A.M. No. 93-2-037 SC April 6, 1995 In light of these abnormal developments, the Chief Justice took an extraordinary step.
In light of these abnormal developments, the Chief Justice took an extraordinary step. He issued Administrative Order No. 11-93
IN RE Emil (Emiliano) P. JURADO Ex Rel.: Philippine Long Distance Telephone Company (PLDT), per its First Vice-
President, Mr. Vicente R. Samson, appellant,
NARVASA, C.J.:
Liability for published statements demonstrably false or misleading, and derogatory of the courts and individual judges, is what is
involved in the proceeding at bar — than which, upon its facts, there is perhaps no more appropriate setting for an inquiry into the
limits of press freedom as it relates to public comment about the courts and their workings within a constitutional order.
1. Basic Postulates
To resolve the issue raised by those facts, application of fairly elementary and self-evident postulates is all that is needed, these
being:
1) that the utterance or publication by a person of falsehood or half-truths, or of slanted or distorted versions
of facts — or accusations which he made no bona fide effort previously to verify, and which he does not or
disdains to prove — cannot be justified as a legitimate exercise of the freedom of speech and of the press
guaranteed by the Constitution, and cannot be deemed an activity shielded from sanction by that
constitutional guaranty;
2) that such utterance or publication is also violative of "The Philippine Journalist's Code of Ethics" which
inter alia commands the journalist to "scrupulously report and interpret the news, taking care not to
suppress essential facts nor to distort the truth by improper omission or emphasis," and makes it his duty
"to air the other side and to correct substantive errors promptly;" 1
3) that such an utterance or publication, when it is offensive to the dignity and reputation of a Court or of
the judge presiding over it or degrades or tends to place the courts in disrepute and disgrace or otherwise to
debase the administration of justice, constitutes contempt of court and is punishable as such after due
proceedings; and
4) that prescinding from the obvious proposition that any aggrieved party may file a complaint to declare
the utterer or writer in contempt, the initiation of appropriate contempt proceedings against the latter by the
court is not only its prerogative but indeed its duty, imposed by the overmastering need to preserve and
protect its authority and the integrity, independence and dignity of the nation's judicial system.
2. Antecedents
This proceeding treats of Emiliano P. Jurado, a journalist who writes in a newspaper of general circulation, the "Manila Standard."
He describes himself as a columnist, who "incidentally happens to be a lawyer," remarking that while he values his membership
in the law profession, "such membership is neither a critical nor indispensable adjunct in the exercise of his occupation as a
newspaperman." 2 His column in the "Manila Standard" is entitled "Opinion."
Jurado had been writing about alleged improperties and irregularities in the judiciary over several months (from about October,
1992 to March, 1993). Other journalists had also been making reports or comments on the same subject. At the same time,
anonymous communications were being extensively circulated, by hand and through the mail, about alleged venality and
corruption in the courts. And all these were being repeatedly and insistently adverted to by certain sectors of society.
1
dated January 25, 1993, "Creating an Ad Hoc Committee to Investigate Reports of Corruption in the Judiciary," 3 reading as
follows:
WHEREAS, the Court's attention has been drawn to the many and persistent rumors and unverified reports
respecting corruption in the judiciary, said rumors and reports not only having been mentioned by media
and in anonymous communications, but having also been adverted to by certain government officials and
civic leaders.
NOW, THEREFORE, by authority of the Court, an Ad Hoc committee is hereby constituted composed of
Chief Justice Andres R. Narvasa, as Chairman, and former Justices of the Court, Hon. Lorenzo Relova and
Hon. Ameurfina A. Melencio-Herrera, as Members, which shall seek to ascertain the truth respecting said
reports and statements, and to this end, forthwith interview at closed-door sessions or otherwise, such
persons as may appear to it to have some knowledge of the matter and who may be appealed to to share that
knowledge with the Court, and otherwise gather such evidence as may be available. The Committee is
hereby authorized to use such facilities and personnel of the court as may be necessary or convenient in the
fulfillment of its assigned mission, and shall submit its report to the Court within thirty (30) days.
Material to the present inquiry are Jurado's published statements from late 1992 to the middle of February, 1993.
1. In his column of October 21, 1992, he wrote of "(j)udges in a number of regional trial courts in Metro
Manila (who) have become so notorious in their dealings with litigants and lawyers that they are now called
the "Magnificent Seven."" He stated that "(i)t has come to a point where lawyers and litigants try their
darndest to stay away from these judges. The answer, of course, is obvious."
2. In his February 3, 1993 column, he adverted to another group, also named "Magnificent Seven," which,
he said, should be distinguished from the first. He wrote: "When lawyers speak of the "Magnificent Seven"
one has to make sure which group they are referring to. Makati's "Magnificent Seven" are a bunch of Makati
regional trial court judges who fix drug-related cases. The "Magnificent Seven" in the Supreme Court
consists of a group of justices who vote as one." 4
3. Aside from the "Magnificent Seven," he also wrote about a group which he dubbed the "Dirty Dozen." In
his column of October 21, 1992 he said that there are " . . . 12 judges who have acquired such reputation for
graft and corruption that they are collectively known as the "dirty dozen". These judges, I am told, are not
satisfied with accepting bribes; they actually sell their decisions to the litigants and "solicit" their bids for
what is clearly an auction for the judge's decision."
According to him, the most corrupt judges now are Makati's "Dirty Dozen" judges, supplanting some of
those from Pasay, Pasig and Quezon City; corruption in lower Courts had been admitted by an Executive
Judge in a Metro Manila Regional Trial Court (column of November 9, 1992); and because the "Dirty
Dozen" had given Makati the reputation of having the most corrupt RTC in the country, multi-nationals and
financing institutions explicitly stipulate in their agreements that litigation in connection with these contracts
may be held anywhere in Metro Manila except in Makati; and lawyers confirm that Makati Judges, including
some persons in the sheriffs office, are the most corrupt, where before, Pasay and Quezon City had that
dubious distinction (column of December 1, 1992).
4. In his November 9, 1992 column, he wrote about "a former appellate justice (who) "holds office" at a
restaurant near the Court of Appeals building. He is known as the contact man of five CA divisions. Lawyers
say that this former jurist really delivers." In his column of January 29, 1993, he adverted to the same
unnamed former Justice as being "known for fixing cases for five CA divisions (that is what he tells lawyers
and litigants) for a fee. And if the price is right, the lawyer of the litigant paying can even write his own
decision using a CA justice as ponente. This ex-justice holds court at the mezzanine of a restaurant owned
by the wife of a former Marcos cabinet member and which has become a meeting place for judges, CA
 justices, practicing lawyers, prosecutors and even Supreme Court justices. The former CA justice also has
his own Chinese contact. After I exposed this last year, the habitues became scarce. But they are back again,
and the ex-justice is still-doing brisk business."
5. In his column of March 24, 1993, he made the claim that one can "get a temporary restraining order from
a regional trial court in Metro-Manila by paying the judge anywhere between P30,000.00 and P50,000.00."
Other columns of Jurado refer to:
a) a police from the South Capital Command . . . (to the effect) that 8 Makati judges where paid for decisions
favoring drug-traffickers and other big-time criminals, naming the judges and giving detailed accounts of
the bribery (January 30, 1993);
b) a bank, later identified by him as the Equitable Banking Corporation (Ermita Branch), which had "hosted
a lunch at its penthouse mainly for some justices, judges, prosecutors and law practitioners" (January 12,
1993); 5
c) the lady secretary of an RTC Judge in Makati who allegedly makes sure, for a fee of P10,000.00 or more,
depending on how much money is at stake, that a case is raffled off to a Judge who will be "extremely
sympathetic," and can arrange to have the Court issue attachments or injunctions for a service fee of 1%
over and above the regular premium of the attachment or injunction bond; a Chinese-Filipino businessman
who paid this "miracle worker" P300,000.00 on top of the regular premium on the attachment/injunction
bond (October 27, 1992);
d) Executive Judge de la Rosa, who "has unilaterally decided to discard the rule that cases seeking
provisional remedies should be raffled off to the judges," thus violating the rule that no case may be assigned
in multi-sala courts without a raffle (January 28, 1993);
e) the Secretary of the Judicial and Bar Council (JBC), who had supposedly gotten that body to nominate
him to the Court of Appeals; and a son and a nephew of JBC members, who were also nominated to the
Court of Appeals, contrary to ethics and delicadeza (January l6, 1993; and January 29, 1993);
f) what he denominates "a major determinant of promotion," i.e., having a relative in the JBC or the Supreme
Court, or having a powerful politician as sponsor, citing specifically, the following nominees to the Court
of Appeals — Conrado Vasquez, Jr., son and namesake of the Ombudsman and brother of the head of the
Presidential Management Staff; Rosalio de la Rosa, "nephew of Justice Relova and cousin of Chief Justice
Narvasa;" and the fact that nomination of some worthy individuals was blocked because they "incurred the
ire of the powers that be," e.g., Judge Maximiano Asuncion, Quezon City RTC, and Raul Victorino, closely
identified with former Senate President Salonga (January 25, 1993).
3. Events Directly Giving Rise
to the Proceeding at Bar
What may be called the seed of the proceeding at bar was sown by the decision promulgated by this Court on August 27, 1992, in
the so-called "controversial case" of "Philippine Long Distance Telephone Company v. Eastern Telephone Philippines, Inc.
(ETPI)," G.R. No, 94374. In that decision the Court was sharply divided; the vote was 9 to 4, in favor of the petitioner PLDT. Mr.
Justice Hugo E. Gutierrez, Jr., wrote the opinion for the
majority. 6 A motion for reconsideration of the decision was filed in respondent's behalf on September 16, 1992, which has recently
been resolved.
2
In connection with this case, G.R. No. 94374, the "Philippine Daily Inquirer" and one or two other newspapers published, on
January 28, 1993, a report of the purported affidavit of a Mr. David Miles Yerkes, an alleged expert in linguistics. This gentleman,
it appears, had been commissioned by one of the parties in the case, Eastern Telephone Philippines, Inc. (ETPI), to examine and
analyze the decision of Justice Gutierrez in relation to a few of his prior ponencias and the writings of one of the lawyers of PLDT,
Mr. Eliseo Alampay, to ascertain if the decision had been written, in whole or in part, by the latter. Yerkes proffered the conclusion
that the Gutierrez decision "looks, reads and sounds like the writing of the PLDT's counsel," 7
As might be expected, the Yerkes "revelations" spawned more public discussion and comment about the judiciary and the Supreme
Court itself, much of it unfavorable. There were calls for impeachment of the justices, for resignation of judges. There were
insistent and more widespread reiterations of denunciations of incompetence and corruption in the judiciary. Another derogatory
epithet for judges was coined and quickly gained currency: "Hoodlums in Robes."
It was at about this time and under these circumstances — particularly the furor caused by the Yerkes opinion that the PLDT
decision was authored by a PLDT lawyer — that Jurado wrote in his column on February 8, 1993, an item entitled, "Who will
judge the Justices?" referring among other things to" . . .
(a) report that six justices, their spouses, children and grandchildren (a total of 36 persons) spent a vacation in Hong Kong some
time last year — and that luxurious hotel accommodations and all their other expenses were paid by a pubic utility firm . . . and
that the trip . . . was arranged by the travel agency patronized by this public utility firm." 8
This was the event that directly gave rise to the proceeding at bar.
a. Letter and Affidavit of PLDT
For shortly afterwards, on February 10, 1993, Mr. Vicente R. Samson, First Vice President of the PLDT (Philippine Long Distance
Telephone Company), addressed a letter to the Chief Justice, submitting his sworn statement in confutation of "the item in the
column of Mr. Emil P. Jurado of the Manila Standard on a vacation trip supposedly taken by six Justices with their families last
year," and requesting that the Court "take such action as may be appropriate." In his affidavit, Samson made the following
averments: 9
xxx xxx xxx
While the name of the public utility which supposedly financed the alleged vacation of the Justices in
Hongkong has not been disclosed in the Jurado column, the publication thereof, taken in relation to the spate
of recent newspaper reports alleging that the decision of the Supreme Court, penned by Mr. Justice Hugo
E. Gutierrez, Jr., in the pending case involving the PLDT and Eastern Telecommunications Phils., Inc. was
supposedly ghost written by a lawyer of PLDT, gives rise to the innuendo or unfair inference that Emil
Jurado is alluding to PLDT in the said column; and, this in fact was the impression or perception of those
who talked to me and the other officers of the PLDT after having read the Jurado column;
4. In as much as the PLDT case against Eastern Telecommunications Philippines is still sub-judice, since
the motions for reconsideration filed by the losing litigants therein, Eastern Telecommunications
Philippines, Inc. and NTC are still pending before the Court, we have tried to refrain from making any public
comments on these matters, lest any statement we make be interpreted to be an attempt on our part to unduly
influence the final decision of the Supreme Court in the above described case. However in the interest of
truth and justice, PLDT is compelled to emphatically and categorically declare that it is not the public utility
firm referred to in the Jurado column and that specifically, it has never paid for any such trip, hotel or other
accommodations for any justice of the Supreme Court or his family during their vacation, if any, in
Hongkong last year. It is not even aware that any of the justices or their families have made the trip referred
to in the Jurado column;
5. I further state that neither Atty. Emil P. Jurado nor anyone in his behalf has ever spoken to me or any
other responsible officer of PLDT about the matter quoted in par. 2 hereof;
 6. PLDT further emphatically and categorically denies that it had ever talked to or made arrangements with
any travel agency or any person or entity in connection with any such alleged trip of the Justices and their
families to Hongkong, much less paid anything therefor to such agencies, fully or in part, in the year 1992
as referred to in Par. 2 hereinabove;
7. The travel agencies which PLDT patronizes or retains for the trips, hotels or other accommodations of its
officers and employees are:
a. Philway Travel Corporation
M-7 Prince Tower Cond.
Tordesillas St., Salcedo Village
Makati, Metro Manila
b. Citi-World Travel Mart Corp.
Suite 3-4 Ramada Midtown Arcade
M. Adriatico Street
Ermita, Manila.
The records of these travel agencies will bear out the fact that no arrangements were made by them at the
instance of PLDT for the trip referred to in the Jurado column.
b. Affidavit of Atty. William Veto
The Samson affidavit was followed by another submitted to the Court by Atty. William Veto, the "in-house counsel of Equitable
Banking Corporation since 1958," subscribed and sworn to on February 10, 1993, in relation to another article of Jurado. 10 Veto
deposed that on Tuesday, January 5, 1993 he had "hosted a lunch party at the Officers' Lounge, 7th Floor of the Equitable Banking
Corporation Building, Ermita Branch . . . upon prior permission . . . obtained;" that the "expenses for said party were exclusively
from my personal funds and the food was prepared in my house by my wife and served by my house help . . . and four (4) waiters
. . . hired from the nearby Barrio Fiesta Restaurant;" that among the invited guests "were members of the Supreme Court and Court
of Appeals who . . . were my friends of forty years since our days in law school;" and that the party was held in the lounge of the
bank instead of in "my residence" "unlike in former years . . . because my birthday happened to fall on a working day and my
friends from the Equitable Banking
Corporation . . . suggested that I hold it there (at the lounge) for their convenience because my residence is far from down town."
However, this birthday luncheon of Atty. Veto was reported in Jurado's column (in the Manila Standard issues of January 12 and
28, 1993) as having been "hosted (by the Equitable Bank) at its penthouse mainly for some justices, judges, prosecutors and law
practitioners. . . ." And upon this premise, Jurado indulged in the following pontification: "When those in the judiciary fraternize
this way, what chances before the courts do other lawyers, who are not "batang club," have against others who belong to the
fraternity? In the case of prosecutors and fiscals, what chances do opposing counsels have against those in the fraternity?" (column
of January 12, 1993)
c. Information from Ad Hoc Committee
At about this time, too, the Court received information from the Ad Hoc Committee (created by Administrative Order No. 11-93)
to the following effect:
1) that by letter dated February 1, 1993, the Chairman of the Ad Hoc Committee extended an invitation to
Atty. Emiliano Jurado to appear before it "at 2 o'clock in the afternoon of February 4, 1993 . . . (to) give the
committee information that will assist it in its task," i.e., to definitely and accurately determine the facts as
regards the published rumors and reports of corruption in the judiciary;
3
2) that despite receipt of this letter by a responsible individual at the business address of Jurado, the latter
failed to appear at the time and place indicated; that instead, in his column in the issue of Manila Standard
of February 4, 1993, Jurado stated that he was told he was being summoned by the Ad Hoc Committee, but
"(t)here is really no need to summon me. The committee can go by the many things I have written in my
column about corruption in the judiciary. Many of these column items have been borne out by subsequent
events."
3) that another letter was sent by the Chairman to Jurado, dated February 5, 1993, reiterating the Committee's
invitation, viz.:
It is regretted that you failed to respond to the invitation of the Ad Hoc Committee to appear at its session
of February 4, 1992. All indications are that you are the person with the most knowledge about corruption
in the judiciary and hence, appear to be best positioned to assist the Ad Hoc Committee in its function of
obtaining evidence, or leads, on the matter. You have, I believe, expressed more than once the laudable
desire that the judiciary rid itself of the incompetents and the misfits in its ranks, and we believe you will
want to help the Court do precisely that, by furnishing the Committee with competent evidence, testimonial
or otherwise. Clearly, the purging process cannot be accomplished without proof, testimonial or otherwise,
as you must no doubt realize, being yourself a lawyer.
We would like you to know that the Ad Hoc Committee created by Administrative Order No. 11-93 is simply
a fact-finding body. Its function is evidence-gathering. Although possessed of the authority to maintain and
enforce order in its proceedings, and to compel obedience to its processes, it is not an adjudicative body in
the sense that it will pronounce persons guilty or innocent, or impose sanctions, on the basis of such proofs
as may be presented to it. That function is reserved to the Supreme Court itself, in which it is lodged by the
Constitution and the laws. Thus, at the conclusion of its evidence-gathering mission, the Ad Hoc Committee
will submit its report and recommendations to the Court which will then take such action as it deems
appropriate.
The Ad Hoc Committee has scheduled hearings on the 11th and 12th of February, 1993. Mr. Justice Hilario
G. Davide, Jr. will preside as Chairman at these hearings since I will be unable to do so in view of earlier
commitments. We reiterate our invitation that you come before the Committee, and you may opt to appear
either on the 11th or 12th of February, 1993, at 2 o'clock in the afternoon."
4) that notwithstanding receipt of this second letter by a certain Mr. Gerry Gil of the Manila Standard, Jurado
still failed to appear.
4. Statement of the Case:
Resolutions and Pleadings
a. Resolution of the February 16, 1993
After considering all these circumstances, the Court by Resolution dated February 16, 1993, ordered:
1) that the matter dealt with in the letter and affidavit of the PLDT herein mentioned be duly DOCKETED,
and hereafter considered and acted upon as an official Court proceeding for the determination of whether or
not the allegations made by Atty. Emil Jurado herein specified are true;
2) that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and of the affidavit of Atty.
William Veto to Atty. Emil Jurado, c/o the Manila Standard, Railroad & 21 Streets, Port Area, Manila; and
copies of the same PLDT letter and affidavit, to Philway Travel Corporation, M-7 Prince Tower Cond.,
Tordesillas St., Salcedo Village, Makati, Metro Manila; and Citi-World Travel Mart Corp., Suite 3-4
Ramada Midtown Arcade, M. Adriatico Street, Ermita, Manila;
 3) that within five (5) days from their receipt of notice of this resolution and of copies of the PLDT letter 6. His columns with respect to the "RTC's Magnificent Seven" (October 20, 1992); the "RTC-Makati's Dirty
and affidavit, the Philway Travel Corporations and the Citi-World Travel Mart Corporation each FILE A Dozen" (October 2, 1992, November 9, 1992, and December 1, 1992); the "Magnificent Seven" in the
SWORN STATEMENT affirming or denying the contents of the PLDT affidavit; and Supreme Court (February 3,1993); 12 the lady secretary of an RTC Judge (October 27, 1992); and the
former Court of Appeals Justice "fixing" cases (January 29, 1993) were all based on information given to
him in strict confidence by sources he takes to be highly reliable and credible; and he could not elaborate
4) that within fifteen (15) days from his receipt of notice of this resolution and of copies of said PLDT letter
on the factual and evidentiary basis of the information without endangering his sources.
and affidavit and of the affidavit of Atty. Veto, Atty. Emil Jurado FILE A COMMENT on said affidavits as
well as the allegations made by him in his columns, herein specified, in which he shall make known to the
Court the factual or evidentiary bases of said allegations. By necessity and custom and usage, he relies as a journalist not only on first-hand knowledge but also on
information from sources he has found by experience to be trustworthy. He cannot compromise these
sources. He invokes Republic Act No. 53, as amended by R.A. No. 1477, exempting the publisher, editor
b. Jurado's Comment dated
or reporter of any publication from revealing the source of published news or information obtained in
March 1, 1993.
confidence, and points out that none of the matters subject of his columns has any bearing on the security
of the state.
As directed, Jurado filed his comment, dated March 1, 1993.
c. Resolution of March 2, 1993
He explained that he had not "snubbed" the invitation of the Ad Hoc Committee, it being in fact his desire to cooperate in any
investigation on corruption in the judiciary as this was what "his columns have always wanted to provoke." What had happened,
Subsequent to the Resolution of February 16, 1993 and before the filing of Jurado's comment above mentioned, the Court received
according to him, was that the first invitation of the Ad Hoc Committee was routed to his desk at the Manila Standard office on
the affidavits of the executive officials of the two travel agencies mentioned in the affidavit of PLDT Executive Vice-President
the day of the hearing itself, when it was already impossible to cancel previous professional and business appointments; and the
Vicente R. Samson — in relation to the Jurado column of February 8, 1993: that of Mr. Ermin Garcia, Jr., President of the Citi-
second invitation, "if it was ever received" by his office, was never routed to him; and he had yet to see
World Travel Mart Corporation, dated February 22, 1993, and that of Mrs. Marissa de la Paz, General Manager of Philway Travel
it." 11 If the impression had been created that he had indeed "snubbed" the Ad Hoc Committee, he "sincerely apologizes."
Corporation, dated February 19, 1993. Both denied ever having made any travel arrangements for any of the Justices of the
Supreme Court or their families to Hongkong, clearly and categorically belying the Jurado article.
He averred that his columns are self-explanatory and reflect his beliefs, and there was no need to elaborate further on what he had
written. He expressed his firm belief that justice can be administered only by a judicial system that is itself just and incorruptible,
By Resolution dated March 2, 1993, the Court directed that Jurado be given copies of these two (2) affidavits and that he submit
and the hope that this Court would view his response in this light.
comment thereon, if desired, within ten (10) days from receipt thereof.

He also made the following specific observations:

1. The affidavit of Antonio Samson of the PLDT dated February 9, 1993 was an assertion of the affiant's
belief and opinion and he (Jurado) would not comment on it except to say that while Mr. Samson is entitled
to his beliefs and opinions, these "bind only him and the PLDT."
2. Atty. William Veto's affidavit substantially corroborated what he had written in vital details; hence,
further substantiation would be surplusage. In fact, the Supreme Court had confirmed the story in its press
statement quoted by him (Jurado) in his January 30, 1993 column. His column about the Veto party
constitutes fair comment on the public conduct of public officers.
3. The column about Executive Judge Rosalio de la Rosa merely summarized the position of Judge Teresita
Dy-Liaco Flores on the actuations of Judge de la Rosa and called the attention of the Court thereto, Judge
Flores' complaint, a copy of which had been sent to the Court Administrator, being on meriting its attention.
4. The "factual and evidentiary basis" of his column of January 30, 1993 was the police report on seven (7)
Makati judges authored by Chief Inspector Laciste Jr., of the Narcotics Branch of the RPIU, South
CAPCOM, PNP, addressed to Vice-President Joseph E. Estrada, a copy of which he had received in the
news room of the Manila Standard. The existence of the report had been affirmed by a reporter of the Manila
Standard, Jun Burgos, when he appeared at the hearing of the Ad Hoc Committee on January 11, 1993.
5. His observations in his columns of January 6 and 29, 1993 regarding the nominations of relatives in the
Judicial and Bar Council echo the public perception, and constitute fair comment on a matter of great public
interest and concern.
d. Jurado's Supplemental Comment
with Request for Clarification
In response, Jurado filed a pleading entitled "Supplemental Comment with Request for Clarification" dated March 15, 1993. In
this pleading he alleged that the sworn statements of Mr. Ermin Garcia, Jr. and Mrs. Marissa de la Paz are affirmations of matters
of their own personal knowledge; that he (Jurado) had no specific knowledge of "the contents of these, let alone their veracity;"
and that the affidavits "bind no one except the affiants and possibly the PLDT." He also sought clarification on two points — as
to the capacity in which he is being cited in these administrative proceedings — whether "as full time journalist or as a member of
the bar," and why he is being singled out, from all his other colleagues in media who had also written about wrongdoings in the
judiciary, and required to comment in a specific administrative matter before the Court sitting En Banc — so that he might "qualify
his comment and/or assert his right and privileges . . . .
e. Resolution of March 18, 1993
Through another Resolution, dated March 18, 1993, the Court directed the Clerk of Court to inform Jurado that the Resolutions of
February 16 and March 2, 1993 had been addressed to him (according to his own depiction) in his capacity as "a full-time
journalist" "who coincidentally happens to be a member of the bar at the same time," and granted him fifteen (15) days from
notice" to qualify his comment and/or assert his rights and privileges . . . in an appropriate manifestation or pleading."
f. Jurado's Manifestation
dated March 31, 1993
Again in response, Jurado filed a "Manifestation" under date of March 31, 1993. He moved for the termination of the proceeding
on the following posited premises:

4
 1. The court has no administrative supervision over him as a member of the press or over his work as a
journalist.
2. The present administrative matter is not a citation for (a) direct contempt as there is no pending case or
proceeding out of which a direct contempt charge against him may arise, or (b) indirect contempt as no
formal charge for the same has been laid before the court in accordance with Section 3 (Rule 71) of the
Rules of Court.
3. His comments would be more relevant and helpful to the Court if taken together with the other evidence
and reports of other journalists gathered before the Ad Hoc Committee. He perceives no reason why his
comments should be singled out and taken up in a separate administrative proceeding.
It is against this background of the material facts and occurrences that the Court will determine Jurado's liability, if any, for the
above mentioned statements published by him, as well as "such action as may be appropriate" in the premises, as the PLDT asks.
5. Norms for Proper Exercise
Press Freedom
a. Constitutional Law Norms
In Zaldivar v. Gonzalez (166 SCRA 316 [1988]), the Court underscored the importance both of the constitutional guarantee of free
speech and the reality that there are fundamental and equally important public interests which need on occasion to be balanced
against and accommodated with one and the other. There, the Court stressed the importance of the public interest in the
maintenance of the integrity and orderly functioning of the administration of justice. The Court said: 13
The principal defense of respondent Gonzalez is that he was merely exercising his constitutional right of
free speech. He also invokes the related doctrines of qualified privileged communications and fair criticism
in the public interest.
Respondent Gonzalez is entitled to the constitutional guarantee of free speech. No one seeks to deny him
that right, least of all this Court. What respondent seems unaware of is that freedom of speech and of
expression, like all constitutional freedoms, is not absolute and that freedom of expression needs on occasion
to be adjusted to and accommodated with the requirements of equally important public interests. One of
these fundamental public interests is the maintenance of the integrity and orderly functioning of the
administration of justice. There is no antinomy between free expression and the integrity of the system of
administering justice. For the protection and maintenance of freedom of expression itself can be secured
only within the context of a functioning and orderly system of dispensing justice, within the context, in other
words, of viable independent institutions for delivery of justice which are accepted by the general
community. As Mr. Justice Frankfurter put it:
. . . A free press is not to be preferred to an independent judiciary, nor an independent
judiciary to a free press. Neither has primacy over the other; both are indispensable
to a free society.
The freedom of the press in itself presupposes an independent judiciary through
which that freedom may, if necessary, be vindicated. And one of the potent means
for assuring judges their independence is a free press. (Concurring in Pennekamp v.
Florida, 328 U.S. 331 at 354-356 [1946]).
Mr. Justice. Malcolm of this Court expressed the same thought in the following terms:
The Organic Act wisely guarantees freedom of speech and press. This constitutional
right must be protected in its fullest extent. The Court has heretofore given evidence
of its tolerant regard for charges under the Libel Law which come dangerously close
to its violation. We shall continue in this chosen path. The liberty of the citizens must
be preserved in all of its completeness. But license or abuse of liberty of the press
and of the citizens should not be confused with liberty in its true sense. As important
as is the maintenance of an unmuzzled press and the free exercise of the rights of the
citizens is the maintenance of the independence of the Judiciary. Respect for the
Judiciary cannot be had if persons are privileged to scorn a resolution of the court
adopted for good purposes, and if such persons are to be permitted by subterranean
means to diffuse inaccurate accounts of confidential proceedings to the
embarrassment of the parties and the court. (In Re Severino Lozano and Anastacio
Quevedo, 54 Phil. 801 at 807 [1930]).
b. Civil Law Norms
of The Civil Code, in its Article 19 lays down the norm for the proper exercise of any right, constitutional or otherwise, viz.:
Art. 19. Every 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.
The provision is reflective of the universally accepted precept of "abuse of rights," "one of the most dominant principles which
must be deemed always implied in any system of law." 14 It parallels too "the supreme norms of justice which the law develops"
and which are expressed in three familiar Latin maxims: honeste vivere, alterum non laedere and jus suum quique tribuere (to live
honorably, not to injure others, and to render to every man his due). 15
Freedom of expression, the right of speech and of the press is, to be sure, among the most zealously protected rights in the
Constitution. But every person exercising it is, as the Civil Code stresses, obliged "to act with justice, give everyone his due, and
observe honesty and good faith." The constitutional right of freedom of expression may not be availed of to broadcast lies or half-
truths — this would not be "to observe honesty and good faith;" it may not be used to insult others; destroy their name or reputation
or bring them into disrepute. — this would not be "to act with justice" or "give everyone his due."
c. Philippine Journalist's
Code of Ethics
Also relevant to the determination of the propriety of Jurado's acts subject of the inquiry at bar are the norms laid down in "The
Philippine Journalist's Code of Ethics." The Code was published in the issue of February 11, 1993 of the Manila Standard, for
which Jurado writes, as part of the paper's "Anniversary Supplement." The first paragraph of the Code, 16 and its corresponding
annotations, read as follows:
1. I shall scrupulously report and interpret the news, taking care not to suppress essential facts nor to distort
the truth by improper omission or emphasis. I recognize the duty to air the other side and the duty to correct
substantive errors promptly.
1. Scrupulous news gathering and beat coverage is required. Relying exclusively on
the telephone or on what fellow reporters say happened at one's beat is irresponsible.
2. The ethical journalist does not bend the facts to suit his biases or to please
benefactors. He gathers all the facts, forms a hypothesis, verifies it and arrives at an
honest interpretation of what happened.
5
 3. The duty to air the other side means that the journalist must contact the person or
persons against whom accusations are lodged. A court proceeding provides for this
balance by presenting the prosecution and then the defense. A news story or editorial
column that fails to present the other side is like a court that does not hear the side
of the defense.
4. Correcting substantive errors is the mark of mature newspapers like the New York
Times, the International Herald Tribune, and some of Manila's papers.
d. Right to Private Honor
and Reputation
In the present proceeding, there is also involved an acknowledged and important interest of individual persons: the right to private
reputation. Judges, by becoming such, are commonly and rightly regarded as voluntarily subjecting themselves to norms of conduct
which embody more stringent standards of honesty, integrity, and competence than are commonly required from private persons.
17 Nevertheless, persons who seek or accept from appointment to the Judiciary cannot reasonably be regarded as having thereby
forfeited any right whatsoever to private honor and reputation. For so to rule will be simply, in the generality of cases, to discourage
all save those who feel no need to maintain their self-respect as a human being in society, from becoming judges, with obviously
grievous consequences for the quality of our judges and the quality of the justice that they will dispense. Thus, the protection of
the right of individual persons to private reputations is also a matter of public interest and must be reckoned with as a factor in
identifying and laying down the norms concerning the exercise of press freedom and free speech.
Clearly, the public interest involved in freedom of speech and the individual interest of judges (and for that matter, all other public
officials) in the maintenance of private honor and reputation need to be accommodated one to the other. And the point of adjustment
or accommodation between these two legitimate interest is precisely found in the norm which requires those who, invoking
freedom of speech, publish statements which are clearly defamatory to identifiable judges or other public officials to exercise bona
fide care in ascertaining the truth of the statements they publish. The norm does not require that a journalist guarantee the truth of
what he says or publishes. But the norm does prohibit the reckless disregard of private reputation by publishing or circulating
defamatory statements without any bona fide effort to ascertain the truth thereof. That this norm represents the generally accepted
point of balance or adjustment between the two interests involved is clear from a consideration of both the pertinent civil law
norms and the Code of Ethics adopted by the journalism profession in the Philippines. 17a
6. Analysis of Jurado Columns
a. Re "Public Utility Firm"
Now, Jurado's allegation in his column of February 8, 1993 — "that six justices, their spouses, children and grandchildren (a total
of 36 persons) spent a vacation in Hong Kong some time last year — and that luxurious hotel accommodations and all their other
expenses were paid by a public utility firm and that the trip reportedly was arranged by the travel agency patronized by this public
utility firm," supra is — in the context of the facts under which it was made — easily and quickly perceived as a transparent
accusation that the PLDT had bribed or "rewarded" six (6) justices for their votes in its favor in the case of "Philippine Long
Distance Telephone Company v. Eastern Telephone Philippines, Inc. (ETPI)," G.R. No. 94374, 18 by not only paying all their
expenses — i.e., hotel accommodations and all other expenses for the trip — but also by having one of its own travel agencies
arrange for such a trip.
As already stated, that allegation was condemned as a lie, an outright fabrication, by the PLDT itself, through one of its responsible
officers, Mr. Vicente Samson, as well as by the heads of the two (2) travel agencies "patronized by it," Ermin Garcia, Jr. and
Marissa de la Paz, supra.
That categorical denial logically and justly placed on Jurado the burden of proving the truth of his grave accusation, or showing
that it had been made through some honest mistake or error committed despite good faith efforts to arrive at the truth, or if unable
to do either of these things, to offer to atone for the harm caused.
6
But the record discloses that Jurado did none of these things. He exerted no effort whatever to contest or qualify in any manner
whatever the emphatic declaration of PLDT Vice-President Samson that —
While the name of the public utility which supposedly financed the alleged vacation of the Justices in
Hongkong has not been disclosed in the Jurado column, the publication thereof, taken in relation to the spate
of recent newspaper reports alleging that the decision of the Supreme Court, penned by Mr. Justice Hugo
E. Gutierrez, Jr., in the pending case involving the PLDT and Eastern Telecommunications Phils., Inc. was
supposedly ghost written by a lawyer of PLDT, gives rise to the innuendo or unfair inference that Emil
Jurado is alluding to PLDT in the said column; and, this in fact was the impression or perception of those
who talked to me and the other officers of the PLDT after having read the Jurado column.
The record shows that he made no effort whatsoever to impugn, modify, clarify or explain Samson's positive assertion that:
. . . (the PLDT) has never paid for any such trip, hotel or other accommodations for any justice of the
Supreme Court or his family during their vacation, if any, in Hongkong last year. It is not even aware that
any of the justices or their families have made the trip referred to in the Jurado column;
. . . neither Atty. Emil P. Jurado nor any one in his behalf has ever spoken to me or any other responsible
officer of PLDT about the matter. . .;
. . . PLDT . . . (never) talked to or made arrangements with any travel agency or any person or entity in
connection with any such alleged trip of the Justices and their families to Hongkong, much less paid
anything therefor to such agencies, fully or in part, in the year 1992 as referred to in Par. 2 hereinabove;
What appears from the record is that without first having made an effort to talk to any one from the PLDT or the Supreme Court
to ascertain the veracity of his serious accusation, Jurado went ahead and published it.
His explanation for having aired the accusation consists simply of a declaration that Samson's affidavit, as well as the affidavits of
the heads of the two travel agencies regularly patronized by it, were just assertions of the affiants' belief and opinion; and that he
(Jurado) would not comment on them except to say that while they are entitled to their beliefs and opinions, these were binding
on them only. This is upon its face evasion of duty of the most cavalier kind; sophistry of the most arrant sort. What is made plain
is that Jurado is in truth unable to challenge any of the averments in the affidavits of PLDT and its travel agencies, or otherwise
substantiate his accusation, and that his is a mere resort to semantics to justify the unjustifiable. What is made plain is that his
accusation is false, and possesses not even the saving grace of honest error.
If relying on second-hand sources of information is, as the Journalists' Code states, irresponsible, supra, then indulging in pure
speculation or gossip is even more so; and a failure to "present the other side" is equally reprehensible, being what in law amounts
to a denial of due process.
b. Re Equitable Bank Party
Jurado is also shown by the record to have so slanted his report of the birthday luncheon given by Atty. William Veto (the "in-
house counsel of Equitable Banking Corporation since 1958") as to project a completely false depiction of it. His description of
that affair (in the Manila Standard issues of January 12 and 28, 1993) as having been hosted by the Equitable Bank "at its penthouse
mainly for some justices, judges, prosecutors and law
practitioners . . . , carries the sanctimonious postscript already quoted, putting the rhetorical question about how such fraternization
affects the chances in court of lawyers outside that charmed circle.
When confronted with Veto's affidavit to the effect that the party was given by him at his (Veto's) own expense, the food having
been prepared by his wife in his house, and served by his house help and waiters privately hired by him; that he had invited many
persons including friends of long standing, among them justices of the Supreme Court and the Court of Appeals; and that the party
had been held in the Officers' Lounge of Equitable Bank, instead of his home, as in years past, to suit the convenience of his guests
because his birthday fell on a working day, Jurado could not, or would not deign to, contradict any of those statements. He merely
stated that Veto's affidavit substantially corroborated what he had written in vital details, which is obviously far from correct.
Most importantly, the record does not show that before he published that story, Jurado ever got in touch with Veto or anyone in
Equitable Bank, Ermita Branch, to determine the accuracy of what he would later report. If he did, he would quickly have learned
that his sources, whoever or whatever they were, were not to be relied upon. If he did not, he was gravely at fault — at the very
least for disregarding the Journalist's Code of Ethics — in failing to exert bona fide efforts to verify the accuracy of his information.
In either case, his publication of the slanted, therefore misleading and false, report of the affair is censurable. His proffered
explanation that the justices having confirmed their presence at the luncheon, thus corroborating what he had written in vital details
and making further substantiation unnecessary, and that his report constituted fair comment on the public conduct of public officers,
obviously does not at all explain why a party given by Atty. Veto was reported by him as one tendered by Equitable Bank. The
only conclusion that may rationally be drawn from these circumstances is that Jurado, unable to advance any plausible reason for
the conspicuous divergence between what in fact transpired and what he reported, again resorts to semantics and sophistry to
attempt an explanation of the unexplainable. Paraphrasing the Code of Ethics, he failed to scrupulously report and interpret the
news; on the contrary, his failure or refusal to verify such essential facts as who really hosted and tendered the luncheon and spent
for it, and his playing up of the Bank's supposed role as such host have resulted in an improper suppression of those facts and a
gross distortion of the truth about them.
c. Re Other Items
Jurado disregarded the truth again, and in the process vilified the Supreme Court, in the item in his column of February 3, 1993
already adverted to, 19 and more fully quoted as follows:
When lawyers speak of the "Magnificent Seven" one has to make sure which group they are referring to.
Makati's "Magnificent Seven" are a bunch of Makati regional trial court judges who fix drug related cases.
The "Magnificent Seven" in the Supreme Court consists of a group of justices who vote as one."
About the last (italicized) statement there is, as in other accusations of Jurado, not a shred of proof; and the volumes of the Supreme
Court Reports Annotated (SCRA) in which are reported the decisions of the Supreme Court En Banc for the year 1992 (January
to December) and for January 1993, divulge not a single non-unanimous decision or resolution where seven (7) justices voted "as
one," nor any group of decisions or resolutions where the recorded votes would even suggest the existence of such a cabal.
This is yet another accusation which Jurado is unable to substantiate otherwise than, as also already pointed out, by invoking
unnamed and confidential sources which he claims he considers highly credible and reliable and which would be imperiled by
elaborating on the information furnished by them. He would justify reliance on those sources on grounds of necessity, custom and
usage and claim the protection of Republic Act No. 53, as amended by Republic Act No. 1477 from forced, revelation of
confidential news sources except when demanded by the security of the state. 20
Surely it cannot be postulated that the law protects a journalist who deliberately, prints lies or distorts the truth; or that a newsman
may escape liability who publishes derogatory or defamatory allegations against a person or entity, but recognizes no obligation
bona fide to establish beforehand the factual basis of such imputations and refuses to submit proof thereof when challenged to do
so. It outrages all notions of fair play and due process, and reduces to uselessness all the injunctions of the Journalists' Code of
Ethics to allow a newsman, with all the potential of his profession to influence popular belief and shape public opinion, to make
shameful and offensive charges destructive of personal or institutional honor and repute, and when called upon to justify the same,
cavalierly beg off by claiming that to do so would compromise his sources and demanding acceptance of his word for the reliability
of those sources.
Jurado's other writings already detailed here are of the same sort. While it might be tedious to recount what has already been stated
about the nature and content of those writings, it is necessary to do so briefly in order not only to stress the gravity he makes, but
7
also to demonstrate that his response to the call for their substantiation has been one of unvarying intransigence: an advertance to
confidential sources with whose reliability he professes satisfaction and whom fuller disclosure would supposedly compromise.
There can be no doubt of the serious and degrading character — not only to the Court of Appeals, but also to the judiciary in
general — of his columns of November 9, 1992 and January 29, 1993 concerning an unnamed former justice of the Court of
Appeals who had allegedly turned "fixer" for five of the Court's divisions and who, for the right price, could guarantee that a party's
lawyer could write his own decision for and in the name of the ponente; and of his column of March 24, 1993 to the effect that
anywhere from P30,000 to P50,000 could buy a temporary restraining order from a regional trial court in Manila.
The litany of falsehoods, and charges made without bona fide effort at verification or substantiation, continues:
(a) Jurado's column of January 30, 1993 about eight (8) Makati judges who were "handsomely paid" for
decisions favoring drug-traffickers and other big-time criminals was based on nothing more than raw
intelligence contained is confidential police report. It does not appear that any part of that report has been
reliably confirmed.
(b) He has refused to offer any substantiation, either before the Ad Hoc Committee or in this proceeding,
for his report of October 27, 1992 concerning an unnamed lady secretary of a Makati RTC Judge who,
besides earning at least P10,000 for making sure a case is raffled off to a "sympathetic" judge, can also
arrange the issuance of attachments and injunctions for a fee of one (1%) percent over and above usual
premium for the attachment or injunction bond, a fee that in one instance amounted to P300,000.
(c) His report (columns of January 16 and 29, 1993) that the Judicial and Bar Council acted contrary to
ethics and delicadeza in nominating to the Court of Appeals a son and a nephew of its members is completely
untrue. The most cursory review of the records of the Council will show that since its organization in 1987,
there has not been a single instance of any son or nephew of a member of the Council being nominated to
the Court of Appeals during said member's incumbency; and in this connection, he mistakenly and carelessly
identified RTC Judge Rosalio de la Rosa as the nephew of Justice (and then Member of the Judicial and Bar
Council) Lorenzo Relova when the truth, which he subsequently learned and admitted, was that the person
referred to was Judge Joselito de la Rosa, the son-in-law, not the nephew, of Justice Relova. Had he bothered
to make any further verification, he would have learned that at all sessions of the Council where the
nomination of Judge Joselito de la Rosa was considered, Justice Relova not only declined to take part in the
deliberations, but actually left the conference room; and he would also have learned that Judge Rosalio de
la Rosa had never been nominated — indeed, to this date, he has not been nominated to the Court of Appeals.
(d) He has recklessly slandered the Judicial and Bar Council by charging that it has improperly made
nominations to the Court of Appeals on considerations other than of merit or fitness, through the
manipulations of the Council's Secretary, Atty. Daniel Martinez; or because the nominee happens to be a
relative of a member of the Council (e.g., Judge Joselito de la Rosa, initially identified as Judge Rosalio de
la Rosa) or of the Supreme Court (he could name none so situated); or has powerful political sponsor
(referring to RTC Judge Conrado Vasquez, Jr., son and namesake of the Ombudsman). Acceptance of the
truth of these statements is precluded, not only by the familiar and established presumption of regularity in
the performance of official functions, but also, and even more conclusively by the records of the Judicial
and Bar Council itself, which attest to the qualifications of Atty. Daniel Martinez, Clerk of Court of the
Supreme Court, Judge Joselito de la Rosa, and Judge Conrado Vasquez, Jr., for membership in the Appellate
Tribunal;
(e) Equally false is Jurado's report (column of January 25, 1993) that nomination to the Court of Appeals of
some worthy individuals like Quezon City RTC Judge Maximiano Asuncion, and Atty. Raul Victorino (who
was closely identified with former Senate President Salonga) had been blocked because they had "incurred
the ire of the powers that be," the truth, which could very easily have been verified, being that a pending
administrative case against Judge Asuncion had stood in the way of his nomination, and since Mr. Victorino
had been sponsored or recommended by then Senate President Salonga himself, the fact that he was not
 nominated can hardly be attributed to the hostility or opposition of persons in positions of power or . . . (T)he Supreme Court has inherent power to punish for contempt, to control in the furtherance of justice
influence. the conduct of ministerial officers of the Court including lawyers and all other persons connected in any
manner with a case before the Court (In re Kelly, 35 Phil. 944 [1916]; In re Severino Lozano and Anastacio
Quevedo, 54 Phil. 801 (1930]; In re Vicente Pelaez, 44 Phil. 567 [1923]; and In re Vicente Sotto, 82 Phil.
(f) Jurado was similarly unfair, untruthful and unfoundedly judgmental in his reporting about Executive
595 [1949]). The power to punish for contempt is "necessary for its own protection against improper
Judge Rosalio de la Rosa of the Manila Regional Trial Court as:
interference with the due administration of justice," "(i)t is not dependent upon the complaint of any of the
parties litigant" (Halili v. Court of Industrial Relations, 136 SCRA 112 [1985]; Andres v. Cabrera, 127
(1) having been nominated to the Court of Appeals by the Judicial and Bar Council SCRA 802 [1984]; Montalban v. Canonoy, 38 SCRA 1 [1971]; Commissioner of Immigration v. Cloribel,
chiefly, if not only, by reason of being the nephew of Justice Relova and the cousin 20 SCRA 1241 [1967]; Herras Teehankee v. Director of Prisons, 76 Phil. 630 [1946]).
of Chief Justice Narvasa, the truth, as already pointed out, being that Judge Rosalio
de la Rosa had never been thus nominated to the Court of Appeals, the nominee
Contempt is punishable, even if committed without relation to a pending case. Philippine jurisprudence parallels a respectable
having been Judge Joselito de la Rosa, the son-in-law (not nephew) of Justice Relova;
array of English decisions holding contumacious scurrilous attacks against the courts calculated to bring them into disrepute, even
and
when made after the trial stage or after the end of the proceedings. The original doctrine laid down in People vs. Alarcon 24 —
that there is no contempt if there is no pending case — has been abandoned in subsequent rulings of this Court which have since
(2) having discarded the rule that cases seeking provisional remedies should be adopted the Moran dissent therein, 25 viz.:
raffled off to the judges (column of January 28, 1993) and adopted a system of
farming out applications for temporary restraining orders, etc., among all the
Contempt, by reason of publications relating to court and to court proceedings, are of two kinds. A
branches of the court; here again, Jurado is shown to have written without thinking,
publication which tends to impede, obstruct, embarrass or influence the courts in administering justice in a
and made statements without verifying the accuracy of his information or seeking the
pending suit or proceeding, constitutes criminal contempt which is summarily punishable by courts. This is
views of the subject of his pejorative statements; the merest inquiry would have
the rule announced in the cases relied upon by the majority. A publication which tends to degrade the courts
revealed to him that while Circular No. 7 dated September 23, 1974 requires that no
and to destroy public confidence in them or that which tends to bring them in any way into disrepute,
case may be assigned in multi-sala courts without raffle (for purposes of disposition
constitutes likewise criminal contempt, and is equally punishable by courts. In the language of the majority,
on the merits), Administrative Order No. 6, dated June 30, 1975 (Sec. 15, Par. IV),
what is sought, in the first kind of contempt, to be shielded against the influence of newspaper comments,
21 empowers Executive Judges to act on all applications for provisional remedies
is the all-important duty of the courts to administer justice in the decision of a pending case. In the second
(attachments, injunctions, or temporary restraining orders, receiverships, etc.), or on
kind of contempt, the punitive hand of justice is extended to vindicate the courts from any act or conduct
interlocutory matters before raffle, in order to "balance the workload among courts
calculated to bring them into disfavor or to destroy public confidence in them. In the first, there is no
and judges, (Sec. l, par. 2, id.), and exercise such other powers and prerogatives as
contempt where there is no action pending, as there is no decision which might in any be influenced by the
may in his judgment be necessary or incidental to the performance of his functions
newspaper publication. In the second, the contempt exists, with or without a pending case, as what is sought
as a Court Administrator" (Sec. 7, par. 1, id.) — these provisions being broad enough,
to be protected is the court itself and its dignity. (12 Am. Jur. pp. 416-417.) Courts would lose their utility
not only to authorize unilateral action by the Executive Judge himself on provisional
if public confidence in them is destroyed.
remedies and interlocutory matters even prior to raffle of the main case, but also to
delegate the authority to act thereon to other judges.
The foregoing disposes of Jurado's other contention that the present administrative matter is not a citation for direct contempt,
there being no pending case or proceeding out of which a charge of direct contempt against him may arise; this, even without
Jurado does not explain why: (1) he made no effort to verify the state of the rules on
regard to the fact that the statements made by him about sojourn in Hongkong of six Justices of the Supreme Court were clearly
the matter; (2) he precipitately assumed that the views of Judge Teresita Dy-Liaco
in relation to a case involving two (2) public utility companies, then pending in this Court. 26
Flores, whose complaint on the subject he claims he merely summarized, were
necessarily correct and the acts of Judge de la Rosa necessarily wrong or improper;
and (3) he did not try to get Judge de la Rosa's side at all. His theory that there is no formal charge against him is specious. His published statements about that alleged trip are branded as
false in no uncertain terms by the sworn statement and letter of Vice-President Vicente R. Samson of the Philippine Long Distance
Telephone Company which:
Common to all these utterances of Jurado is the failure to undertake even the most cursory verification of their objective
truth; the abdication of the journalist's duty to report and interpret the news with scrupulous fairness; and the breach of
the law's injunction that a person act with justice, give everyone his due and observe honesty and good faith both in the (a) "emphatically and categorically" deny that PLDT had made any arrangements with any travel agency,
exercise of his rights and in the performance of his duties. or with the two travel agencies it patronized or retained, or paid anything, on account of such alleged trip;

7. Jurado's Proffered Excuses (b) positively affirm (i) that PLDT was "not even aware that any of the justices or their families . . . (had)
and Defenses made the trip referred to in the Jurado column," and (ii) that neither Atty. Emil P. Jurado nor anyone in his
behalf has ever spoken to . . . (said Mr. Samson) or any other responsible officer of PLDT about the matter
. . .; and
The principle of press freedom is invoked by Jurado in justification of these published writings. That invocation is obviously
unavailing in light of the basic postulates and the established axioms or norms for the proper exercise of press freedom earlier set
forth in this opinion. 22 (c) beseech the Court to "take such action (on the matter) as may be appropriate.

