powder only, and that the real design of B was only
to terrify A. Will any reasonable man say that A is more criminal that
he would have been if there had been a bullet in the pistol? Those
who hold such doctrine must require that a man so attacked must,
before he strikes the assailant, stop and ascertain how the pistol is
loaded a doctrine which would entirely take away the essential
right of self-defense. And when it is considered that the jury who try
the cause, and not the party killing, are to judge of the reasonable
grounds of his apprehension, no danger can be supposed to flow
from this principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited
by Viada, a few of which are here set out in full because the facts are
somewhat analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting at his
hearth, at night, in company only of his wife, without other light than
reflected from the fire, and that the man with his back to the door
was attending to the fire, there suddenly entered a person whom he
did not see or know, who struck him one or two blows, producing a
contusion on the shoulder, because of which he turned, seized the
person and took from his the stick with which he had undoubtedly
been struck, and gave the unknown person a blow, knocking him to
the floor, and afterwards striking him another blow on the head,
leaving the unknown lying on the floor, and left the house. It turned
out the unknown person was his father-in-law, to whom he rendered
assistance as soon as he learned his identity, and who died in about
six days in consequence of cerebral congestion resulting from the
blow. The accused, who confessed the facts, had always sustained
pleasant relations with his father-in-law, whom he visited during his
sickness, demonstrating great grief over the occurrence. Shall he be
considered free from criminal responsibility, as having acted in selfdefense, with all the circumstances related in paragraph 4, article 8,
of the Penal Code? The criminal branch of theAudiencia of
Valladolid found that he was an illegal aggressor, without sufficient
provocation, and that there did not exists rational necessity for the
employment of the force used, and in accordance with articles 419
and 87 of the Penal Code condemned him to twenty months of
imprisonment, with accessory penalty and costs. Upon appeal by the
accused, he was acquitted by the supreme court, under the following
sentence: "Considering, from the facts found by the sentence to have
been proven, that the accused was surprised from behind, at night, in
his house beside his wife who was nursing her child, was attacked,
struck, and beaten, without being able to distinguish with which they
might have executed their criminal intent, because of the there was
no other than fire light in the room, and considering that in such a
situation and when the acts executed demonstrated that they might
endanger his existence, and possibly that of his wife and child, more
especially because his assailant was unknown, he should have
defended himself, and in doing so with the same stick with which he
was attacked, he did not exceed the limits of self-defense, nor did he
use means which were not rationally necessary, particularly because
the instrument with which he killed was the one which he took from
his assailant, and was capable of producing death, and in the

darkness of the house and the consteration which naturally resulted

from such strong aggression, it was not given him to known or
distinguish whether there was one or more assailants, nor the arms
which they might bear, not that which they might accomplish, and
considering that the lower court did not find from the accepted facts
that there existed rational necessity for the means employed, and that
it did not apply paragraph 4 of article 8 of the Penal Code, it erred,
etc." (Sentence of supreme court of Spain, February 28, 1876.)
(Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house, which
was situated in a retired part of the city, upon arriving at a point
where there was no light, heard the voice of a man, at a distance of
some 8 paces, saying: "Face down, hand over you money!" because
of which, and almost at the same money, he fired two shots from his
pistol, distinguishing immediately the voice of one of his friends
(who had before simulated a different voice) saying, "Oh! they have
killed me," and hastening to his assistance, finding the body lying
upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or
I am ruined," realizing that he had been the victim of a joke, and not
receiving a reply, and observing that his friend was a corpse, he
retired from the place. Shall he be declared exempt in toto from
responsibility as the author of this homicide, as having acted in just
self-defense under the circumstances defined in paragraph 4, article
8, Penal Code? The criminal branch of the Audiencia of Malaga did
not so find, but only found in favor of the accused two of the
requisites of said article, but not that of the reasonableness of the
means employed to repel the attack, and, therefore, condemned the
accused to eight years and one day of prison mayor, etc. The
supreme court acquitted the accused on his appeal from this
sentence, holding that the accused was acting under a justifiable and
excusable mistake of fact as to the identity of the person calling to
him, and that under the circumstances, the darkness and remoteness,
etc., the means employed were rational and the shooting justifiable.
(Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)
QUESTION VI. The owner of a mill, situated in a remote spot, is
awakened, at night, by a large stone thrown against his window at
this, he puts his head out of the window and inquires what is wanted,
and is answered "the delivery of all of his money, otherwise his
house would be burned" because of which, and observing in an
alley adjacent to the mill four individuals, one of whom addressed
him with blasphemy, he fired his pistol at one the men, who, on the
next morning was found dead on the same spot. Shall this man be