Jurado next puts in issue this Court's power to cite him for contempt. The issue is quickly disposed of by adverting to the familiar As already stated, the Court, in its Resolution of February 16, 1993:
principle reiterated inter alia in Zaldivar v. Gonzales: 23 (a) ordered the subject of Samson's letter and affidavit docketed as an official Court proceeding to determine the truth of Jurado's
allegations about it; and
8
(b) directed also that Jurado be furnished copies of Atty. William Veto's affidavit on the luncheon party hosted by him (which
Jurado reported as one given by Equitable Bank) and that Jurado file comment on said affidavits as well as allegations in specified
columns of his. Jurado was also furnished copies of the affidavits later submitted by the two travel agencies mentioned in Samson's
statement, and was required to comment thereon.
It was thus made clear to him that he was being called to account for his published statements about the matters referred to, and
that action would be taken thereon against him as "may be appropriate." That that was in fact how he understood it is evident from
his submitted defenses, denying or negativing liability for contempt, direct indirect. Indeed, as journalist of no little experience
and a lawyer to boot, he cannot credibly claim an inability to understand the nature and import of the present proceedings.
Jurado would also claim that the Court has no administrative supervision over him as a member of the press or over his work as a
journalist, and asks why he is being singled out, and, by being required to submit to a separate administrative proceeding, treated
differently than his other colleagues in media who were only asked to explain their reports and comments about wrongdoing in
the judiciary to the Ad Hoc Committee. The answer is that upon all that has so far been said, the Court may hold anyone to answer
for utterances offensive to its dignity, honor or reputation which tend to put it in disrepute, obstruct the administration of justice,
or interfere with the disposition of its business or the performance of its functions in an orderly manner. Jurado has not been singled
out. What has happened is that there have been brought before the Court, formally and in due course, sworn statements branding
his reports as lies and thus imposing upon him the alternatives of substantiating those reports or assuming responsibility for their
publication.
Jurado would have the Court clarify in what capacity — whether a journalist, or as a member of the bar — he has been cited in
these proceeding. Thereby he resurrects the issue he once raised in a similar earlier proceeding: that he is being called to account
as a lawyer for his statements as
journalist. 27 This is not the case at all. Upon the doctrines and principles already inquired into and cited, he is open to sanctions
as journalist who has misused and abused press freedom to put the judiciary in clear and present to the danger of disrepute and of
public obdium and opprobrium, detriment and prejudice of the administration of justice. That he is at the same time a member of
the bar has nothing to do with the setting in of those sanctions, although it may aggravate liability. At any rate, what was said about
the matter in that earlier case is equally cogent here:
Respondent expresses perplexity at being called to account for the publications in question in his capacity
as a member of the bar, not as a journalist. The distinction is meaningless, since as the matter stands, he has
failed to justify his actuations in either capacity, and there is no question of the Court's authority to call him
to task either as a newsman or as a lawyer. What respondent proposes is that in considering his actions, the
Court judge them only as those of a member of the press and disregard the fact that he is also a lawyer. But
his actions cannot be put into such neat compartments. In the natural order of things, a person's acts are
determined by, and reflect, the sum total of his knowledge, training and experience. In the case of respondent
in particular the Court will take judicial notice of the frequent appearance in his regular columns of
comments and observations utilizing legal language and argument, bearing witness to the fact that in
pursuing his craft as a journalist he calls upon his knowledge as a lawyer to help inform and influence his
readers and enhance his credibility. Even absent this circumstance, respondent cannot honestly assert that
in exercising his profession as journalist he does not somehow, consciously or unconsciously, draw upon
his legal knowledge and training. It is thus not realistic, nor perhaps even possible, to come to fair, informed
and intelligent judgment of respondent's actuations by divorcing from consideration the fact that he is a
lawyer as well as a newspaperman, even supposing, which is not the case — that he may thereby be found
without accountability in this matter.
To repeat, respondent cannot claim absolution even were the Court to lend ear to his plea that his actions be
judged solely as those of a newspaperman unburdened by the duties and responsibilities peculiar to the law
profession of which he is also a member.
8. The Dissents
The eloquent, well-crafted dissents of Messrs. Justices Puno and Melo that would invoke freedom of the press to purge Jurado's
conduct of any taint of contempt must now be briefly addressed.
a. Apparent Misapprehension
of Antecedents and Issue
Regrettably, there appears to be some misapprehension not only about the antecedents directly leading to the proceedings at bar
but also the basic issues involved.
The dissents appear to be of the view, for instance, that it was chiefly Jurado's failure to appear before the Ad Hoc Committee in
response to two (2) letters of invitation issued to him, that compelled the Court to order the matter to be docketed on February 16,
1993 and to require respondent Jurado to file his Comment. This is not the case at all. As is made clear in Sub-Heads 3 and 4 of
this opinion, supra, the direct cause of these proceedings was not Jurado's refusal to appear and give evidence before the Ad Hoc
Committee. The direct cause was the letters of PLDT and Atty. William Veto, supported by affidavits, denouncing certain of his
stories as false, 28 with the former praying that the Court take such action as may be appropriate. And it was precisely "the matter
dealt with in the letter and affidavit of the PLDT" that this Court ordered to "be duly DOCKETED, and hereafter considered and
acted upon as an official Court proceeding;" this, by Resolution dated February 16, 1993; the Court also requiring, in the same
Resolution, "that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and of the affidavit of Atty. William Veto to
Atty. Emil Jurado . . .," and that Jurado should comment thereon "as well as (on) the allegations made by him in his columns,
herein specified" — because of explicit claims, and indications of the falsity or, inaccuracy thereof.
There thus also appears to be some misapprehension of the basic issues, at least two of which are framed in this wise: (1) the right
a
of newsmen to refuse subpoenas, summons, or "invitations" to appear in administrative investigations," and (2) their right "not to
reveal confidential sources of information under R.A. No. 53, as amended" — which are not really involved here — in respect of
which it is theorized that the majority opinion will have an inhibiting effect on newsmen's confidential sources of information, and
thereby abridges the freedom of the press.
(1) No Summons or Subpoena
Ever Issued to Jurado
The fact is that no summons or subpoena was ever issued to Jurado by the Ad Hoc Committee; nor was the issuance of any such
or similar processes, or any punitive measures for disobedience thereto, intended or even contemplated. Like most witnesses who
gave evidence before the Committee, Jurado was merely invited to appear before it to give information in aid of its assigned task
of ascertaining the truth concerning persistent rumors and reports about corruption in the judiciary. When he declined to accept
the invitations, the Ad Hoc Committee took no action save to inform the Court thereof; and the Court itself also took no action.
There is thus absolutely no occasion to ascribe to that investigation and the invitation to appear thereat a "chilling effect" on the
by and large "hard-boiled" and self-assured members of the media fraternity. If at all, the patience and forbearance of the Court,
despite the indifference of some of its invitees and projected witnesses, appear to have generated an attitude on their part bordering
on defiant insolence.
(2) No Blanket Excuse Under RA 53
From Responding to Subpoena
Even assuming that the facts were as presented in the separate opinion, i.e., that subpoenae had in fact been issued to and served
on Jurado, his unexplained failure to obey the same would prima facie constitute constructive contempt under Section 3, Rule 71
of the Rules of Court. It should be obvious that a journalist may not refuse to appear at all as required by a subpoena on the bare
plea that under R.A. No 53, he may not be compelled to disclose the source of his information. For until he knows what questions
will be put to him as witness — for which his presence has been compelled — the relevance of R.A. No. 53 cannot be ascertained.
His duty is clear. He must obey the subpoena. He must appear at the appointed place, date and hour, ready to answer questions,
and he may invoke the protection of the statute only at the appropriate time.
b. The Actual Issue
9
The issue therefore had nothing to do with any failure of Jurado's to obey a subpoena, none ever having been issued to him, and It is argued that compelling a journalist to substantiate the news report or information confidentially revealed to him would
the Ad Hoc Committee having foreborne to take any action at all as regards his failure to accept its invitations. The issue, as set necessarily negate or dilute his right to refuse disclosure of its source. The argument will not stand scrutiny.
out in the opening sentence of this opinion, essentially concerns "(l)iability for published statements demonstrably false or
misleading, and derogatory of the courts and individual judges."
A journalist's "source" either exists or is fictitious. If the latter, plainly, the journalist is entitled to no protection or immunity
whatsoever.
Jurado is not being called to account for declining to identify the sources of his news stories, or for refusing to appear and give
testimony before the Ad Hoc Committee. He is not being compelled to guarantee the truth of what he publishes, but to exercise
If the "source" actually exists, the information furnished is either capable of independent substantiation, or it is not. If the first, the
honest and reasonable efforts to determine the truth of defamatory statements before publishing them. He is being meted the
journalist's duty is clear: ascertain, if not obtain, the evidence by which the information may be verified before publishing the
punishment appropriate to the publication of stories shown to be false and defamatory of the judiciary — stories that he made no
same; and if thereafter called to account therefor, present such evidence and in the process afford the party adversely affected
effort whatsoever to verify and which, after being denounced as lies, he has refused, or is unable, to substantiate.
thereby opportunity to dispute the information or show it to be false.

c. RA 53 Confers No Immunity from Liability

If the information is not verifiable, and it is derogatory of any third party, then it ought not to be published for obvious reasons. It
for False or Defamatory Publications
would be unfair to the subject of the report, who would be without means of refuting the imputations against him. And it would
afford an unscrupulous journalist a ready device by which to smear third parties without the obligation to substantiate his
This opinion neither negates nor seeks to enervate the proposition that a newsman has a right to keep his sources confidential; that imputations by merely claiming that the information had been given to him "in confidence".
he cannot be compelled by the courts to disclose them, as provided by R.A. 53, unless the security of the State demands such
revelation. But it does hold that he cannot invoke such right as a shield against liability for printing stories that are untrue and
It is suggested that there is another face to the privileged character of a journalist's source of information than merely the protection
derogatory of the courts, or others. The ruling, in other words, is that when called to account for publications denounced as
of the journalist, and that it is intended to protect also the source itself. What clearly is implied is that journalist may not reveal his
inaccurate and misleading, the journalist has the option (a) to demonstrate their truthfulness or accuracy even if in the process he
source without the latter's clearance or consent. This totally overlooks the fact that the object of a derogatory publication has at
disclose his sources, or (b) to refuse, on the ground that to do so would require such disclosure. In the latter event, however, he
least an equal right to know the source thereof and, if indeed traduced, to the opportunity of obtaining just satisfaction from the
must be ready to accept the consequences of publishing untruthful or misleading stories the truth and accuracy of which he is
traducer.
unwilling or made no bona fide effort to prove; for R.A. 53, as amended, is quite unequivocal that the right of refusal to disclose
sources is "without prejudice to . . . liability under civil and criminal laws."
9. Need for Guidelines
R.A. 53 thus confers no immunity from prosecution for libel or for other sanction under law. It does not declare that the publication
of any news report or information which was "related in confidence" to the journalist is not actionable; such circumstance (of Advertences to lofty principle, however eloquent and enlightening, hardly address the mundane, but immediate and very pertinent,
confidentiality) does not purge, the publication of its character as defamatory, if indeed it be such, and actionable on that ground. question of whether a journalist may put in print unverified information derogatory of the courts and judges and yet remain immune
All it does is give the journalist the right to refuse (or not to be compelled) to reveal the source of any news report published by from liability for contempt for refusing, when called upon, to demonstrate their truth on the ground of press freedom or by simply
him which was revealed to him in confidence. claiming that he need not do so since (or if) it would compel him to disclose the identity of his source or sources.

A journalist cannot say, e.g.: a person of whose veracity I have no doubt told me in confidence that Justices X and Y received a
bribe of P1M each for their votes in such and such a case, or that a certain Judge maintains a mistress, and when called to account
for such statements, absolve himself by claiming immunity under R.A. 53, or invoking press freedom.
d. A Word about "Group Libel"
There is hardly need to belabor the familiar doctrine about group libel and how it has become the familiar resort of unscrupulous
newsmen who can malign any number of anonymous members of a common profession, calling or persuasion, thereby putting an
entire institution — like the judiciary in this case — in peril of public contumely and mistrust without serious risk of being sued
for defamation. The preceding discussions have revealed Jurado's predilection for, if not his normal practice of, refusing to
specifically identify or render identifiable the persons he maligns. Thus, he speaks of the "Magnificent Seven," by merely referring
to undisclosed regional trial court judges in Makati; the "Magnificent Seven" in the Supreme Court, as some undesignated justices
who supposedly vote as one; the "Dirty Dozen," as unidentified trial judges in Makati and three other cities. He adverts to an
anonymous group of justices and judges for whom a bank allegedly hosted a party; and six unnamed justices of this Court who
reportedly spent a prepaid vacation in Hong Kong with their families. This resort to generalities and ambiguities is an old and
familiar but reprehensible expedient of newsmongers to avoid criminal sanctions since the American doctrine of group libel is of
restricted application in this jurisdiction. For want of a definitely identified or satisfactorily identifiable victim, there is generally
no actionable libel, but such a craven publication inevitably succeeds in putting all the members of the judiciary thus all together
referred to under a cloud of suspicion. A veteran journalist and lawyer of long standing that he is, Jurado could not have been
unaware of the foregoing realities and consequences.
e. Substantiation of News Report
Not Inconsistent with RA 53
10
The question, too, is whether or not we are prepared to say that a journalist's obligation to protect his sources of information
transcends, and is greater than, his duty to the truth; and that, accordingly, he has no obligation whatsoever to verify, or exercise
bona fide efforts to verify, the information he is given or obtain the side of the party adversely affected before he publishes the
same.
True, the pre-eminent role of a free press in keeping freedom alive and democracy in full bloom cannot be overemphasized. But it
is debatable if that role is well and truly filled by a press let loose to print what it will, without reasonable restraints designed to
assure the truth and accuracy of what is published. The value of information to a free society is in direct proportion to the truth it
contains. That value reduces to little or nothing when it is no longer possible for the public to distinguish between truth and
falsehood in news reports, and the courts are denied the mechanisms by which to make reasonably sure that only the truth reaches
print.
a. No Constitutional Protection for Deliberately
False or Recklessly Inaccurate Reports
It is worth stressing that false reports about a public official or other person are not shielded from sanction by the cardinal right to
free speech enshrined in the Constitution. Even the most liberal view of free speech has never countenanced the publication of
falsehoods, specially the persistent and unmitigated dissemination of patent lies. The U.S. Supreme Court, 29 while asserting that
"(u)nder the First Amendment there is no such thing as a false idea," and that "(h)owever pernicious an opinion may seem, we
depend for its correction not on the conscience of judges and juries but on the competition of other ideas" (citing a passage from
the first Inaugural Address of Thomas Jefferson), nonetheless made the firm pronouncement that "there is no constitutional value
in false statements of fact," and "the erroneous statement of fact is not worthy of constitutional protection (although) . . .
nevertheless inevitable in free debate." "Neither the intentional lie nor the careless error," it said, "materially advances society's
interest in "unhibited, robust, and wide-open" debate on public issues. New York Times Co. v. Sullivan, 376 US, at 270, 11 L Ed
2d 686, 95 ALR2d 1412. They belong to that category of utterances which "are no essential part of any exposition of ideas, and
are of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the
social interest in order and morality." Chaplinsky v, new Hampshire, 315 US 568, 572, 86 L Ed 1031, 62 S Ct 766 (1942).
"The use of calculated falsehood," it was observed in another case, 30 "would put a different cast on the constitutional question.
Although honest utterances, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that
the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. . . . (T)he knowingly false
statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection."
Similarly, in a 1969 case concerning a patently false accusation made against a public employee avowedly in fulfillment of a
"legal, moral, or social duty," 31 this Court, through the late Chief Justice Roberto Concepcion, ruled that the guaranty of free
speech cannot be considered as according protection to the disclosure of lies, gossip or rumor, viz.:
. . . Defendant's civil duty was to help the Government clean house and weed out dishonest, unfit or disloyal
officers and employees thereof, where there is reasonable ground to believe that they fall under this
category. He had no legal right, much less duty, to gossip, or foster the circulation of rumors, or jump at
conclusions and more so if they are gratuitous or groundless. Otherwise, the freedom of speech, which is
guaranteed with a view to strengthening our democratic institutions and promoting the general welfare,
would be a convenient excuse to engage in the vituperation of individuals, for the attainment of private,
selfish and vindictive ends, thereby hampering the operation of the Government with. administrative
investigations of charges preferred without any color or appearance of truth and with no other probable
effect than the harassment of the officer or employee concerned, to the detriment of public service and public
order.
b. No "Chilling Effect"
The fear expressed, and earlier adverted to, that the principles here affirmed would have a "chilling effect" on media professionals,
seems largely unfounded and should be inconsequential to the greater number of journalists in this country who, by and large, out
of considerations of truth, accuracy, and fair play, have commendably refrained from ventilating what would otherwise be
"sensational" or "high-visibility" stories. In merely seeking to infuse and perpetuate the same attitude and sense of responsibility
in all journalists, i.e., that there is a need to check out the truth and correctness of information before publishing it, or that, on the
other hand, recklessness and crass sensationalism should be eschewed, this decision, surely, cannot have such "chilling effect,"
and no apprehension that it would deter the determination of truth or the public exposure of wrong can reasonably be entertained.
The people's right to discover the truth is not advanced by unbridled license in reportage that would find favor only with extremist
liberalism. If it has done nothing else, this case has made clear the compelling necessity of the guidelines and parameters elsewhere
herein laid down. They are eminently reasonable, and no responsible journalist should have cause to complain of difficulty in their
observance.
10. Afterword
It seems fitting to close this opinion, with the words of Chief Justice Moran, whose pronouncements have already been earlier
quoted, 32 and are as germane today as when they were first written more than fifty (50) years ago. 33
It may be said that respect to courts cannot be compelled and that public confidence should be a tribute to
judicial worth, virtue and intelligence. But compelling respect to courts is one thing and denying the courts
the power to vindicate themselves when outraged is another. I know of no principle of law that authorizes
with impunity a discontended citizen to unleash, by newspaper publications, the avalanche of his wrath and
venom upon courts and judges. If he believes that a judge is corrupt and that justice has somewhere been
perverted, law and order require that he follow the processes provided by the Constitution and the statutes
by instituting the corresponding proceedings for impeachment or otherwise. . . .
11
xxx xxx xxx
It might be suggested that judges who are unjustly attacked have a remedy in an action for libel. This
suggestion has, however, no rational basis in principle. In the first place, the outrage is not directed to the
judge as a private individual but to the judge as such or to the court as an organ of the administration of
justice. In the second place, public interests will gravely suffer where the judge, as such, will, from time to
time, be pulled down and disrobed of his judicial authority to face his assailant on equal grounds and
prosecute cases in his behalf as a private individual. The same reasons of public policy which exempt a
judge from civil liability in the exercise of his judicial functions, most fundamental of which is the policy
to confine his time exclusively to the discharge of his public duties, applies here with equal, if not superior,
force (Hamilton v. Williams, 26 Ala. 529; Busteed v. Parson, 54 Ala. 403; Ex parte McLeod, 120 Fed. 130;
Coons v. State, 191 Ind. 580; 134 N. E. 194). . . .
Jurado's actuations, in the context in which they were done, demonstrate gross irresponsibility, and indifference to factual accuracy
and the injury that he might cause to the name and reputation of those of whom he wrote. They constitute contempt of court,
directly tending as they do to degrade or abase the administration of justice and the judges engaged in that function. By doing
them, he has placed himself beyond the circle of reputable, decent and responsible journalists who live by their Code or the "Golden
Rule" and who strive at all times to maintain the prestige and nobility of their calling.
Clearly unrepentant, exhibiting no remorse for the acts and conduct detailed here, Jurado has maintained a defiant stance. "This is
a fight I will not run from," he wrote in his column of March 21, 1993; and again, "I will not run away from a good fight," in his
column of March 23, 1993. Such an attitude discourages leniency, and leaves no choice save the application of sanctions
appropriate to the offense.
WHEREFORE, the Court declares Atty. Emil (Emiliano) P. Jurado guilty of contempt of court and in accordance with Section 6,
Rule 71 of the Rules of Court, hereby sentences him to pay a fine of one thousand pesos (P1,000,00).
G.R. No. L-65366 November 9, 1983
JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.
Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.
The Solicitor General for respondent.
FERNANDO, C.J.:ñé+.£ªwph!1
This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of the protected
area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by respondent Mayor Ramon
Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila
to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta, a public park,
to the gates of the United States Embassy, hardly two blocks away. Once there, and in an open space of public property, a short
program would be held. 2 During the course of the oral argument, 3 it was stated that after the delivery of two brief speeches, a
petition based on the resolution adopted on the last day by the International Conference for General Disbarmament, World Peace
and the Removal of All Foreign Military Bases held in Manila, would be presented to a representative of the Embassy or any of
its personnel who may be there so that it may be delivered to the United States Ambassador. The march would be attended by the
local and foreign participants of such conference. There was likewise an assurance in the petition that in the exercise of the
constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an
rally." 4 early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather to be expected that more or less
disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling,
The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on October 20, 1983 was
the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." 24 It bears repeating
due to the fact that as of that date, petitioner had not been informed of any action taken on his request on behalf of the organization
that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided, To give
to hold a rally. On October 25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant Solicitor General
free rein to one's destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual
Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner was unaware of such a fact as the
liberty in our scheme of values.
denial was sent by ordinary mail. The reason for refusing a permit was due to police intelligence reports which strongly militate
against the advisability of issuing such permit at this time and at the place applied for." 6 To be more specific, reference was made
to persistent intelligence reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or disrupt any assembly or 3. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta
congregations where a large number of people is expected to attend." 7 Respondent Mayor suggested, however, in accordance as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of 1939
with the recommendation of the police authorities, that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, they have immemorially been
or any other enclosed area where the safety of the participants themselves and the general public may be ensured." 8 held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of
the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and
The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then deliberated on the
parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and
matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory injunction prayed for on the
must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it
ground that there was no showing of the existence of a clear and present danger of a substantive evil that could justify the denial
must not, in the guise of regulation, be abridged or denied. 26 The above excerpt was quoted with approval in Primicias v. Fugoso.
of a permit. On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the ground that the holding of a
27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court categorically
rally in front of the US Embassy would be violative of Ordinance No. 7295 of the City of Manila. The last sentence of such minute
affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad
resolution reads: "This resolution is without prejudice to a more extended opinion." 9 Hence this detailed exposition of the Court's
of plaintiff-municipality. Reference was made to such plaza "being a promenade for public use," 29 which certainly is not the only
stand on the matter.
purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the or oposed march
and rally starting from a public dark that is the Luneta.
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly,
arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or
4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy, hardly two block-away at the
of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." 10 Free
Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the
speech, like free press, may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without
City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our
censorship or punishment. 11 There is to be then no previous restraint on the communication of views or subsequent liability
conclusion finds support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case, the
whether in libel suits, 12 prosecution for sedition, 13 or action for damages, 14 or contempt proceedings 15 unless there be a clear
statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession upon any ground abutting thereon,
and present danger of a substantive evil that [the State] has a right to prevent." 16 Freedom of assembly connotes the right people
shall 'De permitted unless a special license therefor shall first be explained from the selectmen of the town or from licensing
to meet peaceably for consultation and discussion of matters Of public concern.17 It is entitled to be accorded the utmost deference
committee,' was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered
and respect. It is hot to be limited, much less denied, except on a showing, as 's the case with freedom of expression, of a clear and
discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned
present danger of a substantive evil that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm
by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that 'a statute requiring persons using the public
had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech.
streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional
19 To paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme Court Thomas v. Collins, 20 it
abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the
was not by accident or coincidence that the right to freedom of speech and of the press were toupled in a single guarantee with the
licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade
and to petition the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these
or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and
rights, while not Identical, are inseparable. the every case, therefo re there is a limitation placed on the exercise of this right, the
are not invested with arbitrary discretion to issue or refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in
judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on
a subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence of an
the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and
organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The
imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. 21
authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public
highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition
from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the
Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled
gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication to protection." 31
that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an
appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution." 22
5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have arisen. So, too, if the
What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence.
march would end at another park. As previously mentioned though, there would be a short program upon reaching the public space
It must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give vent to
between the two gates of the United States Embassy at Roxas Boulevard. That would be followed by the handing over of a petition
their-views, even if contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed
based on the resolution adopted at the closing session of the Anti-Bases Coalition. The Philippines is a signatory of the Vienna
of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means
Convention on Diplomatic Relations adopted in 1961. It was concurred in by the then Philippine Senate on May 3, 1965 and the
more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value may
instrument of ratification was signed by the President on October 11, 1965, and was thereafter deposited with the Secretary General
lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of Ideas. There are,
of the United Nations on November 15. As of that date then, it was binding on the Philippines. The second paragraph of the Article
of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest,
22 reads: "2. The receiving State is under a special duty to take appropriate steps to protect the premises of the mission against any
much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly.
intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. " 32 The Constitution
12
"adopts the generally accepted principles of international law as part of the law of the land. ..." 33 To the extent that the Vienna
Convention is a restatement of the generally accepted principles of international law, it should be a part of the law of the land. 34
That being the case, if there were a clear and present danger of any intrusion or damage, or disturbance of the peace of the mission,
or impairment of its dignity, there would be a justification for the denial of the permit insofar as the terminal point would be the
Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of
rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes.
Unless the ordinance is nullified, or declared ultra vires, its invocation as a defense is understandable but not decisive, in view of
the primacy accorded the constitutional rights of free speech and peaceable assembly. Even if shown then to be applicable, that
question the confronts this Court.
6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment must be confined within the
limits of previous decisions. The law declared on past occasions is, on the whole, a safe guide, So it has been here. Hence, as noted,
on the afternoon of the hearing, October 25, 1983, this Court issued the minute resolution granting the mandatory injunction
allowing the proposed march and rally scheduled for the next day. That conclusion was inevitable ill the absence of a clear and
present danger of a substantive, evil to a legitimate public interest. There was no justification then to deny the exercise of the
constitutional rights of tree speech and peaceable assembly. These rights are assured by our Constitution and the Universal
Declaration of Human Rights. 35 The participants to such assembly, composed primarily of those in attendance at the International
Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases would start from the Luneta.
proceeding through Roxas Boulevard to the gates of the United States Embassy located at the same street. To repeat, it is settled
law that as to public places, especially so as to parks and streets, there is freedom of access. Nor is their use dependent on who is
the applicant for the permit, whether an individual or a group. If it were, then the freedom of access becomes discriminatory access,
giving rise to an equal protection question. The principle under American doctrines was given utterance by Chief Justice Hughes
in these words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices
under which the meeting is held but as to its purpose; not as to The relations of the speakers, but whether their utterances transcend
the bounds of the freedom of speech which the Constitution protects." 36 There could be danger to public peace and safety if such
a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should
be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether
or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal
not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption —
especially so where the assembly is scheduled for a specific public — place is that the permit must be for the assembly being held
there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be
"abridged on the plea that it may be exercised in some other place." 37
7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang Pilipino
(PMP.) v. Bagatsing, 39 called for application. While the General rule is that a permit should recognize the right of the applicants
to hold their assembly at a public place of their choice, another place may be designated by the licensing authority if it be shown
that there is a clear and present danger of a substantive evil if no such change were made. In the Navarro and the Pagkakaisa
decisions, this Court was persuaded that the clear and present danger test was satisfied. The present situation is quite different.
Hence the decision reached by the Court. The mere assertion that subversives may infiltrate the ranks of the demonstrators does
not suffice. Not that it should be overlooked. There was in this case, however, the assurance of General Narciso Cabrera,
Superintendent, Western Police District, Metropolitan Police Force, that the police force is in a position to cope with such
emergency should it arise That is to comply with its duty to extend protection to the participants of such peaceable assembly. Also
from him came the commendable admission that there were the least five previous demonstrations at the Bayview hotel Area and
Plaza Ferguson in front of the United States Embassy where no untoward event occurred. It was made clear by petitioner, through
counsel, that no act offensive to the dignity of the United States Mission in the Philippines would take place and that, as mentioned
at the outset of this opinion, "all the necessary steps would be taken by it 'to ensure a peaceful march and rally.' " 40 Assistant
Solicitor General Montenegro expressed the view that the presence of policemen may in itself be a provocation. It is a sufficient
answer that they should stay at a discreet distance, but ever ready and alert to cope with any contingency. There is no need to
repeat what was pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the city authorities to provide the proper
police protection to those exercising their right to peaceable assembly and freedom of expression.
8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing authority of the date, the
public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled
to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to
appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an
indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision
13
reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on
the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if
so minded, then, can have recourse to the proper judicial authority. Free 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
felicitiously 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. Clearly then, to the
extent that there may be inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro tanto modified.
So it was made clear in the original resolution of October 25, 1983.
9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila prohibiting the holding or
staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other
purposes. It is to be admitted that it finds support In the previously quoted Article 22 of the Vienna Convention on Diplomatic
Relations. There was no showing, however, that the distance between the chancery and the embassy gate is less than 500 feet.
Even if it could be shown that such a condition is satisfied. it does not follow that respondent Mayor could legally act the way he
did. The validity of his denial of the permit sought could still be challenged. It could be argued that a case of unconstitutional
application of such ordinance to the exercise of the right of peaceable assembly presents itself. As in this case there was no proof
that the distance is less than 500 feet, the need to pass on that issue was obviated, Should it come, then the qualification and
observation of Justices Makasiar and Plana certainly cannot be summarily brushed aside. The high estate accorded the rights to
free speech and peaceable assembly demands nothing less.
10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the permit sought and order
the respondent official, to grant it. Nonetheless, as there was urgency in this case, the proposed march and rally being scheduled
for the next day after the hearing, this Court. in the exercise of its conceded authority, granted the mandatory injunction in the
resolution of October 25, 1983. It may be noted that the peaceful character of the peace march and rally on October 26 was not
marred by any untoward incident. So it has been in other assemblies held elsewhere. It is quite reassuring such that both on the
part of the national government and the citizens, reason and moderation have prevailed. That is as it should be.
WHEREFORE, the mandatory injunction prayed for is granted. No costs.
G.R. No. L-62270 May 21, 1984
CRISPIN MALABANAN, EVELIO JALOS, BEN LUTHER LUCAS, SOTERO LEONERO, and JUNE LEE, petitioners,
vs.
THE HONORABLE ANASTACIO D. RAMENTO, in his capacity as the Director of the National Capital Region of the
Ministry of Education, Culture and Sports, THE GREGORIO ARANETA UNIVERSITY FOUNDATION; CESAR
MIJARES, in his capacity as the President of the Gregorio Araneta University Foundation, GONZALO DEL ROSARIO,
in his capacity as the Director for Academic Affairs of the Gregorio Araneta University Foundation; TOMAS B. MESINA,
in his capacity as the Dean of Student Affairs of the Gregorio Araneta University Foundation; ATTY. LEONARDO
PADILLA, in his capacity as Chief Legal Counsel & Security Supervisor of the Gregorio Araneta University Foundation;
ATTY. FABLITA AMMAY, ROSENDO GALVANTE and EUGENIA TAYAO, in their capacities as members of the Ad
Hoc Committee of the Gregorio Araneta University Foundation, respondents.
Honesto N. Salcedo for petitioners.
The Solicitor General and Leonardo G. Padilla & Pablita G. Ammay for respondents.
FERNANDO, CJ.:
The failure to accord respect to the constitutional rights of freedom of peaceable assembly and free speech is the grievance alleged
by petitioners, students of the Gregorio Araneta University Foundation, in this certiorari, prohibition and mandamus proceeding.
The principal respondents are Anastacio D. Ramento, Director of the National Capital Region of the Ministry of Education, Culture
and Sports and the Gregorio Araneta University Foundation. 1 The nullification of the decision of respondent Ramento affirming
the action taken by respondent Gregorio Araneta University Foundation finding petitioners guilty of illegal assembly and
suspending them is sought in this petition.
The facts are not open to dispute. Petitioners were officers of the Supreme Student Council of respondent University. They sought
and were granted by tile school authorities a permit to hold a meeting from 8:00 A.M. to 12:00 P.M, on August 27, 1982. Pursuant
to such permit, along with other students, they held a general assembly at the Veterinary Medicine and Animal Science basketball
court (VMAS), the place indicated in such permit, not in the basketball court as therein stated but at the second floor lobby. At
such gathering they manifested in vehement and vigorous language their opposition to the proposed merger of the Institute of
Animal Science with the Institute of Agriculture. At 10:30 A.M., the same day, they marched toward the Life Science Building
and continued their rally. It was outside the area covered by their permit. They continued their demonstration, giving utterance to
language severely critical of the University authorities and using megaphones in the process. There was, as a result, disturbance
of the classes being held. Also, the non-academic employees, within hearing distance, stopped their work because of the noise
created. They were asked to explain on the same day why they should not be held liable for holding an illegal assembly. Then on
September 9, 1982, they were formed through a memorandum that they were under preventive suspension for their failure to
explain the holding of an illegal assembly in front of the Life Science Building. The validity thereof was challenged by petitioners
both before the Court of First Instance of Rizal in a petition for mandamus with damages against private respondents 2 and before
the Ministry of Education, Culture, and Sports. On October 20, 1982, respondent Ramento, as Director of the National Capital
Region, found petitioners guilty of the charge of having violated par. 146(c) of the Manual for Private Schools more specifically
their holding of an illegal assembly which was characterized by the violation of the permit granted resulting in the disturbance of
classes and oral defamation. The penalty was suspension for one academic year. Hence this petition.
On November 16, 1982, this Court issued the following resolution: "Acting on the urgent ex-parte motion for the immediate
issuance of a temporary mandatory order filed by counsel for petitioners, dated November 12, 1982, the Court Resolved to ISSUE
A TEMPORARY RESTRAINING ORDER enjoining all respondents or any person or persons acting in their place or stead from
enforcing the order of the Ministry of' Education and Culture dated October 20, 1982 finding the petitioners guilty of the charges
against them and suspending them for one (1) academic year with a stern warning that a commission of the same or another offense
will be dealt with utmost severity, effective as of this date and continuing until otherwise ordered by this Court, thus allowing them
to enroll, if so minded. 3
Both public and private respondents submitted their comments. Private respondents prayed for the dismissal of the petition "for
lack of factual and legal basis and likewise [prayed] for the lifting of the temporary restraining order dated November 16, 1982."
4 Public respondent Ramento, on the other hand, through the Office of the Solicitor General, prayed for the dismissal of the petition
based on the following conclusion: "Consequently, it is respectfully submitted that respondent Director of the MECS did not
commit any error, much less abused his discretion, when he affirmed the decision of respondent University finding petitioners
guilty of violations of the provisions of the Manual of Regulations for Private Schools and the Revised Student's Code of Discipline
.and ordering their suspension for one (1) academic school year. However, since said suspension has not been enforced except
only briefly, thereby enabling petitioners Leonero, Jr., Lucas and Malabanan to finish their courses, and allowing petitioners Lee
and Jalos to continue their schooling, if they so desire, this proceeding is now moot and academic. 5
With the submission of such comments considered as the answers of public and private respondents, the case was ready for
decision.
This petition may be considered moot and academic if viewed solely from the fact that by virtue of the temporary restraining order
issued by this Court petitioners were allowed to enroll in the ensuing semester, with three of them doing so and with the other two
equally entitled to do so. Moreover, there is the added circumstance of more than a year having passed since October 20, 1982
when respondent Ramento issued the challenged decision suspending them for one year. Nonetheless, with its validity having been
put in issue, for being violative of the constitutional rights of freedom of peaceable assembly and free speech, there is need to pass
squarely on the question raised.
14
This Court accordingly rules that respect for the constitutional rights of peaceable assembly and free speech calls for the setting
aside of the decision of respondent Ramento, the penalty imposed being unduly severe. It is true that petitioners held the rally at a
place other than that specified in the permit and continued it longer than the time allowed. Undeniably too, they did disturb the
classes and caused the work of the non-academic personnel to be left undone. Such undesirable consequence could have been
avoided by their holding the assembly in the basketball court as indicated in the permit. Nonetheless, suspending them for one
year is out of proportion to their misdeed. The petition must be granted and the decision of respondent Ramento nullified, a much
lesser penalty being appropriate.
1. As is quite clear from the opinion in Reyes v. Bagatsing, 6 the invocation of the right to freedom of peaceable assembly carries
with it the implication that the right to free speech has likewise been disregarded. Both are embraced in the concept of freedom of
expression which is Identified with the liberty to discuss publicly and truthfully, any matter of public interest without censorship
or punishment and which "is not to be limited, much less denied, except on a showing ... of a clear and present danger of a
substantive evil that the state has a right to prevent." 7
2. In the above case, a permit was sought to hold a peaceful march and rally from the Luneta public park to the gates of the united
States Embassy, hardly two blocks away, where in an open space of public property, a short program would be held. Necessarily
then, the question of the use of a public park and of the streets leading to the United States Embassy was before this Court. We
held that streets and parks have immemorially been held in trust for the use of the public and have been used for purposes of
assembly to communicate thoughts between citizens and to discuss public issues. 8
3. The situation here is different. The assembly was to be held not in a public place but in private premises, property of respondent
University. There is in the Reyes opinion as part of the summary this relevant excerpt: "The applicants for a permit to hold an
assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were
a private place, only the consent of the owner or the one entitled to its legal possession is required." 9 Petitioners did seek such
consent. It was granted. According to the petition: "On August 27, 1982, by virtue of a permit granted to them by the school
administration, the Supreme Student Council where your petitioners are among the officers, held a General Assembly at the VMAS
basketball court of the respondent university." 10 There was an express admission in the Comment of private respondent University
as to a permit having been granted for petitioners to hold a student assembly. 11 The specific question to be resolved then is
whether on the facts as disclosed resulting in the disciplinary action and the penalty imposed, there was an infringement of the
right to peaceable assembly and its cognate right of free speech.
4. Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to do so. They enjoy like the rest of the
citizens the freedom to express their views and communicate their thoughts to those disposed to listen in gatherings such as was
held in this case. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community School District,
12 "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." 13 While, therefore, the authority
of educational institutions over the conduct of students must be recognized, it cannot go so far as to be violative of constitutional
safeguards. On a more specific level there is persuasive force to this formulation in the Fortas opinion: "The principal use to which
the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among
those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending
school; it is also an important part of the educational process. A student's rights, therefore, do not embrace merely the classroom
hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his
opinions, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially interfer[ing]
with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others. ...
But conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior —
materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by
the constitutional guarantee of freedom of speech." 14
5. As tested by such a standard, what is the verdict on the complaint of petitioners that there was a disregard of their constitutional
rights to peaceable assembly and free speech. It must be in their favor, but subject to qualification in view of their continuing their
demonstration in a place other than that specified in the permit for a longer period and their making use of megaphones therein,
resulting in the disruption of classes and the stoppage of work by the non-academic personnel in the vicinity of such assembly.
6. Objection is made by private respondents to the tenor of the speeches by the student leaders. That there would be a vigorous
presentation of views opposed to the proposed merger of the Institute of Animal Science with the Institute of Agriculture was to
be expected. There was no concealment of the fact that they were against such a move as it confronted them with a serious problem
(iisang malaking suliranin.") 15 They believed that such a merger would result in the increase in tuition fees, an additional
headache for their parents ("isa na naman sakit sa ulo ng ating mga magulang."). 16 If in the course of such demonstration, with
an enthusiastic audience goading them on, utterances, extremely critical, at times even vitriolic, were let loose, that is quite
understandable. Student leaders are hardly the timid, diffident types. They are likely to be assertive and dogmatic. They would be
ineffective if during a rally they speak in the guarded and judicious language of the academe. At any rate, even a sympathetic
audience is not disposed to accord full credence to their fiery exhortations. They take into account the excitement of the occasion,
the propensity of speakers to exaggerate, the exuberance of youth, They may give the speakers the benefit of their applause, but
with the activity taking place in the school premises and during the daytime, no clear and present danger of public disorder is
discernible. This is without prejudice to the taking of disciplinary action for conduct, which, to borrow from Tinker, "materially
disrupts classwork or involves substantial disorder or invasion of the rights of others."
10. It would be most appropriate then, as was done in the case of Reyes v. Bagatsing, 21 for this Court to lay down the principles
for the guidance of school authorities and students alike. The rights to peaceable assembly and free speech are guaranteed students
of educational institutions. Necessarily, their exercise to discuss matters affecting their welfare or involving public interest is not
to be subjected to previous restraint or subsequent punishment unless there be a showing of a clear and present danger to a
substantive evil that the state, has a right to present. As a corollary, the utmost leeway and scope is accorded the content of the
placards displayed or utterances made. The peaceable character of an assembly could be lost, however, by an advocacy of disorder
under the name of dissent, whatever grievances that may be aired being susceptible to correction through the ways of the law. If
the assembly is to be held in school premises, permit must be sought from its school authorities, who are devoid of the power to
deny such request arbitrarily or unreasonably. In granting such permit, there may be conditions as to the time and place of the
assembly to avoid disruption of classes or stoppage of work of the non-academic personnel. Even if, however, there be violations
of its terms, the penalty incurred should not be disproportionate to the offense.

7. Nor is this a novel approach to the issue raised by petitioners that they were denied the right to peaceable assembly. In a 1907 WHEREFORE, the petition is granted. The decision dated October 20, 1982 of respondent Ramento imposing a one-year
decision, United States v. Apurado, 17 the facts disclosed that shortly before the municipal council of San Carlos, Occidental suspension is nullified and set aside. The temporary restraining order issued by this Court in the resolution of November 18, 1982
Negros, started its session, some five hundred residents of the municipality assembled near the municipal building, and, upon the is made permanent. As of that date, petitioners had been suspended for more than a week. In that sense, the one-week penalty had
opening of the session, a substantial number of such persons barged into the council chamber, demanding that the municipal been served. No costs.
treasurer, the municipal secretary, and the chief of police be dismissed, submitting at the same time the proposed substitutes. The
municipal council gave its conformity. Such individuals were wholly unarmed except that a few carried canes; the crowd was
G.R. No. 169838 April 25, 2006
fairly orderly and well-behaved except in so far as their pressing into the council chamber during a session of that body could be
called disorder and misbehavior. It turned out that the movement had its origin in religious differences. The defendant Filomeno
Apurado and many other participants were indicted and convicted of sedition in that they allegedly prevented the municipal BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato
government from freely exercising its duties. On appeal, the Supreme Court reversed. Justice Carson, who penned the opinion, Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners,
correctly pointed out that "if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual vs.
members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the Philippine
the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District
on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest Chief Gen. PEDRO BULAONG, Respondents.
form of punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities." 18
The principle to be followed is enunciated thus: "If instances of disorderly conduct occur on such occasions, the guilty individuals
should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the line between disorderly x---------------------------------x
and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising." 19 A careful reading of this
decision is in order before private respondents attach, as they did in their comments, a subversive character to the rally held by the G.R. No. 169848 April 25, 2006
students under the leadership of petitioners.
Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti Delizo, Paul Bangay, Marie
8. It does not follow, however, that petitioners can be totally absolved for the events that transpired. Admittedly, there was a Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael Torres, Rendo Sabusap,
violation of the terms of the permit. The rally was held at a place other than that specified, in the second floor lobby, rather than Precious Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena
the basketball court, of the VMAS building of the University. Moreover, it was continued longer than the period allowed. Sellote, Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito Fadrigon, Petitioners,
According to the decision of respondent Ramento, the "concerted activity [referring to such assembly] went on until 5:30 p. m. 20 vs.
Private respondents could thus, take disciplinary action. On those facts, however, an admonition, even a censure-certainly not a EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal capacity, ANGELO REYES,
suspension-could be the appropriate penalty. Private respondents could and did take umbrage at the fact that in view of such in his official capacity as Secretary of the Interior and Local Governments, ARTURO LOMIBAO, in his official capacity
infraction considering the places where and the time when the demonstration took place-there was a disruption of the classes and as the Chief, Philippine National Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional
stoppage of work of the non-academic personnel. They would not be unjustified then if they did take a much more serious view Police Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District (MPD) AND ALL
of the matter. Even then a one-year period of suspension is much too severe. While the discretion of both respondent University OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS ACTING UNDER THEIR CONTROL,
and respondent Ramento is recognized, the rule of reason, the dictate of fairness calls for a much lesser penalty. If the concept of SUPERVISION AND INSTRUCTIONS, Respondents.
proportionality between the offense connoted and the sanction imposed is not followed, an element of arbitrariness intrudes. That
would give rise to a due process question. To avoid this constitutional objection, it is the holding of this Court that a one-week
suspension would be punishment enough. x---------------------------------x

9. One last matter. The objection was raised that petitioners failed to exhaust administrative remedies. That is true, but hardly G.R. No. 169881 April 25, 2006
decisive. Here, a purely legal question is presented. Such being the case, especially so where a decision on a question of law is
imperatively called for, and time being of the essence, this Court has invariably viewed the issue as ripe for adjudication. What KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary General JOEL
cannot be too sufficiently stressed is that the constitutional rights to peaceable assembly and free speech are invoked by petitioners. MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU),
Moreover, there was, and very likely there will continue to be in the future, militancy and assertiveness of students on issues that represented by its National President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA,
they consider of great importance, whether concerning their welfare or the general public. That they have a right to do as citizens GILDA SUMILANG, FRANCISCO LASTRELLA, and ROQUE M. TAN, Petitioners,
entitled to all the protection in the Bill of Rights. vs.

15
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE
MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG, Respondents.
DECISION
AZCUNA, J.:
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers of the Philippines and that their
rights as organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently dispersed
by policemen implementing Batas Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,2 who allege that they were
injured, arrested and detained when a peaceful mass action they held on September 26, 2005 was preempted and violently dispersed
by the police. They further assert that on October 5, 2005, a group they participated in marched to Malacañang to protest issuances
of the Palace which, they claim, put the country under an "undeclared" martial rule, and the protest was likewise dispersed violently
and many among them were arrested and suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they conduct peaceful mass
actions and that their rights as organizations and those of their individual members as citizens, specifically the right to peaceful
assembly, are affected by Batas Pambansa No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to
implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge but police
blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to several of their members.
They further allege that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along
España Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers blocked them along
Morayta Street and prevented them from proceeding further. They were then forcibly dispersed, causing injuries on one of them.4
Three other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well
as the policy of CPR. They seek to stop violent dispersals of rallies under the "no permit, no rally" policy and the CPR policy
recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government [And]
For Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985."
Sec. 2. Declaration of policy. – The constitutional right of the people peaceably to assemble and petition the government for redress
of grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the free exercise of
such right without prejudice to the rights of others to life, liberty and equal protection of the law.
16
Sec. 3. Definition of terms. – For purposes of this Act:
(a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or concerted
action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public
on any particular issue; or protesting or influencing any state of affairs whether political, economic or social; or
petitioning the government for redress of grievances.
The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be
governed by local ordinances; Provided, however, That the declaration of policy as provided in Section 2 of this Act
shall be faithfully observed.
The definition herein contained shall not include picketing and other concerted action in strike areas by workers and
employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by
the Batas Pambansa Bilang 227.
(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza,
square, and/or any open space of public ownership where the people are allowed access.
(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping
authorities shall observe during a public assembly or in the dispersal of the same.
(d) "Modification of a permit" shall include the change of the place and time of the public assembly, rerouting of the
parade or street march, the volume of loud-speakers or sound system and similar changes.
Sec. 4. Permit when required and when not required. – A written permit shall be required for any person or persons to organize
and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made
in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the
one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which
shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election
campaign period as provided for by law are not covered by this Act.
Sec. 5. Application requirements. – All applications for a permit shall comply with the following guidelines:
(a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such
public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the
probable number of persons participating, the transport and the public address systems to be used.
(b) The application shall incorporate the duty and responsibility of the applicant under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the
intended activity is to be held, at least five (5) working days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal
mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear
and convincing evidence that the public assembly will create a clear and present danger to public order, public safety,
public convenience, public morals or public health.
 (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not interfere with the holding of a
the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible
official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant police officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of activity ready to
on the premises of the office of the mayor and shall be deemed to have been filed. maintain peace and order at all times.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or
modification of the permit, he shall immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours.
Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies, when their assistance is requested
by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those
exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement
agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with
(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit,
their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform
the applicant may contest the decision in an appropriate court of law.
and must observe the policy of "maximum tolerance" as herein defined;

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial
(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with
Court, the Regional Trial Court, or the Intermediate Appellate court, its decisions may be appealed to the appropriate
baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;
court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A
decision granting such permit or modifying it in terms satisfactory to the applicant shall be immediately executory.
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly
is attended by actual violence or serious threats of violence, or deliberate destruction of property.
(g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases
filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in
rank. Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be dispersed. However, when an
assembly becomes violent, the police may disperse such public assembly as follows:
(h) In all cases, any decision may be appealed to the Supreme Court.
(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention
of the leaders of the public assembly and ask the latter to prevent any possible disturbance;
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police
Sec. 7. Use of Public throroughfare. – Should the proposed public assembly involve the use, for an appreciable length of time, of
or at the non-participants, or at any property causing damage to such property, the ranking officer of the law
any public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent grave public
enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be
inconvenience, designate the route thereof which is convenient to the participants or reroute the vehicular traffic to another
dispersed;
direction so that there will be no serious or undue interference with the free flow of commerce and trade.

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking
Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of the leaders and organizers of a public assembly to
officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and
take all reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance
after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse;
with the terms of the permit. These shall include but not be limited to the following:

(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates
(a) To inform the participants of their responsibility under the permit;|avvphi|.net
during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125
of the Revised Penal Code, as amended;
(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities
of the public assembly;
(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground
for dispersal.
(c) To confer with local government officials concerned and law enforcers to the end that the public assembly may be
held peacefully;
Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a permit where a permit is
required, the said public assembly may be peacefully dispersed.
(d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
(e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights
of other persons not participating in the public assembly.
(a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured
that written permit where a permit is required from the office concerned, or the use of such permit for such purposes in

17
 any place other than those set out in said permit: Provided, however, That no person can be punished or held criminally
liable for participating in or attending an otherwise peaceful assembly;
(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor
or any other official acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor
or any official acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;
(e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public
assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public
assembly or on the occasion thereof:
1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the streets or thoroughfares;
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor
vehicle, its horns and loud sound systems.
Sec. 14. Penalties. – Any person found guilty and convicted of any of the prohibited acts defined in the immediately preceding
section shall be punished as follows:
(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months;
(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished by imprisonment
of six months and one day to six years;
(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one day to six years
without prejudice to prosecution under Presidential Decree No. 1866;
(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day to thirty
days.
Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the effectivity of this Act
establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall
be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any
prior permit.
18
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period
of six months from the effectivity this Act.
Sec. 16. Constitutionality. – Should any provision of this Act be declared invalid or unconstitutional, the validity or
constitutionality of the other provisions shall not be affected thereby.
Sec. 17. Repealing clause. – All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof which are
inconsistent with the provisions of this Act are hereby repealed, amended, or modified accordingly.
Sec. 18. Effectivity. – This Act shall take effect upon its approval.
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by Malacañang dated September 21, 2005, shown in Annex "A" to
the Petition in G.R. No. 169848, thus:
Malacañang Official
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation, sow disorder
and incite people against the duly constituted authorities, we have instructed the PNP as well as the local government units to
strictly enforce a "no permit, no rally" policy, disperse groups that run afoul of this standard and arrest all persons violating the
laws of the land as well as ordinances on the proper conduct of mass actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside
while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to
public order, and the peace of mind of the national community.
Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be protected by a vigilant and
proactive government.
We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic society.
The President’s call for unity and reconciliation stands, based on the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International
Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory. 5
They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a
clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time
and place of a public assembly form part of the message for which the expression is sought. Furthermore, it is not content-neutral
as it does not apply to mass actions in support of the government. The words "lawful cause," "opinion," "protesting or influencing"
suggest the exposition of some cause not espoused by the government. Also, the phrase "maximum tolerance" shows that the law
applies to assemblies against the government because they are being tolerated. As a content-based legislation, it cannot pass the
strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment of the right to peacefully
assemble and petition for redress of grievances because it puts a condition for the valid exercise of that right. It also characterizes
public assemblies without a permit as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere
regulations but are actually prohibitions.
Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards stated in the laws (clear
and present danger and imminent and grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth in B.P. No.
880, aside from being void for being vague and for lack of publication.
3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the statement of the public
assembly’s time, place and manner of conduct. It entails traffic re-routing to prevent grave public inconvenience and
serious or undue interference in the free flow of commerce and trade. Furthermore, nothing in B.P. No. 880 authorizes
the denial of a permit on the basis of a rally’s program content or the statements of the speakers therein, except under
the constitutional precept of the "clear and present danger test." The status of B.P. No. 880 as a content-neutral
regulation has been recognized in Osmeña v. Comelec.7
4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time, place and manner of holding
public assemblies and the law passes the test for such regulation, namely, these regulations need only a substantial
governmental interest to support them.
5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the authority to exercise police
power to meet "the demands of the common good in terms of traffic decongestion and public convenience."
Furthermore, the discretion given to the mayor is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e),
13 and 15 of the law.

6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence that the public assembly will
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P. No. 880
create a clear and present danger to public order, public safety, public convenience, public morals or public health" and
cannot put the prior requirement of securing a permit. And even assuming that the legislature can set limits to this right, the limits
"imminent and grave danger of a substantive evil" both express the meaning of the "clear and present danger test."10
provided are unreasonable: First, allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present
danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as certain events require instant
public assembly, otherwise interest on the issue would possibly wane. 7. CPR is simply the responsible and judicious use of means allowed by existing laws and ordinances to protect public
interest and restore public order. Thus, it is not accurate to call it a new rule but rather it is a more pro-active and
dynamic enforcement of existing laws, regulations and ordinances to prevent chaos in the streets. It does not replace
As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can perform their
the rule of maximum tolerance in B.P. No. 880.
act, and that no law, ordinance or executive order supports the policy. Furthermore, it contravenes the maximum tolerance policy
of B.P. No. 880 and violates the Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably
assemble. Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R. No. 169838 should be
dismissed on the ground that Republic Act No. 7160 gives the Mayor power to deny a permit independently of B.P. No. 880; that
his denials of permits were under the "clear and present danger" rule as there was a clamor to stop rallies that disrupt the economy
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor Lito Atienza, Chief, of the
and to protect the lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v. CA,13 have affirmed
Philippine National Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen.
the constitutionality of requiring a permit; that the permit is for the use of a public place and not for the exercise of rights; and that
Vidal Querol, and Manila Police District (MPD) Chief Gen. Pedro Bulaong.
B.P. No. 880 is not a content-based regulation because it covers all rallies.

Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal capacity; Angelo Reyes, as
The petitions were ordered consolidated on February 14, 2006. After the submission of all the Comments, the Court set the cases
Secretary of the Interior and Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong,
for oral arguments on April 4, 2006,14 stating the principal issues, as follows:
as Chief, MPD, and all other public officers and private individuals acting under their control, supervision and instruction.

1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and
Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General Arturo Lomibao, the
Republic Act No. 7160:
Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.

(a) Are these content-neutral or content-based regulations?

Respondents argue that:

(b) Are they void on grounds of overbreadth or vagueness?

1. Petitioners have no standing because they have not presented evidence that they had been "injured, arrested or
detained because of the CPR," and that "those arrested stand to be charged with violating Batas Pambansa [No.] 880
and other offenses." (c) Do they constitute prior restraint?

2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the time, place and manner (d) Are they undue delegations of powers to Mayors?
regulation embodied in B.P. No. 880 violates the three-pronged test for such a measure, to wit: (a) B.P. No. 880 is
content-neutral, i.e., it has no reference to content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a
(e) Do they violate international human rights treaties and the Universal Declaration of Human Rights?
significant governmental interest, i.e., the interest cannot be equally well served by a means that is less intrusive of free
speech interests; and (c) B.P. No. 880 leaves open alternative channels for communication of the information.6
2. On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR):

19
 (a) Is the policy void on its face or due to vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005?
During the course of the oral arguments, the following developments took place and were approved and/or noted by the Court:
1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their petitions raising
factual issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies
of September 20, October 4, 5 and 6, 2005.
2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no longer be used as a legal
term inasmuch as, according to respondents, it was merely a "catchword" intended to clarify what was thought to be a
misunderstanding of the maximum tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed
by Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace B.P. No. 880 and the
maximum tolerance policy embodied in that law.
The Court will now proceed to address the principal issues, taking into account the foregoing developments.
Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and exercise the right
of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a permit for all who would
publicly assemble in the nation’s streets and parks. They have, in fact, purposely engaged in public assemblies without the required
permits to press their claim that no such permit can be validly required without violating the Constitutional guarantee. Respondents,
on the other hand, have challenged such action as contrary to law and dispersed the public assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably
to assemble and petition the government for redress of grievances.
The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom of
speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these rights
constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected.
As stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S. v. Apurado,16 already upheld the right to
assembly and petition, as follows:
There is no question as to the petitioners’ rights to peaceful assembly to petition the government for a redress of grievances and,
for that matter, to organize or form associations for purposes not contrary to law, as well as to engage in peaceful concerted
activities. These rights are guaranteed by no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section
2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting
the people’s exercise of these rights. As early as the onset of this century, this Court in U.S. vs. Apurado, already upheld the right
to assembly and petition and even went as far as to acknowledge:
"It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances
whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater, the
grievance and the more intense the feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual
members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then
the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it
on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and
20
most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities.
If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but
the utmost discretion must be exercised in drawing the line between disorderly and seditious conduct and between an essentially
peaceable assembly and a tumultuous uprising."
Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and to assembly and petition over
comfort and convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental
personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a settled principle
growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated
that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or
society. The power to regulate the exercise of such and other constitutional rights is termed the sovereign "police power," which
is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of
the people. This sovereign police power is exercised by the government through its legislative branch by the enactment of laws
regulating those and other constitutional and civil rights, and it may be delegated to political subdivisions, such as towns,
municipalities and cities by authorizing their legislative bodies called municipal and city councils to enact ordinances for the
purpose.18
Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful
assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the
freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for
redress of grievances." Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully
any matter of public concern without censorship or punishment. There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages,
or contempt proceedings unless there be a "clear and present danger of a substantive evil that [the State] has a right to
prevent." Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of
matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much
less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive
evil that the state has a right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress
that it is a necessary consequence of our republican institutions and complements the right of free speech. To paraphrase
the opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it was
not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guarantee
with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these
rights, while not identical, are inseparable. In every case, therefore, where there is a limitation placed on the exercise
of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole
justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions,
is the 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.
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in
this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was
the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all
the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon
rational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a
context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such
utterance was not meant to be sheltered by the Constitution." What was rightfully stressed is the abandonment of reason,
the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that this right
likewise provides for a safety valve, allowing parties the opportunity to give vent to their views, even if contrary to the
prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful
means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the xxx
right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in
the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of ideas. There
6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The
are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the
question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which
name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult
the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend
attending a rally or assembly. Resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm
the bounds of the freedom of speech which the Constitution protects." There could be danger to public peace and safety
though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v.
if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only the
Apurado: "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest
guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of
against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of
discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While
excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the
prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur,
disciplinary control of the leaders over their irresponsible followers." It bears repeating that for the constitutional right
given all the relevant circumstances, still the assumption – especially so where the assembly is scheduled for a specific
to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided. To give free rein to one’s
public place – is that the permit must be for the assembly being held there. The exercise of such a right, in the language
destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty
of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised
in our scheme of values.
in some other place."

There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice
xxx
of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the
plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may
rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for 8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the
purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the
streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to
citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to
national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and
subordination to the general comfort and convenience, and in consonance with peace and good order; but must not, in present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave
the guise of regulation, be abridged or denied." The above excerpt was quoted with approval in Primicias v. Fugoso. danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or
Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this Court adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper
categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked
that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade for public in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, -- even more so than on
use," which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit the other departments – rests the grave and delicate responsibility of assuring respect for and deference to such preferred
should not be granted for the proposed march and rally starting from a public park that is the Luneta. rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously 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. x x x.
4. Neither can there be any valid objection to the use of the streets to the gates of the US embassy, hardly two blocks
away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the
then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
Court categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox v. State of New
Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L. chap. 145, section 2, providing that no
The provisions of B.P. No. 880 practically codify the ruling in Reyes:
parade or procession upon any ground abutting thereon, shall be permitted unless a special license therefor shall first
be obtained from the selectmen of the town or from licensing committee,’ was construed by the Supreme Court of New
Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid.
And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the
judgment of the State Supreme Court, held that ‘a statute requiring persons using the public streets for a parade or Reyes v. Bagatsing B.P. No. 880
procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of the
rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing (G.R. No. L-65366, November 9, 1983, Sec. 4. Permit when required and when not required.--
authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade A written permit shall be required for any person or
or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper persons to organize and hold a public assembly in a
policing, and are not invested with arbitrary discretion to issue or refuse license, * * *. "Nor should the point made by 125 SCRA 553, 569)
public place. However, no permit shall be required if the
Chief Justice Hughes in a subsequent portion of the opinion be ignored: "Civil liberties, as guaranteed by the public assembly shall be done or made in a freedom
Constitution, imply the existence of an organized society maintaining public order without which liberty itself would 8. By way of a summary. The applicants for a permit to park duly established by law or ordinance or in private
be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure hold an assembly should inform the licensing authority property, in which case only the consent of the owner
the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with of the date, the public place where and the time when it or the one entitled to its legal possession is required, or
civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The will take place. If it were a private place, only the in the campus of a government-owned and operated
control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a consent of the owner or the one entitled to its legal educational institution which shall be subject to the
restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it possession is required. Such application should be filed rules and regulations of said educational institution.
cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to well ahead in time to enable the public official Political meetings or rallies held during any election
protection."

21
concerned to appraise whether there may be valid
objections to the grant of the permit or to its grant but at
another public place. It is an indispensable condition to
such refusal or modification that the clear and present
danger test be the standard for the decision reached. If
he is of the view that there is such an imminent and
grave danger of a substantive evil, the applicants must
be heard on the matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to them at the
earliest opportunity. Thus if so minded, they can have
recourse to the proper judicial authority.
campaign period as provided for by law are not covered
by this Act.
Sec. 5. Application requirements.-- All applications for
a permit shall comply with the following guidelines:
(a) The applications shall be in writing and
shall include the names of the leaders or
organizers; the purpose of such public
assembly; the date, time and duration
thereof, and place or streets to be used for
the intended activity; and the probable
number of persons participating, the
transport and the public address systems to
be used.
in his behalf refuse to accept the application
for a permit, said application shall be posted
by the applicant on the premises of the office
of the mayor and shall be deemed to have
been filed.
(c) If the mayor is of the view that there is
imminent and grave danger of a substantive
evil warranting the denial or modification of
the permit, he shall immediately inform the
applicant who must be heard on the matter.
(d) The action on the permit shall be in
writing and served on the applica[nt] within
twenty-four hours.

(b) The application shall incorporate the
duty and responsibility of applicant under
Section 8 hereof.
(c) The application shall be filed with the
office of the mayor of the city or
municipality in whose jurisdiction the
intended activity is to be held, at least five
(5) working days before the scheduled
public assembly.
(d) Upon receipt of the application, which
must be duly acknowledged in writing, the
office of the city or municipal mayor shall
cause the same to immediately be posted at
a conspicuous place in the city or municipal
building.
(e) If the mayor or any official acting in his
behalf denies the application or modifies the
terms thereof in his permit, the applicant
may contest the decision in an appropriate
court of law.
(f) In case suit is brought before the
Metropolitan Trial Court, the Municipal
Trial Court, the Municipal Circuit Trial
Court, the Regional Trial Court, or the
Intermediate Appellate Court, its decisions
may be appealed to the appropriate court
within forty-eight (48) hours after receipt of
the same. No appeal bond and record on
appeal shall be required. A decision granting
such permit or modifying it in terms
satisfactory to the applicant shall be
immediately executory.

Sec. 6. Action to be taken on the application. –

(a) It shall be the duty of the mayor or any
official acting in his behalf to issue or grant
a permit unless there is clear and convincing
evidence that the public assembly will create
a clear and present danger to public order,
public safety, public convenience, public
morals or public health.
(g) All cases filed in court under this section
shall be decided within twenty-four (24)
hours from date of filing. Cases filed
hereunder shall be immediately endorsed to
the executive judge for disposition or, in his
absence, to the next in rank.
(h) In all cases, any decision may be
appealed to the Supreme Court.

(b) The mayor or any official acting in his

(i) Telegraphic appeals to be followed by
behalf shall act on the application within two
formal appeals are hereby allowed.
(2) working days from the date the
application was filed, failing which, the
permit shall be deemed granted. Should for
any reason the mayor or any official acting

22
It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the
time, place and manner of the assemblies. This was adverted to in Osmeña v. Comelec,20 where the Court referred to it as a "content-
neutral" regulation of the time, place, and manner of holding public assemblies. 21
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies22 that would use
public places. The reference to "lawful cause" does not make it content-based because assemblies really have to be for lawful
causes, otherwise they would not be "peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and
"influencing" in the definition of public assembly content based, since they can refer to any subject. The words "petitioning the
government for redress of grievances" come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum
tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public
convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the Universal
Declaration of Human Rights and the International Covenant on Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
xxx
Article 29
1. Everyone has duties to the community in which alone the free and full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by
law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting
the just requirements of morality, public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities.
It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
23
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its provisions. "Public" does not have to be defined.
Its ordinary meaning is well-known. Webster’s Dictionary defines it, thus:23
public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common interests or characteristics x
x x.
Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march, parade, procession or any
other form of mass or concerted action held in a public place." So it does not cover any and all kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to
avoid a clear and present danger of the substantive evils Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a precise and sufficient standard – the clear and present danger test
stated in Sec. 6(a). The reference to "imminent and grave danger of a substantive evil" in Sec. 6(c) substantially means the same
thing and is not an inconsistent standard. As to whether respondent Mayor has the same power independently under Republic Act
No. 716024 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of freedom parks
where no prior permit is needed for peaceful assembly and petition at any time:
Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the effectivity of this Act
establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall
be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any
prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period
of six months from the effectivity this Act.
This brings up the point, however, of compliance with this provision.
The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has declared a freedom park – Fuente
Osmeña.
That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.
If this is so, the degree of observance of B.P. No. 880’s mandate that every city and municipality set aside a freedom park within
six months from its effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The matter appears to have been taken
for granted amidst the swell of freedom that rose from the peaceful revolution of 1986.
Considering that the existence of such freedom parks is an essential part of the law’s system of regulation of the people’s exercise
of their right to peacefully assemble and petition, the Court is constrained to rule that after thirty (30) days from the finality of this
Decision, no prior permit may be required for the exercise of such right in any public park or plaza of a city or municipality until
that city or municipality shall have complied with Section 15 of the law. For without such alternative forum, to deny the permit
would in effect be to deny the right. Advance notices should, however, be given to the authorities to ensure proper coordination
and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the term should (a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with
now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This is their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform
stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus: and must observe the policy of "maximum tolerance" as herein defined;

14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the legal definition of "maximum (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with
tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the military, police and other baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;
peacekeeping authorities shall observe during a public assembly or in the dispersal of the same." Unfortunately, however, the
phrase "maximum tolerance" has acquired a different meaning over the years. Many have taken it to mean inaction on the part of
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly
law enforcers even in the face of mayhem and serious threats to public order. More so, other felt that they need not bother secure
is attended by actual violence or serious threats of violence, or deliberate destruction of property.
a permit when holding rallies thinking this would be "tolerated." Clearly, the popular connotation of "maximum tolerance" has
departed from its real essence under B.P. Blg. 880.
Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be dispersed. However, when an
assembly becomes violent, the police may disperse such public assembly as follows:
15. It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all pubic
assemblies to have a permit, which allows the dispersal of rallies without a permit, and which recognizes certain instances when
water cannons may be used. This could only mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" (a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention
or with the dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of tolerance required of the leaders of the public assembly and ask the latter to prevent any possible disturbance;
is dependent on how peaceful or unruly a mass action is. Our law enforcers should calibrate their response based on the
circumstances on the ground with the view to preempting the outbreak of violence.
(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police
or at the non-participants, or at any property causing damage to such property, the ranking officer of the law
16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was not enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be
referring to its legal definition but to the distorted and much abused definition that it has now acquired. I only wanted to disabuse dispersed;
the minds of the public from the notion that law enforcers would shirk their responsibility of keeping the peace even when
confronted with dangerously threatening behavior. I wanted to send a message that we would no longer be lax in enforcing the law
but would henceforth follow it to the letter. Thus I said, "we have instructed the PNP as well as the local government units to (c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking
strictly enforce a no permit, no rally policy . . . arrest all persons violating the laws of the land . . . unlawful mass actions will be officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and
after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse;
dispersed." None of these is at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants
to even claim that I ordered my co-respondents to violate any law.25
(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates
during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125
At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose if it
means the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be followed is and of the Revised Penal Code, as amended;
should be that mandated by the law itself, namely, maximum tolerance, which specifically means the following:
(d) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground
Sec. 3. Definition of terms. – For purposes of this Act: for dispersal.

xxx xxx

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a permit where a permit is
observe during a public assembly or in the dispersal of the same. required, the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
xxx

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not interfere with the holding of a (e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;
public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible
police officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of activity ready to (f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly;
maintain peace and order at all times.
(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on
Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies, when their assistance is requested the occasion thereof:
by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those
exercising their right peaceably to assemble and the freedom of expression is primordial.1avvphil.net Towards this end, law
enforcement agencies shall observe the following guidelines: xxx

4. the carrying of firearms by members of the law enforcement unit;

24
5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud
sound systems.
Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit
and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation,
as a necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given
date can, after two days from said date, rally in accordance with their application without the need to show a permit, the grant of
the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of
the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by
the law.
In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression
and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the
liberty of our people and to nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh
heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed,
laws and actions that restrict fundamental rights come to the courts with a heavy presumption against their validity. These laws
and actions are subjected to heightened scrutiny."26
For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down
as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other
hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates
the use of public places as to the time, place and manner of assemblies. Far from being insidious, "maximum tolerance" is for the
benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally "permits" is valid because it is
subject to the constitutionally-sound "clear and present danger" standard.
In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30 days
within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks are so
identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect
be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement
will be written notices to the police and the mayor’s office to allow proper coordination and orderly activities.
WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and Local
Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas Pambansa No.
880 through the establishment or designation of at least one suitable freedom park or plaza in every city and municipality of the
country. After thirty (30) days from the finality of this Decision, subject to the giving of advance notices, no prior permit shall be
required to exercise the right to peaceably assemble and petition in the public parks or plazas of a city or municipality that has not
yet complied with Section 15 of the law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to
differ from or be in lieu of maximum tolerance, is NULL and VOID and respondents are ENJOINED to REFRAIN from using
it and to STRICTLY OBSERVE the requirements of maximum tolerance. The petitions are DISMISSED in all other respects,
and the constitutionality of Batas Pambansa No. 880 is SUSTAINED.
G.R. No. L-72119 May 29, 1987
VALENTIN L. LEGASPI, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.
CORTES, J.:
25
The fundamental right of the people to information on matters of public concern is invoked in this special civil action for mandamus
instituted by petitioner Valentin L. Legaspi against the Civil Service Commission. The respondent had earlier denied Legaspi's
request for information on the civil service eligibilities of certain persons employed as sanitarians in the Health Department of
Cebu City. These government employees, Julian Sibonghanoy and Mariano Agas, had allegedly represented themselves as civil
service eligibles who passed the civil service examinations for sanitarians.
Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and Mariano Agas, is guaranteed by the
Constitution, and that he has no other plain, speedy and adequate remedy to acquire the information, petitioner prays for the
issuance of the extraordinary writ of mandamus to compel the respondent Commission to disclose said information.
This is not the first tune that the writ of mandamus is sought to enforce the fundamental right to information. The same remedy
was resorted to in the case of Tanada et. al. vs. Tuvera et. al., (G.R. No. L-63915, April 24,1985,136 SCRA 27) wherein the
people's right to be informed under the 1973 Constitution (Article IV, Section 6) was invoked in order to compel the publication
in the Official Gazette of various presidential decrees, letters of instructions and other presidential issuances. Prior to the
recognition of the right in said Constitution the statutory right to information provided for in the Land Registration Act (Section
56, Act 496, as amended) was claimed by a newspaper editor in another mandamus proceeding, this time to demand access to the
records of the Register of Deeds for the purpose of gathering data on real estate transactions involving aliens (Subido vs. Ozaeta,
80 Phil. 383 [1948]).
The constitutional right to information on matters of public concern first gained recognition in the Bill of Rights, Article IV, of the
1973 Constitution, which states:
Sec. 6. The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts, transactions, or decisions, shall be
afforded the citizen subject to such limitations as may be provided by law.
The foregoing provision has been retained and the right therein provided amplified in Article III, Sec. 7 of the 1987 Constitution
with the addition of the phrase, "as well as to government research data used as basis for policy development." The new provision
reads:
The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis. for policy development, shall be afforded the citizen, subject to
such stations as may be provided by law.
These constitutional provisions are self-executing. They supply the rules by means of which the right to information may be
enjoyed (Cooley, A Treatise on the Constitutional Limitations 167 [1927]) by guaranteeing the right and mandating the duty to
afford access to sources of information. Hence, the fundamental right therein recognized may be asserted by the people upon the
ratification of the constitution without need for any ancillary act of the Legislature. (Id. at, p. 165) What may be provided for by
the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent
with the declared State policy of full public disclosure of all transactions involving public interest (Constitution, Art. 11, Sec. 28).
However, it cannot be overemphasized that whatever limitation may be prescribed by the Legislature, the right and the duty under
Art. III Sec. 7 have become operative and enforceable by virtue of the adoption of the New Charter. Therefore, the right may be
properly invoked in a mandamus proceeding such as this one.
The Solicitor General interposes procedural objections to Our giving due course to this Petition. He challenges the petitioner's
standing to sue upon the ground that the latter does not possess any clear legal right to be informed of the civil service eligibilities
of the government employees concerned. He calls attention to the alleged failure of the petitioner to show his actual interest in
securing this particular information. He further argues that there is no ministerial duty on the part of the Commission to furnish
the petitioner with the information he seeks.
1. To be given due course, a Petition for mandamus must have been instituted by a party aggrieved by the alleged inaction of any
tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of a legal right. (Ant;-Chinese
League of the Philippines vs. Felix, 77 Phil. 1012 [1947]). The petitioner in every case must therefore be an "aggrieved party" in
the sense that he possesses a clear legal right to be enforced and a direct interest in the duty or act to be performed.
In the case before Us, the respondent takes issue on the personality of the petitioner to bring this suit. It is asserted that, the instant
Petition is bereft of any allegation of Legaspi's actual interest in the civil service eligibilities of Julian Sibonghanoy and Mariano
Agas, At most there is a vague reference to an unnamed client in whose behalf he had allegedly acted when he made inquiries on
the subject (Petition, Rollo, p. 3).
But what is clear upon the face of the Petition is that the petitioner has firmly anchored his case upon the right of the people to
information on matters of public concern, which, by its very nature, is a public right. It has been held that:
* * * when the question is one of public right and the object of the mandamus is to procure the enforcement
of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the
proceedings are instituted need not show that he has any legal or special interest in the result, it being
sufficient to show that he is a citizen and as such interested in the execution of the laws * * * (Tanada et. al.
vs. Tuvera, et. al., G.R. No. L- 63915, April 24, 1985, 136 SCRA 27, 36).
From the foregoing, it becomes apparent that when a mandamus proceeding involves the assertion of a public right, the requirement
of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general "public" which
possesses the right.
The Court had opportunity to define the word "public" in the Subido case, supra, when it held that even those who have no direct
or tangible interest in any real estate transaction are part of the "public" to whom "(a)ll records relating to registered lands in the
Office of the Register of Deeds shall be open * * *" (Sec. 56, Act No. 496, as amended). In the words of the Court:
* * * "Public" is a comprehensive, all-inclusive term. Properly construed, it embraces every person. To say
that only those who have a present and existing interest of a pecuniary character in the particular information
sought are given the right of inspection is to make an unwarranted distinction. *** (Subido vs. Ozaeta, supra
at p. 387).
The petitioner, being a citizen who, as such is clothed with personality to seek redress for the alleged obstruction of the exercise
of the public right. We find no cogent reason to deny his standing to bring the present suit.
2. For every right of the people recognized as fundamental, there lies a corresponding duty on the part of those who govern, to
respect and protect that right. That is the very essence of the Bill of Rights in a constitutional regime. Only governments operating
under fundamental rules defining the limits of their power so as to shield individual rights against its arbitrary exercise can properly
claim to be constitutional (Cooley, supra, at p. 5). Without a government's acceptance of the limitations imposed upon it by the
Constitution in order to uphold individual liberties, without an acknowledgment on its part of those duties exacted by the rights
pertaining to the citizens, the Bill of Rights becomes a sophistry, and liberty, the ultimate illusion.
In recognizing the people's right to be informed, both the 1973 Constitution and the New Charter expressly mandate the duty of
the State and its agents to afford access to official records, documents, papers and in addition, government research data used as
basis for policy development, subject to such limitations as may be provided by law. The guarantee has been further enhanced in
the New Constitution with the adoption of a policy of full public disclosure, this time "subject to reasonable conditions prescribed
by law," in Article 11, Section 28 thereof, to wit:
Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest. (Art. 11, Sec. 28).
26
In the Tanada case, supra, the constitutional guarantee was bolstered by what this Court declared as an imperative duty of the
government officials concerned to publish all important legislative acts and resolutions of a public nature as well as all executive
orders and proclamations of general applicability. We granted mandamus in said case, and in the process, We found occasion to
expound briefly on the nature of said duty:
* * * That duty must be enforced if the Constitutional right of the people to be informed on matters of public
concern is to be given substance and reality. The law itself makes a list of what should be published in the
Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what
must be in included or excluded from such publication. (Tanada v. Tuvera, supra, at 39). (Emphasis
supplied).
The absence of discretion on the part of government agencia es in allowing the examination of public records, specifically, the
records in the Office of the Register of Deeds, is emphasized in Subido vs. Ozaeta, supra:
Except, perhaps when it is clear that the purpose of the examination is unlawful, or sheer, idle curiosity, we
do not believe it is the duty under the law of registration officers to concern themselves with the motives,
reasons, and objects of the person seeking access to the records. It is not their prerogative to see that the
information which the records contain is not flaunted before public gaze, or that scandal is not made of it.
If it be wrong to publish the contents of the records, it is the legislature and not the officials having custody
thereof which is called upon to devise a remedy. *** (Subido v. Ozaeta, supra at 388). (Emphasis supplied).
It is clear from the foregoing pronouncements of this Court that government agencies are without discretion in refusing disclosure
of, or access to, information of public concern. This is not to lose sight of the reasonable regulations which may be imposed by
said agencies in custody of public records on the manner in which the right to information may be exercised by the public. In the
Subido case, We recognized the authority of the Register of Deeds to regulate the manner in which persons desiring to do so, may
inspect, examine or copy records relating to registered lands. However, the regulations which the Register of Deeds may
promulgate are confined to:
* * * prescribing the manner and hours of examination to the end that damage to or loss of, the records may
be avoided, that undue interference with the duties of the custodian of the books and documents and other
employees may be prevented, that the right of other persons entitled to make inspection may be insured * *
* (Subido vs. Ozaeta, 80 Phil. 383, 387)
Applying the Subido ruling by analogy, We recognized a similar authority in a municipal judge, to regulate the manner of
inspection by the public of criminal docket records in the case of Baldoza vs. Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976,
71 SCRA 14). Said administrative case was filed against the respondent judge for his alleged refusal to allow examination of the
criminal docket records in his sala. Upon a finding by the Investigating Judge that the respondent had allowed the complainant to
open and view the subject records, We absolved the respondent. In effect, We have also held that the rules and conditions imposed
by him upon the manner of examining the public records were reasonable.
In both the Subido and the Baldoza cases, We were emphatic in Our statement that the authority to regulate the manner of
examining public records does not carry with it the power to prohibit. A distinction has to be made between the discretion to refuse
outright the disclosure of or access to a particular information and the authority to regulate the manner in which the access is to be
afforded. The first is a limitation upon the availability of access to the information sought, which only the Legislature may impose
(Art. III, Sec. 6, 1987 Constitution). The second pertains to the government agency charged with the custody of public records. Its
authority to regulate access is to be exercised solely to the end that damage to, or loss of, public records may be avoided, undue
interference with the duties of said agencies may be prevented, and more importantly, that the exercise of the same constitutional
right by other persons shall be assured (Subido vs. Ozaetal supra).
Thus, while the manner of examining public records may be subject to reasonable regulation by the government agency in custody
thereof, the duty to disclose the information of public concern, and to afford access to public records cannot be discretionary on
the part of said agencies. Certainly, its performance cannot be made contingent upon the discretion of such agencies. Otherwise,
the enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency discretion. The b. But then, it is not enough that the information sought is of public interest. For mandamus to lie in a given case, the information
constitutional duty, not being discretionary, its performance may be compelled by a writ of mandamus in a proper case. must not be among the species exempted by law from the operation of the constitutional guarantee.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced and the concomitant duty
of the State are unequivocably set forth in the Constitution. The decisive question on the propriety of the issuance of the writ of
mandamus in this case is, whether the information sought by the petitioner is within the ambit of the constitutional guarantee.
3. The incorporation in the Constitution of a guarantee of access to information of public concern is a recognition of the essentiality
of the free flow of ideas and information in a democracy (Baldoza v. Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA
14). In the same way that free discussion enables members of society to cope with the exigencies of their time (Thornhill vs.
Alabama, 310 U.S. 88,102 [1939]), access to information of general interest aids the people in democratic decision-making (87
Harvard Law Review 1505 [1974]) by giving them a better perspective of the vital issues confronting the nation.
But the constitutional guarantee to information on matters of public concern is not absolute. It does not open every door to any
and all information. Under the Constitution, access to official records, papers, etc., are "subject to limitations as may be provided
by law" (Art. III, Sec. 7, second sentence). The law may therefore exempt certain types of information from public scrutiny, such
as those affecting national security (Journal No. 90, September 23, 1986, p. 10; and Journal No. 91, September 24, 1986, p. 32,
1986 Constitutional Commission). It follows that, in every case, the availability of access to a particular public record must be
circumscribed by the nature of the information sought, i.e., (a) being of public concern or one that involves public interest, and,
(b) not being exempted by law from the operation of the constitutional guarantee. The threshold question is, therefore, whether or
not the information sought is of public interest or public concern.
In the instant, case while refusing to confirm or deny the claims of eligibility, the respondent has failed to cite any provision in the
Civil Service Law which would limit the petitioner's right to know who are, and who are not, civil service eligibles. We take
judicial notice of the fact that the names of those who pass the civil service examinations, as in bar examinations and licensure
examinations for various professions, are released to the public. Hence, there is nothing secret about one's civil service eligibility,
if actually possessed. Petitioner's request is, therefore, neither unusual nor unreasonable. And when, as in this case, the government
employees concerned claim to be civil service eligibles, the public, through any citizen, has a right to verify their professed
eligibilities from the Civil Service Commission.
The civil service eligibility of a sanitarian being of public concern, and in the absence of express limitations under the law upon
access to the register of civil service eligibles for said position, the duty of the respondent Commission to confirm or deny the civil
service eligibility of any person occupying the position becomes imperative. Mandamus, therefore lies.
WHEREFORE, the Civil Service Commission is ordered to open its register of eligibles for the position of sanitarian, and to
confirm or deny, the civil service eligibility of Julian Sibonghanoy and Mariano Agas, for said position in the Health Department
of Cebu City, as requested by the petitioner Valentin L. Legaspi.
G.R. No. 74930 February 13, 1989

RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO BARTOLOME, LEO
a. This question is first addressed to the government agency having custody of the desired information. However, as already
OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY" ALBA, PERCY LAPID, ROMMEL
discussed, this does not give the agency concerned any discretion to grant or deny access. In case of denial of access, the
CORRO and ROLANDO FADUL, petitioners,
government agency has the burden of showing that the information requested is not of public concern, or, if it is of public concern,
vs.
that the same has been exempted by law from the operation of the guarantee. To hold otherwise will serve to dilute the constitutional
FELICIANO BELMONTE, JR., respondent.
right. As aptly observed, ". . . the government is in an advantageous position to marshall and interpret arguments against release .
. ." (87 Harvard Law Review 1511 [1974]). To safeguard the constitutional right, every denial of access by the government agency
concerned is subject to review by the courts, and in the proper case, access may be compelled by a writ of Mandamus. Ricardo C. Valmonte for and in his own behalf and his co-petitioners.

In determining whether or not a particular information is of public concern there is no rigid test which can be applied. "Public The Solicitor General for respondent.
concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the
public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the
interest of an ordinary citizen. In the final analysis, it is for the courts to determine in a case by case basis whether the matter at
issue is of interest or importance, as it relates to or affects the public.
CORTES, J.:
The public concern invoked in the case of Tanada v. Tuvera, supra, was the need for adequate notice to the public of the various
laws which are to regulate the actions and conduct of citizens. In Subido vs. Ozaeta, supra, the public concern deemed covered by Petitioners in this special civil action for mandamus with preliminary injunction invoke their right to information and pray that
the statutory right was the knowledge of those real estate transactions which some believed to have been registered in violation of respondent be directed:
the Constitution.

The information sought by the petitioner in this case is the truth of the claim of certain government employees that they are civil
service eligibles for the positions to which they were appointed. The Constitution expressly declares as a State policy that:
(a) to furnish petitioners the list of the names of the Batasang Pambansa members
belonging to the UNIDO and PDP-Laban who were able to secure clean loans
Appointments in the civil service shall be made only according to merit and fitness to be determined, as far immediately before the February 7 election thru the intercession/marginal note of the
as practicable, and except as to positions which are policy determining, primarily confidential or highly then First Lady Imelda Marcos; and/or
technical, by competitive examination. (Art. IX, B, Sec. 2.[2]).
(b) to furnish petitioners with certified true copies of the documents evidencing their
Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of citizens to ensure that government positions respective loans; and/or
requiring civil service eligibility are occupied only by persons who are eligibles. Public officers are at all times accountable to the
people even as to their eligibilities for their respective positions.
(c) to allow petitioners access to the public records for the subject information.
(Petition, pp. 4-5; paragraphing supplied.]
27
The controversy arose when petitioner Valmonte wrote respondent Belmonte the following letter:

June 4, 1986

Hon. Feliciano Belmonte

GSIS General Manager
Arroceros, Manila

Sir:

As a lawyer, member of the media and plain citizen of our Republic, I am requesting that I be furnished
with the list of names of the opposition members of (the) Batasang Pambansa who were able to secure a
clean loan of P2 million each on guarranty (sic) of Mrs. Imelda Marcos. We understand that OIC Mel Lopez
of Manila was one of those aforesaid MPs. Likewise, may we be furnished with the certified true copies of
the documents evidencing their loan. Expenses in connection herewith shall be borne by us.
[Rollo, p. 7.]

If we could not secure the above documents could we have access to them? To the aforesaid letter, the Deputy General Counsel of the GSIS replied:

We are premising the above request on the following provision of the Freedom Constitution of the present June 17, 1986
regime.

Atty. Ricardo C. Valmonte

The right of the people to information on matters of public concern shall be 108 E. Benin Street
recognized. Access to official records, and to documents and papers pertaining to Caloocan City
official acts, transactions or decisions, shall be afforded the citizen subject to such
limitation as may be provided by law. (Art. IV, Sec. 6).
Dear Compañero:
We trust that within five (5) days from receipt hereof we will receive your favorable response on the matter.
Possibly because he must have thought that it contained serious legal implications, President & General
Manager Feliciano Belmonte, Jr. referred to me for study and reply your letter to him of June 4, 1986
V the opposition members of Batasang Pambansa who were able to secure a clean loan of
requesting a list of
e
P2 million each on guaranty of Mrs. Imelda Marcos.
r
y
My opinion in thist regard is that a confidential relationship exists between the GSIS and all those who
borrow from it, r whoever they may be; that the GSIS has a duty to its customers to preserve this
confidentiality; and
u that it would not be proper for the GSIS to breach this confidentiality unless so ordered
by the courts. l
y
y
As a violation of this confidentiality may mar the image of the GSIS as a reputable financial institution, I
o
regret very much that at this time we cannot respond positively to your request.
u
r
Very truly yours,s
,
(Sgd.) MEYNARDO A. TIRO
( Deputy General Counsel
S [Rollo, p. 40.]
g
d
On June 20, 1986, apparently not having yet received the reply of the Government Service and Insurance System (GSIS) Deputy
.
General Counsel, petitioner Valmonte wrote respondent another letter, saying that for failure to receive a reply, "(W)e are now
)
considering ourselves free to do whatever action necessary within the premises to pursue our desired objective in pursuance of
R
public interest." [Rollo, p. 8.]
I
28
On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.
On July 19, 1986, the Daily Express carried a news item reporting that 137 former members of the defunct interim and regular
Batasang Pambansa, including ten (10) opposition members, were granted housing loans by the GSIS [Rollo, p. 41.]
Separate comments were filed by respondent Belmonte and the Solicitor General. After petitioners filed a consolidated reply, the
petition was given due course and the parties were required to file their memoranda. The parties having complied, the case was
deemed submitted for decision.
In his comment respondent raises procedural objections to the issuance of a writ of mandamus, among which is that petitioners
have failed to exhaust administrative remedies.
Respondent claims that actions of the GSIS General Manager are reviewable by the Board of Trustees of the GSIS. Petitioners,
however, did not seek relief from the GSIS Board of Trustees. It is therefore asserted that since administrative remedies were not
exhausted, then petitioners have no cause of action.
To this objection, petitioners claim that they have raised a purely legal issue, viz., whether or not they are entitled to the documents
sought, by virtue of their constitutional right to information. Hence, it is argued that this case falls under one of the exceptions to
the principle of exhaustion of administrative remedies.
Among the settled principles in administrative law is that before a party can be allowed to resort to the courts, he is expected to
have exhausted all means of administrative redress available under the law. The courts for reasons of law, comity and convenience
will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have
been given opportunity to act and correct the errors committed in the administrative forum. However, the principle of exhaustion
of administrative remedies is subject to settled exceptions, among which is when only a question of law is involved [Pascual v.
Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan
v. Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA 359.] The issue raised by petitioners, which requires the interpretation
of the scope of the constitutional right to information, is one which can be passed upon by the regular courts more competently
than the GSIS or its Board of Trustees, involving as it does a purely legal question. Thus, the exception of this case from the
application of the general rule on exhaustion of administrative remedies is warranted. Having disposed of this procedural issue,
We now address ourselves to the issue of whether or not mandamus hes to compel respondent to perform the acts sought by
petitioners to be done, in pursuance of their right to information.
We shall deal first with the second and third alternative acts sought to be done, both of which involve the issue of whether or not
petitioners are entitled to access to the documents evidencing loans granted by the GSIS.
This is not the first time that the Court is confronted with a controversy directly involving the constitutional right to information.
In Tañada v. Tuvera, G.R. No. 63915, April 24,1985, 136 SCRA 27 and in the recent case of Legaspi v. Civil Service Commission,
G.R. No. 72119, May 29, 1987,150 SCRA 530, the Court upheld the people's constitutional right to be informed of matters of
public interest and ordered the government agencies concerned to act as prayed for by the petitioners.
The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:
The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
The right of access to information was also recognized in the 1973 Constitution, Art. IV Sec. 6 of which provided:
29
The right of the people to information on 'matters of public concern shall be recognized. Access to official
records, and to documents and papers pertaining to official acts, transactions, or decisions, shall be afforded
the citizen subject to such limitations as may be provided by law.
An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the
free exchange of ideas and discussion of issues thereon, is vital to the democratic government envisioned under our Constitution.
The cornerstone of this republican system of government is delegation of power by the people to the State. In this system,
governmental agencies and institutions operate within the limits of the authority conferred by the people. Denied access to
information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the
power had been delegated. The postulate of public office as a public trust, institutionalized in the Constitution (in Art. XI, Sec. 1)
to protect the people from abuse of governmental power, would certainly be were empty words if access to such information of
public concern is denied, except under limitations prescribed by implementing legislation adopted pursuant to the Constitution.
Petitioners are practitioners in media. As such, they have both the right to gather and the obligation to check the accuracy of
information the disseminate. For them, the freedom of the press and of speech is not only critical, but vital to the exercise of their
professions. The right of access to information ensures that these freedoms are not rendered nugatory by the government's
monopolizing pertinent information. For an essential element of these freedoms is to keep open a continuing dialogue or process
of communication between the government and the people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive and be responsive to the people's will. Yet, this open
dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only
when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit.
The right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right
to information is merely an adjunct of and therefore restricted in application by the exercise of the freedoms of speech and of the
press. Far from it. The right to information goes hand-in-hand with the constitutional policies of full public disclosure * and honesty
in the public service. ** It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in
checking abuse in government.
Yet, like all the constitutional guarantees, the right to information is not absolute. As stated in Legaspi, the people's right to
information is limited to "matters of public concern," and is further "subject to such limitations as may be provided by law."
Similarly, the State's policy of full disclosure is limited to "transactions involving public interest," and is "subject to reasonable
conditions prescribed by law."
Hence, before mandamus may issue, it must be clear that the information sought is of "public interest" or "public concern," and is
not exempted by law from the operation of the constitutional guarantee [Legazpi v. Civil Service Commission, supra, at p. 542.]
The Court has always grappled with the meanings of the terms "public interest" and "public concern". As observed in Legazpi:
In determining whether or not a particular information is of public concern there is no rigid test which can
be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace
a broad spectrum of subjects which the public may want to know, either because these directly affect their
lives, or simply because such matters naturally arouse the interest of an ordinary citezen. In the final
analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or
importance, as it relates to or affects the public. [Ibid. at p. 541]
In the Tañada case the public concern deemed covered by the constitutional right to information was the need for adequate notice
to the public of the various laws which are to regulate the actions and conduct of citezens. In Legaspi, it was the "legitimate concern
of citezensof ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles"
[Supra at p. 539.]
The information sought by petitioners in this case is the truth of reports that certain Members of the Batasang Pambansa belonging
to the opposition were able to secure "clean" loans from the GSIS immediately before the February 7, 1986 election through the
intercession of th eformer First Lady, Mrs. Imelda Marcos.
The GSIS is a trustee of contributions from the government and its employees and the administrator of various insurance programs
for the benefit of the latter. Undeniably, its funds assume a public character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as
amended (the Revised Government Service Insurance Act of 1977), provide for annual appropriations to pay the contributions,
premiums, interest and other amounts payable to GSIS by the government, as employer, as well as the obligations which the
Republic of the Philippines assumes or guarantees to pay. Considering the nature of its funds, the GSIS is expected to manage its
resources with utmost prudence and in strict compliance with the pertinent laws or rules and regulations. Thus, one of the reasons
that prompted the revision of the old GSIS law (C.A. No. 186, as amended) was the necessity "to preserve at all times the actuarial
solvency of the funds administered by the System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent himself
admits, the GSIS "is not supposed to grant 'clean loans.'" [Comment, p. 8.] It is therefore the legitimate concern of the public to
ensure that these funds are managed properly with the end in view of maximizing the benefits that accrue to the insured government
employees. Moreover, the supposed borrowers were Members of the defunct Batasang Pambansa who themselves appropriated
funds for the GSIS and were therefore expected to be the first to see to it that the GSIS performed its tasks with the greatest degree
of fidelity and that an its transactions were above board.
In sum, the public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers make the information
sought clearly a matter of public interest and concern.
A second requisite must be met before the right to information may be enforced through mandamus proceedings, viz., that the
information sought must not be among those excluded by law.
Respondent maintains that a confidential relationship exists between the GSIS and its borrowers. It is argued that a policy of
confidentiality restricts the indiscriminate dissemination of information.
Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as regards the documents subject of
this petition. His position is apparently based merely on considerations of policy. The judiciary does not settle policy issues. The
Court can only declare what the law is, and not what the law should be. Under our system of government, policy issues are within
the domain of the political branches of the government, and of the people themselves as the repository of all State power.
Respondent however contends that in view of the right to privacy which is equally protected by the Constitution and by existing
laws, the documents evidencing loan transactions of the GSIS must be deemed outside the ambit of the right to information.
There can be no doubt that right to privacy is constitutionally protected. In the landmark case of Morfe v. Mutuc [130 Phil. 415
(1968), 22 SCRA 424], this Court, speaking through then Mr. Justice Fernando, stated:
... The right to privacy as such is accorded recognition independently of its identification with liberty; in
itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt:
"The concept of limited government has always included the idea that governmental powers stop short of
certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. UItimate and pervasive control of the individual, in all aspects of his life,
is the hallmark of the absolute. state, In contrast, a system of limited government safeguards a private sector,
which belongs to the individual, firmly distinguishing it from the public sector, which the state can control.
Protection of this private sector — protection, in other words, of the dignity and integrity of the individual
— has become increasingly important as modem society has developed. All the forces of technological age
— industrialization, urbanization, and organization — operate to narrow the area of privacy and facilitate
intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian society." [at pp. 444-445.]
30
When the information requested from the government intrudes into the privacy of a citizen, a potential conflict between the rights
to information and to privacy may arise. However, the competing interests of these rights need not be resolved in this case.
Apparent from the above-quoted statement of the Court in Morfe is that the right to privacy belongs to the individual in his private
capacity, and not to public and governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical entities
like the GSIS. As held in the case of Vassar College v. Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has no right of
privacy in its name since the entire basis of the right to privacy is an injury to the feelings and sensibilities of the party and a
corporation would have no such ground for relief.
Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy of its borrowers. The right is purely
personal in nature [Cf. Atkinson v. John Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis,
147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence may be invoked only by the person whose privacy is claimed to be
violated.
It may be observed, however, that in the instant case, the concerned borrowers themselves may not succeed if they choose to
invoke their right to privacy, considering the public offices they were holding at the time the loans were alleged to have been
granted. It cannot be denied that because of the interest they generate and their newsworthiness, public figures, most especially
those holding responsible positions in government, enjoy a more limited right to privacy as compared to ordinary individuals, their
actions being subject to closer public scrutiny [Cf. Ayer Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, April 29,
1988; See also Cohen v. Marx, 211 P. 2d 321 (1949).]
Respondent next asserts that the documents evidencing the loan transactions of the GSIS are private in nature and hence, are not
covered by the Constitutional right to information on matters of public concern which guarantees "(a)ccess to official records, and
to documents, and papers pertaining to official acts, transactions, or decisions" only.
It is argued that the records of the GSIS, a government corporation performing proprietary functions, are outside the coverage of
the people's right of access to official records.
It is further contended that since the loan function of the GSIS is merely incidental to its insurance function, then its loan
transactions are not covered by the constitutional policy of full public disclosure and the right to information which is applicable
only to "official" transactions.
First of all, the "constituent — ministrant" dichotomy characterizing government function has long been repudiated. In ACCFA v.
Confederation of Unions and Government Corporations and Offices (G.R. Nos. L-21484 and L-23605, November 29, 1969, 30
SCRA 6441, the Court said that the government, whether carrying out its sovereign attributes or running some business, discharges
the same function of service to the people.
Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would not justify the exclusion of the
transactions from the coverage and scope of the right to information.
Moreover, the intent of the members of the Constitutional Commission of 1986, to include government-owned and controlled
corporations and transactions entered into by them within the coverage of the State policy of fun public disclosure is manifest from
the records of the proceedings:
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Colayco).
Commissioner Suarez is recognized.
MR. SUAREZ. Thank you. May I ask the Gentleman a few question?
 MR. OPLE. Very gladly.
MR. SUAREZ. Thank you.
When we declare a "policy of full public disclosure of all its transactions" — referring
to the transactions of the State — and when we say the "State" which I suppose would
include all of the various agencies, departments, ministries and instrumentalities of
the government....
MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer.
MR. SUAREZ. Including government-owned and controlled corporations.
MR. OPLE. That is correct, Mr. Presiding Officer.
MR. SUAREZ. And when we say "transactions" which should
be distinguished from contracts, agreements, or treaties or
whatever, does the Gentleman refer to the steps leading to the
consummation of the contract, or does he refer to the contract
itself?
MR. OPLE. The "transactions" used here I suppose is generic
and, therefore, it can cover both steps leading to a contract,
and already a consummated contract, Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations
leading to the consummation of the transaction.
MR. OPLE. Yes, subject only to reasonable safeguards on the
national interest.
MR. SUAREZ. Thank you. [V Record of the Constitutional
Commission 24-25.] (Emphasis supplied.)
Considering the intent of the framers of the Constitution which, though not binding upon the Court, are nevertheless persuasive,
and considering further that government-owned and controlled corporations, whether performing proprietary or governmental
functions are accountable to the people, the Court is convinced that transactions entered into by the GSIS, a government-controlled
corporation created by special legislation are within the ambit of the people's right to be informed pursuant to the constitutional
policy of transparency in government dealings.
In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject to reasonable regulations
that the latter may promulgate relating to the manner and hours of examination, to the end that damage to or loss of the records
may be avoided, that undue interference with the duties of the custodian of the records may be prevented and that the right of other
persons entitled to inspect the records may be insured [Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v.
Ozaeta, 80 Phil. 383, 387.] The petition, as to the second and third alternative acts sought to be done by petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by petitioners, i.e., "to furnish petitioners the list of the names
of the Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were able to secure clean loans immediately
before the February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos."
31
Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to official records," the
Constitution does not accord them a right to compel custodians of official records to prepare lists, abstracts, summaries and the
like in their desire to acquire information on matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined, clear and certain legal
right to the thing demanded and that it is the imperative duty of defendant to perform the act required. The corresponding duty of
the respondent to perform the required act must be clear and specific [Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126
SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet
this standard, there being no duty on the part of respondent to prepare the list requested.
WHEREFORE, the instant petition is hereby granted and respondent General Manager of the Government Service Insurance
System is ORDERED to allow petitioners access to documents and records evidencing loans granted to Members of the former
Batasang Pambansa, as petitioners may specify, subject to reasonable regulations as to the time and manner of inspection, not
incompatible with this decision, as the GSIS may deem necessary.
G.R. No. 130716 December 9, 1998
FRANCISCO I. CHAVEZ, petitioner,
vs.
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and MAGTANGGOL GUNIGUNDO (in his
capacity as chairman of the PCGG), respondents, GLORIA A. JOPSON, CELNAN A. JOPSON, SCARLET A. JOPSON,
and TERESA A. JOPSON, petitioners-in-intervention.
PANGANIBAN, J.:
Petitioner asks this Court to define the nature and the extent of the people's constitutional right to information on matters of public
concern. Does this right include access to the terms of government negotiations prior to their consummation or conclusion? May
the government, through the Presidential Commission on Good Government (PCGG), be required to reveal the proposed terms of
a compromise agreement with the Marcos heirs as regards their alleged ill-gotten wealth? More specifically, are the "General
Agreement" and "Supplemental Agreement," both dated December 28, 1993 and executed between the PCGG and the Marcos
heirs, valid and binding?
The Case
These are the main questions raised in this original action seeking (1) to prohibit and "[e]njoin respondents [PCGG and its
chairman] from privately entering into, perfecting and/or executing any greement with the heirs of the late President Ferdinand E.
Marcos . . . relating to and concerning the properties and assets of Ferdinand Marcos located in the Philippines and/or abroad —
including the so-called Marcos gold hoard"; and (2) to "[c]ompel respondent[s] to make public all negotiations and agreement, be
they ongoing or perfected, and all documents related to or relating to such negotiations and agreement between the PCGG and the
Marcos heirs."1
The Facts
Petitioner Francisco I. Chavez, as "taxpayer, citizen and former government official who initiated the prosecution of the Marcoses
and their cronies who committed unmitigated plunder of the public treasury and the systematic subjugation of the country's
economy," alleges that what impelled him to bring this action were several news reports 2 bannered in a number of broadsheets
sometime in September 1997. These news items referred to (1) the alleged discovery of billions of dollars of Marcos assets
deposited in various coded accounts in Swiss banks; and (2) the reported execution of a compromise, between the government
(through PCGG) and the Marcos heirs, on how to split or share these assets.
Petitioner, invoking his constitutional right to information 3 and the correlative duty of the state to disclose publicly all its W I T N E S S E T H:
transactions involving the national interest,4 demands that respondents make public any and all negotiations and agreements
pertaining to PCGG's task of recovering the Marcoses' ill-gotten wealth. He claims that any compromise on the alleged billions of
WHEREAS, the PRIVATE PARTY has been impelled by their sense of nationalism and love of country
ill-gotten wealth involves an issue of "paramount public interest," since it has a "debilitating effect on the country's economy" that
and of the entire Filipino people, and their desire to set up a foundation and finance impact projects like
would be greatly prejudicial to the national interest of the Filipino people. Hence, the people in general have a right to know the
installation of power plants in selected rural areas and initiation of other community projects for the
transactions or deals being contrived and effected by the government.
empowerment of the people;

Respondents, on the other hand, do not deny forging a compromise agreement with the Marcos heirs. They claim, though, that
WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal Tribunal of December 21,
petitioner's action is premature, because there is no showing that he has asked the PCGG to disclose the negotiations and the
1990, that the $356 million belongs in principle to the Republic of the Philippines provided certain
Agreements. And even if he has, PCGG may not yet be compelled to make any disclosure, since the proposed terms and conditions
conditionalities are met, but even after 7 years, the FIRST PARTY has not been able to procure a final
of the Agreements have not become effective and binding.
judgment of conviction against the PRIVATE PARTY;

Respondents further aver that the Marcos heirs have submitted the subject Agreements to the Sandiganbayan for its approval in
WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn out litigation which, as proven by the
Civil Case No. 141, entitled Republic v. Heirs of Ferdinand E. Marcos, and that the Republic opposed such move on the principal
past 7 years, is consuming money, time and effort, and is counter-productive and ties up assets which the
grounds that (1) said Agreements have not been ratified by or even submitted to the President for approval, pursuant to Item No.
FIRST PARTY could otherwise utilize for its Comprehensive Agrarian Reform Program, and other urgent
8 of the General Agreement; and (2) the Marcos heirs have failed to comply with their undertakings therein, particularly the
needs;
collation and submission of an inventory of their assets. The Republic also cited an April 11, 1995 Resolution in Civil Case No.
0165, in which the Sandiganbayan dismissed a similar petition filed by the Marcoses' attorney-in-fact.
WHEREAS, His Excellency, President Fidel V. Ramos, has adopted a policy of unity and reconciliation in
order to bind the nation's wounds and start the process of rebuilding this nation as it goes on to the twenty-
Furthermore, then President Fidel V. Ramos, in his May 4, 1998 Memorandum 5 to then PCGG Chairman Magtanggol Gunigundo,
first century;
categorically stated:

WHEREAS, this Agreement settles all claims and counterclaims which the parties may have against one
This is to reiterate my previous position embodied in the Palace Press Release of 6 April 1995 that I have
another, whether past, present, or future, matured or inchoate.
not authorized you to approve the Compromise Agreements of December 28, 1993 or any agreement at all
with the Marcoses, and would have disapproved them had they been submitted to me.
NOW, THEREFORE, for and in consideration of the mutual covenants set forth herein, the parties agree as
follows:
The Full Powers of Attorney of March 1994 and July 4, 1994, did not authorize you to approve said
Agreements, which I reserve for myself as President of the Republic of the Philippines.
1. The parties will collate all assets presumed to be owned by,
or held by other parties for the benefit of, the PRIVATE
The assailed principal Agreement 6 reads:
PARTY for purposes of determining the totality of the assets
covered by the settlement. The subject assets shall be
GENERAL AGREEMENT classified by the nature thereof, namely: (a) real estate; (b)
jewelry; (c) paintings and other works of art; (d) securities; (e)
funds on deposit; (f) precious metals, if any, and (g)
KNOW ALL MEN BY THESE PRESENTS:
miscellaneous assets or assets which could not appropriately
fall under any of the preceding classification. The list shall be
This Agreement entered into this 28th day of December, 1993, by and between — based on the full disclosure of the PRIVATE PARTY to insure
its accuracy.
The Republic of the Philippines, through the Presidential Commission on Good
Government (PCGG), a governmental agency vested with authority defined under 2. Based on the inventory, the FIRST PARTY shall determine
Executive Orders Nos. 1, 2 and 14, with offices at the philcomcen Building, Pasig, which shall be ceded to the FIRST PARTY, and which shall
Metro Manila, represented by its Chairman referred to as FIRST PARTY, be assigned to/retained by the PRIVATE PARTY. The assets
of the PRIVATE PARTY shall be net of and exempt from, any
form of taxes due the Republic of the Philippines. However,
— and — considering the unavailability of all pertinent and relevant
documents and information as to balances and ownership, the
Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and actual specification of assets to be retained by the PRIVATE
Ferdinand R. Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez PARTY shall be covered by supplemental agreements which
Rizal St., Mandaluyong, Metro Manila, and Imelda Romualdez Marcos, Imee Marcos shall form part of this Agreement.
Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta, hereinafter
collectively referred to as the PRIVATE PARTY. 3. Foreign assets which the PRIVATE PARTY shall fully
disclose but which are held by trustees, nominees, agents or

32
foundations are hereby waived over by the PRIVATE PARTY 9. In case of violation by the PRIVATE PARTY of any of the
in favor of the FIRST PARTY. For this purpose, the parties conditions herein contained, the PARTIES shall be restored
shall cooperate in taking the appropriate action, judicial and/or automatically to the status quo ante the signing of this
extrajudicial, to recover the same for the FIRST PARTY. Agreement.