declared exempt from criminal responsibility as having acted in just

self-defense with all of the requisites of law? The criminal branch of
the requisites of law? The criminal branch of the Audiencia of
Zaragoza finds that there existed in favor of the accused a majority
of the requisites to exempt him from criminal responsibility, but not
that of reasonable necessity for the means, employed, and
condemned the accused to twelve months of prision correctional for
the homicide committed. Upon appeal, the supreme court acquitted
the condemned, finding that the accused, in firing at the malefactors,
who attack his mill at night in a remote spot by threatening robbery
and incendiarism, was acting in just self-defense of his person,
property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)
A careful examination of the facts as disclosed in the case at bar convinces us
that the defendant Chinaman struck the fatal blow alleged in the information
in the firm belief that the intruder who forced open the door of his sleeping
room was a thief, from whose assault he was in imminent peril, both of his
life and of his property and of the property committed to his charge; that in
view of all the circumstances, as they must have presented themselves to the
defendant at the time, he acted in good faith, without malice, or criminal
intent, in the belief that he was doing no more than exercising his legitimate
right of self-defense; that had the facts been as he believed them to be he
would have been wholly exempt from criminal liability on account of his act;
and that he can not be said to have been guilty of negligence or recklessness
or even carelessness in falling into his mistake as to the facts, or in the means
adopted by him to defend himself from the imminent danger which he
believe threatened his person and his property and the property under his
charge.
The judgment of conviction and the sentence imposed by the trial court
should be reversed, and the defendant acquitted of the crime with which he is
charged and his bail bond exonerated, with the costs of both instance de
oficio. So ordered.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.
Separate Opinions
TORRES, J., dissenting:
The writer, with due respect to the opinion of the majority of the court,
believes that, according to the merits of the case, the crime of homicide by
reckless negligence, defined and punishes in article 568 of the Penal Code,
was committed, inasmuch as the victim was wilfully (voluntariomente)
killed, and while the act was done without malice or criminal intent it was,

however, executed with real negligence, for the acts committed by the
deceased could not warrant the aggression by the defendant under the
erroneous belief on the part of the accused that the person who assaulted him
was a malefactor; the defendant therefore incurred responsibility in attacking
with a knife the person who was accustomed to enter said room, without any
justifiable motive.
By reason of the nature of the crime committed, in the opinion of the
undersigned the accused should be sentenced to the penalty of one year and
one month of prision correctional, to suffer the accessory penalties provided
in article 61, and to pay an indemnify of P1,000 to the heirs of the deceased,
with the costs of both instances, thereby reversing the judgment appealed
from.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-47722
July 27, 1943
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibaez and Assistant Attorney Torres for appellee.
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the accused
Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan and
corporal of the Philippine Constabulary, respectively, were, after due trial,
found guilty by the lower court of homicide through reckless imprudence and
were sentenced each to an indeterminate penalty of from one year and six
months to two years and two months of prison correccional and to indemnify
jointly and severally the heirs of the deceased in the amount of P1,000.
Defendants appealed separately from this judgment.
In the afternoon of December 24, 1938. Captain Godofredo Monsod,
Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received
from Major Guido a telegram of the following tenor: "Information received
escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan
get him dead or alive." Captain Monsod accordingly called for his first
sergeant and asked that he be given four men. Defendant corporal Alberto
Galanta, and privates Nicomedes Oralo, Venancio Serna and D. Fernandez,
upon order of their sergeant, reported at the office of the Provincial Inspector
where they were shown a copy of the above-quoted telegram and a
newspaper clipping containing a picture of Balagtas. They were instructed to