4. All disclosures of assets made by the PRIVATE PARTY For purposes of this Agreement, the PRIVATE PARTY shall be represented by Atty. Simeon M. Mesina,
shall not be used as evidence by the FIRST PARTY in any Jr., as their only Attorney-in-Fact.
criminal, civil, tax or administrative case, but shall be valid
and binding against said PARTY for use by the FIRST
IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December, 1993, in
PARTY in withdrawing any account and/or recovering any
Makati, Metro Manila.
asset. The PRIVATE PARTY withdraws any objection to the
withdrawal by and/or release to the FIRST PARTY by the
Swiss banks and/or Swiss authorities of the $356 million, its PRESIDENTIAL COMMISSION ON
accrued interests, and/or any other account; over which the
PRIVATE PARTY waives any right, interest or participation
in favor of the FIRST PARTY. However, any withdrawal or GOOD GOVERNMENT
release of any account aforementioned by the FIRST PARTY
shall be made in the presence of any authorized representative By:
of the PRIVATE PARTY.
[Sgd.] MAGTANGGOL C. GUNIGUNDO
5. The trustees, custodians, safekeepers, depositaries, agents,
nominees, administrators, lawyers, or any other party acting in
similar capacity in behalf of the PRIVATE PARTY are hereby Chairman
informed through this General Agreement to insure that it is
fully implemented and this shall serve as absolute authority ESTATE OF FERDINAND E.
from both parties for full disclosure to the FIRST PARTY of MARCOS,
said assets and for the FIRST PARTY to withdraw said
account and/or assets and any other assets which the FIRST
PARTY on its own or through the help of the PRIVATE IMELDA R. MARCOS, MA.
PARTY/their trustees, etc., may discover. IMELDA

6. Any asset which may be discovered in the future as MARCOS-MANOTOC,

belonging to the PRIVATE PARTY or is being held by FERDINAND R.
another for the benefit of the PRIVATE PARTY and which is
not included in the list per No. 1 for whatever reason shall MARCOS, JR., & IRENE MARCOS-
automatically belong to the FIRST PARTY, and the
PRIVATE PARTY in accordance with No. 4 above, waives
any right thereto. ARANETA

7. This Agreement shall be binding on and inure to the benefit By:

of, the parties and their respective legal representatives,
successors and assigns and shall supersede any other prior [Sgd.] IMELDA ROMUALDEZ-
agreement. MARCOS

8. The PARTIES shall submit this and any other implementing [Sgd.] MA. IMELDA MARCOS-
Agreements to the President of the Philippines for approval. In MANOTOC
the same manner, the PRIVATE PARTY shall provide the
FIRST PARTY assistance by way of testimony or deposition
on any information it may have that could shed light on the FERDINAND R. MARCOS, JR.7
cases being pursued by the FIRST PARTY against other
parties. The FIRST PARTY shall desist from instituting new [Sgd.] IRENE MARCOS-ARANETA
suits already subject of this Agreement against the PRIVATE
PARTY and cause the dismissal of all other cases pending in
the Sandiganbayan and in other courts. Assisted by:

33
 [Sgd.] ATTY. SIMEON M. MESINA, By:
JR.
[Sgd.] MAGTANGGOL C. GUNIGUNDO
Counsel &
Attorney-in-Fact
Chairman

Petitioner also denounces this supplement to the above Agreement:8

ESTATE OF FERDINAND E. MARCOS,

SUPPLEMENTAL AGREEMENT
IMELDA R. MARCOS, MA. IMELDA

This Agreement entered into this 28th day of December, 1993, by and between —
MARCOS-MANOTOC, FERDINAND R.

The Republic of the Philippines, through the Presidential Commission on Good

MARCOS, JR., & IRENE MARCOS-
Government (PCGG), a governmental agency vested with authority defined under
Executive Orders Nos. 1, 2 and 14, with offices at the Philcomcen Building, Pasig,
Metro Manila, represented by its Chairman Magtanggol C. Gunigundo, hereinafter ARANETA
referred to as the FIRST PARTY,
By:
— and —
[Sgd.] IMELDA ROMUALDEZ-MARCOS
Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and
Ferdinand R. Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez
[Sgd.] MA. IMELDA MARCOS-MANOTOC
Rizal St., Mandaluyong, Metro Manila, and Imelda Romualdez Marcos, Imee Marcos
Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta, hereinafter
collectively referred to as the PRIVATE PARTY. FERDINAND R. MARCOS, JR.9

W I T N E S S E T H: [Sgd.] IRENE MARCOS-ARANETA

The parties in this case entered into a General Agreement dated Dec. 28, 1993; Assisted by:

The PRIVATE PARTY expressly reserve their right to pursue their interest and/or [Sgd.] ATTY. SIMEON M. MESINA, JR.
sue over local assets located in the Philippines against parties other than the FIRST
PARTY.
Counsel & Attorney-in-Fact

The parties hereby agree that all expenses related to the recovery and/or withdrawal
of all assets including lawyers' fees, agents' fees, nominees' service fees, bank Acting on a motion of petitioner, the Court issued a Temporary Restraining Order 10 dated March 23, enjoining respondents, their
charges, traveling expenses and all other expenses related thereto shall be for the agents and/or representatives from "entering into, or perfecting and/or executing any agreement with the heirs of the late President
account of the PRIVATE PARTY. Ferdinand E. Marcos relating to and concerning their ill-gotten wealth."

In consideration of the foregoing, the parties hereby agree that the PRIVATE PARTY shall be entitled to Issues
the equivalent of 25% of the amount that may be eventually withdrawn from said $356 million Swiss
deposits. The Oral Argument, held on March 16, 1998, focused on the following issues:

IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December, 1993, in (a) Procedural:
Makati, Metro Manila.
(1) Whether or not the petitioner has the personality or legal standing to file the instant petition; and
PRESIDENTIAL COMMISSION ON
(2) Whether or not this Court is the proper court before which this action may be filed.
GOOD GOVERNMENT

34
 (b) Substantive:
(1) Whether or not this Court could require the PCGG to disclose to the public the details of any agreement,
perfected or not, with the Marcoses; and
(2) Whether or not there exist any legal restraints against a compromise agreement between the Marcoses
and the PCGG relative to the Marcoses' ill-gotten wealth. 11
After their oral presentations, the parties filed their respective memoranda.
On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all surnamed Jopson, filed before the Court a Motion for Intervention,
attaching thereto their Petition in Intervention. They aver that they are "among the 10,000 claimants whose right to claim from the
Marcos Family and/or the Marcos Estate is recognized by the decision in In re Estate of Ferdinand Marcos, Human Rights
Litigation, Maximo Hilao, et al., Class Plaintiffs No. 92-15526, U.S. Court of Appeals for the 9th Circuit US App. Lexis 14796,
June 16, 1994 and the Decision of the Swiss Supreme Court of December 10, 1997." As such, they claim to have personal and
direct interest in the subject matter of the instant case, since a distribution or disposition of the Marcos properties may adversely
affect their legitimate claims. In a minute Resolution issued on August 24, 1998, the Court granted their motion to intervene and
required the respondents to comment thereon. The September 25, 1998 Comment 12 of the solicitor general on said motion merely
reiterated his aforecited arguments against the main petition. 13
The Court's Ruling
The petition id imbued with merit.
First Procedural Issue:
Petitioner's Standing
Petitioner, on the one hand, explains that as a taxpayer and citizen, he has the legal personality to file the instant petition. He
submits that since ill-gotten wealth "belongs to the Filipino people and [is], in truth hand in fact, part of the public treasury," any
compromise in relation to it would constitute a diminution of the public funds, which can be enjoined by a taxpayer whose interest
is for a full, if not substantial, recovery of such assets.
Besides, petitioner emphasize, the matter of recovering the ill-gotten wealth of the Marcoses is an issue "of transcendental
importance the public." He asserts that ordinary taxpayers have a right to initiate and prosecute actions questioning the validity of
acts or orders of government agencies or instrumentalities, if the issues raised are "of paramount public interest;" and if they
"immeasurably affect the social, economic, and moral well-being of the people."
Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the proceeding involves the assertion
of a public right, 14 such as in this case. He invokes several decisions 15 of this Court which have set aside the procedural matter
of locus standi, when the subject of the case involved public interest.
On the other hand, the solicitor general, on behalf of respondents, contends that petitioner has no standing to institute the present
action, because no expenditure of public funds is involved and said petitioner has no actual interest in the alleged agreement.
Respondents further insist that the instant petition is premature, since there is no showing that petitioner has requested PCGG to
disclose any such negotiations and agreements; or that, if he has, the Commission has refused to do so.
Indeed, the arguments cited by petitioner constitute the controlling decisional rule as regards his legal standing to institute the
instant petition. Access to public documents and records is a public right, and the real parties in interest are the people themselves.
16
35
In Tañada v. Tuvera, 17 the Court asserted that when the issue concerns a public a right and the object of mandamus is to obtain
the enforcement of a public duty, the people are regarded as the real parties in interest; and because it is sufficient that petitioner
is a citizen and as such is interested in the execution of the laws, he need not show that he has any legal or special interest in the
result of the action. 18 In the aforesaid case, the petitioners sought to enforce their right to be informed on matters of public
concern, a right then recognized in Section 6, Article IV of the 1973 Constitution, 19 in connection with the rule that laws in order
to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated. In ruling for the
petitioners' legal standing, the Court declared that the right they sought to be enforced "is a public right recognized by no less than
the fundamental law of the land."
Legaspi v. Civil Service Commission, 20 while reiterating Tañada, further declared that "when a mandamus proceeding involves
the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that petitioner is a citizen and,
therefore, part of the general 'public' which possesses the right." 21
Further, in Albano v. Reyes, 22 we said that while expenditure of public funds may not have been involved under the questioned
contract for the development, the management and the operation of the Manila International Container Terminal, "public interest
[was] definitely involved considering the important role [of the subject contract] . . . in the economic development of the country
and the magnitude of the financial consideration involved." We concluded that, as a consequence, the disclosure provision in the
Constitution would constitute sufficient authority for upholding the petitioner's standing.
Similarly, the instant petition is anchored on the right of the people to information and access to official records, documents and
papers — a right guaranteed under Section 7, Article III of the 1987 Constitution. Petitioner, a former solicitor general, is a Filipino
citizen. Because of the satisfaction of the two basic requisites laid down by decisional law to sustain petitioner's legal standing,
i.e. (1) the enforcement of a public right (2) espoused by a Filipino citizen, we rule that the petition at bar should be allowed.
In any event, the question on the standing of Petitioner Chavez is rendered moot by the intervention of the Jopsons, who are among
the legitimate claimants to the Marcos wealth. The standing of the Jopsons is not seriously contested by the solicitor general.
Indeed, said petitioners-intervenors have a legal interest in the subject matter of the instant case, since a distribution or disposition
of the Marcoses' ill-gotten properties may adversely affect the satisfaction of their claims.
Second Procedural Issue:
The Court's Jurisdiction
Petitioner asserts that because this petition is an original action for mandamus and one that is not intended to delay any proceeding
in the Sandiganbayan, its having been filed before this Court was proper. He invokes Section 5, Article VIII of the Constitution,
which confers upon the Supreme Court original jurisdiction over petitions for prohibition and mandamus.
The solicitor general, on the other hand, argues that the petition has been erroneously brought before this Court, since there is
neither a justiciable controversy nor a violation of petitioner's rights by the PCGG. He alleges that the assailed agreements are
already the very lis mota in Sandiganbayan Civil Case No. 0141, which has yet to dispose of the issue; thus, this petition is
premature. Furthermore, respondents themselves have opposed the Marcos heirs' motion, filed in the graft court, for the approval
of the subject Agreements. Such opposition belies petitioner's claim that the government, through respondents, has concluded a
settlement with the Marcoses as regards their alleged ill-gotten assets.
In Tañada and Legaspi, we upheld therein petitioners' resort to a mandamus proceeding, seeking to enforce a public right as well
as to compel performance of a public duty mandated by no less than the fundamental law. 23 Further, Section 5, Article VIII of
the Constitution, expressly confers upon the Supreme Court original jurisdiction over petitions for certiorari, prohibition,
mandamus, quo warranto and habeas corpus.
Respondents argue that petitioner should have properly sought relief before the Sandiganbayan, particularly in Civil Case No.
0141, in which the enforcement of the compromise Agreements is pending resolution. There may seem to be some merit in such
argument, if petitioner is merely seeking to enjoin the enforcement of the compromise and/or to compel the PCGG to disclose to
the public the terms contained in said Agreements. However, petitioner is here seeking the public disclose of "all negotiations and
agreement, be they ongoing or perfected, and documents related to or relating to such negotiations and agreement between the
PCGG and the Marcos heirs."
In other words, this petition is not confined to the Agreements that have already been drawn, but likewise to any other ongoing or
future undertaking towards any settlement on the alleged Marcos loot. Ineluctably, the core issue boils down to the precise
interpretation, in terms of scope, of the twin constitutional provisions on "public transactions." This broad and prospective relief
sought by the instant petition brings it out of the realm of Civil Case No. 0141.
First Substantive Issue:
Public Disclosure of Terms of
Any Agreement, Perfected or Not
In seeking the public disclosure of negotiations and agreements pertaining to a compromise settlement with the Marcoses as regards
their alleged ill-gotten wealth, petitioner invokes the following provisions of the Constitution:
Sec. 7 [Article III]. The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions,
as well as to government research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.
Sec. 28 [Article II]. Subject to reasonable conditions prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions involving public interest.
Respondents' opposite view is that the above constitutional provisions refer to completed and operative official acts, not to those
still being considered. As regards the assailed Agreements entered into by the PCGG with the Marcoses, there is yet no right of
action that has accrued, because said Agreements have not been approved by the President, and the Marcos heirs have failed to
fulfill their express undertaking therein. Thus, the Agreements have not become effective. Respondents add that they are not aware
of any ongoing negotiation for another compromise with the Marcoses regarding their alleged ill-gotten assets.
The "information" and the "transactions" referred to in the subject provisions of the Constitution have as yet no defined scope and
extent. There are no specific laws prescribing the exact limitations within which the right may be exercised or the correlative state
duty may be obliged. However, the following are some of the recognized restrictions: (1) national security matters and intelligence
information, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information.
Limitations to the Right:
(1) National Security Matters
At the very least, this jurisdiction recognizes the common law holding that there is a governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic and other national security matters. 24 But where there is no
need to protect such state secrets, the privilege may not be invoked to withhold documents and other information, 25 provided that
they are examined "in strict confidence" and given "scrupulous protection."
Likewise, information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject
to reasonable safeguards for the sake of national interest. 26
(2) Trade Secrets and
36
Banking Transactions
The drafters of the Constitution also unequivocally affirmed that, aside from national security matters and intelligence information,
trade or industrial secrets (pursuant to the Intellectual Property Code 27 and other related laws) as well as banking transactions
(pursuant to the Secrecy of Bank Deposits Act 28) are also exempted from compulsory disclosure. 29
(3) Criminal Matters
Also excluded are classified law enforcement matters, such as those relating to the apprehension, the prosecution and the detention
of criminals, 30 which courts may nor inquire into prior to such arrest, detention and prosecution. Efforts at effective law
enforcement would be seriously jeopardized by free public access to, for example, police information regarding rescue operations,
the whereabouts of fugitives, or leads on covert criminal activities.
(4) Other Confidential
Information
The Ethical Standards Act 31 further prohibits public officials and employees from using or divulging "confidential or classified
information officially known to them by reason of their office and not made available to the public." 32
Other acknowledged limitations to information access include diplomatic correspondence, closed door Cabinet meetings and
executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court. 33
Scope: Matters of Public Concern and
Transactions Involving Public Interest
In Valmonte v. Belmonte Jr., 34 the Court emphasized that the information sought must be "matters of public concern," access to
which may be limited by law. Similarly, the state policy of full public disclosure extends only to "transactions involving public
interest" and may also be "subject to reasonable conditions prescribed by law." As to the meanings of the terms "public interest"
and "public concern," the Court, in Legaspi v. Civil Service Commission, 35 elucidated:
In determining whether or not a particular information is of public concern there is no rigid test which can
be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace
a broad spectrum of subjects which the public may want to know, either because these directly affect their
lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis,
it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance,
as it relates to or affects the public.
Considered a public concern in the above-mentioned case was the "legitimate concern of citizens to ensure that government
positions requiring civil service eligibility are occupied only by persons who are eligibles." So was the need to give the general
public adequate notification of various laws that regulate and affect the actions and conduct of citizens, as held in Tañada. Likewise
did the "public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers (members of the
defunct Batasang Pambansa)" qualify the information sought in Valmonte as matters of public interest and concern. In Aquino-
Sarmiento v. Morato, 36 the Court also held that official acts of public officers done in pursuit if their official functions are public
in character; hence, the records pertaining to such official acts and decisions are within the ambit of the constitutional right of
access to public records.
Under Republic Act No. 6713, public officials and employees are mandated to "provide information on their policies and
procedures in clear and understandable language, [and] ensure openness of information, public consultations and hearings
whenever appropriate . . .," except when "otherwise provided by law or when required by the public interest." In particular, the
law mandates free public access, at reasonable hours, to the annual performance reports of offices and agencies of government and
government-owned or controlled corporations; and the statements of assets, liabilities and financial disclosures of all public
officials and employees. 37
In general, writings coming into the hands of public officers in connection with their official functions must be accessible to the
public, consistent with the policy of transparency of governmental affairs. This principle is aimed at affording the people an
opportunity to determine whether those to whom they have entrusted the affairs of the government are honesty, faithfully and
competently performing their functions as public servants. 38 Undeniably, the essence of democracy lies in the free flow of
thought; 39 but thoughts and ideas must be well-informed so that the public would gain a better perspective of vital issues
confronting them and, thus, be able to criticize as well as participate in the affairs of the government in a responsible, reasonable
and effective manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public
that a government remains responsive to the changes desired by the people. 40
The Nature of the Marcoses'
Alleged Ill-Gotten Wealth
We now come to the immediate matter under consideration.
Upon the departure from the country of the Marcos family and their cronies in February 1986, the new government headed by
President Corazon C. Aquino was specifically mandated to "[r]ecover ill-gotten properties amassed by the leaders and supporters
of the previous regime and [to] protect the interest of the people through orders of sequestration or freezing of assets or
accounts." 41 Thus, President Aquino's very first executive orders (which partook of the nature of legislative enactments) dealt
with the recovery of these alleged ill-gotten properties.
Executive Order No. 1, promulgated on February 28, 1986, only two (2) days after the Marcoses fled the country, created the
PCGG which was primarily tasked to assist the President in the recovery of vast government resources allegedly amassed by
former President Marcos, his immediate family, relatives and close associates both here and abroad.
Under Executive Order No. 2, issued twelve (12) days later, all persons and entities who had knowledge or possession of ill-gotten
assets and properties were warned and, under pain of penalties prescribed by law, prohibited from concealing, transferring or
dissipating them or from otherwise frustrating or obstructing the recovery efforts of the government.
On May 7, 1986, another directive (EO No. 14) was issued giving additional powers to the PCGG which, taking into account the
overriding considerations of national interest and national survival, required it to achieve expeditiously and effectively its vital
task of recovering ill-gotten wealth.
With such pronouncements of our government, whose authority emanates from the people, there is no doubt that the recovery of
the Marcoses' alleged ill-gotten wealth is a matter of public concern and imbued with public interest. 42 We may also add that "ill-
gotten wealth," by its very nature, assumes a public character. Based on the aforementioned Executive Orders, "ill-gotten wealth"
refers to assets and properties purportedly acquired, directly or indirectly, by former President Marcos, his immediate family,
relatives and close associates through or as a result of their improper or illegal use of government funds or properties; or their
having taken undue advantage of their public office; or their use of powers, influences or relationships, "resulting in their unjust
enrichment and causing grave damage and prejudice to the Filipino people and the Republic of the Philippines." Clearly, the assets
and properties referred to supposedly originated from the government itself. To all intents and purposes, therefore, they belong to
the people. As such, upon reconveyance they will be returned to the public treasury, subject only to the satisfaction of positive
claims of certain persons as may be adjudged by competent courts. Another declared overriding consideration for the expeditious
recovery of ill-gotten wealth is that it may be used for national economic recovery.
We believe the foregoing disquisition settles the question of whether petitioner has a right to respondents' disclosure of any
agreement that may be arrived at concerning the Marcoses' purported ill-gotten wealth.
37
Access to Information
on Negotiating Terms
But does the constitutional provision likewise guarantee access to information regarding ongoing negotiations or proposals prior
to the final agreement? This same clarification was sought and clearly addressed by the constitutional commissioners during their
deliberations, which we quote hereunder: 43
MR. SUAREZ. And when we say "transactions" which should be distinguished from contracts, agreements,
or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract,
or does he refer to the contract itself?
MR. OPLE. The "transactions" used here, I suppose, is generic and, therefore, it can cover both steps leading
to a contract, and already a consummated contract, Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the transaction?
MR. OPLE. Yes, subject to reasonable safeguards on the national interest.
Considering the intent of the Constitution, we believe that it is incumbent upon the PCGG and its officers, as well as other
government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with
the ostensible owners and holders of ill-gotten wealth. Such information, though, must pertain to definite propositions of the
government, not necessarily to intra-agency or inter-agency recommendations or communications 44 during the stage when
common assertions are still in the process of being formulated or are in the "exploratory" stage. There is a need, of course, to
observe the same restrictions on disclosure of information in general, as discussed earlier — such as on matters involving national
security, diplomatic or foreign relations, intelligence and other classified information.
Second Substantive Issue:
Legal Restraints on a Marcos-PCGG Compromise
Petitioner lastly contends that any compromise agreement between the government and the Marcoses will be a virtual condonation
of all the alleged wrongs done by them, as well as an unwarranted permission to commit graft and corruption.
Respondents, for their part, assert that there is no legal restraint on entering into a compromise with the Marcos heirs, provided
the agreement does not violate any law.
Prohibited Compromises
In general, the law encourages compromises in civil cases, except with regard to the following matters: (1) the civil status of
persons, (2) the validity of a marriage or a legal separation, (3) any ground for legal separation, (4) future support, (5) the
jurisdiction of courts, and (6) future legitimate. 45 And like any other contract, the terms and conditions of a compromise must not
be contrary to law, morals, good customs, public policy or public order. 46 A compromise is binding and has the force of law
between the parties, 47 unless the consent of a party is vitiated — such as by mistake, fraud, violence, intimidation or undue
influence — or when there is forgery, or if the terms of the settlment are so palpably unconscionable. In the latter instances, the
agreement may be invalidated by the courts. 48
Effect of Compromise
 on Civil Actions
One of the consequences of a compromise, and usually its primary object, is to avoid or to end a litigation. 49 In fact, the law urges
courts to persuade the parties in a civil case to agree to a fair settlement. 50 As an incentive, a court may mitigate damages to be
paid by a losing party who shows a sincere desire to compromise. 51
In Republic & Campos Jr. v. Sandiganbayan, 52 which affirmed the grant by the PCGG of civil and criminal immunity to Jose Y.
Campos and the family, the Court held that in the absence an express prohibition, the rule on compromises in civil actions under
the Civil Code is applicable to PCGG cases. Such principle is pursuant to the objectives of EO No. 14 particularly the just and
expeditious recovery of ill-gotten wealth, so that it may be used to hasten economic recovery. The same principle was upheld in
Benedicto v. Board of Administrators of Television Stations RPN, BBC and IBC 53 and Republic v. Benedicto, 54 which ruled in
favor of the validity of the PCGG compromise agreement with Roberto S. Benedicto.
Immunity from
Criminal Prosecution
However, any compromise relating to the civil liability arising from an offense does not automatically terminate the criminal
proceeding against or extinguish the criminal liability of the malefactor. 55 While a compromise in civil suits is expressly
authorized by law, there is no similar general sanction as regards criminal liability. The authority must be specifically conferred.
In the present case, the power to grant criminal immunity was confered on PCGG by Section 5 of EO No. 14, as amended by EO
No. 14-A, whci provides:
Sec. 5. The President Commission on Good Government is authorized to grant immunity from criminal
prosecution to any person who provides information or testifies in any investigation conducted by such
Commission to establish the unlawful manner in which any respondent, defendant or accused has acquired
or accumulated the property or properties in question in any case where such information or testimony is
necessary to ascertain or prove the latter's guilt or his civil liability. The immunity thereby granted shall be
continued to protect the witness who repeats such testimony before the Sandiganbayan when required to do
so by the latter or by the Commission.
The above provision specifies that the PCGG may exercise such authority under these conditions: (1) the person to whom criminal
immunity is granted provides information or testifies in an investigation conducted by the Commission; (2) the information or
testimony pertains to the unlawful manner in which the respondent, defendant or accused acquired or accumulated ill-gotten
property; and (3) such information or testimony is necessary to ascertain or prove guilt or civil liability of such individual. From
the wording of the law, it can be easily deducted that the person referred to is a witness in the proceeding, not the principal
respondent, defendant or accused.
Thus, in the case of Jose Y. Campos, the grant of both civil and criminal immunity to him and his family was "[i]n consideration
of the full cooperation of Mr. Jose Y. Campos [with] this Commission, his voluntary surrender of the properties and assets [—]
disclosed and declared by him to belong to deposed President Ferdinand E. Marcos [—] to the Government of the Republic of the
Philippines[;] his full, complete and truthful disclosures[;] and his commitment to pay a sum of money as determined by the
Philippine Government." 56 Moreover, the grant of criminal immunity to the Camposes and the Benedictos was limited to acts
and omissions prior to February 25, 1996. At the time such immunity was granted, no criminal cases have yet been filed against
them before the competent court.
Validity of the PCGG-Marcos
Compromise Agreements
38
Going now to the subject General and Supplemental Agreements between the PCGG and the Marcos heirs, a cursory perusal
thereof reveals serious legal flaws. First, the Agreements do not conform to the above requirements of EO Nos. 14 and 14-A. We
believe that criminal immunity under Section 5 cannot be granted to the Marcoses, who are the principal defendants in the spate
of ill-gotten wealth cases now pending before the Sandiganbayan. As stated earlier, the provision is applicable mainly to witnesses
who provide information or testify against a respondent, defendant or accused in an ill-gotten wealth case.
While the General Agreement states that the Marcoses "shall provide the [government] assistance by way of testimony or
deposition on any information [they] may have that could shed light on the cases being pursued by the [government] against other
parties," 57 the clause does not fully comply with the law. Its inclusion in the Agreement may have been only an afterthought,
conceived in pro forma compliance with Section 5 of EO No. 14, as amended. There is no indication whatsoever that any of the
Marcos heirs has indeed provided vital information against any respondent or defendant as to the manner in which the latter may
have unlawfully acquired public property.
Second, under Item No. 2 of the General Agreement, the PCGG commits to exempt from all forms of taxes the properties to be
retained by the Marcos heirs. This is a clear violation of the Construction. The power to tax and to grant tax exemptions is vested
in the Congress and, to a certain extent, in the local legislative bodies. 58 Section 28 (4), Article VI of the Constitution, specifically
provides: "No law granting any tax exemption shall be passed without the concurrence of a majority of all the Member of the
Congress." The PCGG has absolutely no power to grant tax exemptions, even under the cover of its authority to compromise ill-
gotten wealth cases.
Even granting that Congress enacts a law exempting the Marcoses form paying taxes on their properties, such law will definitely
not pass the test of the equal protection clause under the Bill of Rights. Any special grant of tax exemption in favor only of the
Marcos heirs will constitute class legislation. It will also violate the constitutional rule that "taxation shall be uniform and
equitable." 59
Neither can the stipulation be construed to fall within the power of the commissioner of internal revenue to compromise taxes.
Such authority may be exercised only when (1) there is reasonable doubt as to the validity of the claim against the taxpayer, and
(2) the taxpayer's financial position demonstrates a clear inability to pay. 60 Definitely, neither requisite is present in the case of
the Marcoses, because under the Agreement they are effectively conceding the validity of the claims against their properties, part
of which they will be allowed to retain. Nor can the PCGG grant of tax exemption fall within the power of the commissioner to
abate or cancel a tax liability. This power can be exercised only when (1) the tax appears to be unjustly or excessively assessed, or
(2) the administration and collection costs involved do not justify the collection of the tax due. 61 In this instance, the cancellation
of tax liability is done even before the determination of the amount due. In any event, criminal violations of the Tax Code, for
which legal actions have been filed in court or in which fraud is involved, cannot be compromised. 62
Third, the government binds itself to cause the dismissal of all cases against the Marcos heirs, pending before the Sandiganbayan
and other court. 63 This is a direct encroachment on judicial powers, particularly in regard to criminal jurisdiction. Well-settled is
the doctrine that once a case has been filed before a court of competent jurisdiction, the matter of its dismissal or pursuance lies
within the full discretion and control of the judge. In a criminal case, the manner in which the prosecution is handled, including
the matter of whom to present as witnesses, may lie within the sound discretion of the government prosecution; 64 but the court
decides, based on the evidence proffered, in what manner it will dispose of the case. Jurisdiction, once acquired by the trial court,
is not lost despite a resolution, even by the justice secretary, to withdraw the information or to dismiss the complaint. 65 The
prosecution's motion to withdraw or to dismiss is not the least binding upon the court. On the contrary, decisional rules require the
trial court to make its own evaluation of the merit of the case, because granting such motion is equivalent to effecting a disposition
of the case itself. 66
Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases, cannot guarantee the dismissal of all such criminal cases
against the Marcoses pending in the courts, for said dismissal is not within its sole power and discretion.
Fourth, the government also waives all claims and counterclaims, "whether past, present, or future, matured or inchoate," against
the Marcoses. 67 Again, this ill-encompassing stipulation is contrary to law. Under the Civil Code, an action for future fraud may
not be waived. 68 The stipulation in the Agreement does not specify the exact scope of future claims against the Marcoses that the
government thereby relinquishes. Such vague and broad statement may well be interpreted to include all future illegal acts of any
of the Marcos heirs, practically giving them a license to perpetrate fraud against the government without any liability at all. This
is a palpable violation of the due process and equal protection guarantees of the Constitution. It effectively ensconces the Marcoses
beyond the reach of the law. It also sets a dangerous precedent for public accountability. It is a virtual warrant for public officials
to amass public funds illegally, since there is an open option to compromise their liability in exchange for only a portion of their
ill-gotten wealth.
Fifth, the Agreements do not provide for a definite or determinable period within which the parties shall fulfill their respective
prestations. It may take a lifetime before the Marcoses submit an inventory of their total assets.
Sixth, the Agreements do not state with specificity the standards for determining which assets shall be forfeited by the government
and which shall be retained by the Marcoses. While the Supplemental Agreement provides that the Marcoses shall be entitled to
25 per cent of the $356 million Swiss deposits (less government recovery expenses), such sharing arrangement pertains only to
the said deposits. No similar splitting scheme is defined with respect to the other properties. Neither is there, anywhere in the
Agreements, a statement of the basis for the 25-75 percent sharing ratio. Public officers entering into an arrangement appearing to
be manifestly and grossly disadvantageous to the government, in violation of the Ati-Graft and Corruption Practice Act, 69 invite
their indictment for corruption under the said law.
Finally, the absence of then President Ramos' approval of the principal Agreement, an express condition therein, renders the
compromise incomplete and unenforceable. Nevertheless, as detailed above, even if such approval were obtained, the Agreements
would still not be valid.
From the foregoing disquisition, it is crystal clear to the Court that the General and Supplemental Agreements, both dated
December 28, 1993, which the PCGG entered into with the Marcos heirs, are violative of the Constitution and the laws
aforementioned.
WHEREFORE, the petition is GRANTED. The General and Supplemental Agreement dated December 28, 1993, which PCGG
and the Marcos heirs entered into are hereby declared NULL AND VOID for being contrary to law and the Constitution.
Respondent PCGG, its officers and all government functionaries and officials who are or may be directly ot indirectly involved in
the recovery of the alleged ill-gotten wealth of the Marcoses and their associates are DIRECTED to disclose to the public the terms
of any proposed compromise settlment, as well as the final agreement, relating to such alleged ill-gotten wealth, in accordance
with the discussions embodied in this Decision. No pronouncement as to cost.
G.R. No. 170516 July 16, 2008
AKBAYAN CITIZENS ACTION PARTY ("AKBAYAN"), PAMBANSANG KATIPUNAN NG MGA SAMAHAN SA
KANAYUNAN ("PKSK"), ALLIANCE OF PROGRESSIVE LABOR ("APL"), VICENTE A. FABE, ANGELITO R.
MENDOZA, MANUEL P. QUIAMBAO, ROSE BEATRIX CRUZ-ANGELES, CONG. LORENZO R. TANADA III,
CONG. MARIO JOYO AGUJA, CONG. LORETA ANN P. ROSALES, CONG. ANA THERESIA HONTIVEROS-
BARAQUEL, AND CONG. EMMANUEL JOEL J. VILLANUEVA, Petitioners,
vs.
THOMAS G. AQUINO, in his capacity as Undersecretary of the Department of Trade and Industry (DTI) and Chairman
and Chief Delegate of the Philippine Coordinating Committee (PCC) for the Japan-Philippines Economic Partnership
Agreement, EDSEL T. CUSTODIO, in his capacity as Undersecretary of the Department of Foreign Affairs (DFA) and
Co-Chair of the PCC for the JPEPA, EDGARDO ABON, in his capacity as Chairman of the Tariff Commission and lead
negotiator for Competition Policy and Emergency Measures of the JPEPA, MARGARITA SONGCO, in her capacity as
Assistant Director-General of the National Economic Development Authority (NEDA) and lead negotiator for Trade in
Services and Cooperation of the JPEPA, MALOU MONTERO, in her capacity as Foreign Service Officer I, Office of the
Undersecretary for International Economic Relations of the DFA and lead negotiator for the General and Final Provisions
of the JPEPA, ERLINDA ARCELLANA, in her capacity as Director of the Board of Investments and lead negotiator for
Trade in Goods (General Rules) of the JPEPA, RAQUEL ECHAGUE, in her capacity as lead negotiator for Rules of Origin
of the JPEPA, GALLANT SORIANO, in his official capacity as Deputy Commissioner of the Bureau of Customs and lead
negotiator for Customs Procedures and Paperless Trading of the JPEPA, MA. LUISA GIGETTE IMPERIAL, in her
capacity as Director of the Bureau of Local Employment of the Department of Labor and Employment (DOLE) and lead
39
negotiator for Movement of Natural Persons of the JPEPA, PASCUAL DE GUZMAN, in his capacity as Director of the
Board of Investments and lead negotiator for Investment of the JPEPA, JESUS MOTOOMULL, in his capacity as Director
for the Bureau of Product Standards of the DTI and lead negotiator for Mutual Recognition of the JPEPA, LOUIE
CALVARIO, in his capacity as lead negotiator for Intellectual Property of the JPEPA, ELMER H. DORADO, in his
capacity as Officer-in-Charge of the Government Procurement Policy Board Technical Support Office, the government
agency that is leading the negotiations on Government Procurement of the JPEPA, RICARDO V. PARAS, in his capacity
as Chief State Counsel of the Department of Justice (DOJ) and lead negotiator for Dispute Avoidance and Settlement of
the JPEPA, ADONIS SULIT, in his capacity as lead negotiator for the General and Final Provisions of the JPEPA,
EDUARDO R. ERMITA, in his capacity as Executive Secretary, and ALBERTO ROMULO, in his capacity as Secretary
of the DFA,* Respondents.
DECISION
CARPIO MORALES, J.:
Petitioners – non-government organizations, Congresspersons, citizens and taxpayers – seek via the present petition for mandamus
and prohibition to obtain from respondents the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA)
including the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes
thereto.
Petitioners Congressmen Lorenzo R. Tañada III and Mario Joyo Aguja filed on January 25, 2005 House Resolution No. 551 calling
for an inquiry into the bilateral trade agreements then being negotiated by the Philippine government, particularly the JPEPA. The
Resolution became the basis of an inquiry subsequently conducted by the House Special Committee on Globalization (the House
Committee) into the negotiations of the JPEPA.
In the course of its inquiry, the House Committee requested herein respondent Undersecretary Tomas Aquino (Usec. Aquino),
Chairman of the Philippine Coordinating Committee created under Executive Order No. 213 ("Creation of A Philippine
Coordinating Committee to Study the Feasibility of the Japan-Philippines Economic Partnership Agreement")1 to study and
negotiate the proposed JPEPA, and to furnish the Committee with a copy of the latest draft of the JPEPA. Usec. Aquino did not
heed the request, however.
Congressman Aguja later requested for the same document, but Usec. Aquino, by letter of November 2, 2005, replied that the
Congressman shall be provided with a copy thereof "once the negotiations are completed and as soon as a thorough legal review
of the proposed agreement has been conducted."
In a separate move, the House Committee, through Congressman Herminio G. Teves, requested Executive Secretary Eduardo
Ermita to furnish it with "all documents on the subject including the latest draft of the proposed agreement, the requests and offers
etc."2 Acting on the request, Secretary Ermita, by letter of June 23, 2005, wrote Congressman Teves as follows:
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs] explains that the Committee’s request
to be furnished all documents on the JPEPA may be difficult to accomplish at this time, since the proposed Agreement has
been a work in progress for about three years. A copy of the draft JPEPA will however be forwarded to the Committee as soon
as the text thereof is settled and complete. (Emphasis supplied)
Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff Commission Chairman Edgardo Abon, by
letter of July 1, 2005, for copies of the latest text of the JPEPA.
Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission does not have a copy of the documents
being requested, albeit he was certain that Usec. Aquino would provide the Congressman with a copy "once the negotiation is
completed." And by letter of July 18, 2005, NEDA Assistant Director-General Margarita R. Songco informed the Congressman
that his request addressed to Director-General Neri had been forwarded to Usec. Aquino who would be "in the best position to
respond" to the request.
In its third hearing conducted on August 31, 2005, the House Committee resolved to issue a subpoena for the most recent draft of
the JPEPA, but the same was not pursued because by Committee Chairman Congressman Teves’ information, then House Speaker
Jose de Venecia had requested him to hold in abeyance the issuance of the subpoena until the President gives her consent to the
disclosure of the documents.3
Amid speculations that the JPEPA might be signed by the Philippine government within December 2005, the present petition was
filed on December 9, 2005.4 The agreement was to be later signed on September 9, 2006 by President Gloria Macapagal-Arroyo
and Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland, following which the President endorsed it to the Senate for
its concurrence pursuant to Article VII, Section 21 of the Constitution. To date, the JPEPA is still being deliberated upon by the
Senate.
The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines with another country in the
event the Senate grants its consent to it, covers a broad range of topics which respondents enumerate as follows: trade in goods,
rules of origin, customs procedures, paperless trading, trade in services, investment, intellectual property rights, government
procurement, movement of natural persons, cooperation, competition policy, mutual recognition, dispute avoidance and settlement,
improvement of the business environment, and general and final provisions.5
While the final text of the JPEPA has now been made accessible to the public since September 11, 2006, 6 respondents do not
dispute that, at the time the petition was filed up to the filing of petitioners’ Reply – when the JPEPA was still being negotiated –
the initial drafts thereof were kept from public view.
Before delving on the substantive grounds relied upon by petitioners in support of the petition, the Court finds it necessary to first
resolve some material procedural issues.
Standing
For a petition for mandamus such as the one at bar to be given due course, it must be instituted by a party aggrieved by the alleged
inaction of any tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of a legal right.7
Respondents deny that petitioners have such standing to sue. "[I]n the interest of a speedy and definitive resolution of the
substantive issues raised," however, respondents consider it sufficient to cite a portion of the ruling in Pimentel v. Office of
Executive Secretary8 which emphasizes the need for a "personal stake in the outcome of the controversy" on questions of standing.
In a petition anchored upon the right of the people to information on matters of public concern, which is a public right by its very
nature, petitioners need not show that they have any legal or special interest in the result, it being sufficient to show that they are
citizens and, therefore, part of the general public which possesses the right. 9 As the present petition is anchored on the right to
information and petitioners are all suing in their capacity as citizens and groups of citizens including petitioners-members of the
House of Representatives who additionally are suing in their capacity as such, the standing of petitioners to file the present suit is
grounded in jurisprudence.
Mootness
Considering, however, that "[t]he principal relief petitioners are praying for is the disclosure of the contents of the JPEPA prior to
its finalization between the two States parties,"10 public disclosure of the text of the JPEPA after its signing by the President, during
the pendency of the present petition, has been largely rendered moot and academic.
With the Senate deliberations on the JPEPA still pending, the agreement as it now stands cannot yet be considered as final and
binding between the two States. Article 164 of the JPEPA itself provides that the agreement does not take effect immediately upon
the signing thereof. For it must still go through the procedures required by the laws of each country for its entry into force, viz:
Article 164
Entry into Force
40
This Agreement shall enter into force on the thirtieth day after the date on which the Governments of the Parties exchange
diplomatic notes informing each other that their respective legal procedures necessary for entry into force of this Agreement
have been completed. It shall remain in force unless terminated as provided for in Article 165. 11 (Emphasis supplied)
President Arroyo’s endorsement of the JPEPA to the Senate for concurrence is part of the legal procedures which must be met
prior to the agreement’s entry into force.
The text of the JPEPA having then been made accessible to the public, the petition has become moot and academic to the extent
that it seeks the disclosure of the "full text" thereof.
The petition is not entirely moot, however, because petitioners seek to obtain, not merely the text of the JPEPA, but also the
Philippine and Japanese offers in the course of the negotiations.12
A discussion of the substantive issues, insofar as they impinge on petitioners’ demand for access to the Philippine and Japanese
offers, is thus in order.
Grounds relied upon by petitioners
Petitioners assert, first, that the refusal of the government to disclose the documents bearing on the JPEPA negotiations violates
their right to information on matters of public concern13 and contravenes other constitutional provisions on transparency, such as
that on the policy of full public disclosure of all transactions involving public interest. 14 Second, they contend that non-disclosure
of the same documents undermines their right to effective and reasonable participation in all levels of social, political, and
economic decision-making.15 Lastly, they proffer that divulging the contents of the JPEPA only after the agreement has been
concluded will effectively make the Senate into a mere rubber stamp of the Executive, in violation of the principle of separation
of powers.
Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of the JPEPA are, except for the last, the
same as those cited for the disclosure of the Philippine and Japanese offers.
The first two grounds relied upon by petitioners which bear on the merits of respondents’ claim of privilege shall be discussed.
The last, being purely speculatory given that the Senate is still deliberating on the JPEPA, shall not.
The JPEPA is a matter of public concern
To be covered by the right to information, the information sought must meet the threshold requirement that it be a matter of public
concern. Apropos is the teaching of Legaspi v. Civil Service Commission:
In determining whether or not a particular information is of public concern there is no rigid test which can be applied. ‘Public
concern’ like ‘public interest’ is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the
public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the
interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at
issue is of interest or importance, as it relates to or affects the public.16 (Underscoring supplied)
From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers submitted
during the negotiations towards its execution are matters of public concern. This, respondents do not dispute. They only claim that
diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an exception to the right to
information and the policy of full public disclosure.
Respondents’ claim of privilege
It is well-established in jurisprudence that neither the right to information nor the policy of full public disclosure is absolute, there
being matters which, albeit of public concern or public interest, are recognized as privileged in nature. The types of information
which may be considered privileged have been elucidated in Almonte v. Vasquez,17 Chavez v. PCGG,18 Chavez v. Public Estate’s
Authority,19 and most recently in Senate v. Ermita20 where the Court reaffirmed the validity of the doctrine of executive privilege
in this jurisdiction and dwelt on its scope.
Whether a claim of executive privilege is valid depends on the ground invoked to justify it and the context in which it is made.21
In the present case, the ground for respondents’ claim of privilege is set forth in their Comment, viz:
x x x The categories of information that may be considered privileged includes matters of diplomatic character and under
negotiation and review. In this case, the privileged character of the diplomatic negotiations has been categorically invoked and
clearly explained by respondents particularly respondent DTI Senior Undersecretary.
The documents on the proposed JPEPA as well as the text which is subject to negotiations and legal review by the parties fall
under the exceptions to the right of access to information on matters of public concern and policy of public disclosure. They come
within the coverage of executive privilege. At the time when the Committee was requesting for copies of such documents, the
negotiations were ongoing as they are still now and the text of the proposed JPEPA is still uncertain and subject to change.
Considering the status and nature of such documents then and now, these are evidently covered by executive privilege consistent
with existing legal provisions and settled jurisprudence.
Practical and strategic considerations likewise counsel against the disclosure of the "rolling texts" which may undergo radical
change or portions of which may be totally abandoned. Furthermore, the negotiations of the representatives of the Philippines
as well as of Japan must be allowed to explore alternatives in the course of the negotiations in the same manner as judicial
deliberations and working drafts of opinions are accorded strict confidentiality.22 (Emphasis and underscoring supplied)
The ground relied upon by respondents is thus not simply that the information sought involves a diplomatic matter, but that it
pertains to diplomatic negotiations then in progress.
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the
right to information, the Court in Chavez v. PCGG held that "information on inter-government exchanges prior to the conclusion
of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest." 23 Even earlier, the
same privilege was upheld in People’s Movement for Press Freedom (PMPF) v. Manglapus24 wherein the Court discussed the
reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s representatives on the state of the
then on-going negotiations of the RP-US Military Bases Agreement.25 The Court denied the petition, stressing that "secrecy of
negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of
the freedom of access to information." The Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive
action. Another essential characteristic of diplomacy is its confidential nature. Although much has been said about "open"
and "secret" diplomacy, with disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed and
justified the practice. In the words of Mr. Stimson:
"A complicated negotiation . . . cannot be carried through without many, many private talks and discussion, man to man;
many tentative suggestions and proposals. Delegates from other countries come and tell you in confidence of their troubles
at home and of their differences with other countries and with other delegates; they tell you of what they would do under
certain circumstances and would not do under other circumstances. . . If these reports . . . should become public . . . who
would ever trust American Delegations in another conference? (United States Department of State, Press Releases, June 7,
1930, pp. 282-284.)."
41
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is concerned. This,
it is claimed, is incompatible with the substance of democracy. As expressed by one writer, "It can be said that there is no more
rigid system of silence anywhere in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lippincott Co., 1938) President
Wilson in starting his efforts for the conclusion of the World War declared that we must have "open covenants, openly arrived at."
He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is possible. In the moment that negotiations are
started, pressure groups attempt to "muscle in." An ill-timed speech by one of the parties or a frank declaration of the
concession which are exacted or offered on both sides would quickly lead to widespread propaganda to block the
negotiations. After a treaty has been drafted and its terms are fully published, there is ample opportunity for discussion
before it is approved. (The New American Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and
underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp.26 that the President is the sole
organ of the nation in its negotiations with foreign countries, viz:
"x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the
power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone
negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said
in his great argument of March 7, 1800, in the House of Representatives, "The President is the sole organ of the nation in its
external relations, and its sole representative with foreign nations." Annals, 6th Cong., col. 613. . . (Emphasis supplied;
underscoring in the original)
Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually
confidential – since there should be "ample opportunity for discussion before [a treaty] is approved" – the offers exchanged by the
parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the
Japanese representatives submitted their offers with the understanding that "historic confidentiality"27 would govern the same.
Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments
in future negotiations.
A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future Philippine
representatives from frankly expressing their views during negotiations. While, on first impression, it appears wise to deter
Philippine representatives from entering into compromises, it bears noting that treaty negotiations, or any negotiation for that
matter, normally involve a process of quid pro quo, and oftentimes negotiators have to be willing to grant concessions in an
area of lesser importance in order to obtain more favorable terms in an area of greater national interest. Apropos are the
following observations of Benjamin S. Duval, Jr.:
x x x [T]hose involved in the practice of negotiations appear to be in agreement that publicity leads to "grandstanding," tends to
freeze negotiating positions, and inhibits the give-and-take essential to successful negotiation. As Sissela Bok points out, if
"negotiators have more to gain from being approved by their own sides than by making a reasoned agreement with competitors or
adversaries, then they are inclined to 'play to the gallery . . .'' In fact, the public reaction may leave them little option. It would
be a brave, or foolish, Arab leader who expressed publicly a willingness for peace with Israel that did not involve the return of the
entire West Bank, or Israeli leader who stated publicly a willingness to remove Israel's existing settlements from Judea and Samaria
in return for peace.28 (Emphasis supplied)
Indeed, by hampering the ability of our representatives to compromise, we may be jeopardizing higher national goals for the sake
of securing less critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no
exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type
of information as privileged does not mean that it will be considered privileged in all instances. Only after a consideration of the
context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired
information, strong enough to overcome its traditionally privileged status.
Whether petitioners have established the presence of such a public interest shall be discussed later. For now, the Court shall first
pass upon the arguments raised by petitioners against the application of PMPF v. Manglapus to the present case.
Arguments proffered by petitioners against the application of PMPF v. Manglapus
Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present case, there being substantial factual distinctions
between the two.
To petitioners, the first and most fundamental distinction lies in the nature of the treaty involved. They stress that PMPF v.
Manglapus involved the Military Bases Agreement which necessarily pertained to matters affecting national security; whereas the
present case involves an economic treaty that seeks to regulate trade and commerce between the Philippines and Japan, matters
which, unlike those covered by the Military Bases Agreement, are not so vital to national security to disallow their disclosure.
Petitioners’ argument betrays a faulty assumption that information, to be considered privileged, must involve national security.
The recognition in Senate v. Ermita29 that executive privilege has encompassed claims of varying kinds, such that it may even be
more accurate to speak of "executive privileges," cautions against such generalization.
While there certainly are privileges grounded on the necessity of safeguarding national security such as those involving military
secrets, not all are founded thereon. One example is the "informer’s privilege," or the privilege of the Government not to disclose
the identity of a person or persons who furnish information of violations of law to officers charged with the enforcement of that
law.30 The suspect involved need not be so notorious as to be a threat to national security for this privilege to apply in any given
instance. Otherwise, the privilege would be inapplicable in all but the most high-profile cases, in which case not only would this
be contrary to long-standing practice. It would also be highly prejudicial to law enforcement efforts in general.
Also illustrative is the privilege accorded to presidential communications, which are presumed privileged without distinguishing
between those which involve matters of national security and those which do not, the rationale for the privilege being that
x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties,
is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial
power. x x x31 (Emphasis supplied)
In the same way that the privilege for judicial deliberations does not depend on the nature of the case deliberated upon, so
presidential communications are privileged whether they involve matters of national security.
It bears emphasis, however, that the privilege accorded to presidential communications is not absolute, one significant qualification
being that "the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to
shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing."
32
This qualification applies whether the privilege is being invoked in the context of a judicial trial or a congressional investigation
conducted in aid of legislation.33
Closely related to the "presidential communications" privilege is the deliberative process privilege recognized in the United States.
As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co,34 deliberative process covers documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies
are formulated. Notably, the privileged status of such documents rests, not on the need to protect national security but, on the
"obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery
and front page news," the objective of the privilege being to enhance the quality of agency
decisionshttp://web2.westlaw.com/find/default.wl?rs=WLW7.07&serialnum=1975129772&fn=_top&sv=Split&tc=-
42
1&findtype=Y&tf=-1&db=708&utid=%7b532A6DBF-9B4C-4A5A-8F16-
C20D9BAA36C4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=WLIGeneralSubscription. 35
The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential communications
privilege. It may be readily perceived that the rationale for the confidential character of diplomatic negotiations, deliberative
process, and presidential communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus36 shows that the privilege for diplomatic negotiations is meant to encourage a frank
exchange of exploratory ideas between the negotiating parties by shielding such negotiations from public view. Similar to the
privilege for presidential communications, the diplomatic negotiations privilege seeks, through the same means, to protect the
independence in decision-making of the President, particularly in its capacity as "the sole organ of the nation in its external
relations, and its sole representative with foreign nations." And, as with the deliberative process privilege, the privilege accorded
to diplomatic negotiations arises, not on account of the content of the information per se, but because the information is part of a
process of deliberation which, in pursuit of the public interest, must be presumed confidential.
The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v. Department of the Treasury37 enlightens
on the close relation between diplomatic negotiations and deliberative process privileges. The plaintiffs in that case sought access
to notes taken by a member of the U.S. negotiating team during the U.S.-French tax treaty negotiations. Among the points noted
therein were the issues to be discussed, positions which the French and U.S. teams took on some points, the draft language agreed
on, and articles which needed to be amended. Upholding the confidentiality of those notes, Judge Green ruled, thus:
Negotiations between two countries to draft a treaty represent a true example of a deliberative process. Much give-and-
take must occur for the countries to reach an accord. A description of the negotiations at any one point would not provide an
onlooker a summary of the discussions which could later be relied on as law. It would not be "working law" as the points discussed
and positions agreed on would be subject to change at any date until the treaty was signed by the President and ratified by the
Senate.
The policies behind the deliberative process privilege support non-disclosure. Much harm could accrue to the negotiations
process if these notes were revealed. Exposure of the pre-agreement positions of the French negotiators might well offend
foreign governments and would lead to less candor by the U. S. in recording the events of the negotiations process. As
several months pass in between negotiations, this lack of record could hinder readily the U. S. negotiating team. Further disclosure
would reveal prematurely adopted policies. If these policies should be changed, public confusion would result easily.
Finally, releasing these snapshot views of the negotiations would be comparable to releasing drafts of the treaty,
particularly when the notes state the tentative provisions and language agreed on. As drafts of regulations typically are
protected by the deliberative process privilege, Arthur Andersen & Co. v. Internal Revenue Service, C.A. No. 80-705 (D.C.Cir.,
May 21, 1982), drafts of treaties should be accorded the same protection. (Emphasis and underscoring supplied)
Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of the
deliberative process.
The Court is not unaware that in Center for International Environmental Law (CIEL), et al. v. Office of U.S. Trade Representative 38
– where the plaintiffs sought information relating to the just-completed negotiation of a United States-Chile Free Trade Agreement
– the same district court, this time under Judge Friedman, consciously refrained from applying the doctrine in Fulbright and
ordered the disclosure of the information being sought.
Since the factual milieu in CIEL seemed to call for the straight application of the doctrine in Fulbright, a discussion of why the
district court did not apply the same would help illumine this Court’s own reasons for deciding the present case along the lines of
Fulbright.
In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding information, namely, Exemption 5 of the
Freedom of Information Act (FOIA).39 In order to qualify for protection under Exemption 5, a document must satisfy two
conditions: (1) it must be either inter-agency or intra-agency in nature, and (2) it must be both pre-decisional and part of the
agency's deliberative or decision-making process.40
Judge Friedman, in CIEL, himself cognizant of a "superficial similarity of context" between the two cases, based his decision on
what he perceived to be a significant distinction: he found the negotiator’s notes that were sought in Fulbright to be "clearly
internal," whereas the documents being sought in CIEL were those produced by or exchanged with an outside party, i.e. Chile. The
documents subject of Fulbright being clearly internal in character, the question of disclosure therein turned not on the threshold
requirement of Exemption 5 that the document be inter-agency, but on whether the documents were part of the agency's pre-
decisional deliberative process. On this basis, Judge Friedman found that "Judge Green's discussion [in Fulbright] of the harm that
could result from disclosure therefore is irrelevant, since the documents at issue [in CIEL] are not inter-agency, and the Court
does not reach the question of deliberative process." (Emphasis supplied)
In fine, Fulbright was not overturned. The court in CIEL merely found the same to be irrelevant in light of its distinct factual
setting. Whether this conclusion was valid – a question on which this Court would not pass – the ruling in Fulbright that
"[n]egotiations between two countries to draft a treaty represent a true example of a deliberative process" was left standing, since
the CIEL court explicitly stated that it did not reach the question of deliberative process.
Going back to the present case, the Court recognizes that the information sought by petitioners includes documents produced and
communicated by a party external to the Philippine government, namely, the Japanese representatives in the JPEPA negotiations,
and to that extent this case is closer to the factual circumstances of CIEL than those of Fulbright.
Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle articulated in Fulbright that the public
policy underlying the deliberative process privilege requires that diplomatic negotiations should also be accorded privileged status,
even if the documents subject of the present case cannot be described as purely internal in character.
It need not be stressed that in CIEL, the court ordered the disclosure of information based on its finding that the first requirement
of FOIA Exemption 5 – that the documents be inter-agency – was not met. In determining whether the government may validly
refuse disclosure of the exchanges between the U.S. and Chile, it necessarily had to deal with this requirement, it being laid down
by a statute binding on them.
In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory requirement similar to FOIA Exemption
5 in particular. Hence, Philippine courts, when assessing a claim of privilege for diplomatic negotiations, are more free to focus
directly on the issue of whether the privilege being claimed is indeed supported by public policy, without having to consider – as
the CIEL court did – if these negotiations fulfill a formal requirement of being "inter-agency." Important though that requirement
may be in the context of domestic negotiations, it need not be accorded the same significance when dealing with international
negotiations.
There being a public policy supporting a privilege for diplomatic negotiations for the reasons explained above, the Court sees no
reason to modify, much less abandon, the doctrine in PMPF v. Manglapus.
A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus from the present case is the fact that the
petitioners therein consisted entirely of members of the mass media, while petitioners in the present case include members of the
House of Representatives who invoke their right to information not just as citizens but as members of Congress.
Petitioners thus conclude that the present case involves the right of members of Congress to demand information on negotiations
of international trade agreements from the Executive branch, a matter which was not raised in PMPF v. Manglapus.
While indeed the petitioners in PMPF v. Manglapus consisted only of members of the mass media, it would be incorrect to claim
that the doctrine laid down therein has no bearing on a controversy such as the present, where the demand for information has
come from members of Congress, not only from private citizens.
43
The privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect simply because
the same privilege is now being claimed under different circumstances. The probability of the claim succeeding in the new
context might differ, but to say that the privilege, as such, has no validity at all in that context is another matter altogether.
The Court’s statement in Senate v. Ermita that "presidential refusals to furnish information may be actuated by any of at least three
distinct kinds of considerations [state secrets privilege, informer’s privilege, and a generic privilege for internal deliberations], and
may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations,"41 implies that a
privilege, once recognized, may be invoked under different procedural settings. That this principle holds true particularly with
respect to diplomatic negotiations may be inferred from PMPF v. Manglapus itself, where the Court held that it is the President
alone who negotiates treaties, and not even the Senate or the House of Representatives, unless asked, may intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be invoked not only against citizens’ demands for information, but also in
the context of legislative investigations.
Hence, the recognition granted in PMPF v. Manglapus to the privileged character of diplomatic negotiations cannot be considered
irrelevant in resolving the present case, the contextual differences between the two cases notwithstanding.
As third and last point raised against the application of PMPF v. Manglapus in this case, petitioners proffer that "the socio-political
and historical contexts of the two cases are worlds apart." They claim that the constitutional traditions and concepts prevailing at
the time PMPF v. Manglapus came about, particularly the school of thought that the requirements of foreign policy and the ideals
of transparency were incompatible with each other or the "incompatibility hypothesis," while valid when international relations
were still governed by power, politics and wars, are no longer so in this age of international cooperation. 42
Without delving into petitioners’ assertions respecting the "incompatibility hypothesis," the Court notes that the ruling in PMPF
v. Manglapus is grounded more on the nature of treaty negotiations as such than on a particular socio-political school of thought.
If petitioners are suggesting that the nature of treaty negotiations have so changed that "[a]n ill-timed speech by one of the parties
or a frank declaration of the concession which are exacted or offered on both sides" no longer "lead[s] to widespread propaganda
to block the negotiations," or that parties in treaty negotiations no longer expect their communications to be governed by historic
confidentiality, the burden is on them to substantiate the same. This petitioners failed to discharge.
Whether the privilege applies only at certain stages of the negotiation process
Petitioners admit that "diplomatic negotiations on the JPEPA are entitled to a reasonable amount of confidentiality so as not to
jeopardize the diplomatic process." They argue, however, that the same is privileged "only at certain stages of the negotiating
process, after which such information must necessarily be revealed to the public." 43 They add that the duty to disclose this
information was vested in the government when the negotiations moved from the formulation and exploratory stage to the firming
up of definite propositions or official recommendations, citing Chavez v. PCGG44 and Chavez v. PEA.45
The following statement in Chavez v. PEA, however, suffices to show that the doctrine in both that case and Chavez v. PCGG with
regard to the duty to disclose "definite propositions of the government" does not apply to diplomatic negotiations:
We rule, therefore, that the constitutional right to information includes official information on on-going negotiations before a final
contract. The information, however, must constitute definite propositions by the government and should not cover
recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national
security and public order. x x x46 (Emphasis and underscoring supplied)
It follows from this ruling that even definite propositions of the government may not be disclosed if they fall under "recognized
exceptions." The privilege for diplomatic negotiations is clearly among the recognized exceptions, for the footnote to the
immediately quoted ruling cites PMPF v. Manglapus itself as an authority.
Whether there is sufficient public interest to overcome the claim of privilege
It being established that diplomatic negotiations enjoy a presumptive privilege against disclosure, even against the demands of
members of Congress for information, the Court shall now determine whether petitioners have shown the existence of a public
interest sufficient to overcome the privilege in this instance.
To clarify, there are at least two kinds of public interest that must be taken into account. One is the presumed public interest in
favor of keeping the subject information confidential, which is the reason for the privilege in the first place, and the other is the
public interest in favor of disclosure, the existence of which must be shown by the party asking for information. 47
The criteria to be employed in determining whether there is a sufficient public interest in favor of disclosure may be gathered from
cases such as U.S. v. Nixon,48 Senate Select Committee on Presidential Campaign Activities v. Nixon,49 and In re Sealed Case.50
U.S. v. Nixon, which involved a claim of the presidential communications privilege against the subpoena duces tecum of a district
court in a criminal case, emphasized the need to balance such claim of privilege against the constitutional duty of courts to ensure
a fair administration of criminal justice.
x x x the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into
the guarantee of due process of law and gravely impair the basic function of the courts. A President’s acknowledged need
for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production
of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in
the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President’s
broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations
preliminarily shown to have some bearing on the pending criminal cases. (Emphasis, italics and underscoring supplied)
Similarly, Senate Select Committee v. Nixon,51 which involved a claim of the presidential communications privilege against the
subpoena duces tecum of a Senate committee, spoke of the need to balance such claim with the duty of Congress to perform its
legislative functions.
The staged decisional structure established in Nixon v. Sirica was designed to ensure that the President and those upon whom he
directly relies in the performance of his duties could continue to work under a general assurance that their deliberations would
remain confidential. So long as the presumption that the public interest favors confidentiality can be defeated only by a
strong showing of need by another institution of government- a showing that the responsibilities of that institution cannot
responsibly be fulfilled without access to records of the President's deliberations- we believed in Nixon v. Sirica, and continue
to believe, that the effective functioning of the presidential office will not be impaired. x x x
xxxx
The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed
materials are critical to the performance of its legislative functions. x x x (Emphasis and underscoring supplied)
In re Sealed Case52 involved a claim of the deliberative process and presidential communications privileges against a subpoena
duces tecum of a grand jury. On the claim of deliberative process privilege, the court stated:
The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. This need
determination is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the deliberative process privilege] is asserted
the district court must undertake a fresh balancing of the competing interests," taking into account factors such as "the relevance
of the evidence," "the availability of other evidence," "the seriousness of the litigation," "the role of the government," and
the "possibility of future timidity by government employees. x x x (Emphasis, italics and underscoring supplied)
Petitioners have failed to present the strong and "sufficient showing of need" referred to in the immediately cited cases. The
arguments they proffer to establish their entitlement to the subject documents fall short of this standard.
44
Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA negotiation process effectively results in
the bargaining away of their economic and property rights without their knowledge and participation, in violation of the due
process clause of the Constitution. They claim, moreover, that it is essential for the people to have access to the initial offers
exchanged during the negotiations since only through such disclosure can their constitutional right to effectively participate in
decision-making be brought to life in the context of international trade agreements.
Whether it can accurately be said that the Filipino people were not involved in the JPEPA negotiations is a question of fact which
this Court need not resolve. Suffice it to state that respondents had presented documents purporting to show that public
consultations were conducted on the JPEPA. Parenthetically, petitioners consider these "alleged consultations" as "woefully
selective and inadequate."53
AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and Japanese representatives have not been
disclosed to the public, the Court shall pass upon the issue of whether access to the documents bearing on them is, as petitioners
claim, essential to their right to participate in decision-making.
The case for petitioners has, of course, been immensely weakened by the disclosure of the full text of the JPEPA to the public
since September 11, 2006, even as it is still being deliberated upon by the Senate and, therefore, not yet binding on the Philippines.
Were the Senate to concur with the validity of the JPEPA at this moment, there has already been, in the words of PMPF v.
Manglapus, "ample opportunity for discussion before [the treaty] is approved."
The text of the JPEPA having been published, petitioners have failed to convince this Court that they will not be able to
meaningfully exercise their right to participate in decision-making unless the initial offers are also published.
It is of public knowledge that various non-government sectors and private citizens have already publicly expressed their views on
the JPEPA, their comments not being limited to general observations thereon but on its specific provisions. Numerous articles and
statements critical of the JPEPA have been posted on the Internet. 54 Given these developments, there is no basis for petitioners’
claim that access to the Philippine and Japanese offers is essential to the exercise of their right to participate in decision-making.
Petitioner-members of the House of Representatives additionally anchor their claim to have a right to the subject documents on
the basis of Congress’ inherent power to regulate commerce, be it domestic or international. They allege that Congress cannot
meaningfully exercise the power to regulate international trade agreements such as the JPEPA without being given copies of the
initial offers exchanged during the negotiations thereof. In the same vein, they argue that the President cannot exclude Congress
from the JPEPA negotiations since whatever power and authority the President has to negotiate international trade agreements is
derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of
Presidential Decree No. 1464.55
The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and international agreements, but
the power to fix tariff rates, import and export quotas, and other taxes. Thus it provides:
(2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions
as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the
framework of the national development program of the Government.
As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII – the article on the Executive
Department – which states:
No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of
the Senate.
The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the President, being the sole organ of the nation
in its external relations, was echoed in BAYAN v. Executive Secretary56 where the Court held:
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the
external affairs of the country. In many ways, the President is the chief architect of the nation's foreign policy; his "dominance in
the field of foreign relations is (then) conceded." Wielding vast powers and influence, his conduct in the external affairs of the
nation, as Jefferson describes, is "executive altogether."
As regards the power to enter into treaties or international agreements, the Constitution vests the same in the President,
subject only to the concurrence of at least two thirds vote of all the members of the Senate. In this light, the negotiation of
the VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful
exercise of his vast executive and diplomatic powers granted him no less than by the fundamental law itself. Into the field
of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it. x x x (Italics in the original; emphasis
and underscoring supplied)
The same doctrine was reiterated even more recently in Pimentel v. Executive Secretary57 where the Court ruled:
In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external
relations and is the country's sole representative with foreign nations. As the chief architect of foreign policy, the President
acts as the country's mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal
with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to
negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a
limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty
entered into by him. x x x (Emphasis and underscoring supplied)
While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the President only by
delegation of that body, it has long been recognized that the power to enter into treaties is vested directly and exclusively in the
President, subject only to the concurrence of at least two-thirds of all the Members of the Senate for the validity of the treaty. In
this light, the authority of the President to enter into trade agreements with foreign nations provided under P.D. 146458 may be
interpreted as an acknowledgment of a power already inherent in its office. It may not be used as basis to hold the President or its
representatives accountable to Congress for the conduct of treaty negotiations.
This is not to say, of course, that the President’s power to enter into treaties is unlimited but for the requirement of Senate
concurrence, since the President must still ensure that all treaties will substantively conform to all the relevant provisions of the
Constitution.
It follows from the above discussion that Congress, while possessing vast legislative powers, may not interfere in the field of treaty
negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only to the validity of the treaty under
consideration, not to the conduct of negotiations attendant to its conclusion. Moreover, it is not even Congress as a whole that has
been given the authority to concur as a means of checking the treaty-making power of the President, but only the Senate.
Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of the House of Representatives
fail to present a "sufficient showing of need" that the information sought is critical to the performance of the functions of Congress,
functions that do not include treaty-negotiation.
Respondents’ alleged failure to timely claim executive privilege
On respondents’ invocation of executive privilege, petitioners find the same defective, not having been done seasonably as it was
raised only in their Comment to the present petition and not during the House Committee hearings.
45
That respondents invoked the privilege for the first time only in their Comment to the present petition does not mean that the claim
of privilege should not be credited. Petitioners’ position presupposes that an assertion of the privilege should have been made
during the House Committee investigations, failing which respondents are deemed to have waived it.
When the House Committee and petitioner-Congressman Aguja requested respondents for copies of the documents subject of this
case, respondents replied that the negotiations were still on-going and that the draft of the JPEPA would be released once the text
thereof is settled and complete. There was no intimation that the requested copies are confidential in nature by reason of public
policy. The response may not thus be deemed a claim of privilege by the standards of Senate v. Ermita, which recognizes as claims
of privilege only those which are accompanied by precise and certain reasons for preserving the confidentiality of the
information being sought.
Respondents’ failure to claim the privilege during the House Committee hearings may not, however, be construed as a waiver
thereof by the Executive branch. As the immediately preceding paragraph indicates, what respondents received from the House
Committee and petitioner-Congressman Aguja were mere requests for information. And as priorly stated, the House Committee
itself refrained from pursuing its earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose de Venecia’s
alleged request to Committee Chairperson Congressman Teves to hold the same in abeyance.
While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to executive officials – out of respect for
their office – until resort to it becomes necessary, the fact remains that such requests are not a compulsory process. Being mere
requests, they do not strictly call for an assertion of executive privilege.
The privilege is an exemption to Congress’ power of inquiry.59 So long as Congress itself finds no cause to enforce such power,
there is no strict necessity to assert the privilege. In this light, respondents’ failure to invoke the privilege during the House
Committee investigations did not amount to a waiver thereof.
The Court observes, however, that the claim of privilege appearing in respondents’ Comment to this petition fails to satisfy in full
the requirement laid down in Senate v. Ermita that the claim should be invoked by the President or through the Executive Secretary
"by order of the President."60 Respondents’ claim of privilege is being sustained, however, its flaw notwithstanding, because of
circumstances peculiar to the case.
The assertion of executive privilege by the Executive Secretary, who is one of the respondents herein, without him adding the
phrase "by order of the President," shall be considered as partially complying with the requirement laid down in Senate v. Ermita.
The requirement that the phrase "by order of the President" should accompany the Executive Secretary’s claim of privilege is a
new rule laid down for the first time in Senate v. Ermita, which was not yet final and executory at the time respondents filed their
Comment to the petition.61 A strict application of this requirement would thus be unwarranted in this case.
Response to the Dissenting Opinion of the Chief Justice
We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our people’s right to information against
any abuse of executive privilege. It is a zeal that We fully share.
The Court, however, in its endeavor to guard against the abuse of executive privilege, should be careful not to veer towards the
opposite extreme, to the point that it would strike down as invalid even a legitimate exercise thereof.
We respond only to the salient arguments of the Dissenting Opinion which have not yet been sufficiently addressed above.
1. After its historical discussion on the allocation of power over international trade agreements in the United States, the dissent
concludes that "it will be turning somersaults with history to contend that the President is the sole organ for external relations" in
that jurisdiction. With regard to this opinion, We make only the following observations:
There is, at least, a core meaning of the phrase "sole organ of the nation in its external relations" which is not being disputed,
namely, that the power to directly negotiate treaties and international agreements is vested by our Constitution only in the
Executive. Thus, the dissent states that "Congress has the power to regulate commerce with foreign nations but does not have the
power to negotiate international agreements directly."62
What is disputed is how this principle applies to the case at bar.
The dissent opines that petitioner-members of the House of Representatives, by asking for the subject JPEPA documents, are not
seeking to directly participate in the negotiations of the JPEPA, hence, they cannot be prevented from gaining access to these
documents.
In their Comment, respondents contend that "the negotiations of the representatives of the Philippines as well as of Japan must be
allowed to explore alternatives in the course of the negotiations in the same manner as judicial deliberations and working drafts of
opinions are accorded strict confidentiality." That respondents liken the documents involved in the JPEPA negotiations to
judicial deliberations and working drafts of opinions evinces, by itself, that they were claiming confidentiality not only
until, but even after, the conclusion of the negotiations.
Judicial deliberations do not lose their confidential character once a decision has been promulgated by the courts. The same holds
true with respect to working drafts of opinions, which are comparable to intra-agency recommendations. Such intra-agency
recommendations are privileged even after the position under consideration by the agency has developed into a definite
proposition, hence, the rule in this jurisdiction that agencies have the duty to disclose only definite propositions, and not the inter-
agency and intra-agency communications during the stage when common assertions are still being formulated. 67

On the other hand, We hold that this is one occasion where the following ruling in Agan v. PIATCO63 – and in other cases both
3. The dissent claims that petitioner-members of the House of Representatives have sufficiently shown their need for the same
before and since – should be applied:
documents to overcome the privilege. Again, We disagree.

This Court has long and consistently adhered to the legal maxim that those that cannot be done directly cannot be done
The House Committee that initiated the investigations on the JPEPA did not pursue its earlier intention to subpoena the documents.
indirectly. To declare the PIATCO contracts valid despite the clear statutory prohibition against a direct government guarantee
This strongly undermines the assertion that access to the same documents by the House Committee is critical to the performance
would not only make a mockery of what the BOT Law seeks to prevent -- which is to expose the government to the risk of incurring
of its legislative functions. If the documents were indeed critical, the House Committee should have, at the very least, issued a
a monetary obligation resulting from a contract of loan between the project proponent and its lenders and to which the Government
subpoena duces tecum or, like what the Senate did in Senate v. Ermita, filed the present petition as a legislative body, rather than
is not a party to -- but would also render the BOT Law useless for what it seeks to achieve –- to make use of the resources of the
leaving it to the discretion of individual Congressmen whether to pursue an action or not. Such acts would have served as strong
private sector in the "financing, operation and maintenance of infrastructure and development projects" which are necessary for
indicia that Congress itself finds the subject information to be critical to its legislative functions.
national growth and development but which the government, unfortunately, could ill-afford to finance at this point in time.64

Further, given that respondents have claimed executive privilege, petitioner-members of the House of Representatives should have,
Similarly, while herein petitioners-members of the House of Representatives may not have been aiming to participate in the
at least, shown how its lack of access to the Philippine and Japanese offers would hinder the intelligent crafting of legislation.
negotiations directly, opening the JPEPA negotiations to their scrutiny – even to the point of giving them access to the offers
Mere assertion that the JPEPA covers a subject matter over which Congress has the power to legislate would not suffice. As Senate
exchanged between the Japanese and Philippine delegations – would have made a mockery of what the Constitution sought to
Select Committee v. Nixon68 held, the showing required to overcome the presumption favoring confidentiality turns, not only on
prevent and rendered it useless for what it sought to achieve when it vested the power of direct negotiation solely with the President.
the nature and appropriateness of the function in the performance of which the material was sought, but also the degree to which
the material was necessary to its fulfillment. This petitioners failed to do.
What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-making power of the President, which
our Constitution similarly defines, may be gathered from Hamilton’s explanation of why the U.S. Constitution excludes the House
Furthermore, from the time the final text of the JPEPA including its annexes and attachments was published, petitioner-members
of Representatives from the treaty-making process:
of the House of Representatives have been free to use it for any legislative purpose they may see fit. Since such publication,
petitioners’ need, if any, specifically for the Philippine and Japanese offers leading to the final version of the JPEPA, has become
x x x The fluctuating, and taking its future increase into account, the multitudinous composition of that body, forbid us to expect even less apparent.
in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign
politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character, decision, secrecy
In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents, the dissent contends that the
and dispatch; are incompatible with a body so variable and so numerous. The very complication of the business by introducing a
Executive has failed to show how disclosing them after the conclusion of negotiations would impair the performance of its
necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls
functions. The contention, with due respect, misplaces the onus probandi. While, in keeping with the general presumption of
upon the house of representatives, and the greater length of time which it would often be necessary to keep them together when
transparency, the burden is initially on the Executive to provide precise and certain reasons for upholding its claim of privilege,
convened, to obtain their sanction in the progressive stages of a treaty, would be source of so great inconvenience and expense, as
once the Executive is able to show that the documents being sought are covered by a recognized privilege, the burden shifts to the
alone ought to condemn the project.65
party seeking information to overcome the privilege by a strong showing of need.

These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike that of the U.S., does not even
When it was thus established that the JPEPA documents are covered by the privilege for diplomatic negotiations pursuant to PMPF
grant the Senate the power to advise the Executive in the making of treaties, but only vests in that body the power to concur in
v. Manglapus, the presumption arose that their disclosure would impair the performance of executive functions. It was then
the validity of the treaty after negotiations have been concluded. 66 Much less, therefore, should it be inferred that the House of
incumbent on petitioner- requesting parties to show that they have a strong need for the information sufficient to overcome the
Representatives has this power.
privilege. They have not, however.

Since allowing petitioner-members of the House of Representatives access to the subject JPEPA documents would set a precedent
4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming the privilege "by order of the President,"
for future negotiations, leading to the contravention of the public interests articulated above which the Constitution sought to
the same may not be strictly applied to the privilege claim subject of this case.
protect, the subject documents should not be disclosed.

When the Court in Senate v. Ermita limited the power of invoking the privilege to the President alone, it was laying down a new
2. The dissent also asserts that respondents can no longer claim the diplomatic secrets privilege over the subject JPEPA documents
rule for which there is no counterpart even in the United States from which the concept of executive privilege was adopted. As
now that negotiations have been concluded, since their reasons for nondisclosure cited in the June 23, 2005 letter of Sec. Ermita,
held in the 2004 case of Judicial Watch, Inc. v. Department of Justice,69 citing In re Sealed Case,70 "the issue of whether a President
and later in their Comment, necessarily apply only for as long as the negotiations were still pending;
46
must personally invoke the [presidential communications] privilege remains an open question." U.S. v. Reynolds,71 on the other
hand, held that "[t]here must be a formal claim of privilege, lodged by the head of the department which has control over the
matter, after actual personal consideration by that officer."
The rule was thus laid down by this Court, not in adherence to any established precedent, but with the aim of preventing the abuse
of the privilege in light of its highly exceptional nature. The Court’s recognition that the Executive Secretary also bears the power
to invoke the privilege, provided he does so "by order of the President," is meant to avoid laying down too rigid a rule, the Court
being aware that it was laying down a new restriction on executive privilege. It is with the same spirit that the Court should not be
overly strict with applying the same rule in this peculiar instance, where the claim of executive privilege occurred before the
judgment in Senate v. Ermita became final.
5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent implies that the Court therein erred in
citing US v. Curtiss Wright72 and the book entitled The New American Government and Its Work73 since these authorities, so the
dissent claims, may not be used to calibrate the importance of the right to information in the Philippine setting.
The dissent argues that since Curtiss-Wright referred to a conflict between the executive and legislative branches of government,
the factual setting thereof was different from that of PMPF v. Manglapus which involved a collision between governmental power
over the conduct of foreign affairs and the citizen’s right to information.
That the Court could freely cite Curtiss-Wright – a case that upholds the secrecy of diplomatic negotiations against congressional
demands for information – in the course of laying down a ruling on the public right to information only serves to underscore the
principle mentioned earlier that the privileged character accorded to diplomatic negotiations does not ipso facto lose all force and
effect simply because the same privilege is now being claimed under different circumstances.
PMPF v. Manglapus indeed involved a demand for information from private citizens and not an executive-legislative conflict, but
so did Chavez v. PEA74 which held that "the [public’s] right to information . . . does not extend to matters recognized as privileged
information under the separation of powers." What counts as privileged information in an executive-legislative conflict is thus also
recognized as such in cases involving the public’s right to information.
Chavez v. PCGG also involved the public’s right to information, yet the Court recognized as a valid limitation to that right the
75
same privileged information based on separation of powers – closed-door Cabinet meetings, executive sessions of either house of
Congress, and the internal deliberations of the Supreme Court.
These cases show that the Court has always regarded claims of privilege, whether in the context of an executive-legislative conflict
or a citizen’s demand for information, as closely intertwined, such that the principles applicable to one are also applicable to the
other.
The reason is obvious. If the validity of claims of privilege were to be assessed by entirely different criteria in each context, this
may give rise to the absurd result where Congress would be denied access to a particular information because of a claim of
executive privilege, but the general public would have access to the same information, the claim of privilege notwithstanding.
Absurdity would be the ultimate result if, for instance, the Court adopts the "clear and present danger" test for the assessment of
claims of privilege against citizens’ demands for information. If executive information, when demanded by a citizen, is privileged
only when there is a clear and present danger of a substantive evil that the State has a right to prevent, it would be very difficult
for the Executive to establish the validity of its claim in each instance. In contrast, if the demand comes from Congress, the
Executive merely has to show that the information is covered by a recognized privilege in order to shift the burden on Congress to
present a strong showing of need. This would lead to a situation where it would be more difficult for Congress to access executive
information than it would be for private citizens.
We maintain then that when the Executive has already shown that an information is covered by executive privilege, the party
demanding the information must present a "strong showing of need," whether that party is Congress or a private citizen.
47
The rule that the same "showing of need" test applies in both these contexts, however, should not be construed as a denial of the
importance of analyzing the context in which an executive privilege controversy may happen to be placed. Rather, it affirms it, for
it means that the specific need being shown by the party seeking information in every particular instance is highly significant in
determining whether to uphold a claim of privilege. This "need" is, precisely, part of the context in light of which every claim
of privilege should be assessed.
Since, as demonstrated above, there are common principles that should be applied to executive privilege controversies across
different contexts, the Court in PMPF v. Manglapus did not err when it cited the Curtiss-Wright case.
The claim that the book cited in PMPF v. Manglapus entitled The New American Government and Its Work could not have taken
into account the expanded statutory right to information in the FOIA assumes that the observations in that book in support of the
confidentiality of treaty negotiations would be different had it been written after the FOIA. Such assumption is, with due respect,
at best, speculative.
As to the claim in the dissent that "[i]t is more doubtful if the same book be used to calibrate the importance of the right of access
to information in the Philippine setting considering its elevation as a constitutional right," we submit that the elevation of such
right as a constitutional right did not set it free from the legitimate restrictions of executive privilege which is itself constitutionally-
based.76 Hence, the comments in that book which were cited in PMPF v. Manglapus remain valid doctrine.
6. The dissent further asserts that the Court has never used "need" as a test to uphold or allow inroads into rights guaranteed under
the Constitution. With due respect, we assert otherwise. The Court has done so before, albeit without using the term "need."
In executive privilege controversies, the requirement that parties present a "sufficient showing of need" only means, in substance,
that they should show a public interest in favor of disclosure sufficient in degree to overcome the claim of privilege.77 Verily, the
Court in such cases engages in a balancing of interests. Such a balancing of interests is certainly not new in constitutional
adjudication involving fundamental rights. Secretary of Justice v. Lantion,78 which was cited in the dissent, applied just such a test.
Given that the dissent has clarified that it does not seek to apply the "clear and present danger" test to the present controversy, but
the balancing test, there seems to be no substantial dispute between the position laid down in this ponencia and that reflected in
the dissent as to what test to apply. It would appear that the only disagreement is on the results of applying that test in this instance.
The dissent, nonetheless, maintains that "it suffices that information is of public concern for it to be covered by the right, regardless
of the public’s need for the information," and that the same would hold true even "if they simply want to know it because it interests
them." As has been stated earlier, however, there is no dispute that the information subject of this case is a matter of public concern.
The Court has earlier concluded that it is a matter of public concern, not on the basis of any specific need shown by petitioners,
but from the very nature of the JPEPA as an international trade agreement.
However, when the Executive has – as in this case – invoked the privilege, and it has been established that the subject information
is indeed covered by the privilege being claimed, can a party overcome the same by merely asserting that the information being
demanded is a matter of public concern, without any further showing required? Certainly not, for that would render the doctrine
of executive privilege of no force and effect whatsoever as a limitation on the right to information, because then the sole test in
such controversies would be whether an information is a matter of public concern.
Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the documents of the JPEPA negotiations,
the Philippine government runs the grave risk of betraying the trust reposed in it by the Japanese representatives, indeed, by the
Japanese government itself. How would the Philippine government then explain itself when that happens? Surely, it cannot bear
to say that it just had to release the information because certain persons simply wanted to know it "because it interests them."
Thus, the Court holds that, in determining whether an information is covered by the right to information, a specific "showing of
need" for such information is not a relevant consideration, but only whether the same is a matter of public concern. When, however,
the government has claimed executive privilege, and it has established that the information is indeed covered by the same, then
the party demanding it, if it is to overcome the privilege, must show that that the information is vital, not simply for the satisfaction
of its curiosity, but for its ability to effectively and reasonably participate in social, political, and economic decision-making.79
7. The dissent maintains that "[t]he treaty has thus entered the ultimate stage where the people can exercise their right to
participate in the discussion whether the Senate should concur in its ratification or not." (Emphasis supplied) It adds that this right
"will be diluted unless the people can have access to the subject JPEPA documents". What, to the dissent, is a dilution of the right
to participate in decision-making is, to Us, simply a recognition of the qualified nature of the public’s right to information. It is
beyond dispute that the right to information is not absolute and that the doctrine of executive privilege is a recognized limitation
on that right.
Moreover, contrary to the submission that the right to participate in decision-making would be diluted, We reiterate that our people
have been exercising their right to participate in the discussion on the issue of the JPEPA, and they have been able to articulate
their different opinions without need of access to the JPEPA negotiation documents.
Thus, we hold that the balance in this case tilts in favor of executive privilege.
8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select Committee case, and In re Sealed Case, are
similarly applicable to the present controversy, the dissent cites the caveat in the Nixon case that the U.S. Court was there
addressing only the President’s assertion of privilege in the context of a criminal trial, not a civil litigation nor a congressional
demand for information. What this caveat means, however, is only that courts must be careful not to hastily apply the ruling therein
to other contexts. It does not, however, absolutely mean that the principles applied in that case may never be applied in such
contexts.
Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of executive privilege in contexts other than a
criminal trial, as in the case of Nixon v. Administrator of General Services80 – which involved former President Nixon’s invocation
of executive privilege to challenge the constitutionality of the "Presidential Recordings and Materials Preservation Act" 81 – and
the above-mentioned In re Sealed Case which involved a claim of privilege against a subpoena duces tecum issued in a grand jury
investigation.
Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the other cases already mentioned, We are
merely affirming what the Chief Justice stated in his Dissenting Opinion in Neri v. Senate Committee on Accountability82 – a case
involving an executive-legislative conflict over executive privilege. That dissenting opinion stated that, while Nixon was not
concerned with the balance between the President’s generalized interest in confidentiality and congressional demands for
information, "[n]onetheless the [U.S.] Court laid down principles and procedures that can serve as torch lights to illumine
us on the scope and use of Presidential communication privilege in the case at bar."83 While the Court was divided in Neri,
this opinion of the Chief Justice was not among the points of disagreement, and We similarly hold now that the Nixon case is a
useful guide in the proper resolution of the present controversy, notwithstanding the difference in context.
Verily, while the Court should guard against the abuse of executive privilege, it should also give full recognition to the
validity of the privilege whenever it is claimed within the proper bounds of executive power, as in this case. Otherwise, the
Court would undermine its own credibility, for it would be perceived as no longer aiming to strike a balance, but seeking merely
to water down executive privilege to the point of irrelevance.
Conclusion
To recapitulate, petitioners’ demand to be furnished with a copy of the full text of the JPEPA has become moot and academic, it
having been made accessible to the public since September 11, 2006. As for their demand for copies of the Philippine and Japanese
offers submitted during the JPEPA negotiations, the same must be denied, respondents’ claim of executive privilege being valid.
Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v. Manglapus on September 13, 1988, been
recognized as privileged in this jurisdiction and the reasons proffered by petitioners against the application of the ruling therein to
48
the present case have not persuaded the Court. Moreover, petitioners – both private citizens and members of the House of
Representatives – have failed to present a "sufficient showing of need" to overcome the claim of privilege in this case.
That the privilege was asserted for the first time in respondents’ Comment to the present petition, and not during the hearings of
the House Special Committee on Globalization, is of no moment, since it cannot be interpreted as a waiver of the privilege on the
part of the Executive branch.
For reasons already explained, this Decision shall not be interpreted as departing from the ruling in Senate v. Ermita that executive
privilege should be invoked by the President or through the Executive Secretary "by order of the President."
WHEREFORE, the petition is DISMISSED.
G.R. No. 95770 December 29, 1995
ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents, MR. & MRS. LEONARDO EBRALINAG,
JUSTINIANA TANTOG, represented by her father, AMOS TANTOG, JEMIL OYAO & JOEL OYAO, represented by
their parents MR. & MRS. ELIEZER OYAO, JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents MR.
& MRS. GODOFREDO DIAMOS, SARA OSTIA & JONATHAN OSTIA, represented by their parents MR. & MRS.
FAUSTO OSTIA, IRVIN SEQUINO & RENAN SEQUINO, represented by their parents MR. & MRS. LYDIO
SEQUINO, NAPTHALE TUNACAO represented by his parents MR. & MRS. MANUEL TUNACAO PRECILA PINO
represented by her parents MR. & MRS. FELIPE PINO, MARICRIS ALFAR, RUWINA ALFAR, represented by their
parents MR. & MRS. HERMINIGILDO ALFAR, FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented by
their parents ABDON ALFAR ALBERTO ALFAR & ARISTIO ALFAR, represented by their parents MR. & MRS.
GENEROSO ALFAR, MARTINO VILLAR, represented by their parents MR. & MRS. GENARO VILLAR,
PERGEBRIEL GUINITA & CHAREN GUINITA, represented by their parents MR. & MRS. CESAR GUINITA, ALVIN
DOOP represented by his parents MR. & MRS. LEONIDES DOOP, RHILYN LAUDE represented by her parents MR.
& MRS. RENE LAUDE, LEOREMINDA MONARES represented by her parents MR. & MRS. FLORENCIO
MONARES, MERCY MONTECILLO, represented by her parents MR. & MRS. MANUEL MONTECILLO, ROBERTO
TANGAHA, represented by his parent ILUMINADA TANGAHA, EVELYN MARIA & FLORA TANGAHA represented
by their parents MR. & MRS. ALBERTO TANGAHA, MAXIMO EBRALINAG represented by his parents MR. & MRS.
PAQUITO EBRALINAG, JUTA CUMON, GIDEON CUMON & JONATHAN CUMON, represented by their father
RAFAEL CUMON, EVIE LUMAKANG and JUAN LUMAKANG, represented by their parents MR. & MRS.
LUMAKANG, EMILIO SARSOZO & PAZ AMOR SARSOZO, & IGNA MARIE SARSOZO represented by their parents
MR. & MRS. VIRGILIO SARSOZO, MICHAEL JOSEPH & HENRY JOSEPH, represented by parent ANNIE JOSEPH,
EMERSON TABLASON & MASTERLOU TABLASON, represented by their parents EMERLITO TABLASON,
petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and MR. MANUEL F. BIONGCOG, Cebu District
Supervisor, respondents.
G.R. No. 95887 December 29, 1995
MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO, REDFORD ALSADO, JOEBERT ALSADO,
& RUDYARD ALSADO represented by their parents MR. & MRS. ABELARDO ALSADO, NESIA ALSADO, REU
ALSADO and LILIBETH ALSADO, represented by their parents MR. & MRS. ROLANDO ALSADO, SUZETTE
NAPOLES, represented by her parents ISMAILITO NAPOLES and OPHELIA NAPOLES, JESICA CARMELOTES,
represented by her parents MR. & MRS. SERGIO CARMELOTES, BABY JEAN MACAPAS, represented by her parents
MR. & MRS. TORIBIO MACAPAS, GERALDINE ALSADO, represented by her parents MR. & MRS. JOEL ALSADO,
RAQUEL DEMOTOR, and LEAH DEMOTOR, represented by their parents MR. & MRS. LEONARDO DEMOTOR,
JURELL VILLA and MELONY VILLA, represented by their parents MR. & MRS. JOVENIANO VILLA, JONELL
HOPE MAHINAY, MARY GRACE MAHINAY, and MAGDALENE MAHINAY, represented by their parents MR. &
MRS. FELIX MAHINAY, JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their parents FELIPE
ANTIOLA and ANECITA ANTIOLA, MARIA CONCEPCION CABUYAO, represented by her parents WENIFREDO
CABUYAO and ESTRELLITA CABUYAO, NOEMI TURNO represented by her parents MANUEL TURNO and
VEVENCIA TURNO, SOLOMON PALATULON, SALMERO PALATULON and ROSALINA PALATULON,
represented by their parents MARTILLANO PALATULON and CARMILA PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and ANTONIO A. SANGUTAN, respondents.
R E SO L U T I O N
KAPUNAN, J.:
The State moves for a reconsideration of our decision dated March 1, 1993 granting private respondents' petition for certiorari and
prohibition and annulling the expulsion orders issued by the public respondents therein on the ground that the said decision created
an exemption in favor of the members of the religious sect, the Jehovah's Witnesses, in violation of the "Establishment Clause" of
the Constitution. The Solicitor General, on behalf of the public respondent, furthermore contends that:
The accommodation by this Honorable Court to a demand for special treatment in favor of a minority sect
even on the basis of a claim of religious freedom may be criticized as granting preference to the religious
beliefs of said sect in violation of the "non-establishment guarantee" provision of the Constitution. Surely,
the decision of the Court constitutes a special favor which immunizes religious believers such as Jehovah's
Witnesses to the law and the DECS rules and regulations by interposing the claim that the conduct required
by law and the rules and regulation (sic) are violative of their religious beliefs. The decision therefore is
susceptible to the very criticism that the grant of exemption is a violation of the "non-establishment"
provision of the Constitution.
Furthermore, to grant an exemption to a specific religious minority poses a risk of collision course with the
"equal protection of the laws" clause in respect of the non-exempt, and, in public schools, a collision course
with the "non-establishment guarantee."
Additionally the public respondent insists that this Court adopt a "neutral stance" by reverting to its holding in Gerona declaring
the flag as being devoid of any religious significance. He stresses that the issue here is not curtailment of religious belief but
regulation of the exercise of religious belief. Finally, he maintains that the State's interests in the case at bench are constitutional
and legal obligations to implement the law and the constitutional mandate to inculcate in the youth patriotism and nationalism and
to encourage their involvement in public and civic affairs, referring to the test devised by the United States Supreme Court in U.S.
vs. O'Brien.1
II
All the petitioners in the original case2 were minor school children, and members of the sect, Jehovah's Witnesses (assisted by
their parents) who were expelled from their classes by various public school authorities in Cebu for refusing to salute the flag, sing
the national anthem and recite the patriotic pledge as required by Republic Act No. 1265 of July 11, 1955 and by Department
Order No. 8, dated July 21, 1955 issued by the Department of Education. Aimed primarily at private educational institutions which
did not observe the flag ceremony exercises, Republic Act No. 1265 penalizes all educational institutions for failure or refusal to
observe the flag ceremony with public censure on first offense and cancellation of the recognition or permit on second offense.
The implementing regulations issued by the Department of Education thereafter detailed the manner of observance of the same.
Immediately pursuant to these orders, school officials in Masbate expelled children belonging to the sect of the Jehovah's Witnesses
from school for failing or refusing to comply with the flag ceremony requirement. Sustaining these expulsion orders, this Court in
the 1959 case of Gerona vs. Secretary of Education3 held that:
49
The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty,
of national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and
protect. Considering the complete separation of church and state in our system of government, the flag is
utterly devoid of any religious significance. Saluting the flag consequently does not involve any religious
ceremony. . . .
After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the
courts. It cannot be left to a 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 meanings to
be given to a certain ritual or ceremony as there are religious groups or sects or followers.
Upholding religious freedom as a fundamental right deserving the "highest priority and amplest protection among human rights,"
this Court, in Ebralinag vs. Division Superintendent of Schools of Cebu4 re-examined our over two decades-old decision in Gerona
and reversed expulsion orders made by the public respondents therein as violative of both the free exercise of religion clause and
the right of citizens to education under the 1987 Constitution.5
From our decision of March 1, 1993, the public respondents filed a motion for reconsideration on grounds hereinabove stated.
After a careful study of the grounds adduced in the government's Motion For Reconsideration of our original decision, however,
we find no cogent reason to disturb our earlier ruling.
The religious convictions and beliefs of the members of the religious sect, the Jehovah's Witnesses are widely known and are
equally widely disseminated in numerous books, magazines, brochures and leaflets distributed by their members in their house to
house distribution efforts and in many public places. Their refusal to render obeisance to any form or symbol which smacks of
idolatry is based on their sincere belief in the biblical injunction found in Exodus 20:4,5, against worshipping forms or idols other
than God himself. The basic assumption in their universal refusal to salute the flags of the countries in which they are found is that
such a salute constitutes an act of religious devotion forbidden by God's law. This assumption, while "bizarre" to others is firmly
anchored in several biblical passages.6
And yet, while members of Jehovah's Witnesses, on the basis of religious convictions, refuse to perform an act (or acts) which
they consider proscribed by the Bible, they contend that such refusal should not be taken to indicate disrespect for the symbols of
the country or evidence that they are wanting in patriotism and nationalism. They point out that as citizens, they have an excellent
record as law abiding members of society even if they do not demonstrate their refusal to conform to the assailed orders by overt
acts of conformity. On the contrary, they aver that they show their respect through less demonstrative methods manifesting their
allegiance, by their simple obedience to the country's laws,7 by not engaging in antigovernment activities of any kind,8 and by
paying their taxes and dues to society as self-sufficient members of the community.9 While they refuse to salute the flag, they are
willing to stand quietly and peacefully at attention, hands on their side, in order not to disrupt the ceremony or disturb those who
believe differently.10
The religious beliefs, practices and convictions of the members of the sect as a minority are bound to be seen by others as odd and
different and at divergence with the complex requirements of contemporary societies, particularly those societies which require
certain practices as manifestations of loyalty and patriotic behavior. Against those who believe that coerced loyalty and unity are
mere shadows of patriotism, the tendency to exact "a hydraulic insistence on conformity to majoritarian standards,"11 is seductive
to the bureaucratic mindset as a shortcut to patriotism.
No doubt, the State possesses what the Solicitor General describes as the responsibility "to inculcate in the minds of the youth the
values of patriotism and nationalism and to encourage their involvement in public and civic affairs." The teaching of these values
ranks at the very apex of education's "high responsibility" of shaping up the minds of the youth in those principles which would
mold them into responsible and productive members of our society. However, the government's interest in molding the young into
patriotic and civic spirited citizens is "not totally free from a balancing process"12 when it intrudes into other fundamental rights
such as those specifically protected by the Free Exercise Clause, the constitutional right to education and the unassailable interest
of parents to guide the religious upbringing of their children in accordance with the dictates of their conscience and their sincere
religious beliefs.13 Recognizing these values, Justice Carolina Grino-Aquino, the writer of the original opinion, underscored that
a generation of Filipinos which cuts its teeth on the Bill of Rights would find abhorrent the idea that one may be compelled, on
pain of expulsion, to salute the flag sing the national anthem and recite the patriotic pledge during a flag ceremony.14 "This
coercion of conscience has no place in a free society".15
The State's contentions are therefore, unacceptable, for no less fundamental than the right to take part is the right to stand apart.16
In the context of the instant case, the freedom of religion enshrined in the Constitution should be seen as the rule, not the exception.
To view the constitutional guarantee in the manner suggested by the petitioners would be to denigrate the status of a preferred
freedom and to relegate it to the level of an abstract principle devoid of any substance and meaning in the lives of those for whom
the protection is addressed. As to the contention that the exemption accorded by our decision benefits a privileged few, it is enough
to re-emphasize that "the constitutional protection of religious freedom terminated disabilities, it did not create new privileges. It
gave religious equality, not civil immunity."17 The essence of the free exercise clause is freedom from conformity to religious
dogma, not freedom from conformity to law because of religious dogma.18 Moreover, the suggestion implicit in the State's
pleadings to the effect that the flag ceremony requirement would be equally and evenly applied to all citizens regardless of sect or
religion and does not thereby discriminate against any particular sect or denomination escapes the fact that "[a] regulation, neutral
on its face, may in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens
the free exercise of religion."19
III
The ostensible interest shown by petitioners in preserving the flag as the symbol of the nation appears to be integrally related to
petitioner's disagreement with the message conveyed by the refusal of members of the Jehovah's Witness sect to salute the flag or
participate actively in flag ceremonies on religious grounds.20 Where the governmental interest clearly appears to be unrelated to
the suppression of an idea, a religious doctrine or practice or an expression or form of expression, this Court will not find it difficult
to sustain a regulation. However, regulations involving this area are generally held against the most exacting standards, and the
zone of protection accorded by the Constitution cannot be violated, except upon a showing of a clear and present danger of a
substantive evil which the state has a right to protect.21 Stated differently, in the case of a regulation which appears to abridge a
right to which the fundamental law accords high significance it is the regulation, not the act (or refusal to act), which is the
exception and which requires the court's strictest scrutiny. In the case at bench, the government has not shown that refusal to do
the acts of conformity exacted by the assailed orders, which respondents point out attained legislative cachet in the Administrative
Code of 1987, would pose a clear and present danger of a danger so serious and imminent, that it would prompt legitimate State
intervention.
To the extent to which members of the Jehovah's Witnesses sect assiduously pursue their belief in the flag's religious symbolic
meaning, the State cannot, without thereby transgressing constitutionally protected boundaries, impose the contrary view on the
pretext of sustaining a policy designed to foster the supposedly far-reaching goal of instilling patriotism among the youth. While
conceding to the idea — adverted to by the Solicitor General — that certain methods of religious expression may be prohibited26
to serve legitimate societal purposes, refusal to participate in the flag ceremony hardly constitutes a form of religious expression
so offensive and noxious as to prompt legitimate State intervention. It is worth repeating that the absence of a demonstrable danger
of a kind which the State is empowered to protect militates against the extreme disciplinary methods undertaken by school
authorities in trying to enforce regulations designed to compel attendance in flag ceremonies. Refusal of the children to participate
in the flag salute ceremony would not interfere with or deny the rights of other school children to do so. It bears repeating that
their absence from the ceremony hardly constitutes a danger so grave and imminent as to warrant the state's intervention.
Finally, the respondents' insistence on the validity of the actions taken by the government on the basis of their averment that "a
government regulation of expressive conduct is sufficiently justified if it is within the constitutional power of the government (and)
furthers an important and substantial government interest"27 misses the whole point of the test devised by the United States
Supreme Court in O'Brien, cited by respondent, because the Court therein was emphatic in stating that "the government interest
(should be) unrelated to the suppression of free expression." We have already stated that the interest in regulation in the case at
bench was clearly related to the suppression of an expression directly connected with the freedom of religion and that respondents
have not shown to our satisfaction that the restriction was prompted by a compelling interest in public order which the state has a
right to protect. Moreover, if we were to refer (as respondents did by referring to the test in O'Brien) to the standards devised by
the US Supreme Court in determining the validity or extent of restrictive regulations impinging on the freedoms of the mind, then
the O'Brien standard is hardly appropriate because the standard devised in O'Brien only applies if the State's regulation is not
related to communicative conduct. If a relationship exists, a more demanding standard is applied.28
The responsibility of inculcating the values of patriotism, nationalism, good citizenship, and moral uprightness is a responsibility
shared by the State with parents and other societal institutions such as religious sects and denominations. The manner in which
such values are demonstrated in a plural society occurs in ways so variable that government cannot make claims to the exclusivity
of its methods of inculcating patriotism so all-encompassing in scope as to leave no room for appropriate parental or religious
influences. Provided that those influences do not pose a clear and present danger of a substantive evil to society and its institutions,
expressions of diverse beliefs, no matter how upsetting they may seem to the majority, are the price we pay for the freedoms we
enjoy.