arrest Balagtas and, if overpowered, to follow the instruction contained in the

telegram. The same instruction was given to the chief of police Oanis who
was likewise called by the Provincial Inspector. When the chief of police was
asked whether he knew one Irene, a bailarina, he answered that he knew one
of loose morals of the same name. Upon request of the Provincial Inspector,
the chief of police tried to locate some of his men to guide the constabulary
soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of
them he volunteered to go with the party. The Provincial Inspector divided
the party into two groups with defendants Oanis and Galanta, and private
Fernandez taking the route to Rizal street leading to the house where Irene
was supposedly living. When this group arrived at Irene's house, Oanis
approached one Brigida Mallare, who was then stripping banana stalks, and
asked her where Irene's room was. Brigida indicated the place and upon
further inquiry also said that Irene was sleeping with her paramour. Brigida
trembling, immediately returned to her own room which was very near that
occupied by Irene and her paramour. Defendants Oanis and Galanta then
went to the room of Irene, and an seeing a man sleeping with his back
towards the door where they were, simultaneously or successively fired at
him with their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene
saw her paramour already wounded, and looking at the door where the shots
came, she saw the defendants still firing at him. Shocked by the entire scene.
Irene fainted; it turned out later that the person shot and killed was not the
notorious criminal Anselmo Balagtas but a peaceful and innocent citizen
named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed
of the killing, repaired to the scene and when he asked as to who killed the
deceased. Galanta, referring to himself and to Oanis, answered: "We two,
sir." The corpse was thereafter brought to the provincial hospital and upon
autopsy by Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32
and a .45 caliber revolvers were found on Tecson's body which caused his
death.
These are the facts as found by the trial court and fully supported by the
evidence, particularly by the testimony of Irene Requinea. Appellants gave,
however, a different version of the tragedy. According to Appellant Galanta,
when he and chief of police Oanis arrived at the house, the latter asked
Brigida where Irene's room was. Brigida indicated the place, and upon
further inquiry as to the whereabouts of Anselmo Balagtas, she said that he
too was sleeping in the same room. Oanis went to the room thus indicated
and upon opening the curtain covering the door, he said: "If you are Balagtas,
stand up." Tecson, the supposed Balagtas, and Irene woke up and as the
former was about to sit up in bed. Oanis fired at him. Wounded, Tecson
leaned towards the door, and Oanis receded and shouted: "That is Balagtas."
Galanta then fired at Tecson.

On the other hand, Oanis testified that after he had opened the curtain
covering the door and after having said, "if you are Balagtas stand up."
Galanta at once fired at Tecson, the supposed Balagtas, while the latter was
still lying on bed, and continued firing until he had exhausted his bullets: that
it was only thereafter that he, Oanis, entered the door and upon seeing the
supposed Balagtas, who was then apparently watching and picking up
something from the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies are
certainly incredible not only because they are vitiated by a natural urge to
exculpate themselves of the crime, but also because they are materially
contradictory. Oasis averred that be fired at Tecson when the latter was
apparently watching somebody in an attitudes of picking up something from
the floor; on the other hand, Galanta testified that Oasis shot Tecson while
the latter was about to sit up in bed immediately after he was awakened by a
noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when
the latter was rushing at him. But Oanis assured that when Galanta shot
Tecson, the latter was still lying on bed. It is apparent from these
contradictions that when each of the appellants tries to exculpate himself of
the crime charged, he is at once belied by the other; but their mutual
incriminating averments dovetail with and corroborate substantially, the
testimony of Irene Requinea. It should be recalled that, according to
Requinea, Tecson was still sleeping in bed when he was shot to death by
appellants. And this, to a certain extent, is confirmed by both appellants
themselves in their mutual recriminations. According, to Galanta, Oanis shot
Tecson when the latter was still in bed about to sit up just after he was
awakened by a noise. And Oanis assured that when Galanta shot Tecson, the
latter was still lying in bed. Thus corroborated, and considering that the trial
court had the opportunity to observe her demeanor on the stand, we believe
and so hold that no error was committed in accepting her testimony and in
rejecting the exculpatory pretensions of the two appellants. Furthermore, a
careful examination of Irene's testimony will show not only that her version
of the tragedy is not concocted but that it contains all indicia of veracity. In
her cross-examination, even misleading questions had been put which were
unsuccessful, the witness having stuck to the truth in every detail of the
occurrence. Under these circumstances, we do not feel ourselves justified in
disturbing the findings of fact made by the trial court.
The true fact, therefore, of the case is that, while Tecson was sleeping in his
room with his back towards the door, Oanis and Galanta, on sight, fired at
him simultaneously or successively, believing him to be Anselmo Balagtas
but without having made previously any reasonable inquiry as to his identity.
And the question is whether or not they may, upon such fact, be held
responsible for the death thus caused to Tecson. It is contended that, as

appellants acted in innocent mistake of fact in the honest performance of

their official duties, both of them believing that Tecson was Balagtas, they
incur no criminal liability. Sustaining this theory in part, the lower court held
and so declared them guilty of the crime of homicide through reckless
imprudence. We are of the opinion, however, that, under the circumstances of
the case, the crime committed by appellants is murder through specially
mitigated by circumstances to be mentioned below.
In support of the theory of non-liability by reasons of honest mistake of fact,
appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The maxim
is ignorantia facti excusat, but this applies only when the mistake is
committed without fault or carelessness. In the Ah Chong case, defendant
therein after having gone to bed was awakened by someone trying to open
the door. He called out twice, "who is there," but received no answer. Fearing
that the intruder was a robber, he leaped from his bed and called out again.,
"If you enter the room I will kill you." But at that precise moment, he was
struck by a chair which had been placed against the door and believing that
he was then being attacked, he seized a kitchen knife and struck and fatally
wounded the intruder who turned out to be his room-mate. A common
illustration of innocent mistake of fact is the case of a man who was marked
as a footpad at night and in a lonely road held up a friend in a spirit of
mischief, and with leveled, pistol demanded his money or life. He was killed
by his friend under the mistaken belief that the attack was real, that the pistol
leveled at his head was loaded and that his life and property were in
imminent danger at the hands of the aggressor. In these instances, there is an
innocent mistake of fact committed without any fault or carelessness because
the accused, having no time or opportunity to make a further inquiry, and
being pressed by circumstances to act immediately, had no alternative but to
take the facts as they then appeared to him, and such facts justified his act of
killing. In the instant case, appellants, unlike the accused in the instances
cited, found no circumstances whatsoever which would press them to
immediate action. The person in the room being then asleep, appellants had
ample time and opportunity to ascertain his identity without hazard to
themselves, and could even effect a bloodless arrest if any reasonable effort
to that end had been made, as the victim was unarmed, according to Irene
Requinea. This, indeed, is the only legitimate course of action for appellants
to follow even if the victim was really Balagtas, as they were instructed not
to kill Balagtas at sight but to arrest him, and to get him dead or alive only if
resistance or aggression is offered by him.
Although an officer in making a lawful arrest is justified in using such force
as is reasonably necessary to secure and detain the offender, overcome his
resistance, prevent his escape, recapture him if he escapes, and protect
himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never

justified in using unnecessary force or in treating him with wanton violence,

or in resorting to dangerous means when the arrest could be effected
otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules
of Court thus: "No unnecessary or unreasonable force shall be used in
making an arrest, and the person arrested shall not be subject to any greater
restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a
peace officer cannot claim exemption from criminal liability if he uses
unnecessary force or violence in making an arrest (5 C.J., p. 753;
U.S.vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a
notorious criminal, a life-termer, a fugitive from justice and a menace to the
peace of the community, but these facts alone constitute no justification for
killing him when in effecting his arrest, he offers no resistance or in fact no
resistance can be offered, as when he is asleep. This, in effect, is the principle
laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234,
242).
It is, however, suggested that a notorious criminal "must be taken by storm"
without regard to his right to life which he has by such notoriety already
forfeited. We may approve of this standard of official conduct where the
criminal offers resistance or does something which places his captors in
danger of imminent attack. Otherwise we cannot see how, as in the present
case, the mere fact of notoriety can make the life of a criminal a mere trifle in
the hands of the officers of the law. Notoriety rightly supplies a basis for
redoubled official alertness and vigilance; it never can justify precipitate
action at the cost of human life. Where, as here, the precipitate action of the
appellants has cost an innocent life and there exist no circumstances
whatsoever to warrant action of such character in the mind of a reasonably
prudent man, condemnation not condonation should be the rule;
otherwise we should offer a premium to crime in the shelter of official
actuation.
The crime committed by appellants is not merely criminal negligence, the
killing being intentional and not accidental. In criminal negligence, the injury
caused to another should be unintentional, it being simply the incident of
another act performed without malice. (People vs. Sara, 55 Phil., 939). In the
words of Viada, "para que se celifique un hecho de imprudencia es preciso
que no haya mediado en el malicia ni intencion alguna de daar; existiendo
esa intencion, debera calificarse el hecho del delito que ha producido, por
mas que no haya sido la intencion del agente el causar un mal de tanta
gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal
Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate
intent to do an unlawful act is essentially inconsistent with the idea of
reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56
Phil., 16), and where such unlawful act is wilfully done, a mistake in the