WHEREFORE, premises considered, the instant Motion is hereby DENIED.

In a case involving the Flag Protection Act of 1989, the U.S. Supreme Court held that the "State's asserted interest in preserving
the fag as a symbol of nationhood and national unity was an interest related to the suppression of free expression . . . because the
State's concern with protecting the flag's symbolic meaning is implicated only when a person's treatment of the flag communicates A.M. No. P-02-1651 August 4, 2003
some message. 22 While the very concept of ordered liberty precludes this Court from allowing every individual to subjectively
define his own standards on matters of conformity in which society, as a whole has important interests, the records of the case and
ALEJANDRO ESTRADA, Complainant,
the long history of flag salute cases abundantly supports the religious quality of the claims adduced by the members of the sect
vs.
Jehovah's Witnesses. Their treatment of flag as a religious symbol is well-founded and well-documented and is based on grounds
SOLEDAD S. ESCRITOR, Respondent.
religious principle. The message conveyed by their refusal to participate in the flag ceremony is religious, shared by the entire
community of Jehovah's Witnesses and is intimately related to their theocratic beliefs and convictions. The subsequent expulsion
of members of the sect on the basis of the regulations assailed in the original petitions was therefore clearly directed against DECISION
religious practice. It is obvious that the assailed orders and memoranda would gravely endanger the free exercise of the religious
beliefs of the members of the sect and their minor children.
PUNO, J.:

Furthermore, the view that the flag is not a religious but a neutral, secular symbol expresses a majoritarian view intended to stifle
the expression of
the belief that an act of saluting the flag might sometimes be — to some individuals — so offensive as to be worth their giving up
another constitutional right — the right to education. Individuals or groups of individuals get from a symbol the meaning they put
to it.23 Compelling members of a religious sect to believe otherwise on the pain of denying minor children the right to an education
is a futile and unconscionable detour towards instilling virtues of loyalty and patriotism which are best instilled and communicated
by painstaking and non-coercive methods. Coerced loyalties, after all, only serve to inspire the opposite. The methods utilized to
impose them breed resentment and dissent. Those who attempt to coerce uniformity of sentiment soon find out that the only path
towards achieving unity is by way of suppressing dissent.24 In the end, such attempts only find the "unanimity of the graveyard."25
50
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 Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in turn, endorsed the same to Court
question arose in an administrative case involving only one person does not alter the paramount importance of the question for the Administrator Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation of Acting Court Administrator Zenaida
"constitution commands the positive protection by government of religious freedom -not only for a minority, however small- not N. Elepaño, directed Escritor to comment on the charge against her. In her comment, Escritor reiterated her religious congregation’s
only for a majority, however large- but for each of us."4 approval of her conjugal arrangement with Quilapio, viz:

I. Facts 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
The facts of the case will determine whether respondent will prevail in her plea of religious freedom. It is necessary therefore to
arrangement as approved by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch.
lay down the facts in detail, careful not to omit the essentials.

Same marital arrangement is recognized as a binding tie before "JEHOVAH" God and before all persons to be held to and honored
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., presiding
in full accord with the principles of God’s Word.
judge of Branch 253, Regional Trial Court of Las Piñas City, requesting for an investigation of rumors that respondent Soledad
Escritor, court interpreter in said court, is living with a man not her husband. They allegedly have a child of eighteen to twenty
years old. Estrada is not personally related either to Escritor or her partner and is a resident not of Las Piñas City but of Bacoor, xxx xxx xxx
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
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
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
Deputy Court Administrator Christopher O. Lock recommended that the case be referred to Executive Judge Bonifacio Sanz
October 12, 2000. Escritor moved for the inhibition of Judge Caoibes from hearing her case to avoid suspicion and bias as she
Maceda, RTC Branch 255, Las Piñas City for investigation, report and recommendation. In the course of Judge Maceda’s
previously filed an administrative complaint against him and said case was still pending in the Office of the Court Administrator
investigation, Escritor again testified that her congregation allows her conjugal arrangement with Quilapio and it does not consider
(OCA). Escritor’s motion was denied. The preliminary conference proceeded with both Estrada and Escritor in attendance. Estrada
it immoral. She offered to supply the investigating judge some clippings which explain the basis of her congregation’s belief and
confirmed that he filed the letter-complaint for immorality against Escritor because in his frequent visits to the Hall of Justice of
practice regarding her conjugal arrangement. Escritor started living with Quilapio twenty years ago when her husband was still
Las Piñas City, he learned from conversations therein that Escritor was living with a man not her husband and that she had an
alive but living with another woman. She met this woman who confirmed to her that she was living with her (Escritor’s) husband.14
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
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
Respondent Escritor testified that when she entered the judiciary in 1999,8 she was already a widow, her husband having died in
executing a "Declaration of Pledging Faithfulness", viz:
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 Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some particular rules and regulations in your
executed on July 28, 1991 a "Declaration of Pledging Faithfulness," viz: congregation?

DECLARATION OF PLEDGING FAITHFULNESS 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.
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 Q: What is that document?
of having been unable to do so that I therefore make this public declaration pledging faithfulness in this marital relationship.
A: Declaration of Pledge of faithfulness.
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. Q: What are the relations of the document Declaration of Pledge of faithfulness, who are suppose (sic) to execute this document?

Signed this 28th day of July 1991.10 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.

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
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.

51
Q: From your explanation, Minister, do you consider it a pledge or a document between the parties, who are members of the
congregation?
A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the one who contracted with the opposite member of my congregation,
opposite sex, and that this document will give us the right to a marital relationship.
Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for you to enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or living under the same roof?
A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital relationship.
Q: Do you mean to say, Minister, by executing this document the contracting parties have the right to cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we Christians follow. The basis is herein stated
in the Book of Matthew, Chapter Five, Verse Twenty-two. So, in that verse of the Bible, Jesus said "that everyone divorcing his
wife, except on account of fornication, makes her a subject for adultery, and whoever marries a divorced woman commits
adultery.15
Escritor and Quilapio transferred to Salazar’s Congregation, the Almanza Congregation in Las Piñas, in May 2001. The
declarations having been executed in Atimonan, Quezon in 1991, Salazar had no personal knowledge of the personal circumstances
of Escritor and Quilapio when they executed their declarations. However, when the two transferred to Almanza, Salazar inquired
about their status from the Atimonan Congregation, gathered comments of the elders therein, and requested a copy of their
declarations. The Almanza Congregation assumed that the personal circumstances of the couple had been considered by the
Atimonan Congregation when they executed their declarations.
Escritor and Quilapio’s declarations are recorded in the Watch Tower Central office. They were executed in the usual and approved
form prescribed by the Watch Tower Bible and Tract Society which was lifted from the article, "Maintaining Marriage in Honor
Before God and Men," 16 in the March 15, 1977 issue of the Watch Tower magazine, entitled The Watchtower.
The declaration requires the approval of the elders of the Jehovah’s Witnesses congregation and is binding within the congregation
all over the world except in countries where divorce is allowed. The Jehovah’s congregation requires that at the time the
declarations are executed, the couple cannot secure the civil authorities’ approval of the marital relationship because of legal
impediments. It is thus standard practice of the congregation to check the couple’s marital status before giving imprimatur to the
conjugal arrangement. The execution of the declaration finds scriptural basis in Matthew 5:32 that when the spouse commits
adultery, the offended spouse can remarry. The marital status of the declarants and their respective spouses’ commission of adultery
are investigated before the declarations are executed. Thus, in the case of Escritor, it is presumed that the Atimonan Congregation
conducted an investigation on her marital status before the declaration was approved and the declaration is valid everywhere,
including the Almanza Congregation. That Escritor’s and Quilapio’s declarations were approved are shown by the signatures of
three witnesses, the elders in the Atimonan Congregation. Salazar confirmed from the congregation’s branch office that these three
witnesses are elders in the Atimonan Congregation. Although in 1998 Escritor was widowed, thereby lifting the legal impediment
to marry on her part, her mate is still not capacitated to remarry. Thus, their declarations remain valid. Once all legal impediments
for both are lifted, the couple can already register their marriage with the civil authorities and the validity of the declarations ceases.
The elders in the congregations can then solemnize their marriage as authorized by Philippine law. In sum, therefore, insofar as
52
the congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor and Quilapio and they
remain members in good standing in the congregation.17
Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovah’s Witnesses since 1974 and
member of the headquarters of the Watch Tower Bible and Tract Society of the Philippines, Inc., presented the original copy of
the magazine article entitled, "Maintaining Marriage Before God and Men" to which Escritor and Minister Salazar referred in their
testimonies. The article appeared in the March 15, 1977 issue of the Watchtower magazine published in Pennsylvania, U.S.A.
Felix S. Fajardo, President of the Watch Tower Bible and Tract Society of the Philippines, Inc., authorized Reyes to represent him
in authenticating the article. The article is distributed to the Jehovah’s Witnesses congregations which also distribute them to the
public.18
The parties submitted their respective memoranda to the investigating judge. Both stated that the issue for resolution is whether or
not the relationship between respondent Escritor and Quilapio is valid and binding in their own religious congregation, the
Jehovah’s Witnesses. Complainant Estrada adds however, that the effect of the relationship to Escritor’s administrative liability
must likewise be determined. Estrada argued, through counsel, that the Declaration of Pledging Faithfulness recognizes the
supremacy of the "proper public authorities" such that she bound herself "to seek means to . . . legalize their union." Thus, even
assuming arguendo that the declaration is valid and binding in her congregation, it is binding only to her co-members in the
congregation and serves only the internal purpose of displaying to the rest of the congregation that she and her mate are a
respectable and morally upright couple. Their religious belief and practice, however, cannot override the norms of conduct required
by law for government employees. To rule otherwise would create a dangerous precedent as those who cannot legalize their live-
in relationship can simply join the Jehovah’s Witnesses congregation and use their religion as a defense against legal liability.19
On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with Quilapio based on the belief and
practice of her religion, the Jehovah’s Witnesses. She quoted portions of the magazine article entitled, "Maintaining Marriage
Before God and Men," in her memorandum signed by herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits "1" and "2") executed by the respondent and her mate greatly affect the
administrative liability of respondent. Jehovah’s Witnesses admit and recognize (sic) the supremacy of the proper public authorities
in the marriage arrangement. However, it is helpful to understand the relative nature of Caesar’s authority regarding marriage.
From country to country, marriage and divorce legislation presents a multitude of different angles and aspects. Rather than
becoming entangled in a confusion of technicalities, the Christian, or the one desiring to become a disciple of God’s Son, can be
guided by basic Scriptural principles that hold true in all cases.
God’s view is of first concern. So, first of all the person must consider whether that one’s present relationship, or the relationship
into which he or she contemplates entering, is one that could meet with God’s approval, or whether in itself, it violates the standards
of God’s Word. Take, for example, the situation where a man lives with a wife but also spends time living with another woman as
a concubine. As long as such a state of concubinage prevails, the relationship of the second woman can never be harmonized with
Christian principles, nor could any declaration on the part of the woman or the man make it so. The only right course is cessation
of the relationship. Similarly with an incestuous relationship with a member of one’s immediate family, or a homosexual
relationship or other such situation condemned by God’s Word. It is not the lack of any legal validation that makes such
relationships unacceptable; they are in themselves unscriptural and hence, immoral. Hence, a person involved in such a situation
could not make any kind of "Declaration of Faithfulness," since it would have no merit in God’s eyes.
If the relationship is such that it can have God’s approval, then, a second principle to consider is that one should do all one can to
establish the honorableness of one’s marital union in the eyes of all. (Heb. 13:4). If divorce is possible, then such step should now
be taken so that, having obtained the divorce (on whatever legal grounds may be available), the present union can receive civil
validation as a recognized marriage.
Finally, if the marital relationship is not one out of harmony with the principles of God’s Word, and if one has done all that can
reasonably be done to have it recognized by civil authorities and has been blocked in doing so, then, a Declaration Pledging
Faithfulness can be signed. In some cases, as has been noted, the extreme slowness of official action may make accomplishing of
legal steps a matter of many, many years of effort. Or it may be that the costs represent a crushingly heavy burden that the individual
would need years to be able to meet. In such cases, the declaration pledging faithfulness will provide the congregation with the
basis for viewing the existing union as honorable while the individual continues conscientiously to work out the legal aspects to
the best of his ability.
Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah God, should be able to approach the matter
in a balanced way, neither underestimating nor overestimating the validation offered by the political state. She always gives
primary concern to God’s view of the union. Along with this, every effort should be made to set a fine example of faithfulness and
devotion to one’s mate, thus, keeping the marriage "honorable among all." Such course will bring God’s blessing and result to the
honor and praise of the author of marriage, Jehovah God. (1 Cor. 10:31-33)20
Respondent also brought to the attention of the investigating judge that complainant’s Memorandum came from Judge Caoibes’
chambers21 whom she claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found Escritor’s factual allegations credible as they were
supported by testimonial and documentary evidence. He also noted that "(b)y strict Catholic standards, the live-in relationship of
respondent with her mate should fall within the definition of immoral conduct, to wit: ‘that which is willful, flagrant, or shameless,
and which shows a moral indifference to the opinion of the good and respectable members of the community’ (7 C.J.S. 959)’
(Delos Reyes vs. Aznar, 179 SCRA, at p. 666)." He pointed out, however, that "the more relevant question is whether or not to
exact from respondent Escritor, a member of ‘Jehovah’s Witnesses,’ the strict moral standards of the Catholic faith in determining
her administrative responsibility in the case at bar."22 The investigating judge acknowledged that "religious freedom is a
fundamental right which is entitled to the highest priority and the amplest protection among human rights, for it involves the
relationship of man to his Creator (at p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernando’s separate opinion in
German vs. Barangan, 135 SCRA 514, 530-531)" and thereby recommended the dismissal of the complaint against Escritor.23
After considering the Report and Recommendation of Executive Judge Maceda, the Office of the Court Administrator, through
Deputy Court Administrator (DCA) Lock and with the approval of Court Administrator Presbitero Velasco, concurred with the
factual findings of Judge Maceda but departed from his recommendation to dismiss the complaint. DCA Lock stressed that
although Escritor had become capacitated to marry by the time she joined the judiciary as her husband had died a year before, "it
is due to her relationship with a married man, voluntarily carried on, that respondent may still be subject to disciplinary action."24
Considering the ruling of the Court in Dicdican v. Fernan, et al.25 that "court personnel have been enjoined to adhere to the
exacting standards of morality and decency in their professional and private conduct in order to preserve the good name and
integrity of the court of justice," DCA Lock found Escritor’s defense of freedom of religion unavailing to warrant dismissal of the
charge of immorality. Accordingly, he recommended that respondent be found guilty of immorality and that she be penalized with
suspension of six months and one day without pay with a warning that a repetition of a similar act will be dealt with more severely
in accordance with the Civil Service Rules.26
II. Issue
Whether or not respondent should be found guilty of the administrative charge of "gross and immoral conduct." To resolve this
issue, it is necessary to determine the sub-issue of whether or not respondent’s right to religious freedom should carve out an
exception from the prevailing jurisprudence on illicit relations for which government employees are held administratively liable.
III. Applicable Laws
Respondent is charged with committing "gross and immoral conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the
Revised Administrative Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil Service shall be suspended or dismissed except
for cause as provided by law and after due process.
(b) The following shall be grounds for disciplinary action:
53
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
54
provided that the "same free and open power to follow their own religion or worship is granted also to others, in accordance with
the tranquillity of our times, in order that every person may have free opportunity to worship the object of his choice."(emphasis
supplied)44
Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige, and eventually, exclusive power.
Religion became an engine of state policy as Constantine considered Christianity a means of unifying his complex empire. Within
seven years after the Edict of Milan, under the emperor’s command, great Christian edifices were erected, the clergy were freed
from public burdens others had to bear, and private heathen sacrifices were forbidden.
The favors granted to Christianity came at a price: state interference in religious affairs. Constantine and his successors called and
dismissed church councils, and enforced unity of belief and practice. Until recently the church had been the victim of persecution
and repression, but this time it welcomed the state’s persecution and repression of the nonconformist and the orthodox on the belief
that it was better for heretics to be purged of their error than to die unsaved.
Both in theory as in practice, the partnership between church and state was not easy. It was a constant struggle of one claiming
dominance over the other. In time, however, after the collapse and disintegration of the Roman Empire, and while monarchical
states were gradually being consolidated among the numerous feudal holdings, the church stood as the one permanent, stable and
universal power. Not surprisingly, therefore, it claimed not merely equality but superiority over the secular states. This claim,
symbolized by Pope Leo’s crowning of Charlemagne, became the church’s accepted principle of its relationship to the state in the
Middle Ages. As viewed by the church, the union of church and state was now a union of the state in the church. The rulers of the
states did not concede to this claim of supremacy. Thus, while Charlemagne received his crown from the Pope, he himself crowned
his own son as successor to nullify the inference of supremacy.45 The whole history of medieval Europe was a struggle for
supremacy between prince and Pope and the resulting religious wars and persecution of heretics and nonconformists. At about the
second quarter of the 13th century, the Inquisition was established, the purpose of which was the discovery and extermination of
heresy. Accused heretics were tortured with the approval of the church in the bull Ad extirpanda issued by Pope Innocent IV in
1252.
The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the Catholic Church and resulting
in the establishment of Protestant churches. While Protestants are accustomed to ascribe to the Reformation the rise of religious
liberty and its acceptance as the principle governing the relations between a democratic state and its citizens, history shows that it
is more accurate to say that the "same causes that gave rise to the Protestant revolution also resulted in the widespread acceptance
of the principle of religious liberty, and ultimately of the principle of separation of church and state."46 Pleas for tolerance and
freedom of conscience can without doubt be found in the writings of leaders of the Reformation. But just as Protestants living in
the countries of papists pleaded for toleration of religion, so did the papists that lived where Protestants were dominant.47 Papist
and Protestant governments alike accepted the idea of cooperation between church and state and regarded as essential to national
unity the uniformity of at least the outward manifestations of religion.48 Certainly, Luther, leader of the Reformation, stated that
"neither pope, nor bishop, nor any man whatever has the right of making one syllable binding on a Christian man, unless it be done
with his own consent."49 But when the tables had turned and he was no longer the hunted heretic, he likewise stated when he
made an alliance with the secular powers that "(h)eretics are not to be disputed with, but to be condemned unheard, and whilst
they perish by fire, the faithful ought to pursue the evil to its source, and bathe their hands in the blood of the Catholic bishops,
and of the Pope, who is a devil in disguise."50 To Luther, unity among the peoples in the interests of the state was an important
consideration. Other personalities in the Reformation such as Melanchton, Zwingli and Calvin strongly espoused theocracy or the
use of the state as an engine to further religion. In establishing theocracy in Geneva, Calvin made absence from the sermon a crime,
he included criticism of the clergy in the crime of blasphemy punishable by death, and to eliminate heresy, he cooperated in the
Inquisition.51
There were, however, those who truly advocated religious liberty. Erasmus, who belonged to the Renaissance than the
Reformation, wrote that "(t)he terrible papal edict, the more terrible imperial edict, the imprisonments, the confiscations, the
recantations, the fagots and burnings, all these things I can see accomplish nothing except to make the evil more widespread."52
The minority or dissident sects also ardently advocated religious liberty. The Anabaptists, persecuted and despised, along with the
Socinians (Unitarians) and the Friends of the Quakers founded by George Fox in the 17th century, endorsed the supremacy and
freedom of the individual conscience. They regarded religion as outside the realm of political governments.53 The English Baptists
proclaimed that the "magistrate is not to meddle with religion or matters of conscience, nor compel men to this or that form of
religion."54
Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished: the Erastian (after the German
doctor Erastus), the theocratic, and the separatist. The first assumed state superiority in ecclesiastical affairs and the use of religion
as an engine of state policy as demonstrated by Luther’s belief that civic cohesion could not exist without religious unity so that
coercion to achieve religious unity was justified. The second was founded on ecclesiastical supremacy and the use of state
machinery to further religious interests as promoted by Calvin. The third, which was yet to achieve ultimate and complete
expression in the New World, was discernibly in its incipient form in the arguments of some dissident minorities that the
magistrate should not intermeddle in religious affairs.55 After the Reformation, Erastianism pervaded all Europe except for
Calvin’s theocratic Geneva. In England, perhaps more than in any other country, Erastianism was at its height. To illustrate, a
statute was enacted by Parliament in 1678, which, to encourage woolen trade, imposed on all clergymen the duty of seeing to it
that no person was buried in a shroud made of any substance other than wool.56 Under Elizabeth, supremacy of the crown over
the church was complete: ecclesiastical offices were regulated by her proclamations, recusants were fined and imprisoned, Jesuits
and proselytizing priests were put to death for high treason, the thirty-nine Articles of the Church of England were adopted and
English Protestantism attained its present doctrinal status.57 Elizabeth was to be recognized as "the only Supreme Governor of
this realm . . . as well in all spiritual or ecclesiastical things or causes as temporal." She and her successors were vested, in their
dominions, with "all manner of jurisdictions, privileges, and preeminences, in any wise touching or concerning any spiritual or
ecclesiastical jurisdiction."58 Later, however, Cromwell established the constitution in 1647 which granted full liberty to all
Protestant sects, but denied toleration to Catholics.59 In 1689, William III issued the Act of Toleration which established a de
facto toleration for all except Catholics. The Catholics achieved religious liberty in the 19th century when the Roman Catholic
Relief Act of 1829 was adopted. The Jews followed suit in 1858 when they were finally permitted to sit in Parliament.60
When the representatives of the American states met in Philadelphia in 1787 to draft the constitutional foundation of the new
republic, the theocratic state which had flourished intermittently in Israel, Judea, the Holy Roman Empire and Geneva was
completely gone. The prevailing church-state relationship in Europe was Erastianism embodied in the system of jurisdictionalism
whereby one faith was favored as the official state-supported religion, but other faiths were permitted to exist with freedom in
various degrees. No nation had yet adopted as the basis of its church-state relations the principle of the mutual independence of
religion and government and the concomitant principle that neither might be used as an engine to further the policies of the other,
although the principle was in its seminal form in the arguments of some dissident minorities and intellectual leaders of the
Renaissance. The religious wars of 16th and 17th century Europe were a thing of the past by the time America declared its
independence from the Old World, but their memory was still vivid in the minds of the Constitutional Fathers as expressed by the
United States Supreme Court, viz:
The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife,
and persecution generated in large part by established sects determined to maintain their absolute political and religious supremacy.
With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had
persecuted Catholics, Protestant sects had persecuted other protestant sects, Catholics of one shade of belief had persecuted
Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever
religious group happened to be on top and in league with the government of a particular time and place, men and women had been
fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things
as speaking disrespectfully of the views of ministers of government-established churches, non-attendance at those churches,
expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them.61
In 1784, James Madison captured in this statement the entire history of church-state relations in Europe up to the time the United
States Constitution was adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of the secular arm to extinguish religious discord, by proscribing
all differences in religious opinions.62
In sum, this history shows two salient features: First, with minor exceptions, the history of church-state relationships was
characterized by persecution, oppression, hatred, bloodshed, and war, all in the name of the God of Love and of the Prince of
Peace. Second, likewise with minor exceptions, this history witnessed the unscrupulous use of religion by secular powers to
promote secular purposes and policies, and the willing acceptance of that role by the vanguards of religion in exchange for the
favors and mundane benefits conferred by ambitious princes and emperors in exchange for religion’s invaluable service. This was
the context in which the unique experiment of the principle of religious freedom and separation of church and state saw its birth
in American constitutional democracy and in human history.63
55
V. Factors Contributing to the Adoption
of the American Religion Clauses
Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated England, established many of the American
colonies. British thought pervaded these colonies as the immigrants brought with them their religious and political ideas from
England and English books and pamphlets largely provided their cultural fare.64 But although these settlers escaped from Europe
to be freed from bondage of laws which compelled them to support and attend government favored churches, some of these settlers
themselves transplanted into American soil the oppressive practices they escaped from. The charters granted by the English Crown
to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized them
to erect religious establishments, which all, whether believers or not, were required to support or attend.65 At one time, six of the
colonies established a state religion. Other colonies, however, such as Rhode Island and Delaware tolerated a high degree of
religious diversity. Still others, which originally tolerated only a single religion, eventually extended support to several different
faiths.66
This was the state of the American colonies when the unique American experiment of separation of church and state came about.
The birth of the experiment cannot be attributed to a single cause or event. Rather, a number of interdependent practical and
ideological factors contributed in bringing it forth. Among these were the "English Act of Toleration of 1689, the multiplicity of
sects, the lack of church affiliation on the part of most Americans, the rise of commercial intercourse, the exigencies of the
Revolutionary War, the Williams-Penn tradition and the success of their experiments, the writings of Locke, the social contract
theory, the Great Awakening, and the influence of European rationalism and deism."67 Each of these factors shall be briefly
discussed.
First, the practical factors. England’s policy of opening the gates of the American colonies to different faiths resulted in the
multiplicity of sects in the colonies. With an Erastian justification, English lords chose to forego protecting what was considered
to be the true and eternal church of a particular time in order to encourage trade and commerce. The colonies were large financial
investments which would be profitable only if people would settle there. It would be difficult to engage in trade with persons one
seeks to destroy for religious belief, thus tolerance was a necessity. This tended to distract the colonies from their preoccupations
over their religion and its exclusiveness, encouraging them "to think less of the Church and more of the State and of commerce."68
The diversity brought about by the colonies’ open gates encouraged religious freedom and non-establishment in several ways.
First, as there were too many dissenting sects to abolish, there was no alternative but to learn to live together. Secondly, because
of the daily exposure to different religions, the passionate conviction in the exclusive rightness of one’s religion, which impels
persecution for the sake of one’s religion, waned. Finally, because of the great diversity of the sects, religious uniformity was not
possible, and without such uniformity, establishment could not survive.69
But while there was a multiplicity of denomination, paradoxically, there was a scarcity of adherents. Only about four percent of
the entire population of the country had a church affiliation at the time the republic was founded.70 This might be attributed to the
drifting to the American colonies of the skepticism that characterized European Enlightenment.71 Economic considerations might
have also been a factor. The individualism of the American colonist, manifested in the multiplicity of sects, also resulted in much
unaffiliated religion which treated religion as a personal non-institutional matter. The prevalence of lack of church affiliation
contributed to religious liberty and disestablishment as persons who were not connected with any church were not likely to
persecute others for similar independence nor accede to compulsory taxation to support a church to which they did not belong.72
However, for those who were affiliated to churches, the colonial policy regarding their worship generally followed the tenor of the
English Act of Toleration of 1689. In England, this Act conferred on Protestant dissenters the right to hold public services subject
to registration of their ministers and places of worship.73 Although the toleration accorded to Protestant dissenters who qualified
under its terms was only a modest advance in religious freedom, it nevertheless was of some influence to the American
experiment.74 Even then, for practical considerations, concessions had to be made to other dissenting churches to ensure their
cooperation in the War of Independence which thus had a unifying effect on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-18th century, an evangelical religious revival originating in New
England, caused a break with formal church religion and a resistance to coercion by established churches. This movement
emphasized an emotional, personal religion that appealed directly to the individual, putting emphasis on the rights and duties of
the individual conscience and its answerability exclusively to God. Thus, although they had no quarrel with orthodox Christian
theology as in fact they were fundamentalists, this group became staunch advocates of separation of church and state.75
Then there was the Williams-Penn tradition. Roger Williams was the founder of the colony of Rhode Island where he established
a community of Baptists, Quakers and other nonconformists. In this colony, religious freedom was not based on practical
considerations but on the concept of mutual independence of religion and government. In 1663, Rhode Island obtained a charter
from the British crown which declared that settlers have it "much on their heart to hold forth a livelie experiment that a most
flourishing civil state may best be maintained . . . with full libertie in religious concernments."76 In Williams’ pamphlet, The
Bloudy Tenent of Persecution for cause of Conscience, discussed in a Conference between Truth and Peace,77 he articulated the
philosophical basis for his argument of religious liberty. To him, religious freedom and separation of church and state did not
constitute two but only one principle. Religious persecution is wrong because it "confounds the Civil and Religious" and because
"States . . . are proved essentially Civil. The "power of true discerning the true fear of God" is not one of the powers that the people
have transferred to Civil Authority.78 Williams’ Bloudy Tenet is considered an epochal milestone in the history of religious
freedom and the separation of church and state.79
William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of toleration, having been imprisoned
for his religious convictions as a member of the despised Quakers. He opposed coercion in matters of conscience because
"imposition, restraint and persecution for conscience sake, highly invade the Divine prerogative." Aside from his idealism,
proprietary interests made toleration in Pennsylvania necessary. He attracted large numbers of settlers by promising religious
toleration, thus bringing in immigrants both from the Continent and Britain. At the end of the colonial period, Pennsylvania had
the greatest variety of religious groups. Penn was responsible in large part for the "Concessions and agreements of the Proprietors,
Freeholders, and inhabitants of West Jersey, in America", a monumental document in the history of civil liberty which provided
among others, for liberty of conscience.80 The Baptist followers of Williams and the Quakers who came after Penn continued the
tradition started by the leaders of their denominations. Aside from the Baptists and the Quakers, the Presbyterians likewise greatly
contributed to the evolution of separation and freedom.81 The Constitutional fathers who convened in Philadelphia in 1787, and
Congress and the states that adopted the First Amendment in 1791 were very familiar with and strongly influenced by the successful
examples of Rhode Island and Pennsylvania.82
Undeniably, John Locke and the social contract theory also contributed to the American experiment. The social contract theory
popularized by Locke was so widely accepted as to be deemed self-evident truth in America’s Declaration of Independence. With
the doctrine of natural rights and equality set forth in the Declaration of Independence, there was no room for religious
discrimination. It was difficult to justify inequality in religious treatment by a new nation that severed its political bonds with the
English crown which violated the self-evident truth that all men are created equal.83
The social contract theory was applied by many religious groups in arguing against establishment, putting emphasis on religion as
a natural right that is entirely personal and not within the scope of the powers of a political body. That Locke and the social contract
theory were influential in the development of religious freedom and separation is evident from the memorial presented by the
Baptists to the Continental Congress in 1774, viz:
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.

Men unite in society, according to the great Mr. Locke, with an intention in every one the better to preserve himself, his liberty
In 1784, another bill, entitled "Bill Establishing a Provision for Teachers of the Christian Religion" was introduced requiring all
and property. The power of the society, or Legislature constituted by them, can never be supposed to extend any further than the
persons "to pay a moderate tax or contribution annually for the support of the Christian religion, or of some Christian church,
common good, but is obliged to secure every one’s property. To give laws, to receive obedience, to compel with the sword, belong
denomination or communion of Christians, or for some form of Christian worship."95 This likewise aroused the same opposition
to none but the civil magistrate; and on this ground we affirm that the magistrate’s power extends not to establishing any articles
to the 1779 bill. The most telling blow against the 1784 bill was the monumental "Memorial and Remonstrance against Religious
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
Assessments" written by Madison and widely distributed before the reconvening of legislature in the fall of 1785.96 It stressed
civil magistrate, because his power consists only in outward force; but pure and saving religion consists in the inward persuasion
natural rights, the government’s lack of jurisdiction over the domain of religion, and the social contract as the ideological basis of
of the mind, without which nothing can be acceptable to God.84 (emphasis supplied)
separation while also citing practical considerations such as loss of population through migration. He wrote, viz:

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
56
Because we hold it for a ‘fundamental and undeniable truth,’ that religion, or the duty which we owe to our creator, and the manner
of discharging it, can be directed only by reason and conviction, not by force or violence. The religion, then, of every man, must
be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right
is, in its nature, an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated
in their own minds, cannot follow the dictates of other men; it is unalienable, also, because what is here a right towards men, is a
duty towards the creator. It is the duty of every man to render the creator such homage, and such only as he believes to be acceptable
to him; this duty is precedent, both in order of time and degree of obligation, to the claims of civil society. Before any man can be
considered as a member of civil society, he must be considered as a subject of the governor of the universe; and if a member of
civil society, who enters into any subordinate association, must always do it with a reservation of his duty to the general authority,
much more must every man who becomes a member of any particular civil society do it with the saving his allegiance to the
universal sovereign.97 (emphases supplied)
Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the great number of signatures appended to
the Memorial. The assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier 1779 bill of Jefferson which had not been voted on, the "Bill
for Establishing Religious Freedom", and it was finally passed in January 1786. It provided, viz:
Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or
by civil incapacitations, tend not only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy
Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his
Almighty power to do;
xxx xxx xxx
Be it therefore enacted by the General Assembly. That no man shall be compelled to frequent or support any religious worship,
place or ministry whatsoever, nor shall be enforced, restrained, molested or burdened in his body or goods, nor shall otherwise
suffer on account of his religious opinions or beliefs, but that all men shall be free to profess, and by argument to maintain, their
opinions in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.98 (emphases
supplied)
This statute forbade any kind of taxation in support of religion and effectually ended any thought of a general or particular
establishment in Virginia.99 But the passage of this law was obtained not only because of the influence of the great leaders in
Virginia but also because of substantial popular support coming mainly from the two great dissenting sects, namely the
Presbyterians and the Baptists. The former were never established in Virginia and an underprivileged minority of the population.
This made them anxious to pull down the existing state church as they realized that it was impossible for them to be elevated to
that privileged position. Apart from these expediential considerations, however, many of the Presbyterians were sincere advocates
of separation100 grounded on rational, secular arguments and to the language of natural religion.101 Influenced by Roger
Williams, the Baptists, on the other hand, assumed that religion was essentially a matter of concern of the individual and his God,
i.e., subjective, spiritual and supernatural, having no relation with the social order.102 To them, the Holy Ghost was sufficient to
maintain and direct the Church without governmental assistance and state-supported religion was contrary ti the spirit of the
Gospel.103 Thus, separation was necessary.104 Jefferson’s religious freedom statute was a milestone in the history of religious
freedom. The United States Supreme Court has not just once acknowledged that the provisions of the First Amendment of the U.S.
Constitution had the same objectives and intended to afford the same protection against government interference with religious
liberty as the Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that government had no power to legislate in the area of religion by
restricting its free exercise or establishing it was implicit in the Constitution of 1787. This could be deduced from the prohibition
of any religious test for federal office in Article VI of the Constitution and the assumed lack of power of Congress to act on any
subject not expressly mentioned in the Constitution.105 However, omission of an express guaranty of religious freedom and other
natural rights nearly prevented the ratification of the Constitution.106 In the ratifying conventions of almost every state, some
objection was expressed to the absence of a restriction on the Federal Government as regards legislation on religion.107 Thus, in
1791, this restriction was made explicit with the adoption of the religion clauses in the First Amendment as they are worded to this
day, with the first part usually referred to as the Establishment Clause and the second part, the Free Exercise Clause, viz:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
VI. Religion Clauses in the United States:
Concept, Jurisprudence, Standards
57
With the widespread agreement regarding the value of the First Amendment religion clauses comes an equally broad disagreement
as to what these clauses specifically require, permit and forbid. No agreement has been reached by those who have studied the
religion clauses as regards its exact meaning and the paucity of records in Congress renders it difficult to ascertain its meaning.108
Consequently, the jurisprudence in this area is volatile and fraught with inconsistencies whether within a Court decision or across
decisions.
One source of difficulty is the difference in the context in which the First Amendment was adopted and in which it is applied
today. In the 1780s, religion played a primary role in social life - i.e., family responsibilities, education, health care, poor relief,
and other aspects of social life with significant moral dimension - while government played a supportive and indirect role by
maintaining conditions in which these activities may be carried out by religious or religiously-motivated associations. Today,
government plays this primary role and religion plays the supportive role.109 Government runs even family planning, sex
education, adoption and foster care programs.110 Stated otherwise and with some exaggeration, "(w)hereas two centuries ago, in
matters of social life which have a significant moral dimension, government was the handmaid of religion, today religion, in its
social responsibilities, as contrasted with personal faith and collective worship, is the handmaid of government."111 With
government regulation of individual conduct having become more pervasive, inevitably some of those regulations would reach
conduct that for some individuals are religious. As a result, increasingly, there may be inadvertent collisions between purely secular
government actions and religion clause values.112
Parallel to this expansion of government has been the expansion of religious organizations in population, physical institutions,
types of activities undertaken, and sheer variety of denominations, sects and cults. Churches run day-care centers, retirement
homes, hospitals, schools at all levels, research centers, settlement houses, halfway houses for prisoners, sports facilities, theme
parks, publishing houses and mass media programs. In these activities, religious organizations complement and compete with
commercial enterprises, thus blurring the line between many types of activities undertaken by religious groups and secular
activities. Churches have also concerned themselves with social and political issues as a necessary outgrowth of religious faith as
witnessed in pastoral letters on war and peace, economic justice, and human life, or in ringing affirmations for racial equality on
religious foundations. Inevitably, these developments have brought about substantial entanglement of religion and government.
Likewise, the growth in population density, mobility and diversity has significantly changed the environment in which religious
organizations and activities exist and the laws affecting them are made. It is no longer easy for individuals to live solely among
their own kind or to shelter their children from exposure to competing values. The result is disagreement over what laws should
require, permit or prohibit;113 and agreement that if the rights of believers as well as non-believers are all to be respected and
given their just due, a rigid, wooden interpretation of the religion clauses that is blind to societal and political realities must be
avoided.114
Religion cases arise from different circumstances. The more obvious ones arise from a government action which purposely aids
or inhibits religion. These cases are easier to resolve as, in general, these actions are plainly unconstitutional. Still, this kind of
cases poses difficulty in ascertaining proof of intent to aid or inhibit religion.115 The more difficult religion clause cases involve
government action with a secular purpose and general applicability which incidentally or inadvertently aids or burdens religious
exercise. In Free Exercise Clause cases, these government actions are referred to as those with "burdensome effect" on religious
exercise even if the government action is not religiously motivated.116 Ideally, the legislature would recognize the religions and
their practices and would consider them, when practical, in enacting laws of general application. But when the legislature fails to
do so, religions that are threatened and burdened turn to the courts for protection.117 Most of these free exercise claims brought
to the Court are for exemption, not invalidation of the facially neutral law that has a "burdensome" effect.118
With the change in political and social context and the increasing inadvertent collisions between law and religious exercise, the
definition of religion for purposes of interpreting the religion clauses has also been modified to suit current realities. Defining
religion is a difficult task for even theologians, philosophers and moralists cannot agree on a comprehensive definition.
Nevertheless, courts must define religion for constitutional and other legal purposes.119 It was in the 1890 case of Davis v.
Beason120 that the United States Supreme Court first had occasion to define religion, viz:
The term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for
his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect,
but is distinguishable from the latter. The First Amendment to the Constitution, in declaring that Congress shall make no law
respecting the establishment of religion, or forbidding the free exercise thereof, was intended to allow everyone under the
jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may
be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not
injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship
of any sect.121
The definition was clearly theistic which was reflective of the popular attitudes in 1890.
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
In 1944, the Court stated in United States v. Ballard122 that the free exercise of religion "embraces the right to maintain theories
establish and instead remains neutral toward religion is not absolutely straight. Chief Justice Burger explains, viz:
of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths."123 By the 1960s, American
pluralism in religion had flourished to include non-theistic creeds from Asia such as Buddhism and Taoism.124 In 1961, the Court,
in Torcaso v. Watkins,125 expanded the term "religion" to non-theistic beliefs such as Buddhism, Taoism, Ethical Culture, and The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose
Secular Humanism. Four years later, the Court faced a definitional problem in United States v. Seeger126 which involved four of these provisions, which is to insure that no religion be sponsored or favored, none commanded and none inhibited.141 (emphasis
men who claimed "conscientious objector" status in refusing to serve in the Vietnam War. One of the four, Seeger, was not a supplied)
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,
Consequently, U.S. jurisprudence has produced two identifiably different,142 even opposing, strains of jurisprudence on the
another one of the four claimed that after considerable meditation and reflection "on values derived from the Western religious
religion clauses: separation (in the form of strict separation or the tamer version of strict neutrality or separation) and benevolent
and philosophical tradition," he determined that it would be "a violation of his moral code to take human life and that he considered
neutrality or accommodation. A view of the landscape of U.S. religion clause cases would be useful in understanding these two
this belief superior to any obligation to the state." The Court avoided a constitutional question by broadly interpreting not the Free
strains, the scope of protection of each clause, and the tests used in religious clause cases. Most of these cases are cited as authorities
Exercise Clause, but the statutory definition of religion in the Universal Military Training and Service Act of 1940 which exempt
in Philippine religion clause cases.
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:
A. Free Exercise Clause
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 The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v. United States.143 This landmark case involved
(and) the test of belief ‘in relation to a Supreme Being’ is whether a given belief that is sincere and meaningful occupies a place Reynolds, a Mormon who proved that it was his religious duty to have several wives and that the failure to practice polygamy by
in the life of its possessor parallel to the orthodox belief in God. (emphasis supplied) 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
The Court was convinced that Seeger, Peter and the others were conscientious objectors possessed of such religious belief and
allows absolute protection to belief but not to action. It cited Jefferson’s Bill Establishing Religious Freedom which, according to
training.
the Court, declares "the true distinction between what properly belongs to the Church and what to the State."144 The bill, making
a distinction between belief and action, states in relevant part, viz:
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.
That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of
First, there must be belief in God or some parallel belief that occupies a central place in the believer’s life. Second, the religion
principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty;
must involve a moral code transcending individual belief, i.e., it cannot be purely subjective. Third, a demonstrable sincerity in
belief is necessary, but the court must not inquire into the truth or reasonableness of the belief.127 Fourth, there must be some
associational ties,128 although there is also a view that religious beliefs held by a single person rather than being part of the that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt
teachings of any kind of group or sect are entitled to the protection of the Free Exercise Clause.129 acts against peace and good order.145 (emphasis supplied)