identity of the intended victim cannot be considered as reckless imprudence

(People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability.
As the deceased was killed while asleep, the crime committed is murder with
the qualifying circumstance ofalevosia. There is, however, a mitigating
circumstance of weight consisting in the incomplete justifying circumstance
defined in article 11, No. 5, of the Revised Penal Code. According to such
legal provision, a person incurs no criminal liability when he acts in the
fulfillment of a duty or in the lawful exercise of a right or office. There are
two requisites in order that the circumstance may be taken as a justifying
one: (a) that the offender acted in the performance of a duty or in the lawful
exercise of a right; and (b) that the injury or offense committed be the
necessary consequence of the due performance of such duty or the lawful
exercise of such right or office. In the instance case, only the first requisite is
present appellants have acted in the performance of a duty. The second
requisite is wanting for the crime by them committed is not the necessary
consequence of a due performance of their duty. Their duty was to arrest
Balagtas or to get him dead or alive if resistance is offered by him and they
are overpowered. But through impatience or over-anxiety or in their desire to
take no chances, they have exceeded in the fulfillment of such duty by killing
the person whom they believed to be Balagtas without any resistance from
him and without making any previous inquiry as to his identity. According to
article 69 of the Revised Penal Code, the penalty lower by one or two
degrees than that prescribed by law shall, in such case, be imposed.
For all the foregoing, the judgment is modified and appellants are hereby
declared guilty of murder with the mitigating circumstance above mentioned,
and accordingly sentenced to an indeterminate penalty of from five (5) years
of prision correctional to fifteen (15) years of reclusion temporal, with the
accessories of the law, and to pay the heirs of the deceased Serapio Tecson
jointly and severally an indemnity of P2,000, with costs.
Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.
Separate Opinions
PARAS, J., dissenting:
Anselmo Balagtas, a life termer and notorious criminal, managed to escape
and flee form Manila to the provinces. Receiving information to the effect
that he was staying with one Irene in Cabanatuan, Nueva Ecija, the office of
the Constabulary in Manila ordered the Provincial Inspector in Cabanatuan
by telegram dispatched on December 25, 1938, to get Balagtas "dead or
alive". Among those assigned to the task of carrying out the said order, were
Antonio Z. Oanis, chief of police of Cabanatuan, and Alberto Galanta, a
Constabulary corporal, to whom the telegram received by the Provincial

Inspector and a newspaper picture of Balagtas were shown. Oanis, Galanta

and a Constabulary private, after being told by the Provincial Inspector to
gather information about Balagtas, "to arrest him and, if overpowered, to
follow the instructions contained in the telegram," proceeded to the place
where the house of Irene was located. Upon arriving thereat, Oanis
approached Brigida Mallari, who was then gathering banana stalks in the
yard, and inquired for the room of Irene. After Mallari had pointed out the
room, she was asked by Oanis to tell where Irene's paramour, Balagtas, was,
whereupon Mallari answered that he was sleeping with Irene. Upon reaching
the room indicated, Oanis and Galanta, after the former had shouted "Stand
up, if you are Balagtas," started shooting the man who was found by them
lying down beside a woman. The man was thereby killed, but Balagtas was
still alive, for it turned out that the person shot by Oanis and Galanta was one
Serapio Tecson.
Consequently, Oanis and Galanta were charged with having committed
murder. The Court of First Instance of Nueva Ecija, however, convicted them
only of homicide through reckless imprudence and sentenced them each to
suffer the indeterminate penalty of from 1 year and 6 months to 2 years and 2
months of prision correctional, to jointly and severally indemnify the heirs of
Serapio Tecson in the amount of P1,000, and to pay the costs. Oanis and
Galanta have appealed.
In accomplishing the acts with which the appellants were charged, they
undoubtedly followed the order issued by the Constabulary authorities in
Manila requiring the Provincial Inspector in Cabanatuan to get Balagtas dead
or alive, in the honest belief that Serapio Tecson was Anselmo Balagtas. As
the latter became a fugitive criminal, with revolvers in his possession and a
record that made him extremely dangerous and a public terror, the
Constabulary authorities were justified in ordering his arrest, whether dead or
alive. In view of said order and the danger faced by the appellants in carrying
it out, they cannot be said to have acted feloniously in shooting the person
honestly believed by them to be the wanted man. Conscious of the fact that
Balagtas would rather kill than be captured, the appellants did not want to
take chances and should not be penalized for such prudence. On the contrary,
they should be commended for their bravery and courage bordering on
recklessness because, without knowing or ascertaining whether the wanted
man was in fact asleep in his room, they proceeded thereto without hesitation
and thereby exposed their lives to danger.
The Solicitor-General, however, contends that the appellants were authorized
to use their revolvers only after being overpowered by Balagtas. In the first
place, the alleged instruction by the Provincial Inspector to that effect, was in
violation of the express order given by the Constabulary authorities in Manila
and which was shown to the appellants. In the second place, it would indeed

be suicidal for the appellants or, for that matter, any agent of the authority to
have waited until they have been overpowered before trying to put our such a
character as Balagtas. In the third place, it is immaterial whether or not the
instruction given by the Provincial Inspector was legitimate and proper,
because the facts exist that the appellants acted in conformity with the
express order of superior Constabulary authorities, the legality or propriety of
which is not herein questioned.
The theory of the prosecution has acquired some plausibility, though quite
psychological or sentimental, in view only of the fact that it was not Balagtas
who was actually killed, but an "innocent man . . . while he was deeply
asleep." Anybody's heart will be profoundly grieved by the trade, but in time
will be consoled by the realization that the life of Serapio Tecson was not
vainly sacrificed, for the incident will always serve as a loud warning to any
one desiring to follow in the footsteps of Anselmo Balagtas that in due time
the duly constituted authorities will, upon proper order, enforce the summary
forfeiture of his life.
In my opinion, therefore, the appellants are not criminally liable if the person
killed by them was in fact Anselmo Balagtas for the reason that they did so in
the fulfillment of their duty and in obedience to an order issued by a superior
for some lawful purpose (Revised Penal Code, art. 11, pars. 5 and 6). They
also cannot be held criminally liable even if the person killed by them was
not Anselmo Balagtas, but Serapio Tecson, because they did so under an
honest mistake of fact not due to negligence or bad faith. (U.S. vs. Ah Chong,
15 Phil., 488).
It is true that, under article 4 of the Revised Penal Code, criminal liability is
incurred by any person committing a felony although the wrongful act done
be different from that which he intended; but said article is clearly
inapplicable since the killing of the person who was believed to be Balagtas
was, as already stated, not wrongful or felonious.
The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General,
is not in point, inasmuch as the defendant therein, who intended to injure
Hilario Lauigan with whom he had a quarrel, but killed another by mistake,
would not be exempted from criminal liability if he actually injured or killed
Hilario Lauigan, there being a malicious design on his part. The other case
involved by the prosecution is U.S. vs. Donoso (3 Phil., 234). This is also not
in point, as it appears that the defendants therein killed one Pedro Almasan
after he had already surrendered and allowed himself to be bound and that
the said defendants did not have lawful instructions from superior authorities
to capture Almasan dead or alive.
The appealed judgment should therefore be reversed and the appellants,
Antonio Z. Oanis and Alberto Galanta, acquitted, with costs de oficio.

HONTIVEROS, J., dissenting:

According to the opinion of the majority, it is proper to follow the rule that a
notorious criminal "must be taken by storm without regard to his life which
he has, by his conduct, already forfeited," whenever said criminal offers
resistance or does something which places his captors in danger of imminent
attack. Precisely, the situation which confronted the accused-appellants
Antonio Z. Oanis and Alberto Galanta in the afternoon of December 24,
1938, was very similar to this. It must be remembered that both officers
received instructions to get Balagtas "dead or alive" and according to the
attitude of not only the said appellants but also of Capt. Monsod,
constabulary provincial inspector of Nueva Ecija, it may be assumed that
said instructions gave more emphasis to the first part; namely, to take him
dead. It appears in the record that after the shooting, and having been
informed of the case, Capt. Monsod stated that Oanis and Galanta might be
decorated for what they had done. That was when all parties concerned
honestly believed that the dead person was Balagtas himself, a dangerous
criminal who had escaped from his guards and was supposedly armed with
a .45 caliber pistol Brigida Mallari, the person whom the appellants met upon
arriving at the house of Irene Requinea, supposed mistress of Balagtas,
informed them that said Balagtas was upstairs. Appellants found there asleep
a man closely resembling the wanted criminal. Oanis said: If you are
Balagtas stand up," But the supposed criminal showed his intention to attack
the appellants, a conduct easily explained by the fact that he should have felt
offended by the intrusion of persons in the room where he was peacefully
lying down with his mistress. In such predicament, it was nothing but human
on the part of the appellants to employ force and to make use of their
weapons in order to repel the imminent attack by a person who, according to
their belief, was Balagtas It was unfortunate, however that an innocent man
was actually killed. But taking into consideration the facts of the case, it is,
according to my humble opinion, proper to apply herein the doctrine laid
down in the case of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we
have, as in the case supra, an innocent mistake of fact committed without any
fault or carelessness on the part of the accused, who having no time to make
a further inquiry, had no alternative but to take the facts as they appeared to
them and act immediately.
The decision of the majority, in recognition of the special circumstances of
this case which favored the accused-appellants, arrives at the conclusion that
an incomplete justifying circumstance may be invoked, and therefore,
according to Article 69 of the Revised Penal Code, the imposable penalty
should be one which is lower by one or two degrees than that prescribed by

law. This incomplete justifying circumstance is that defined in Article 11, No.
5 of the Revised Penal Code, in favor of "a person who acts in the fulfillment
of a duty or in the lawful exercise of a right or office." I believe that the
application of this circumstance is not proper. Article 69 of the Revised Penal
Code provides as follows:
Art. 69. Penalty to be imposed when the crime committed is not
wholly excusable. A penalty lower by one or two degrees than that
prescribed by law shall be imposed if the deed is not wholly
excusable by reason of the lack of some of the conditions required to
justify the same or to exempt from criminal liability in the several
cases mentioned in articles 11 and 12, provided that the majority of
such conditions be present. The courts shall impose the penalty in the
period which may be deemed proper, in view of the number and
nature of the conditions of exemption present or lacking.
This provision has been copied almost verbatim from Article 84 of the old
Penal Code of the Philippines, and which was also taken from Article 87 of
the Spanish Penal Code of 1870.
Judge Guillermo Guevara, one of the members of the Committee created by
Administrative Order No. 94 of the Department of Justice for the drafting of
the Revised Penal Code, in commenting on Article 69, said that the justifying
circumstances and circumstances exempting from liability which are the
subject matter of this article are the following: self-defense, defense of
relatives, defense of strangers, state of necessity and injury caused by mere
accident. Accordingly, justifying circumstance No. 5 of Article 11 dealing
with the fulfillment of a duty or the lawful exercise of a right, calling or
office, cannot be placed within its scope.
The eminent treatiser of criminal law Mr. Groizard, in his commentary of
Article 87 of the Spanish Penal Code of 1870 which is the source of Article
69 of our Code says:
Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad,
ni del que obra violentado por una fuerza inrresistible o impulsado
por miedo insuperable de un mal igual o mayor, o en cumplimiento
de un deber, o en el ejercito legitimo de un derecho, oficio o cargo, o
en virtud de obediencia debida, ni del que incurre en alguna omision
hallandose impedido por causa legitima o insuperable, puede tener
aplicacion al articulo que comentamos. Y la razon es obvia. En
ninguna de estas execiones hay pluralidad de requisitos. La
irrespondabilidad depende de una sola condicion. Hay o no
perturbacion de la razon; el autor del hecho es o no menor de nueve
aos; existe o no violencia material o moral irresistible, etc., etc.; tal
es lo que respectivamente hay que examinar y resolver para declarar
la culpabilidad o inculpabilidad. Es, por lo tanto, imposible que

acontezca lo que el texto que va al frente de estas lineas rquiere, para

que se imponga al autor del hecho la penalidad excepcional que
establece; esto es, que falten algunos requisitos de los que la ley
exige para eximir de responsabilidad, y que concurran el mayor
numero de ellos, toda vez que, en los casos referidos, la ley no exige
multiples condiciones.
It must be taken into account the fact according to Article 69 a penalty lower
by one or two degrees than that prescribed by law shall be imposed if the
deed is not wholly excusable by reason of the lack of some of the conditions
required by the law to justify the same or exempt from criminal liability. The
word "conditions" should not be confused with the word "requisites". In
dealing with justifying circumstance No. 5 Judge Guevara states: "There are
two requisites in order that this circumstance may be taken into account: (a)
That the offender acted in the performance of his duty or in the lawful
exercise of a right; and (b) That the injury or offense committed be the
necessary consequence of the performance of a duty or the lawful exercise of
a right or office." It is evident that these two requisites concur in the present
case if we consider the intimate connection between the order given to the
appellant by Capt. Monsod, the showing to them of the telegram from Manila
to get Balagtas who was with a bailarina named Irene, the conduct of said
appellants in questioning Brigida Mallari and giving a warning to the
supposed criminal when both found him with Irene, and the statement made
by Capt. Monsod after the shooting.
If appellant Oanis is entitled to a reversal of the decision of the court below,
there are more reasons in favor of the acquittal of appellant Galanta.
According to the evidence no bullet from the gun fired by this accused ever
hit Serapio Tecson. Galanta was armed in the afternoon of December 24,
1938, with a .45 caliber revolver (Exhibit L). He so testified and was
corroborated by the unchallenged testimony of his superior officer Sgt.
Valeriano Serafica. According to this witness, since Galanta was made a
corporal of the Constabulary he was given, as part of his equipment, revolver
Exhibit L with a serial No. 37121. This gun had been constantly used by
Galanta, and, according to Sgt. Pedro Marasigan, who accompanied said

accused when he took it from his trunk in the barracks on the night of
December 24, 1938, upon order of Captain Monsod, it was the same revolver
which was given to the witness with five .45 caliber bullets and one empty
shell. Fourteen unused bullets were also taken from Galanta by Sergeant
Serafica, thus completing his regular equipment of twenty bullets which he
had on the morning of December 24, 1938, when Sergeant Serafica made the
usual inspection of the firearms in the possession of the non-commissioned
officers and privates of the constabulary post at Cabanatuan. Galanta stated
that he had fired only one shot and missed. This testimony is corroborated by
that of a ballistic expert who testified that bullets exhibits F and O, the
first being extracted from the head of the deceased, causing wound No. 3 of
autopsy report Exhibit C and the second found at the place of the shooting,
had not been fired from revolver Exhibit L nor from any other revolver of
the constabulary station in Cabanatuan. It was impossible for the accused
Galanta to have substituted his revolver because when Exhibit L was taken
from him nobody in the barracks doubted that the deceased was none other
than Balagtas. Moreover, Exhibit L was not out of order and therefore there
was no reason why Galanta should carry along another gun, according to the
natural course of things. On the other hand, aside from wound No. 3 as above
stated, no other wound may be said to have been caused by a .45 caliber
revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2
must have been caused by a .45 caliber revolver bullet. Doctor Castro's
record gives the conclusion that wound No. 2 must have been caused by a .45
caliber bullet, but inasmuch as the diameter of the wound's entrance was only
8 mm., the caliber should be .32 and not .45, because according to the
medico-legal expert who testified in this case, a bullet of a .45 caliber will
produce a wound entrance with either 11 mm. or 12 mm. diameter. All other
wounds found by the surgeon who performed the autopsy appeared to have
been caused by bullets of a lesser caliber. In consequence, it can be stated
that no bullet fired by Galanta did ever hit or kill Serapio Tecson and
therefore there is no reason why he should be declared criminally responsible
for said death.