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 all138 because history has shown that
58
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of
social duties or subversive of good order. . .
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may
with practices. Suppose one believed that human sacrifice were a necessary part of religious worship, would it be seriously
contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed
it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to
prevent her carrying her belief into practice?
So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural
marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would
be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become
a law unto himself. Government could exist only in name under such circumstances.146
The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause from regulating individual religious
beliefs, but placed no restriction on the ability of the state to regulate religiously motivated conduct. It was logical for belief to be
accorded absolute protection because any statute designed to prohibit a particular religious belief unaccompanied by any conduct
would most certainly be motivated only by the legislature’s preference of a competing religious belief. Thus, all cases of regulation
of belief would amount to regulation of religion for religious reasons violative of the Free Exercise Clause. On the other hand,
most state regulations of conduct are for public welfare purposes and have nothing to do with the legislature’s religious preferences.
Any burden on religion that results from state regulation of conduct arises only when particular individuals are engaging in the
generally regulated conduct because of their particular religious beliefs. These burdens are thus usually inadvertent and did not
figure in the belief-action test. As long as the Court found that regulation address action rather than belief, the Free Exercise Clause
did not pose any problem.147 The Free Exercise Clause thus gave no protection against the proscription of actions even if
considered central to a religion unless the legislature formally outlawed the belief itself.148
This belief-action distinction was held by the Court for some years as shown by cases where the Court upheld other laws which
burdened the practice of the Mormon religion by imposing various penalties on polygamy such as the Davis case and Church of
Latter Day Saints v. United States.149 However, more than a century since Reynolds was decided, the Court has expanded the
scope of protection from belief to speech and conduct. But while the belief-action test has been abandoned, the rulings in the earlier
Free Exercise cases have gone unchallenged. The belief-action distinction is still of some importance though as there remains an
absolute prohibition of governmental proscription of beliefs.150
The Free Exercise Clause accords absolute protection to individual religious convictions and 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
59
case likewise involving the Jehovah’s Witnesses, Niemotko v. Maryland,158 the Court unanimously held unconstitutional a city
council’s denial of a permit to the Jehovah’s Witnesses to use the city park for a public meeting. The city council’s refusal was
because of the "unsatisfactory" answers of the Jehovah’s Witnesses to questions about Catholicism, military service, and other
issues. The denial of the public forum was considered blatant censorship. While protected, religious speech in the public forum is
still subject to reasonable time, place and manner regulations similar to non-religious speech. Religious proselytizing in congested
areas, for example, may be limited to certain areas to maintain the safe and orderly flow of pedestrians and vehicular traffic as held
in the case of Heffron v. International Society for Krishna Consciousness.159
The least protected under the Free Exercise Clause is religious conduct, usually in the form of unconventional religious practices.
Protection in this realm depends on the character of the action and the government rationale for regulating the action.160 The
Mormons’ religious conduct of polygamy is an example of unconventional religious practice. As discussed in the Reynolds case
above, the Court did not afford protection to the practice. Reynolds was reiterated in the 1890 case of Davis again involving
Mormons, where the Court held, viz: "(c)rime is not the less odious because sanctioned by what any particular sect may designate
as religion."161
The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test, regulation of religiously dictated conduct
would be upheld no matter how central the conduct was to the exercise of religion and no matter how insignificant was the
government’s non-religious regulatory interest so long as the government is proscribing action and not belief. Thus, the Court
abandoned the simplistic belief-action distinction and instead recognized the deliberate-inadvertent distinction, i.e., the distinction
between deliberate state interference of religious exercise for religious reasons which was plainly unconstitutional and
government’s inadvertent interference with religion in pursuing some secular objective.162 In the 1940 case of Minersville School
District v. Gobitis,163 the Court upheld a local school board requirement that all public school students participate in a daily flag
salute program, including the Jehovah’s Witnesses who were forced to salute the American flag in violation of their religious
training, which considered flag salute to be worship of a "graven image." The Court recognized that the general requirement of
compulsory flag salute inadvertently burdened the Jehovah Witnesses’ practice of their religion, but justified the government
regulation as an appropriate means of attaining national unity, which was the "basis of national security." Thus, although the Court
was already aware of the deliberate-inadvertent distinction in government interference with religion, it continued to hold that the
Free Exercise Clause presented no problem to interference with religion that was inadvertent no matter how serious the
interference, no matter how trivial the state’s non-religious objectives, and no matter how many alternative approaches were
available to the state to pursue its objectives with less impact on religion, so long as government was acting in pursuit of a secular
objective.
Three years later, the Gobitis decision was overturned in West Virginia v. Barnette164 which involved a similar set of facts and
issue. The Court recognized that saluting the flag, in connection with the pledges, was a form of utterance and the flag salute
program was a compulsion of students to declare a belief. The Court ruled that "compulsory unification of opinions leads only to
the unanimity of the graveyard" and exempt the students who were members of the Jehovah’s Witnesses from saluting the flag. A
close scrutiny of the case, however, would show that it was decided not on the issue of religious conduct as the Court said, "(n)or
does the issue as we see it turn on one’s possession of particular religious views or the sincerity with which they are held. While
religion supplies appellees’ motive for enduring the discomforts of making the issue in this case, many citizens who do not share
these religious views hold such a compulsory rite to infringe constitutional liberty of the individual." (emphasis supplied)165 The
Court pronounced, however, that, "freedoms of speech and of press, of assembly, and of worship . . . are susceptible only of
restriction only to prevent grave and immediate danger to interests which the state may lawfully protect."166 The Court seemed
to recognize the extent to which its approach in Gobitis subordinated the religious liberty of political minorities - a specially
protected constitutional value - to the common everyday economic and public welfare objectives of the majority in the legislature.
This time, even inadvertent interference with religion must pass judicial scrutiny under the Free Exercise Clause with only grave
and immediate danger sufficing to override religious liberty. But the seeds of this heightened scrutiny would only grow to a full
flower in the 1960s.167
Nearly a century after Reynolds employed the belief-action test, the Warren Court began the modern free exercise
jurisprudence.168 A two-part balancing test was established in Braunfeld v. Brown169 where the Court considered the
constitutionality of applying Sunday closing laws to Orthodox Jews whose beliefs required them to observe another day as the
Sabbath and abstain from commercial activity on Saturday. Chief Justice Warren, writing for the Court, found that the law placed
a severe burden on Sabattarian retailers. He noted, however, that since the burden was the indirect effect of a law with a secular
purpose, it would violate the Free Exercise Clause only if there were alternative ways of achieving the state’s interest. He employed
a two-part balancing test of validity where the first step was for plaintiff to show that the regulation placed a real burden on his
religious exercise. Next, the burden would be upheld only if the state showed that it was pursuing an overriding secular goal by
the means which imposed the least burden on religious practices.170 The Court found that the state had an overriding secular
interest in setting aside a single day for rest, recreation and tranquility and there was no alternative means of pursuing this interest
but to require Sunday as a uniform rest day.
Two years after came the stricter compelling state interest test in the 1963 case of Sherbert v. Verner.171 This test was similar to
the two-part balancing test in Braunfeld,172 but this latter test stressed that the state interest was not merely any colorable state
interest, but must be paramount and compelling to override the free exercise claim. In this case, Sherbert, a Seventh Day Adventist,
claimed unemployment compensation under the law as her employment was terminated for refusal to work on Saturdays on
religious grounds. Her claim was denied. She sought recourse in the Supreme Court. In laying down the standard for determining
whether the denial of benefits could withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellee’s conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a
kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court is to withstand appellant’s
constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of
her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant’s religion may be
justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate. . .’ NAACP
v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.173 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a rational
relationship of the substantial infringement to the religious right and a colorable state interest. "(I)n this highly sensitive
constitutional area, ‘[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.’ Thomas
v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315."174 The Court found that there was no such compelling state interest
to override Sherbert’s religious liberty. It added that even if the state could show that Sherbert’s exemption would pose serious
detrimental effects to the unemployment compensation fund and scheduling of work, it was incumbent upon the state to show that
no alternative means of regulations would address such detrimental effects without infringing religious liberty. The state,
however, did not discharge this burden. The Court thus carved out for Sherbert an exemption from the Saturday work requirement
that caused her disqualification from claiming the unemployment benefits. The Court reasoned that upholding the denial of
Sherbert’s benefits would force her to choose between receiving benefits and following her religion. This choice placed "the same
kind of burden upon the free exercise of religion as would a fine imposed against (her) for her Saturday worship." This germinal
case of Sherbert firmly established the exemption doctrine, 175 viz:
It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scruples
of conscience, exemptions ought to be granted unless some ‘compelling state interest’ intervenes.
Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early as Braunfeld), the Court moved from the
doctrine that inadvertent or incidental interferences with religion raise no problem under the Free Exercise Clause to the doctrine
that such interferences violate the Free Exercise Clause in the absence of a compelling state interest - the highest level of
constitutional scrutiny short of a holding of a per se violation. Thus, the problem posed by the belief-action test and the deliberate-
inadvertent distinction was addressed.176
Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court, the rationale in Sherbert continued to be
applied. In Thomas v. Review Board177 and Hobbie v. Unemployment Appeals Division,178 for example, the Court reiterated
the exemption doctrine and held that in the absence of a compelling justification, a state could not withhold unemployment
compensation from an employee who resigned or was discharged due to unwillingness to depart from religious practices and
beliefs that conflicted with job requirements. But not every governmental refusal to allow an exemption from a regulation which
burdens a sincerely held religious belief has been invalidated, even though strict or heightened scrutiny is applied. In United States
v. Lee,179 for instance, the Court using strict scrutiny and referring to Thomas, upheld the federal government’s refusal to exempt
Amish employers who requested for exemption from paying social security taxes on wages on the ground of religious beliefs. The
Court held that "(b)ecause the broad public interest in maintaining a sound tax system is of such a high order, religious belief in
conflict with the payment of taxes affords no basis for resisting the tax."180 It reasoned that unlike in Sherbert, an exemption
would significantly impair government’s achievement of its objective - "the fiscal vitality of the social security system;" mandatory
participation is indispensable to attain this objective. The Court noted that if an exemption were made, it would be hard to justify
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not allowing a similar exemption from general federal taxes where the taxpayer argues that his religious beliefs require him to
reduce or eliminate his payments so that he will not contribute to the government’s war-related activities, for example.
The strict scrutiny and compelling state interest test significantly increased the degree of protection afforded to religiously
motivated conduct. While not affording absolute immunity to religious activity, a compelling secular justification was necessary
to uphold public policies that collided with religious practices. Although the members of the Court often disagreed over which
governmental interests should be considered compelling, thereby producing dissenting and separate opinions in religious conduct
cases, this general test established a strong presumption in favor of the free exercise of religion.181
Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder182 where the Court upheld the religious practice of the
Old Order Amish faith over the state’s compulsory high school attendance law. The Amish parents in this case did not permit
secular education of their children beyond the eighth grade. Chief Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance
interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of
religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection
under the Free Exercise Clause. Long before there was general acknowledgement of the need for universal education, the Religion
Clauses had specially and firmly fixed the right of free exercise of religious beliefs, and buttressing this fundamental right was an
equally firm, even if less explicit, prohibition against the establishment of any religion. The values underlying these two provisions
relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly high social
importance. . .
The essence of all that has been said and written on the subject is that only those interests of the highest order and those not
otherwise served can overbalance legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that that religiously grounded conduct is always outside the protection of the Free Exercise
Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the
exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal government in the exercise of
its delegated powers . . . But to agree that religiously grounded conduct must often be subject to the broad police power of the
State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond
the power of the State to control, even under regulations of general applicability. . . .This case, therefore, does not become easier
because respondents were convicted for their "actions" in refusing to send their children to the public high school; in this context
belief and action cannot be neatly confined in logic-tight compartments. . . 183
The onset of the 1990s, however, saw a major setback in the protection afforded by the Free Exercise Clause. In
Employment Division, Oregon Department of Human Resources v. Smith,184 the sharply divided Rehnquist Court
dramatically departed from the heightened scrutiny and compelling justification approach and imposed serious limits on the scope
of protection of religious freedom afforded by the First Amendment. In this case, the well-established practice of the Native
American Church, a sect outside the Judeo-Christian mainstream of American religion, came in conflict with the state’s interest in
prohibiting the use of illicit drugs. Oregon’s controlled substances statute made the possession of peyote a criminal offense. Two
members of the church, Smith and Black, worked as drug rehabilitation counselors for a private social service agency in Oregon.
Along with other church members, Smith and Black ingested peyote, a hallucinogenic drug, at a sacramental ceremony practiced
by Native Americans for hundreds of years. The social service agency fired Smith and Black citing their use of peyote as "job-
related misconduct". They applied for unemployment compensation, but the Oregon Employment Appeals Board denied their
application as they were discharged for job-related misconduct. Justice Scalia, writing for the majority, ruled that "if prohibiting
the exercise of religion . . . is . . . merely the incidental effect of a generally applicable and otherwise valid law, the First Amendment
has not been offended." In other words, the Free Exercise Clause would be offended only if a particular religious practice were
singled out for proscription. The majority opinion relied heavily on the Reynolds case and in effect, equated Oregon’s drug
prohibition law with the anti-polygamy statute in Reynolds. The relevant portion of the majority opinion held, viz:
We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment
compensation.
Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it
to require exemptions from a generally applicable criminal law. . .
We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the
test inapplicable to such challenges. The government’s ability to enforce generally applicable prohibitions of socially harmful
conduct, like its ability to carry out other aspects of public policy, "cannot depend on measuring the effects of a governmental
action on a religious objector’s spiritual development." . . .To make an individual’s obligation to obey such a law contingent upon
the law’s coincidence with his religious beliefs except where the State’s interest is "compelling" - permitting him, by virtue of his
beliefs, "to become a law unto himself," . . . - contradicts both constitutional tradition and common sense.
Justice O’Connor wrote a concurring opinion pointing out that the majority’s rejection of the compelling governmental interest
test was the most controversial part of the decision. Although she concurred in the result that the Free Exercise Clause had not
been offended, she sharply criticized the majority opinion as a dramatic departure "from well-settled First Amendment
jurisprudence. . . and . . . (as) incompatible with our Nation’s fundamental commitment to religious liberty." This portion of her
concurring opinion was supported by Justices Brennan, Marshall and Blackmun who dissented from the Court’s decision. Justice
O’Connor asserted that "(t)he compelling state interest test effectuates the First Amendment’s command that religious liberty is
an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty,
whether direct or indirect, unless required by clear and compelling government interest ‘of the highest order’." Justice Blackmun
registered a separate dissenting opinion, joined by Justices Brennan and Marshall. He charged the majority with
"mischaracterizing" precedents and "overturning. . . settled law concerning the Religion Clauses of our Constitution." He pointed
out that the Native American Church restricted and supervised the sacramental use of peyote. Thus, the state had no significant
health or safety justification for regulating the sacramental drug use. He also observed that Oregon had not attempted to prosecute
Smith or Black, or any Native Americans, for that matter, for the sacramental use of peyote. In conclusion, he said that "Oregon’s
interest in enforcing its drug laws against religious use of peyote (was) not sufficiently compelling to outweigh respondents’ right
to the free exercise of their religion."
The Court went back to the Reynolds and Gobitis doctrine in Smith. The Court’s standard in Smith virtually eliminated the
requirement that the government justify with a compelling state interest the burdens on religious exercise imposed by laws neutral
toward religion. The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a shallow
understanding of free exercise jurisprudence.185 First, the First amendment was intended to protect minority religions from the
tyranny of the religious and political majority. A deliberate regulatory interference with minority religious freedom is the worst
form of this tyranny. But regulatory interference with a minority religion as a result of ignorance or sensitivity of the religious and
political majority is no less an interference with the minority’s religious freedom. If the regulation had instead restricted the
majority’s religious practice, the majoritarian legislative process would in all probability have modified or rejected the regulation.
Thus, the imposition of the political majority’s non-religious objectives at the expense of the minority’s religious interests
implements the majority’s religious viewpoint at the expense of the minority’s. Second, government impairment of religious liberty
would most often be of the inadvertent kind as in Smith considering the political culture where direct and deliberate regulatory
imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise Clause could not afford protection to inadvertent
interference, it would be left almost meaningless. Third, the Reynolds-Gobitis-Smith doctrine simply defies common sense. The
state should not be allowed to interfere with the most deeply held fundamental religious convictions of an individual in order to
pursue some trivial state economic or bureaucratic objective. This is especially true when there are alternative approaches for the
state to effectively pursue its objective without serious inadvertent impact on religion.186
Thus, the Smith decision has been criticized not only for increasing the power of the state over religion but as discriminating in
favor of mainstream religious groups against smaller, more peripheral groups who lack legislative clout,187 contrary to the original
theory of the First Amendment.188 Undeniably, claims for judicial exemption emanate almost invariably from relatively politically
powerless minority religions and Smith virtually wiped out their judicial recourse for exemption.189 Thus, the Smith decision
elicited much negative public reaction especially from the religious community, and commentaries insisted that the Court was
allowing the Free Exercise Clause to disappear.190 So much was the uproar that a majority in Congress was convinced to enact
the Religious Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited government at all levels from substantially
burdening a person’s free exercise of religion, even if such burden resulted from a generally applicable rule, unless the government
could demonstrate a compelling state interest and the rule constituted the least restrictive means of furthering that interest.191
RFRA, in effect, sought to overturn the substance of the Smith ruling and restore the status quo prior to Smith. Three years after
the RFRA was enacted, however, the Court, dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne v. Flores.192
The Court ruled that "RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance." It
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emphasized the primacy of its role as interpreter of the Constitution and unequivocally rejected, on broad institutional grounds, a
direct congressional challenge of final judicial authority on a question of constitutional interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah193 which was ruled consistent with the Smith
doctrine. This case involved animal sacrifice of the Santeria, a blend of Roman Catholicism and West African religions brought
to the Carribean by East African slaves. An ordinance made it a crime to "unnecessarily kill, torment, torture, or mutilate an animal
in public or private ritual or ceremony not for the primary purpose of food consumption." The ordinance came as a response to the
local concern over the sacrificial practices of the Santeria. Justice Kennedy, writing for the majority, carefully pointed out that the
questioned ordinance was not a generally applicable criminal prohibition, but instead singled out practitioners of the Santeria in
that it forbade animal slaughter only insofar as it took place within the context of religious rituals.
It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is absolutely protected, religious
speech and proselytizing are highly protected but subject to restraints applicable to non-religious speech, and unconventional
religious practice receives less protection; nevertheless conduct, even if its violates a law, could be accorded protection as shown
in Wisconsin.194
B. Establishment Clause
The Court’s first encounter with the Establishment Clause was in the 1947 case of Everson v. Board of Education.195 Prior cases
had made passing reference to the Establishment Clause196 and raised establishment questions but were decided on other
grounds.197 It was in the Everson case that the U.S. Supreme Court adopted Jefferson’s metaphor of "a wall of separation between
church and state" as encapsulating the meaning of the Establishment Clause. The often and loosely used phrase "separation of
church and state" does not appear in the U.S. Constitution. It became part of U.S. jurisprudence when the Court in the 1878 case
of Reynolds v. United States198 quoted Jefferson’s famous letter of 1802 to the Danbury Baptist Association in narrating the
history of the religion clauses, viz:
Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his
faith or his worship; that the legislative powers of the Government reach actions only, and not opinions, I contemplate with
sovereign reverence that act of the whole American people which declared that their Legislature should ‘make no law respecting
an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and
State.199 (emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, "(c)oming as this does from an acknowledged leader of the advocates
of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus
secured."200
The interpretation of the Establishment Clause has in large part been in cases involving education, notably state aid to private
religious schools and prayer in public schools.201 In Everson v. Board of Education, for example, the issue was whether a New
Jersey local school board could reimburse parents for expenses incurred in transporting their children to and from Catholic schools.
The reimbursement was part of a general program under which all parents of children in public schools and nonprofit private
schools, regardless of religion, were entitled to reimbursement for transportation costs. Justice Hugo Black, writing for a sharply
divided Court, justified the reimbursements on the child benefit theory, i.e., that the school board was merely furthering the state’s
legitimate interest in getting children "regardless of their religion, safely and expeditiously to and from accredited schools." The
Court, after narrating the history of the First Amendment in Virginia, interpreted the Establishment Clause, viz:
The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can
set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can
force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in
any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-
attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they
may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can,
openly or secretly participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the
clause against establishment of religion by law was intended to erect "a wall of separation between Church and State."202
The Court then ended the opinion, viz: those who were released from their secular study for religious instruction were required to attend the religious classes. The Court
held that the use of tax-supported property for religious instruction and the close cooperation between the school authorities and
the religious council in promoting religious education amounted to a prohibited use of tax-established and tax-supported public
The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not
school system to aid religious groups spread their faith. The Court rejected the claim that the Establishment Clause only prohibited
approve the slightest breach. New Jersey has not breached it here.203
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
By 1971, the Court integrated the different elements of the Court’s Establishment Clause jurisprudence that evolved in the 1950s permission to attend religious services while other students attended study hall. Justice Douglas, the writer of the opinion, stressed
and 1960s and laid down a three-pronged test in Lemon v. Kurtzman204 in determining the constitutionality of policies challenged that "(t)he First Amendment does not require that in every and all respects there shall be a separation of Church and State." The
under the Establishment Clause. This case involved a Pennsylvania statutory program providing publicly funded reimbursement Court distinguished Zorach from McCollum, viz:
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
In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote
pass scrutiny under the Establishment Clause. "First, the statute must have a secular legislative purpose; second, its primary or
that instruction. . . We follow the McCollum case. But we cannot expand it to cover the present released time program unless
principal effect must be one that neither advances nor inhibits religion (Board of Education v. Allen, 392 US 236, 243, 20 L Ed
separation of Church and State means that public institutions can make no adjustments of their schedules to accommodate the
2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not foster ‘an excessive entanglement with religion.’ (Walz v.Tax
religious needs of the people. We cannot read into the Bill of Rights such a philosophy of hostility to religion.215
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. In the area of government displays or affirmations of belief, the Court has given leeway to religious beliefs and practices which
have acquired a secular meaning and have become deeply entrenched in history. For instance, in McGowan v. Maryland,216 the
Court upheld laws that prohibited certain businesses from operating on Sunday despite the obvious religious underpinnings of the
The most controversial of the education cases involving the Establishment Clause are the school prayer decisions. "Few decisions
restrictions. Citing the secular purpose of the Sunday closing laws and treating as incidental the fact that this day of rest happened
of the modern Supreme Court have been criticized more intensely than the school prayer decisions of the early 1960s."206 In the
to be the day of worship for most Christians, the Court held, viz:
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 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
American people to recite as part of a religious program carried on by government." In fact, history shows that this very practice of all religions and people with no religion regard Sunday as a time for family activity, for visiting friends and relatives, for later
of establishing governmentally composed prayers for religious services was one of the reasons that caused many of the early sleeping, for passive and active entertainments, for dining out, and the like.217
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
In the 1983 case of Marsh v. Chambers,218 the Court refused to invalidate Nebraska’s policy of beginning legislative sessions
to degrade religion. The following year, the Engel decision was reinforced in Abington School District v. Schempp208 and Murray
with prayers offered by a Protestant chaplain retained at the taxpayers’ expense. The majority opinion did not rely on the Lemon
v. Curlett209 where the Court struck down the practice of Bible reading and the recitation of the Lord’s prayer in the Pennsylvania
test and instead drew heavily from history and the need for accommodation of popular religious beliefs, viz:
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:
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
The wholesome ‘neutrality’ of which this Court’s cases speak thus stems from a recognition of the teachings of history that
making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable
powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one
acknowledgement of beliefs widely held among the people of this country. As Justice Douglas observed, "(w)e are a religious
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
people whose institutions presuppose a Supreme Being." (Zorach c. Clauson, 343 US 306, 313 [1952])219 (emphasis supplied)
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 Some view the Marsh ruling as a mere aberration as the Court would "inevitably be embarrassed if it were to attempt to strike
down a practice that occurs in nearly every legislature in the United States, including the U.S. Congress."220 That Marsh was not
an aberration is suggested by subsequent cases. In the 1984 case of Lynch v. Donnelly,221 the Court upheld a city-sponsored
The school prayer decisions drew furious reactions. Religious leaders and conservative members of Congress and resolutions
nativity scene in Rhode Island. By a 5-4 decision, the majority opinion hardly employed the Lemon test and again relied on history
passed by several state legislatures condemned these decisions.211 On several occasions, constitutional amendments have been
and the fact that the creche had become a "neutral harbinger of the holiday season" for many, rather than a symbol of Christianity.
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. 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
Religious instruction in public schools has also pressed the Court to interpret the Establishment Clause. Optional religious
state law was challenged by Walz on the theory that this required him to subsidize those churches indirectly. The Court upheld the
instruction within public school premises and instructional time were declared offensive of the Establishment Clause in the 1948
law stressing its neutrality, viz:
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 It has not singled out one particular church or religious group or even churches as such; rather, it has granted exemptions to all
printed cards requesting that their children be permitted to attend. The classes were taught in three separate groups by Protestant houses of religious worship within a broad class of property owned by non-profit, quasi-public corporations . . . The State has an
teachers, Catholic priests and a Jewish rabbi and were held weekly from thirty to forty minutes during regular class hours in the affirmative policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification
regular classrooms of the school building. The religious teachers were employed at no expense to the school authorities but they useful, desirable, and in the public interest.223
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
62
The Court added that the exemption was not establishing religion but "sparing the exercise of religion from the burden of property
taxation levied on private profit institutions"224 and preventing excessive entanglement between state and religion. At the same
time, the Court acknowledged the long-standing practice of religious tax exemption and the Court’s traditional deference to
legislative bodies with respect to the taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than
for the government to exercise . . . this kind of benevolent neutrality toward churches and religious exercise generally so long as
none was favored over others and none suffered interference.225 (emphasis supplied)
C. Strict Neutrality v. Benevolent Neutrality
To be sure, the cases discussed above, while citing many landmark decisions in the religious clauses area, are but a small fraction
of the hundreds of religion clauses cases that the U.S. Supreme Court has passed upon. Court rulings contrary to or making nuances
of the above cases may be cited. Professor McConnell poignantly recognizes this, viz:
Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead the legislature in daily prayers (Marsh v.
Chambers, 463 US783, 792-93[1983]), but unconstitutional for a state to set aside a moment of silence in the schools for children
to pray if they want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a state to require employers to
accommodate their employees’ work schedules to their sabbath observances (Estate of Thornton v. Caldor, Inc., 472 US 703, 709-
10 [1985]) but constitutionally mandatory for a state to require employers to pay workers compensation when the resulting
inconsistency between work and sabbath leads to discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is constitutional
for the government to give money to religiously-affiliated organizations to teach adolescents about proper sexual behavior (Bowen
v. Kendrick, 487 US 589, 611 [1988]), but not to teach them science or history (Lemon v. Kurtzman, 403 US 602, 618-619 [1971]).
It is constitutional for the government to provide religious school pupils with books (Board of Education v. Allen, 392 US 236,
238 [1968]), but not with maps (Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to religious schools (Everson v.
Board of Education, 330 US 1, 17 [1947]), but not from school to a museum on a field trip (Wolman v. Walter, 433 US 229, 252-
55 [1977]); with cash to pay for state-mandated standardized tests (Committee for Pub. Educ. and Religious Liberty v. Regan, 444
US 646, 653-54 [1980]), but not to pay for safety-related maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80
[1973]). It is a mess.226
But the purpose of the overview is not to review the entirety of the U.S. religion clause jurisprudence nor to extract the prevailing
case law regarding particular religious beliefs or conduct colliding with particular government regulations. Rather, the cases
discussed above suffice to show that, as legal scholars observe, this area of jurisprudence has demonstrated two main standards
used by the Court in deciding religion clause cases: separation (in the form of strict separation or the tamer version of strict
neutrality or separation) and benevolent neutrality or accommodation. The weight of current authority, judicial and in terms of
sheer volume, appears to lie with the separationists, strict or tame.227 But the accommodationists have also attracted a number of
influential scholars and jurists.228 The two standards producing two streams of jurisprudence branch out respectively from the
history of the First Amendment in England and the American colonies and climaxing in Virginia as narrated in this opinion and
officially acknowledged by the Court in Everson, and from American societal life which reveres religion and practices age-old
religious traditions. Stated otherwise, separation - strict or tame - protects the principle of church-state separation with a rigid
reading of the principle while benevolent neutrality protects religious realities, tradition and established practice with a flexible
reading of the principle.229 The latter also appeals to history in support of its position, viz:
The opposing school of thought argues that the First Congress intended to allow government support of religion, at least as long
as that support did not discriminate in favor of one particular religion. . . the Supreme Court has overlooked many important pieces
of history. Madison, for example, was on the congressional committee that appointed a chaplain, he declared several national days
of prayer and fasting during his presidency, and he sponsored Jefferson’s bill for punishing Sabbath breakers; moreover, while
president, Jefferson allowed federal support of religious missions to the Indians. . . And so, concludes one recent book, ‘there is
no support in the Congressional records that either the First Congress, which framed the First Amendment, or its principal author
and sponsor, James Madison, intended that Amendment to create a state of complete independence between religion and
government. In fact, the evidence in the public documents goes the other way.230 (emphasis supplied)
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To succinctly and poignantly illustrate the historical basis of benevolent neutrality that gives room for accommodation, less than
twenty-four hours after Congress adopted the First Amendment’s prohibition on laws respecting an establishment of religion,
Congress decided to express its thanks to God Almighty for the many blessings enjoyed by the nation with a resolution in favor of
a presidential proclamation declaring a national day of Thanksgiving and Prayer. Only two members of Congress opposed the
resolution, one on the ground that the move was a "mimicking of European customs, where they made a mere mockery of
thanksgivings", the other on establishment clause concerns. Nevertheless, the salutary effect of thanksgivings throughout Western
history was acknowledged and the motion was passed without further recorded discussion.231 Thus, accommodationists also go
back to the framers to ascertain the meaning of the First Amendment, but prefer to focus on acts rather than words. Contrary to the
claim of separationists that rationalism pervaded America in the late 19th century and that America was less specifically Christian
during those years than at any other time before or since,232 accommodationaists claim that American citizens at the time of the
Constitution’s origins were a remarkably religious people in particularly Christian terms.233
The two streams of jurisprudence - separationist or accommodationist - are anchored on a different reading of the "wall
of separation." The strict separtionist view holds that Jefferson meant the "wall of separation" to protect the state from the
church. Jefferson was a man of the Enlightenment Era of the eighteenth century, characterized by the rationalism and
anticlericalism of that philosophic bent.234 He has often been regarded as espousing Deism or the rationalistic belief in a natural
religion and natural law divorced from its medieval connection with divine law, and instead adhering to a secular belief in a
universal harmony.235 Thus, according to this Jeffersonian view, the Establishment Clause being meant to protect the state from
the church, the state’s hostility towards religion allows no interaction between the two.236 In fact, when Jefferson became
President, he refused to proclaim fast or thanksgiving days on the ground that these are religious exercises and the Constitution
prohibited the government from intermeddling with religion.237 This approach erects an absolute barrier to formal
interdependence of religion and state. Religious institutions could not receive aid, whether direct or indirect, from the state. Nor
could the state adjust its secular programs to alleviate burdens the programs placed on believers.238 Only the complete separation
of religion from politics would eliminate the formal influence of religious institutions and provide for a free choice among political
views thus a strict "wall of separation" is necessary.239 Strict separation faces difficulties, however, as it is deeply embedded in
history and contemporary practice that enormous amounts of aid, both direct and indirect, flow to religion from government in
return for huge amounts of mostly indirect aid from religion. Thus, strict separationists are caught in an awkward position of
claiming a constitutional principle that has never existed and is never likely to.240
A tamer version of the strict separationist view, the strict neutrality or separationist view is largely used by the Court, showing the
Court’s tendency to press relentlessly towards a more secular society.241 It finds basis in the Everson case where the Court
declared that Jefferson’s "wall of separation" encapsulated the meaning of the First Amendment but at the same time held that the
First Amendment "requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not
require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them."
(emphasis supplied)242 While the strict neutrality approach is not hostile to religion, it is strict in holding that religion may not be
used as a basis for classification for purposes of governmental action, whether the action confers rights or privileges or imposes
duties or obligations. Only secular criteria may be the basis of government action. It does not permit, much less require,
accommodation of secular programs to religious belief.243 Professor Kurland wrote, viz:
The thesis proposed here as the proper construction of the religion clauses of the first amendment is that the freedom and separation
clauses should be read as a single precept that government cannot utilize religion as a standard for action or inaction because these
clauses prohibit classification in terms of religion either to confer a benefit or to impose a burden.244
The Court has repeatedly declared that religious freedom means government neutrality in religious matters and the Court has also
repeatedly interpreted this policy of neutrality to prohibit government from acting except for secular purposes and in ways that
have primarily secular effects.245
Prayer in public schools is an area where the Court has applied strict neutrality and refused to allow any form of prayer, spoken or
silent, in the public schools as in Engel and Schempp.246 The McCollum case prohibiting optional religious instruction within
public school premises during regular class hours also demonstrates strict neutrality. In these education cases, the Court refused to
uphold the government action as they were based not on a secular but on a religious purpose. Strict neutrality was also used in
Reynolds and Smith which both held that if government acts in pursuit of a generally applicable law with a secular purpose that
merely incidentally burdens religious exercise, the First Amendment has not been offended. However, if the strict neutrality
standard is applied in interpreting the Establishment Clause, it could de facto void religious expression in the Free Exercise Clause.
As pointed out by Justice Goldberg in his concurring opinion in Schempp, strict neutrality could lead to "a brooding and pervasive
devotion to the secular and a passive, or even active, hostility to the religious" which is prohibited by the Constitution.247 Professor
Laurence Tribe commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise clause. The Framers, whatever
specific applications they may have intended, clearly envisioned religion as something special; they enacted that vision into law
by guaranteeing the free exercise of religion but not, say, of philosophy or science. The strict neutrality approach all but erases this
distinction. Thus it is not surprising that the Supreme Court has rejected strict neutrality, permitting and sometimes mandating
religious classifications.248
The separationist approach, whether strict or tame, is caught in a dilemma because while the Jeffersonian wall of separation
"captures the spirit of the American ideal of church-state separation", in real life church and state are not and cannot be totally
separate.249 This is all the more true in contemporary times when both the government and religion are growing and expanding
their spheres of involvement and activity, resulting in the intersection of government and religion at many points.250
Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent neutrality which gives room for
accommodation is buttressed by a different view of the "wall of separation" associated with Williams, founder of the Rhode Island
colony. In Mark DeWolfe Howe’s classic, The Garden and the Wilderness, he asserts that to the extent the Founders had a wall of
separation in mind, it was unlike the Jeffersonian wall that is meant to protect the state from the church; instead, the wall is meant
to protect the church from the state,251 i.e., the "garden" of the church must be walled in for its own protection from the
"wilderness" of the world252 with its potential for corrupting those values so necessary to religious commitment.253 Howe called
this the "theological" or "evangelical" rationale for church-state separation while the wall espoused by "enlightened" statesmen
such as Jefferson and Madison, was a "political" rationale seeking to protect politics from intrusions by the church.254 But it has
been asserted that this contrast between the Williams and Jeffersonian positions is more accurately described as a difference in
kinds or styles of religious thinking, not as a conflict between "religious" and "secular (political)"; the religious style was biblical
and evangelical in character while the secular style was grounded in natural religion, more generic and philosophical in its religious
orientation.255
The Williams wall is, however, breached for the church is in the state and so the remaining purpose of the wall is to safeguard
religious liberty. Williams’ view would therefore allow for interaction between church and state, but is strict with regard to state
action which would threaten the integrity of religious commitment.256 His conception of separation is not total such that it provides
basis for certain interactions between church and state dictated by apparent necessity or practicality.257 This "theological" view
of separation is found in Williams’ writings, viz:
. . . when they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the
world, God hath ever broke down the wall itself, removed the candlestick, and made his garden a wilderness, as this day. And that
therefore if He will eer please to restore His garden and paradise again, it must of necessity be walled in peculiarly unto Himself
from the world. . .258
Chief Justice Burger spoke of benevolent neutrality in Walz, viz:
The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate
either governmentally established religion or governmental interference with religion. Short of those expressly proscribed
governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to
exist without sponsorship and without interference.259 (emphasis supplied)
The Zorach case expressed the doctrine of accommodation,260 viz:
The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather,
it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one or the other.
That is the common sense of the matter. Otherwise, the state and religion would be aliens to each other - hostile, suspicious, and
even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police
or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the
64
Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations
making Thanksgiving Day a holiday; "so help me God" in our courtroom oaths- these and all other references to the Almighty that
run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic
could even object to the supplication with which the Court opens each session: ‘God save the United States and this Honorable
Court.
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses.
. . When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public
events, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public
service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government
show a callous indifference to religious groups. . . But we find no constitutional requirement which makes it necessary for
government to be hostile to religion and to throw its weight against efforts to widen their effective scope of religious influence.261
(emphases supplied)
Benevolent neutrality is congruent with the sociological proposition that religion serves a function essential to the survival of
society itself, thus there is no human society without one or more ways of performing the essential function of religion. Although
for some individuals there may be no felt need for religion and thus it is optional or even dispensable, for society it is not, which
is why there is no human society without one or more ways of performing the essential function of religion. Even in ostensibly
atheistic societies, there are vigorous underground religion(s) and surrogate religion(s) in their ideology.262 As one sociologist
wrote:
It is widely held by students of society that there are certain functional prerequisites without which society would not continue to
exist. At first glance, this seems to be obvious - scarcely more than to say that an automobile could not exist, as a going system,
without a carburetor. . . Most writers list religion among the functional prerequisites.263
Another noted sociologist, Talcott Parsons, wrote: "There is no known human society without something which modern social
scientists would classify as a religion…Religion is as much a human universal as language."264
Benevolent neutrality thus recognizes that religion plays an important role in the public life of the United States as shown by many
traditional government practices which, to strict neutrality, pose Establishment Clause questions. Among these are the inscription
of "In God We Trust" on American currency, the recognition of America as "one nation under God" in the official pledge of
allegiance to the flag, the Supreme Court’s time-honored practice of opening oral argument with the invocation "God save the
United States and this honorable Court," and the practice of Congress and every state legislature of paying a chaplain, usually of
a particular Protestant denomination to lead representatives in prayer.265 These practices clearly show the preference for one
theological viewpoint -the existence of and potential for intervention by a god - over the contrary theological viewpoint of atheism.
Church and government agencies also cooperate in the building of low-cost housing and in other forms of poor relief, in the
treatment of alcoholism and drug addiction, in foreign aid and other government activities with strong moral dimension.266 The
persistence of these de facto establishments are in large part explained by the fact that throughout history, the evangelical theory
of separation, i.e., Williams’ wall, has demanded respect for these de facto establishments.267 But the separationists have a
different explanation. To characterize these as de jure establishments according to the principle of the Jeffersonian wall, the U.S.
Supreme Court, the many dissenting and concurring opinions explain some of these practices as "‘de minimis’ instances of
government endorsement or as historic governmental practices that have largely lost their religious significance or at least have
proven not to lead the government into further involvement with religion.268
With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under
certain circumstances. Accommodations are government policies that take religion specifically into account not to promote the
government’s favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Their
purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s religion. As Justice
Brennan explained, the "government [may] take religion into account…to exempt, when possible, from generally applicable
governmental regulation individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create
without state involvement an atmosphere in which voluntary religious exercise may flourish."269 (emphasis supplied)
Accommodation is forbearance and not alliance. it does not reflect agreement with the minority, but respect for the conflict between Clause but nonetheless permitted by the Establishment Clause.273 Some Justices of the Supreme Court have also used the term
the temporal and spiritual authority in which the minority finds itself.270 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
Accommodation is distinguished from strict neutrality in that the latter holds that government should base public policy solely on
is required, those where it is permissible, and those where it is prohibited. In the first situation, accommodation is required to
secular considerations, without regard to the religious consequences of its actions. The debate between accommodation and strict
preserve free exercise protections and not unconstitutionally infringe on religious liberty or create penalties for religious freedom.
neutrality is at base a question of means: "Is the freedom of religion best achieved when the government is conscious of the effects
Contrary to the Smith declaration that free exercise exemptions are "intentional government advancement", these exemptions
of its action on the various religious practices of its people, and seeks to minimize interferences with those practices? Or is it best
merely relieve the prohibition on the free exercise thus allowing the burdened religious adherent to be left alone. The state must
advanced through a policy of ‘religious blindness’ - keeping government aloof from religious practices and issues?" An
create exceptions to laws of general applicability when these laws threaten religious convictions or practices in the absence of a
accommodationist holds that it is good public policy, and sometimes constitutionally required, for the state to make conscious and
compelling state interest.275 By allowing such exemptions, the Free Exercise Clause does not give believers the right or privilege
deliberate efforts to avoid interference with religious freedom. On the other hand, the strict neutrality adherent believes that it is
to choose for themselves to override socially-prescribed decision; it allows them to obey spiritual rather than temporal authority276
good public policy, and also constitutionally required, for the government to avoid religion-specific policy even at the cost of
for those who seriously invoke the Free Exercise Clause claim to be fulfilling a solemn duty. Religious freedom is a matter less of
inhibiting religious exercise.271
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
There are strong and compelling reasons, however, to take the accommodationist position rather than the strict neutrality position. reason for the denial compelling. "Because they may turn out to be right about the duty in question, and because, even if they are
First, the accommodationist interpretation is most consistent with the language of the First Amendment. The religion clauses wrong, religion bears witness to that which transcends the political order, such denials should be rare and painfully reluctant."277
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
The Yoder case is an example where the Court held that the state must accommodate the religious beliefs of the Amish who
threats to religious freedom - government action that promotes the (political) majority’s favored brand of religion and government
objected to enrolling their children in high school as required by law. The Sherbert case is another example where the Court held
action that impedes religious practices not favored by the majority. The substantive end in view is the preservation of the autonomy
that the state unemployment compensation plan must accommodate the religious convictions of Sherbert.278 In these cases of
of religious life and not just the formal process value of ensuring that government does not act on the basis of religious bias. On
"burdensome effect", the modern approach of the Court has been to apply strict scrutiny, i.e., to declare the burden as permissible,
the other hand, strict neutrality interprets the religion clauses as allowing government to do whatever it desires to or for religion,
the Court requires the state to demonstrate that the regulation which burdens the religious exercise pursues a particularly important
as long as it does the same to or for comparable secular entities. Thus, for example, if government prohibits all alcoholic
or compelling government goal through the least restrictive means. If the state’s objective could be served as well or almost as
consumption by minors, it can prohibit minors from taking part in communion. Paradoxically, this view would make the religion
well by granting an exemption to those whose religious beliefs are burdened by the regulation, such an exemption must be
clauses violate the religion clauses, so to speak, since the religion clauses single out religion by name for special protection. Second,
given.279 This approach of the Court on "burdensome effect" was only applied since the 1960s. Prior to this time, the Court took
the accommodationist position best achieves the purposes of the First Amendment. The principle underlying the First Amendment
the separationist view that as long as the state was acting in pursuit of non-religious ends and regulating conduct rather than pure
is that freedom to carry out one’s duties to a Supreme Being is an inalienable right, not one dependent on the grace of legislature.
religious beliefs, the Free Exercise Clause did not pose a hindrance such as in Reynolds.280 In the second situation where
Although inalienable, it is necessarily limited by the rights of others, including the public right of peace and good order.
accommodation is permissible, the state may, but is not required to, accommodate religious interests. The Walz case illustrates
Nevertheless it is a substantive right and not merely a privilege against discriminatory legislation. The accomplishment of the
this situation where the Court upheld the constitutionality of tax exemption given by New York to church properties, but did not
purpose of the First Amendment requires more than the "religion blindness" of strict neutrality. With the pervasiveness of
rule that the state was required to provide tax exemptions. The Court declared that "(t)he limits of permissible state accommodation
government regulation, conflicts with religious practices become frequent and intense. Laws that are suitable for secular entities
to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause."281 The Court held that
are sometimes inappropriate for religious entities, thus the government must make special provisions to preserve a degree of
New York could have an interest in encouraging religious values and avoiding threats to those values through the burden of
independence for religious entities for them to carry out their religious missions according to their religious beliefs. Otherwise,
property taxes. Other examples are the Zorach case allowing released time in public schools and Marsh allowing payment of
religion will become just like other secular entities subject to pervasive regulation by majoritarian institutions. Third, the
legislative chaplains from public funds. Finally, in the situation where accommodation is prohibited, establishment concerns
accommodationist interpretation is particularly necessary to protect adherents of minority religions from the inevitable effects of
prevail over potential accommodation interests. To say that there are valid exemptions buttressed by the Free Exercise Clause does
majoritarianism, which include ignorance and indifference and overt hostility to the minority. In a democratic republic, laws are
not mean that all claims for free exercise exemptions are valid.282 An example where accommodation was prohibited is McCollum
inevitably based on the presuppositions of the majority, thus not infrequently, they come into conflict with the religious scruples
where the Court ruled against optional religious instruction in the public school premises.283 In effect, the last situation would
of those holding different world views, even in the absence of a deliberate intent to interfere with religious practice. At times, this
arrive at a strict neutrality conclusion.
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 In the first situation where accommodation is required, the approach follows this basic framework:
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
If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs, the burden shifts to the
these cases, a constitutional interpretation that allows accommodations prevents needless injury to the religious consciences of
government to demonstrate that the law or practice is necessary to the accomplishment of some important (or ‘compelling’) secular
those who can have an influence in the legislature; while a constitutional interpretation that requires accommodations extends this
objective and that it is the least restrictive means of achieving that objective. If the plaintiff meets this burden and the government
treatment to religious faiths that are less able to protect themselves in the political arena. Fourth, the accommodationist position is
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
practical as it is a commonsensical way to deal with the various needs and beliefs of different faiths in a pluralistic nation. Without
be ‘sincere’, but they need not necessarily be consistent, coherent, clearly articulated, or congruent with those of the claimant’s
accommodation, many otherwise beneficial laws would interfere severely with religious freedom. Aside from laws against serving
religious denomination. ‘Only beliefs rooted in religion are protected by the Free Exercise Clause’; secular beliefs, however sincere
alcoholic beverages to minors conflicting with celebration of communion, regulations requiring hard hats in construction areas can
and conscientious, do not suffice.284
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 In other words, a three-step process (also referred to as the "two-step balancing process" supra when the second and third steps are
between violating religious conscience of a segment of the population or dispensing with legislation it considers beneficial to combined) as in Sherbert is followed in weighing the state’s interest and religious freedom when these collide. Three questions
society as a whole. Exemption seems manifestly more reasonable than either of the alternative: no exemption or no law.272 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
Benevolent neutrality gives room for different kinds of accommodation: those which are constitutionally compelled, i.e., required
avoid the mere claim of religious beliefs to escape a mandatory regulation. As evidence of sincerity, the U.S. Supreme Court has
by the Free Exercise Clause; and those which are discretionary or legislative, i.e., and those not required by the Free Exercise
65
considered historical evidence as in Wisconsin where the Amish people had held a long-standing objection to enrolling their
children in ninth and tenth grades in public high schools. In another case, Dobkin v. District of Columbia,285 the Court denied the
claim of a party who refused to appear in court on Saturday alleging he was a Sabbatarian, but the Court noted that he regularly
conducted business on Saturday. Although it is true that the Court might erroneously deny some claims because of a misjudgment
of sincerity, this is not as argument to reject all claims by not allowing accommodation as a rule. There might be injury to the
particular claimant or to his religious community, but for the most part, the injustice is done only in the particular case.286 Aside
from the sincerity, the court may look into the centrality of those beliefs, assessing them not on an objective basis but in terms of
the opinion and belief of the person seeking exemption. In Wisconsin, for example, the Court noted that the Amish people’s
convictions against becoming involved in public high schools were central to their way of life and faith. Similarly, in Sherbert, the
Court concluded that the prohibition against Saturday work was a "cardinal principle."287 Professor Lupu puts to task the person
claiming exemption, viz:
On the claimant’s side, the meaning and significance of the relevant religious practice must be demonstrated. Religious command
should outweigh custom, individual conscience should count for more than personal convenience, and theological principle should
be of greater significance than institutional ease. Sincerity matters, (footnote omitted) and longevity of practice - both by the
individual and within the individual’s religious tradition - reinforces sincerity. Most importantly, the law of free exercise must be
inclusive and expansive, recognizing non-Christian religions - eastern, Western, aboriginal and otherwise - as constitutionally
equal to their Christian counterparts, and accepting of the intensity and scope of fundamentalist creed.288
Second, the court asks: "(i)s there a sufficiently compelling state interest to justify this infringement of religious liberty?" In this
step, the government has to establish that its purposes are legitimate for the state and that they are compelling. Government must
do more than assert the objectives at risk if exemption is given; it must precisely show how and to what extent those objectives
will be undermined if exemptions are granted.289 The person claiming religious freedom, on the other hand, will endeavor to
show that the interest is not legitimate or that the purpose, although legitimate, is not compelling compared to infringement of
religious liberty. This step involves balancing, i.e., weighing the interest of the state against religious liberty to determine which
is more compelling under the particular set of facts. The greater the state’s interests, the more central the religious belief would
have to be to overcome it. In assessing the state interest, the court will have to determine the importance of the secular interest and
the extent to which that interest will be impaired by an exemption for the religious practice. Should the court find the interest truly
compelling, there will be no requirement that the state diminish the effectiveness of its regulation by granting the exemption.290
Third, the court asks: "(h)as the state in achieving its legitimate purposes used the least intrusive means possible so that the free
exercise is not infringed any more than necessary to achieve the legitimate goal of the state?"291 The analysis requires the state to
show that the means in which it is achieving its legitimate state objective is the least intrusive means, i.e., it has chosen a way to
achieve its legitimate state end that imposes as little as possible on religious liberties. In Cantwell, for example, the Court
invalidated the license requirement for the door-to-door solicitation as it was a forbidden burden on religious liberty, noting that
less drastic means of insuring peace and tranquility existed. As a whole, in carrying out the compelling state interest test, the Court
should give careful attention to context, both religious and regulatory, to achieve refined judgment.292
In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular government and religious freedom
create tensions that make constitutional law on the subject of religious liberty unsettled, mirroring the evolving views of a dynamic
society.293
VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket of Catholicism covered the archipelago. There was a union of church and
state and Catholicism was the state religion under the Spanish Constitution of 1876. Civil authorities exercised religious functions
and the friars exercised civil powers.294 Catholics alone enjoyed the right of engaging in public ceremonies of worship.295
Although the Spanish Constitution itself was not extended to the Philippines, Catholicism was also the established church in our
country under the Spanish rule. Catholicism was in fact protected by the Spanish Penal Code of 1884 which was in effect in the
Philippines. Some of the offenses in chapter six of the Penal Code entitled "Crimes against Religion and Worship" referred to
crimes against the state religion.296 The coming of the Americans to our country, however, changed this state-church scheme for
66
with the advent of this regime, the unique American experiment of "separation of church and state" was transported to Philippine
soil.
Even as early as the conclusion of the Treaty of Paris between the United States and Spain on December 10, 1898, the American
guarantee of religious freedom had been extended to the Philippines. The Treaty provided that "the inhabitants of the territories
over which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise of religion."297 Even the Filipinos
themselves guaranteed religious freedom a month later or on January 22, 1899 upon the adoption of the Malolos Constitution of
the Philippine Republic under General Emilio Aguinaldo. It provided that "the State recognizes the liberty and equality of all
religion (de todos los cultos) in the same manner as the separation of the Church and State." But the Malolos Constitution and
government was short-lived as the Americans took over the reigns of government.298
With the Philippines under the American regime, President McKinley issued Instructions to the Second Philippine Commission,
the body created to take over the civil government in the Philippines in 1900. The Instructions guaranteed religious freedom, viz:
That no law shall be made respecting the establishment of religion or prohibiting the free exercise thereof, and that the free exercise
and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed ... that no form
of religion and no minister of religion shall be forced upon the community or upon any citizen of the Islands, that, on the other
hand, no minister of religion shall be interfered with or molested in following his calling.299
This provision was based on the First Amendment of the United States Constitution. Likewise, the Instructions declared that "(t)he
separation between State and Church shall be real, entire and absolute."300
Thereafter, every organic act of the Philippines contained a provision on freedom of religion. Similar to the religious freedom
clause in the Instructions, the Philippine Bill of 1902 provided that:
No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that free exercise and
enjoyment of religious worship, without discrimination or preference, shall forever be allowed.
In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of 1902 "caused the complete separation of church and state, and
the abolition of all special privileges and all restrictions theretofor conferred or imposed upon any particular religious sect."302
The Jones Law of 1916 carried the same provision, but expanded it with a restriction against using public money or property for
religious purposes, viz:
That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise
and enjoyment of religious profession and worship without discrimination or preference, shall forever be allowed; and no religious
test shall be required for the exercise of civil or political rights. No public money or property shall ever be appropriated, applied,
donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or
system of religion, or for the use, benefit or support of any priest, preacher, minister, or other religious teachers or dignitary as
such.
This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934 which guaranteed independence to the
Philippines and authorized the drafting of a Philippine constitution. It enjoined Filipinos to include freedom of religion in drafting
their constitution preparatory to the grant of independence. The law prescribed that "(a)bsolute toleration of religious sentiment
shall be secured and no inhabitant or religious organization shall be molested in person or property on account of religious belief
or mode of worship."303
The Constitutional Convention then began working on the 1935 Constitution. In their proceedings, Delegate Jose P. Laurel as
Chairman of the Committee on Bill of Rights acknowledged that "(i)t was the Treaty of Paris of December 10, 1898, which first
introduced religious toleration in our country. President McKinley’s Instructions to the Second Philippine Commission reasserted
this right which later was incorporated into the Philippine Bill of 1902 and in the Jones Law."304 In accordance with the Tydings-
McDuffie Law, the 1935 Constitution provided in the Bill of Rights, Article IV, Section 7, viz:
Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and the free exercise
and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.
This provision, borrowed from the Jones Law, was readily approved by the Convention.305 In his speech as Chairman of the
Committee on Bill of Rights, Delegate Laurel said that modifications in phraseology of the Bill of Rights in the Jones Law were
avoided whenever possible because "the principles must remain couched in a language expressive of their historical background,
nature, extent and limitations as construed and interpreted by the great statesmen and jurists that vitalized them."306
The 1973 Constitution which superseded the 1935 Constitution contained an almost identical provision on religious freedom in
the Bill of Rights in Article IV, Section 8, viz:
Sec. 8. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.
This time, however, the General Provisions in Article XV added in Section 15 that "(t)he separation of church and state shall be
inviolable."
Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were reproduced in the 1987 Constitution
under the Bill of Rights in Article III, Section 5.307 Likewise, the provision on separation of church and state was included
verbatim in the 1987 Constitution, but this time as a principle in Section 6, Article II entitled Declaration of Principles and State
Policies.
Considering the American origin of the Philippine religion clauses and the intent to adopt the historical background, nature, extent
and limitations of the First Amendment of the U.S. Constitution when it was included in the 1935 Bill of Rights, it is not surprising
that nearly all the major Philippine cases involving the religion clauses turn to U.S. jurisprudence in explaining the nature, extent
and limitations of these clauses. However, a close scrutiny of these cases would also reveal that while U.S. jurisprudence on
religion clauses flows into two main streams of interpretation - separation and benevolent neutrality - the well-spring of Philippine
jurisprudence on this subject is for the most part, benevolent neutrality which gives room for accommodation.
B. Jurisprudence
In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin with the definition of "religion". "Religion"
is derived from the Middle English religioun, from Old French religion, from Latin religio, vaguely referring to a "bond between
man and the gods."308 This pre-Christian term for the cult and rituals of pagan Rome was first Christianized in the Latin translation
of the Bible.309 While the U.S. Supreme Court has had to take up the challenge of defining the parameters and contours of
"religion" to determine whether a non-theistic belief or act is covered by the religion clauses, this Court has not been confronted
with the same issue. In Philippine jurisprudence, religion, for purposes of the religion clauses, has thus far been interpreted as
theistic. In 1937, the Philippine case of Aglipay v. Ruiz310 involving the Establishment Clause, defined "religion" as a "profession
of faith to an active power that binds and elevates man to his Creator." Twenty years later, the Court cited the Aglipay definition
in American Bible Society v. City of Manila,311 a case involving the Free Exercise clause. The latter also cited the American case
of Davis in defining religion, viz: "(i)t has reference to one’s views of his relations to His Creator and to the obligations they
impose of reverence to His being and character and obedience to His Will." The Beason definition, however, has been expanded
in U.S. jurisprudence to include non-theistic beliefs.
1. Free Exercise Clause
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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
68
organization. He worked in the Elizalde Rope Factory, Inc. and was a member of the Elizalde Rope Workers Union which had
with the company a closed shop provision pursuant to Republic Act No. 875 allowing closed shop arrangements. Subsequently,
Republic Act No. 3350 was enacted exempting from the application and coverage of a closed shop agreement employees belonging
to any religious sect which prohibits affiliation of their members with any labor organization. Victoriano resigned from the union
after Republic Act No. 3350 took effect. The union notified the company of Victoriano’s resignation, which in turn notified
Victoriano that unless he could make a satisfactory arrangement with the union, the company would be constrained to dismiss him
from the service. Victoriano sought to enjoin the company and the union from dismissing him. The court having granted the
injunction, the union came to this Court on questions of law, among which was whether Republic Act No. 3350 was
unconstitutional for impairing the obligation of contracts and for granting an exemption offensive of the Establishment Clause.
With respect to the first issue, the Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental personal right and liberty (Schneider v. Irgington, 308 U.S. 147, 161,
84 L.ed.155, 164, 60 S.Ct. 146) and has a preferred position in the hierarchy of values. Contractual rights, therefore, must yield to
freedom of religion. It is only where unavoidably necessary to prevent an immediate and grave danger to the security and welfare
of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary.327 (emphasis
supplied)
As regards the Establishment Clause issue, the Court after citing the constitutional provision on establishment and free exercise of
religion, declared, viz:
The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of worship of any
sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322
U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of one’s chosen form of religion within limits of utmost amplitude.
It has been said that the religion clauses of the Constitution are all designed to protect the broadest possible liberty of conscience,
to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent
with the liberty of others and with the common good. (footnote omitted). Any legislation whose effect or purpose is to impede the
observance of one or all religions, or to discriminate invidiously between the religions, is invalid, even though the burden may be
characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates
conduct by enacting, within its power, a general law which has for its purpose and effect to advance the state’s secular goals, the
statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing
such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and
449)328 (emphasis supplied)
Quoting Aglipay v. Ruiz,329 the Court held that "government is not precluded from pursuing valid objectives secular in character
even if the incidental result would be favorable to a religion or sect." It also cited Board of Education v. Allen,330 which held that
in order to withstand the strictures of constitutional prohibition, a statute must have a secular legislative purpose and a primary
effect that neither advances nor inhibits religion. Using these criteria in upholding Republic Act No. 3350, the Court pointed out,
viz:
(Republic Act No. 3350) was intended to serve the secular purpose of advancing the constitutional right to the free exercise of
religion, by averting that certain persons be refused work, or be dismissed from work, or be dispossessed of their right to work and
of being impeded to pursue a modest means of livelihood, by reason of union security agreements. . . . The primary effects of the
exemption from closed shop agreements in favor of members of religious sects that prohibit their members from affiliating with a
labor organization, is the protection of said employees against the aggregate force of the collective bargaining agreement, and
relieving certain citizens of a burden on their religious beliefs, and . . . eliminating to a certain extent economic insecurity due to
unemployment.331
The Court stressed that "(a)lthough the exemption may benefit those who are members of religious sects that prohibit their members
from joining labor unions, the benefit upon the religious sects is merely incidental and indirect."332 In enacting Republic Act No.
3350, Congress merely relieved the exercise of religion by certain persons of a burden imposed by union security agreements
which Congress itself also imposed through the Industrial Peace Act. The Court concluded the issue of exemption by citing
Sherbert which laid down the rule that when general laws conflict with scruples of conscience, exemptions ought to be granted
unless some "compelling state interest" intervenes. The Court then abruptly added that "(i)n the instant case, We see no compelling
state interest to withhold exemption."333
A close look at Victoriano would show that the Court mentioned several tests in determining when religious freedom may be
validly limited. First, the Court mentioned the test of "immediate and grave danger to the security and welfare of the community"
and "infringement of religious freedom only to the smallest extent necessary" to justify limitation of religious freedom. Second,
religious exercise may be indirectly burdened by a general law which has for its purpose and effect the advancement of the state’s
secular goals, provided that there is no other means by which the state can accomplish this purpose without imposing such burden.
Third, the Court referred to the "compelling state interest" test which grants exemptions when general laws conflict with religious
exercise, unless a compelling state interest intervenes.
It is worth noting, however, that the first two tests were mentioned only for the purpose of highlighting the importance of the
protection of religious freedom as the secular purpose of Republic Act No. 3350. Upholding religious freedom was a secular
purpose insofar as it relieved the burden on religious freedom caused by another law, i.e, the Industrial Peace Act providing for
union shop agreements. The first two tests were only mentioned in Victoriano but were not applied by the Court to the facts and
issues of the case. The third, the "compelling state interest" test was employed by the Court to determine whether the exemption
provided by Republic Act No. 3350 was not unconstitutional. It upheld the exemption, stating that there was no "compelling state
interest" to strike it down. However, after careful consideration of the Sherbert case from which Victoriano borrowed this test, the
inevitable conclusion is that the "compelling state interest" test was not appropriate and could not find application in the Victoriano
case. In Sherbert, appellant Sherbert invoked religious freedom in seeking exemption from the provisions of the South Carolina
Unemployment Compensation Act which disqualified her from claiming unemployment benefits. It was the appellees, members
of the South Carolina Employment Commission, a government agency, who propounded the state interest to justify overriding
Sherbert’s claim of religious freedom. The U.S. Supreme Court, considering Sherbert’s and the Commission’s arguments, found
that the state interest was not sufficiently compelling to prevail over Sherbert’s free exercise claim. This situation did not obtain
in the Victoriano case where it was the government itself, through Congress, which provided the exemption in Republic Act No.
3350 to allow Victoriano’s exercise of religion. Thus, the government could not argue against the exemption on the basis of a
compelling state interest as it would be arguing against itself; while Victoriano would not seek exemption from the questioned law
to allow the free exercose of religion as the law in fact provides such an exemption. In sum, although Victoriano involved a
religious belief and conduct, it did not involve a free exercise issue where the Free Exercise Clause is invoked to exempt him from
the burden imposed by a law on his religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et al. v. Federacion Obrera de la
Industria Tabaquera y Otros Trabajadores de Filipinas,334 Anucension v. National Labor Union, et al.,335 and Gonzales,
et al. v. Central Azucarera de Tarlac Labor Union.336
Then came German v. Barangan in 1985 at the height of the anti-administration rallies. Petitioners were walking to St. Jude Church
within the Malacanang security area to pray for "an end to violence" when they were barred by the police. Invoking their
constitutional freedom of religious worship and locomotion, they came to the Court on a petition for mandamus to allow them to
enter and pray inside the St. Jude Chapel. The Court was divided on the issue. The slim majority of six recognized their freedom
of religion but noted their absence of good faith and concluded that they were using their religious liberty to express their opposition
to the government. Citing Cantwell, the Court distinguished between freedom to believe and freedom to act on matters of religion,
viz:
. . . Thus the (First) amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute, but in the
nature of things, the second cannot be.337
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but only in the
manner by which they had attempted to translate the same to action. This curtailment is in accord with the pronouncement of this
Court in Gerona v. Secretary of Education (106 Phil. 2), thus:
. . . But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the exercise of
said religious belief clashes with the established institutions of society and with the law, then the former must yield and give way
to the latter. The government steps in and either restrains said exercise or even prosecutes the one exercising it. (italics supplied)
69
The majority found that the restriction imposed upon petitioners was "necessary to maintain the smooth functioning of the
executive branch of the government, which petitioners’ mass action would certainly disrupt"338 and denied the petition. Thus,
without considering the tests mentioned in Victoriano, German went back to the Gerona rule that religious freedom will not be
upheld if it clashes with the established institutions of society and the law.
Then Associate Justice Teehankee registered a dissent which in subsequent jurisprudence would be cited as a test in religious
freedom cases. His dissent stated in relevant part, viz:
A brief restatement of the applicable constitutional principles as set forth in the landmark case of J.B.L. Reyes v. Bagatsing (125
SCRA 553[1983]) should guide us in resolving the issues.
1. The right to freely exercise one’s religion is guaranteed in Section 8 of our Bill of Rights. (footnote omitted) Freedom of worship,
alongside with freedom of expression and speech and peaceable assembly "along with the other intellectual freedoms, are highly
ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary - even more so than on the
other departments - rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No
verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitously termed by Justice Holmes ‘as the
sovereign prerogative of judgment.’ Nonetheless, the presumption must be to incline the weight of the scales of justice on the side
of such rights, enjoying as they do precedence and primacy.’ (J.B.L. Reyes, 125 SCRA at pp. 569-570)
2. In the free exercise of such preferred rights, there is to be no prior restraint although there may be subsequent punishment of
any illegal acts committed during the exercise of such basic rights. The sole justification for a prior restraint or limitation on the
exercise of these basic rights is the existence of a grave and present danger of a character both grave and imminent, of a serious
evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to
prevent (Idem, at pp. 560-561).339 (emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankee’s dissent was taken involved the rights to free
speech and assembly, and not the exercise of religious freedom. At issue in that case was a permit sought by retired Justice J.B.L.
Reyes, on behalf of the Anti-Bases Coalition, from the City of Manila to hold a peaceful march and rally from the Luneta to the
gates of the U.S. Embassy. Nevertheless Bagatsing was used by Justice Teehankee in his dissent which had overtones of petitioner
German and his companions’ right to assemble and petition the government for redress of grievances.340
In 1993, the issue on the Jehovah’s Witnesses’ participation in the flag ceremony again came before the Court in Ebralinag v. The
Division Superintendent of Schools.341 A unanimous Court overturned the Gerona ruling after three decades. Similar to Gerona,
this case involved several Jehovah’s Witnesses who were expelled from school for refusing to salute the flag, sing the national
anthem and recite the patriotic pledge, in violation of the Administrative Code of 1987. In resolving the same religious freedom
issue as in Gerona, the Court this time transported the "grave and imminent danger" test laid down in Justice Teehankee’s dissent
in German, viz:
The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late Chief Justice
Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the existence of a grave and present
danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate
public interest, that the State has a right (and duty) to prevent. Absent such a threat to public safety, the expulsion of the petitioners
from the schools is not justified.342 (emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovah’s Witnesses from saluting the flag, singing the national anthem and reciting
the patriotic pledge, this religious group which admittedly comprises a ‘small portion of the school population’ will shake up our
part of the globe and suddenly produce a nation ‘untaught and uninculcated in and unimbued with reverence for the flag, patriotism,
love of country and admiration for national heroes’ (Gerona v. Secretary of Education, 106 Phil. 224). After all, what the petitioners
seek only is exemption from the flag ceremony, not exclusion from the public schools where they may study the Constitution, the
democratic way of life and form of government, and learn not only the arts, sciences, Philippine history and culture but also receive
training for a vocation or profession and be taught the virtues of ‘patriotism, respect for human rights, appreciation of national
heroes, the rights and duties of citizenship, and moral and spiritual values’ (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the
curricula. Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court has feared
in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious
beliefs, will hardly be conducive to love of country or respect for duly constituted authorities.343
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x- assuming that such unity and loyalty can be
attained through coercion- is not a goal that is constitutionally obtainable at the expense of religious liberty. A desirable end cannot
be promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046).344
Towards the end of the decision, the Court also cited the Victoriano case and its use of the "compelling state interest" test in
according exemption to the Jehovah’s Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers’ Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the Iglesia ni
Cristo, from the coverage of a closed shop agreement between their employer and a union because it would violate the teaching of
their church not to join any group:
‘x x x It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with
scruples of conscience, exemptions ought to be granted unless some ‘compelling state interest’ intervenes.’ (Sherbert vs. Verner,
374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)’
We hold that a similar exemption may be accorded to the Jehovah’s Witnesses with regard to the observance of the flag ceremony
out of respect for their religious beliefs, however ‘bizarre’ those beliefs may seem to others.345
The Court annulled the orders expelling petitioners from school.
Thus, the "grave and imminent danger" test laid down in a dissenting opinion in German which involved prior restraint of religious
worship with overtones of the right to free speech and assembly, was transported to Ebralinag which did not involve prior restraint
of religious worship, speech or assembly. Although, it might be observed that the Court faintly implied that Ebralinag also involved
the right to free speech when in its preliminary remarks, the Court stated that compelling petitioners to participate in the flag
ceremony "is alien to the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees
their rights to free speech and the free exercise of religious profession and worship;" the Court then stated in a footnote that the
"flag salute, singing the national anthem and reciting the patriotic pledge are all forms of utterances."346
The "compelling state interest" test was not fully applied by the Court in Ebralinag. In the Solicitor General’s consolidated
comment, one of the grounds cited to defend the expulsion orders issued by the public respondents was that "(t)he State’s
compelling interests being pursued by the DEC’s lawful regulations in question do not warrant exemption of the school children
of the Jehovah’s Witnesses from the flag salute ceremonies on the basis of their own self-perceived religious convictions."347 The
Court, however, referred to the test only towards the end of the decision and did not even mention what the Solicitor General
argued as the compelling state interest, much less did the Court explain why the interest was not sufficiently compelling to override
petitioners’ religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v. Court of Appeals, et al.348 Although there was
a dissent with respect to the applicability of the "clear and present danger" test in this case, the majority opinion in unequivocal
terms applied the "clear and present danger" test to religious speech. This case involved the television program, "Ang Iglesia ni
Cristo," regularly aired over the television. Upon petitioner Iglesia ni Cristo’s submission of the VTR tapes of some of its episodes,
respondent Board of Review for Motion Pictures and Television classified these as "X" or not for public viewing on the ground
that they "offend and constitute an attack against other religions which is expressly prohibited by law." Invoking religious freedom,
petitioner alleged that the Board acted without jurisdiction or with grave abuse of discretion in requiring it to submit the VTR tapes
of its television program and x-rating them. While upholding the Board’s power to review the Iglesia television show, the Court
70
was emphatic about the preferred status of religious freedom. Quoting Justice Cruz’ commentary on the constitution, the Court
held that freedom to believe is absolute but freedom to act on one’s belief, where it affects the public, is subject to the authority of
the state. The commentary quoted Justice Frankfurter’s dissent in Barnette which was quoted in Gerona, viz: "(t)he constitutional
provision on religious freedom terminated disabilities, it did not create new privileges. It gave religious liberty, not civil immunity.
Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma."349
Nevertheless, the Court was quick to add the criteria by which the state can regulate the exercise of religious freedom, that is, when
the exercise will bring about the "clear and present danger of some substantive evil which the State is duty bound to prevent, i.e.,
serious detriment to the more overriding interest of public health, public morals, or public welfare."350
In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile to all prior restraints on speech, including
religious speech and the x-rating was a suppression of petitioner’s freedom of speech as much as it was an interference with its
right to free exercise of religion. Citing Cantwell, the Court recognized that the different religions may criticize one another and
their tenets may collide, but the Establishment Clause prohibits the state from protecting any religion from this kind of attack.
The Court then called to mind the "clear and present danger" test first laid down in the American Bible Society case and the test
of "immediate and grave danger" with "infringement only to the smallest extent necessary to avoid danger" in Victoriano and
pointed out that the reviewing board failed to apply the "clear and present danger" test. Applying the test, the Court noted, viz:
The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is completely bereft of
findings of facts to justify the conclusion that the subject video tapes constitute impermissible attacks against another religion.
There is no showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the
threatened harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the
showing of a substantive and imminent evil which has taken the life of a reality already on ground.
Replying to the challenge on the applicability of the "clear and present danger" test to the case, the Court acknowledged the
permutations that the test has undergone, but stressed that the test is still applied to four types of speech: "speech that advocates
dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt and release of information that endangers
a fair trial"351 and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is reason to apply the clear and present danger test to the case at bar
which concerns speech that attacks other religions and could readily provoke hostile audience reaction. It cannot be doubted that
religious truths disturb and disturb terribly.352
In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom cannot be invoked to seek exemption
from compliance with a law that burdens one’s religious exercise. It also reiterated the "clear and present danger" test in American
Bible Society and the "grave and imminent danger" in Victoriano, but this time clearly justifying its applicability and showing
how the test was applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law offensive to religious freedom, but
carving out an exception or upholding an exception to accommodate religious exercise where it is justified.353
2. Establishment Clause
In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the Establishment Clause, namely,
voluntarism and insulation of the political process from interfaith dissension. The first, voluntarism, has both a personal and a
social dimension. As a personal value, it refers to the inviolability of the human conscience which, as discussed above, is also
protected by the free exercise clause. From the religious perspective, religion requires voluntarism because compulsory faith lacks
religious efficacy. Compelled religion is a contradiction in terms.354 As a social value, it means that the "growth of a religious
sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular
society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage. Such
voluntarism cannot be achieved unless the political process is insulated from religion and unless religion is insulated from
politics."355 Non-establishment thus calls for government neutrality in religious matters to uphold voluntarism and avoid breeding for the purpose of favoring any religion nor interfering with religious matters or the religious beliefs of the barrio residents." Citing
interfaith dissension.356 the Aglipay ruling, the Court declared, viz:

The neutrality principle was applied in the first significant non-establishment case under the 1935 Constitution. In the 1937 case Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of
of Aglipay v. Ruiz,357 the Philippine Independent Church challenged the issuance and sale of postage stamps commemorating the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or
the Thirty-Third International Eucharistic Congress of the Catholic Church on the ground that the constitutional prohibition against property.
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
Then came the 1978 case of Pamil v. Teleron, et al.362 which presented a novel issue involving the religion clauses. In this case,
designs and authorized the Director of Posts to dispose of the sum in a manner and frequency "advantageous to the Government."
Section 2175 of the Revised Administrative Code of 1917 disqualifying ecclesiastics from appointment or election as municipal
The printing and issuance of the postage stamps in question appears to have been approved by authority of the President. Justice
officer was challenged. After protracted deliberation, the Court was sharply divided on the issue. Seven members of the Court,
Laurel, speaking for the Court, took pains explaining religious freedom and the role of religion in society, and in conclusion, found
one short of the number necessary to declare a law unconstitutional, approached the problem from a free exercise perspective and
no constitutional infirmity in the issuance and sale of the stamps, viz:
considered the law a religious test offensive of the constitution. They were Justices Fernando, Teehankee, Muñoz-Palma,
Concepcion, Jr., Santos, Fernandez, and Guerrero. Then Associate Justice Fernando, the ponente, stated, viz: "The challenged
The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the necessity of Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office, is, on its
adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the face, inconsistent with the religious freedom guaranteed by the Constitution." Citing Torcaso v. Watkins,363 the ponencia held,
history of mankind, has taught us that the union of church and state is prejudicial to both, for occasions might arise when the state viz:
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
Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was there involved was the validity of a
the lowest, in taking their oath to support and defend the Constitution, bind themselves to recognize and respect the constitutional
provision in the Maryland Constitution prescribing that ‘no religious test ought ever to be required as a disqualification for any
guarantee of religious freedom, with its inherent limitations and recognized implications. It should be stated that what is guaranteed
office or profit or trust in this State, other than a declaration of belief in the existence of God ***.’ Such a constitutional requirement
by our Constitution is religious liberty, not mere toleration.
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
Religious freedom, however, as a constitutional mandate is not an inhibition of profound reverence for religion and is not a denial but prevailed in the United States Supreme Court, which reversed the state court decision. It could not have been otherwise. As
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 emphatically declared by Justice Black: ‘this Maryland religious test for public office unconstitutionally invades the appellant’s
recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly freedom of belief and religion and therefore cannot be enforced against him.
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
The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here being an ecclesiastic
welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and
and therefore professing a religious faith suffices to disqualify for a public office. There is thus an incompatibility between the
democracy," they thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides the
Administrative Code provision relied upon by petitioner and an express constitutional mandate.364
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
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
xxx xxx xxx
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
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 the floodgates for the violation of the cherished liberty of religion which the constitutional provision seeks to enforce and protect."
religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Consequently, the Court upheld the validity of Section 2175 of the Revised Administrative Code and declared respondent priest
Government. We are of the opinion that the Government should not be embarrassed in its activities simply because of incidental ineligible for the office of municipal mayor.
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
Another type of cases interpreting the establishment clause deals with intramural religious disputes. Fonacier v. Court of
Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168)360 (emphases supplied)
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
In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or government action with a American Jurisprudence,366 viz:
legitimate secular purpose does not offend the Establishment Clause even if it incidentally aids a particular religion.
Where, however, a decision of an ecclesiastical court plainly violates the law it professes to administer, or is in conflict with the
Almost forty-five years after Aglipay came Garces v. Estenzo.361 Although the Court found that the separation of church and 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
state was not at issue as the controversy was over who should have custody of a saint’s image, it nevertheless made pronouncements into the jurisdiction of the religious tribunals and the regularity of their procedure, but they have subjected their decisions to the
on the separation of church and state along the same line as the Aglipay ruling. The Court held that there was nothing test of fairness or to the test furnished by the constitution and the law of the church. . .367
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
The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de los Reyes was the duly elected head of
tradition in rural communities" that "relieves the monotony and drudgery of the lives of the masses." Corollarily, the Court found
the Church, based on their internal laws. To finally dispose of the property issue, the Court, citing Watson v. Jones,368 declared
nothing illegal about any activity intended to facilitate the worship of the patron saint such as the acquisition and display of his
that the rule in property controversies within religious congregations strictly independent of any other superior ecclesiastical
image bought with funds obtained through solicitation from the barrio residents. The Court pointed out that the image of the patron
association (such as the Philippine Independent Church) is that the rules for resolving such controversies should be those of any
saint was "purchased in connection with the celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not
voluntary association. If the congregation adopts the majority rule then the majority should prevail; if it adopts adherence to duly
71
constituted authorities within the congregation, then that should be followed. Applying these rules, Fonacier lost the case. While
the Court exercised jurisdiction over the case, it nevertheless refused to touch doctrinal and disciplinary differences raised, viz:
The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration alleged by appellant,
having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference
to the power of excluding from the church those allegedly unworthy of membership, are unquestionably ecclesiastical matters
which are outside the province of the civil courts.369
VIII. Free Exercise Clause vis-à-vis Establishment Clause
In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free Exercise Clause and the
Establishment Clause in their application. There is a natural antagonism between a command not to establish religion and a
command not to inhibit its practice; this tension between the religion clauses often leaves the courts with a choice between
competing values in religion cases.370
One set of facts, for instance, can be differently viewed from the Establishment Clause perspective and the Free Exercise Clause
point of view, and decided in opposite directions. In Pamil, the majority gave more weight to the religious liberty of the priest in
holding that the prohibition of ecclesiastics to assume elective or appointive government positions was violative of the Free
Exercise Clause. On the other hand, the prevailing five justices gave importance to the Establishment Clause in stating that the
principle of separation of church and state justified the prohibition.
Tension is also apparent when a case is decided to uphold the Free Exercise Clause and consequently exemptions from a law of
general applicability are afforded by the Court to the person claiming religious freedom; the question arises whether the exemption
does not amount to support of the religion in violation of the Establishment Clause. This was the case in the Free Exercise Clause
case of Sherbert where the U.S. Supreme Court ruled, viz:
In holding as we do, plainly we are not fostering the "establishment" of the Seventh-day Adventist religion in South Carolina, for
the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the
governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with
secular institutions which it is the object of the Establishment Clause to forestall.371 (emphasis supplied)
Tension also exists when a law of general application provides exemption in order to uphold free exercise as in the Walz case
where the appellant argued that the exemption granted to religious organizations, in effect, required him to contribute to religious
bodies in violation of the Establishment Clause. But the Court held that the exemption was not a case of establishing religion but
merely upholding the Free Exercise Clause by "sparing the exercise of religion from the burden of property taxation levied on
private profit institutions." Justice Burger wrote, viz:
(t)he Court has struggled to find a neutral course between the two religion clauses, both of which are cast in absolute terms, and
either of which, if expanded to a logical extreme, would tend to clash with the other.372
Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption afforded by law to religious sects who
prohibit their members from joining unions did not offend the Establishment Clause. We ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the constitutional provision. It
acted merely to relieve the exercise of religion, by certain persons, of a burden that is imposed by union security agreements.373
(emphasis supplied)
Finally, in some cases, a practice is obviously violative of the Establishment Clause but the Court nevertheless upholds it. In
Schempp, Justice Brennan stated: "(t)here are certain practices, conceivably violative of the Establishment Clause, the striking
down of which might seriously interfere with certain religious liberties also protected by the First Amendment."
72
How the tension between the Establishment Clause and the Free Exercise Clause will be resolved is a question for determination
in the actual cases that come to the Court. In cases involving both the Establishment Clause and the Free Exercise Clause, the two
clauses should be balanced against each other. The courts must review all the relevant facts and determine whether there is a
sufficiently strong free exercise right that should prevail over the Establishment Clause problem. In the United States, it has been
proposed that in balancing, the free exercise claim must be given an edge not only because of abundant historical evidence in the
colonial and early national period of the United States that the free exercise principle long antedated any broad-based support of
disestablishment, but also because an Establishment Clause concern raised by merely accommodating a citizen’s free exercise of
religion seems far less dangerous to the republic than pure establishment cases. Each time the courts side with the Establishment
Clause in cases involving tension between the two religion clauses, the courts convey a message of hostility to the religion that in
that case cannot be freely exercised.374 American professor of constitutional law, Laurence Tribe, similarly suggests that the free
exercise principle "should be dominant in any conflict with the anti-establishment principle." This dominance would be the result
of commitment to religious tolerance instead of "thwarting at all costs even the faintest appearance of establishment."375 In our
jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of the religion clauses does not suffice. Modern society is
characterized by the expanding regulatory arm of government that reaches a variety of areas of human conduct and an expanding
concept of religion. To adequately meet the demands of this modern society, the societal values the religion clauses are intended
to protect must be considered in their interpretation and resolution of the tension. This, in fact, has been the approach followed by
the Philippine Court.376
IX. Philippine Religion Clauses: Nature, Purpose, Tests
Based on Philippine and American Religion Clause History,
Law and Jurisprudence
The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted from the First
Amendment of the U.S. Constitution. The religion clauses in the First Amendment were contained in every organic Act of the
Philippines under the American regime. When the delegates of the 1934 Constitutional Convention adopted a Bill of Rights in the
1935 Constitution, they purposely retained the phraseology of the religion clauses in the First Amendment as contained in the
Jones Law in order to adopt its historical background, nature, extent and limitations. At that time, there were not too many religion
clause cases in the United States as the U.S. Supreme Court decided an Establishment Clause issue only in the 1947 Everson case.
The Free Exercise Clause cases were also scarce then. Over the years, however, with the expanding reach of government regulation
to a whole gamut of human actions and the growing plurality and activities of religions, the number of religion clause cases in the
U.S. exponentially increased. With this increase came an expansion of the interpretation of the religion clauses, at times reinforcing
prevailing case law, at other times modifying it, and still at other times creating contradictions so that two main streams of
jurisprudence had become identifiable. The first stream employs separation while the second employs benevolent neutrality in
interpreting the religious clauses. Alongside this change in the landscape of U.S. religion clause jurisprudence, the Philippines
continued to adopt the 1935 Constitution religion clauses in the 1973 Constitution and later, the 1987 Constitution. Philippine
jurisprudence and commentaries on the religious clauses also continued to borrow authorities from U.S. jurisprudence without
articulating the stark distinction between the two streams of U.S. jurisprudence. One might simply conclude that the Philippine
Constitutions and jurisprudence also inherited the disarray of U.S. religion clause jurisprudence and the two identifiable streams;
thus, when a religion clause case comes before the Court, a separationist approach or a benevolent neutrality approach might be
adopted and each will have U.S. authorities to support it. Or, one might conclude that as the history of the First Amendment as
narrated by the Court in Everson supports the separationist approach, Philippine jurisprudence should also follow this approach in
light of the Philippine religion clauses’ history. As a result, in a case where the party claims religious liberty in the face of a general
law that inadvertently burdens his religious exercise, he faces an almost insurmountable wall in convincing the Court that the wall
of separation would not be breached if the Court grants him an exemption. These conclusions, however, are not and were never
warranted by the 1987, 1973 and 1935 Constitutions as shown by other provisions on religion in all three constitutions.1âwphi1 It
is a cardinal rule in constitutional construction that the constitution must be interpreted as a whole and apparently conflicting
provisions should be reconciled and harmonized in a manner that will give to all of them full force and effect.377 From this
construction, it will be ascertained that the intent of the framers was to adopt a benevolent neutrality approach in interpreting the
religious clauses in the Philippine constitutions, and the enforcement of this intent is the goal of construing the constitution.378
We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the same time that the 1935 Constitution provided
for an Establishment Clause, it also provided for tax exemption of church property in Article VI, Section 22, par. 3(b), viz:
(3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all lands, buildings, and improvements used
exclusively for religious, charitable, or educational purposes shall be exempt from taxation.
Before the advent of the 1935 Constitution, Section 344 of the Administrative Code provided for a similar exemption. To the same
effect, the Tydings-McDuffie Law contained a limitation on the taxing power of the Philippine government during the
Commonwealth period.379 The original draft of the Constitution placed this provision in an ordinance to be appended to the
Constitution because this was among the provisions prescribed by the Tydings-McDuffie Law. However, in order to have a
constitutional guarantee for such an exemption even beyond the Commonwealth period, the provision was introduced in the body
of the Constitution on the rationale that "if churches, convents [rectories or parsonages] and their accessories are always necessary
for facilitating the exercise of such [religious] freedom, it would also be natural that their existence be also guaranteed by
exempting them from taxation."380 The amendment was readily approved with 83 affirmative votes against 15 negative votes.381
The Philippine constitutional provision on tax exemption is not found in the U.S. Constitution. In the U.S. case of Walz, the Court
struggled to justify this kind of exemption to withstand Establishment Clause scrutiny by stating that church property was not
singled out but was exempt along with property owned by non-profit, quasi-public corporations because the state upheld the secular
policy "that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful,
desirable, and in the public interest." The Court also stated that the exemption was meant to relieve the burden on free exercise
imposed by property taxation. At the same time, however, the Court acknowledged that the exemption was an exercise of
benevolent neutrality to accommodate a long-standing tradition of exemption. With the inclusion of the church property tax
exemption in the body of the 1935 Constitution and not merely as an ordinance appended to the Constitution, the benevolent
neutrality referred to in the Walz case was given constitutional imprimatur under the regime of the 1935 Constitution. The
provision, as stated in the deliberations, was an acknowledgment of the necessity of the exempt institutions to the exercise of
religious liberty, thereby evincing benevolence towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:
(3) No public money, or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support
of any sect, church, denomination, sectarian institution or system of religion, for the use, benefit or support of any priest, preacher,
ministers or other religious teacher or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the
armed forces or to any penal institution, orphanage, or leprosarium. (emphasis supplied)
The original draft of this provision was a reproduction of a portion of section 3 of the Jones Law which did not contain the above
exception, viz:
No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of
any sect, church denomination, sectarian institution, or system of religion, or for the use, benefit or support of any priest, preacher,
minister, or dignitary as such…382
In the deliberations of this draft provision, an amendment was proposed to strike down everything after "church denomination."383
The proposal intended to imitate the silence of the U.S. Constitution on the subject of support for priests and ministers. It was also
an imitation of the silence of the Malolos Constitution to restore the situation under the Malolos Constitution and prior to the Jones
Law, when chaplains of the revolutionary army received pay from public funds with no doubt about its legality. It was pointed
out, however, that even with the prohibition under the Jones Law, appropriations were made to chaplains of the national
penitentiary and the Auditor General upheld its validity on the basis of a similar United States practice. But it was also pointed out
that the U.S. Constitution did not contain a prohibition on appropriations similar to the Jones Law.384 To settle the question on
the constitutionality of payment of salaries of religious officers in certain government institutions and to avoid the feared situation
where the enumerated government institutions could not employ religious officials with compensation, the exception in the 1935
provision was introduced and approved. The provision garnered 74 affirmative votes against 34 negative votes.385 As pointed out
in the deliberations, the U.S. Constitution does not provide for this exemption. However, the U.S. Supreme Court in Cruz v. Beto,
apparently taking a benevolent neutrality approach, implicitly approved the state of Texas’ payment of prison chaplains’ salaries
as reasonably necessary to permit inmates to practice their religion. Also, in the Marsh case, the U.S. Supreme Court upheld the
long-standing tradition of beginning legislative sessions with prayers offered by legislative chaplains retained at taxpayers’
expense. The constitutional provision exempting religious officers in government institutions affirms the departure of the
Philippine Constitution from the U.S. Constitution in its adoption of benevolent neutrality in Philippine jurisdiction. While the
provision prohibiting aid to religion protects the wall of separation between church and state, the provision at the same time gives
constitutional sanction to a breach in the wall.
73
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.
The provision on the separation of church and state was retained but placed under the Principles in the Declaration of Principles
and State Policies in Article II, Section 6. In opting to retain the wording of the provision, Fr. Bernas stated, viz:
. . . It is true, I maintain, that as a legal statement the sentence ‘The separation of Church and State is inviolable,’ is almost a useless
statement; but at the same time it is a harmless statement. Hence, I am willing to tolerate it there, because, in the end, if we look
at the jurisprudence on Church and State, arguments are based not on the statement of separation of church and state but on the
non-establishment clause in the Bill of Rights.398
The preamble changed "Divine Providence" in the 1935 and 1973 Constitutions to "Almighty God." There was considerable debate
on whether to use "Almighty God" which Commissioner Bacani said was more reflective of Filipino religiosity, but Commissioner
Rodrigo recalled that a number of atheistic delegates in the 1971 Constitutional Convention objected to reference to a personal
God.399 "God of History", "Lord of History" and "God" were also proposed, but the phrase "Almighty God" prevailed. Similar to
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the 1935 and 1971 Constitutions, it is obvious that the 1987 Constitution is not hostile nor indifferent to religion;400 its wall of
separation is not a wall of hostility or indifference.401
The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church property, salary of religious officers in
government institutions, optional religious instruction and the preamble all reveal without doubt that the Filipino people, in
adopting these constitutions, did not intend to erect a high and impregnable wall of separation between the church and state.402
The strict neutrality approach which examines only whether government action is for a secular purpose and does not consider
inadvertent burden on religious exercise protects such a rigid barrier. By adopting the above constitutional provisions on religion,
the Filipinos manifested their adherence to the benevolent neutrality approach in interpreting the religion clauses, an approach that
looks further than the secular purposes of government action and examines the effect of these actions on religious exercise.
Benevolent neutrality recognizes the religious nature of the Filipino people and the elevating influence of religion in society; at
the same time, it acknowledges that government must pursue its secular goals. In pursuing these goals, however, government might
adopt laws or actions of general applicability which inadvertently burden religious exercise. Benevolent neutrality gives room for
accommodation of these religious exercises as required by the Free Exercise Clause. It allows these breaches in the wall of
separation to uphold religious liberty, which after all is the integral purpose of the religion clauses. The case at bar involves this
first type of accommodation where an exemption is sought from a law of general applicability that inadvertently burdens religious
exercise.
Although our constitutional history and interpretation mandate benevolent neutrality, benevolent neutrality does not mean that the
Court ought to grant exemptions every time a free exercise claim comes before it. But it does mean that the Court will not look
with hostility or act indifferently towards religious beliefs and practices and that it will strive to accommodate them when it can
within flexible constitutional limits; it does mean that the Court will not simply dismiss a claim under the Free Exercise Clause
because the conduct in question offends a law or the orthodox view for this precisely is the protection afforded by the religion
clauses of the Constitution, i.e., that in the absence of legislation granting exemption from a law of general applicability, the Court
can carve out an exception when the religion clauses justify it. While the Court cannot adopt a doctrinal formulation that can
eliminate the difficult questions of judgment in determining the degree of burden on religious practice or importance of the state
interest or the sufficiency of the means adopted by the state to pursue its interest, the Court can set a doctrine on the ideal towards
which religious clause jurisprudence should be directed.403 We here lay down the doctrine that in Philippine jurisdiction, we adopt
the benevolent neutrality approach not only because of its merits as discussed above, but more importantly, because our
constitutional history and interpretation indubitably show that benevolent neutrality is the launching pad from which the Court
should take off in interpreting religion clause cases. The ideal towards which this approach is directed is the protection of religious
liberty "not only for a minority, however small- not only for a majority, however large- but for each of us" to the greatest extent
possible within flexible constitutional limits.
Benevolent neutrality is manifest not only in the Constitution but has also been recognized in Philippine jurisprudence, albeit not
expressly called "benevolent neutrality" or "accommodation". In Aglipay, the Court not only stressed the "elevating influence of
religion in human society" but acknowledged the Constitutional provisions on exemption from tax of church property, salary of
religious officers in government institutions, and optional religious instruction as well as the provisions of the Administrative Code
making Thursday and Friday of the Holy Week, Christmas Day and Sundays legal holidays. In Garces, the Court not only
recognized the Constitutional provisions indiscriminately granting concessions to religious sects and denominations, but also
acknowledged that government participation in long-standing traditions which have acquired a social character - "the barrio fiesta
is a socio-religious affair" - does not offend the Establishment Clause. In Victoriano, the Court upheld the exemption from closed
shop provisions of members of religious sects who prohibited their members from joining unions upon the justification that the
exemption was not a violation of the Establishment Clause but was only meant to relieve the burden on free exercise of religion.
In Ebralinag, members of the Jehovah’s Witnesses were exempt from saluting the flag as required by law, on the basis not of a
statute granting exemption but of the Free Exercise Clause without offending the Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form and origin, Philippine constitutional law has departed from the
U.S. jurisprudence of employing a separationist or strict neutrality approach. The Philippine religion clauses have taken a life of
their own, breathing the air of benevolent neutrality and accommodation. Thus, the wall of separation in Philippine jurisdiction is
not as high and impregnable as the wall created by the U.S. Supreme Court in Everson.404 While the religion clauses are a unique
American experiment which understandably came about as a result of America’s English background and colonization, the life
that these clauses have taken in this jurisdiction is the Philippines’ own experiment, reflective of the Filipinos’ own national soul,
history and tradition. After all, "the life of the law. . . has been experience."
But while history, constitutional construction, and earlier jurisprudence unmistakably show that benevolent neutrality is the lens
with which the Court ought to view religion clause cases, it must be stressed that the interest of the state should also be afforded
utmost protection. To do this, a test must be applied to draw the line between permissible and forbidden religious exercise. It is
quite paradoxical that in order for the members of a society to exercise their freedoms, including their religious liberty, the law
must set a limit when their exercise offends the higher interest of the state. To do otherwise is self-defeating for unlimited freedom
would erode order in the state and foment anarchy, eventually destroying the very state its members established to protect their
freedoms. The very purpose of the social contract by which people establish the state is for the state to protect their liberties; for
this purpose, they give up a portion of these freedoms - including the natural right to free exercise - to the state. It was certainly
not the intention of the authors of the constitution that free exercise could be used to countenance actions that would undo the
constitutional order that guarantees free exercise.405
The all important question then is the test that should be used in ascertaining the limits of the exercise of religious freedom.
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the Free Exercise
Clause, American Bible Society, the Court mentioned the "clear and present danger" test but did not employ it. Nevertheless, this
test continued to be cited in subsequent cases on religious liberty. The Gerona case then pronounced that the test of permissibility
of religious freedom is whether it violates the established institutions of society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine that a law of general applicability may burden religious exercise provided
the law is the least restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the "compelling
state interest" test. After Victoriano, German went back to the Gerona rule. Ebralinag then employed the "grave and immediate
danger" test and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the "clear and present danger"
test in the maiden case of American Bible Society. Not surprisingly, all the cases which employed the "clear and present danger"
or "grave and immediate danger" test involved, in one form or another, religious speech as this test is often used in cases on
freedom of expression. On the other hand, the Gerona and German cases set the rule that religious freedom will not prevail over
established institutions of society and law. Gerona, however, which was the authority cited by German has been overruled by
Ebralinag which employed the "grave and immediate danger" test. Victoriano was the only case that employed the "compelling
state interest" test, but as explained previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where the "clear and present
danger" and "grave and immediate danger" tests were appropriate as speech has easily discernible or immediate effects. The Gerona
and German doctrine, aside from having been overruled, is not congruent with the benevolent neutrality approach, thus not
appropriate in this jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious belief. The
"compelling state interest" test is proper where conduct is involved for the whole gamut of human conduct has different effects on
the state’s interests: some effects may be immediate and short-term while others delayed and far-reaching. A test that would protect
the interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any
interest of the state would suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of Jefferson.406 This right
is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of
limited government is premised upon an acknowledgment of such higher sovereignty,407 thus the Filipinos implore the "aid of
Almighty God in order to build a just and humane society and establish a government." As held in Sherbert, only the gravest
abuses, endangering paramount interests can limit this fundamental right. A mere balancing of interests which balances a right
with just a colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the
fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise
would allow the state to batter religion, especially the less powerful ones until they are destroyed.408 In determining which shall
prevail between the state’s interest and religious liberty, reasonableness shall be the guide.409 The "compelling state interest"
serves the purpose of revering religious liberty while at the same time affording protection to the paramount interests of the state.
This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state
interest" test, by upholding the paramount interests of the state, seeks to protect the very state, without which, religious liberty will
not be preserved.
X. Application of the Religion Clauses to the Case at Bar
A. The Religion Clauses and Morality
In a catena of cases, the Court has ruled that government employees engaged in illicit relations are guilty of "disgraceful and
immoral conduct" for which he/she may be held administratively liable.410 In these cases, there was not one dissent to the
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majority’s ruling that their conduct was immoral. The respondents themselves did not foist the defense that their conduct was not
immoral, but instead sought to prove that they did not commit the alleged act or have abated from committing the act. The facts
of the 1975 case of De Dios v. Alejo411 and the 1999 case of Maguad v. De Guzman,412 are similar to the case at bar - i.e., the
complainant is a mere stranger and the legal wife has not registered any objection to the illicit relation, there is no proof of scandal
or offense to the moral sensibilities of the community in which the respondent and the partner live and work, and the government
employee is capacitated to marry while the partner is not capacitated but has long been separated in fact. Still, the Court found the
government employees administratively liable for "disgraceful and immoral conduct" and only considered the foregoing
circumstances to mitigate the penalty. Respondent Escritor does not claim that there is error in the settled jurisprudence that an
illicit relation constitutes disgraceful and immoral conduct for which a government employee is held liable. Nor is there an
allegation that the norms of morality with respect to illicit relations have shifted towards leniency from the time these precedent
cases were decided. The Court finds that there is no such error or shift, thus we find no reason to deviate from these rulings that
such illicit relationship constitutes "disgraceful and immoral conduct" punishable under the Civil Service Law. Respondent having
admitted the alleged immoral conduct, she, like the respondents in the above-cited cases, could be held administratively liable.
However, there is a distinguishing factor that sets the case at bar apart from the cited precedents, i.e., as a defense, respondent
invokes religious freedom since her religion, the Jehovah’s Witnesses, has, after thorough investigation, allowed her conjugal
arrangement with Quilapio based on the church’s religious beliefs and practices. This distinguishing factor compels the Court to
apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion of Mme. Justice Ynares-
Santiago and the separate opinion of Mr. Justice Vitug dwell more on the standards of morality than on the religion clauses in
deciding the instant case. A discussion on morality is in order.
At base, morality refers to, in Socrates’ words, "how we ought to live" and why. Any definition of morality beyond Socrates’
simple formulation is bound to offend one or another of the many rival theories regarding what it means to live morally.413 The
answer to the question of how we ought to live necessarily considers that man does not live in isolation, but in society. Devlin
posits that a society is held together by a community of ideas, made up not only of political ideas but also of ideas about the manner
its members should behave and govern their lives. The latter are their morals; they constitute the public morality. Each member of
society has ideas about what is good and what is evil. If people try to create a society wherein there is no fundamental agreement
about good and evil, they will fail; if having established the society on common agreement, the agreement collapses, the society
will disintegrate. Society is kept together by the invisible bonds of common thought so that if the bonds are too loose, the members
would drift apart. A common morality is part of the bondage and the bondage is part of the price of society; and mankind, which
needs society, must pay its price.414 This design is parallel with the social contract in the realm of politics: people give up a
portion of their liberties to the state to allow the state to protect their liberties. In a constitutional order, people make a fundamental
agreement about the powers of government and their liberties and embody this agreement in a constitution, hence referred to as
the fundamental law of the land. A complete break of this fundamental agreement such as by revolution destroys the old order and
creates a new one.415 Similarly, in the realm of morality, the breakdown of the fundamental agreement about the manner a
society’s members should behave and govern their lives would disintegrate society. Thus, society is justified in taking steps to
preserve its moral code by law as it does to preserve its government and other essential institutions.416 From these propositions
of Devlin, one cannot conclude that Devlin negates diversity in society for he is merely saying that in the midst of this diversity,
there should nevertheless be a "fundamental agreement about good and evil" that will govern how people in a society ought to
live. His propositions, in fact, presuppose diversity hence the need to come to an agreement; his position also allows for change of
morality from time to time which may be brought about by this diversity. In the same vein, a pluralistic society lays down
fundamental rights and principles in their constitution in establishing and maintaining their society, and these fundamental values
and principles are translated into legislation that governs the order of society, laws that may be amended from time to time. Hart’s
argument propounded in Mr. Justice Vitug’s separate opinion that, "Devlin’s view of people living in a single society as having
common moral foundation (is) overly simplistic" because "societies have always been diverse" fails to recognize the necessity of
Devlin’s proposition in a democracy. Without fundamental agreement on political and moral ideas, society will fall into anarchy;
the agreement is necessary to the existence and progress of society.
In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every
opinion, every prejudice, every aspiration, and every moral discernment has access to the public square where people deliberate
the order of their life together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and
these citizens have equal access to the public square. In this representative democracy, the state is prohibited from determining
which convictions and moral judgments may be proposed for public deliberation. Through a constitutionally designed process, the
people deliberate and decide. Majority rule is a necessary principle in this democratic governance.417 Thus, when public
deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the
majority, i.e., the mainstream or median groups.418 Nevertheless, in the very act of adopting and accepting a constitution and the
limits it specifies -- including protection of religious freedom "not only for a minority, however small- not only for a majority,
however large- but for each of us" -- the majority imposes upon itself a self-denying ordinance. It promises not to do what it
otherwise could do: to ride roughshod over the dissenting minorities.419 In the realm of religious exercise, benevolent neutrality
that gives room for accommodation carries out this promise, provided the compelling interests of the state are not eroded for the
preservation of the state is necessary to the preservation of religious liberty. That is why benevolent neutrality is necessary in a
pluralistic society such as the United States and the Philippines to accommodate those minority religions which are politically
powerless. It is not surprising that Smith is much criticized for it blocks the judicial recourse of the minority for religious
accommodations.
The laws enacted become expressions of public morality. As Justice Holmes put it, "(t)he law is the witness and deposit of our
moral life."420 "In a liberal democracy, the law reflects social morality over a period of time."421 Occasionally though, a
disproportionate political influence might cause a law to be enacted at odds with public morality or legislature might fail to repeal
laws embodying outdated traditional moral views.422 Law has also been defined as "something men create in their best moments
to protect themselves in their worst moments."423 Even then, laws are subject to amendment or repeal just as judicial
pronouncements are subject to modification and reversal to better reflect the public morals of a society at a given time. After all,
"the life of the law...has been experience," in the words of Justice Holmes. This is not to say though that law is all of morality.
Law deals with the minimum standards of human conduct while morality is concerned with the maximum. A person who regulates
his conduct with the sole object of avoiding punishment under the law does not meet the higher moral standards set by society for
him to be called a morally upright person.424 Law also serves as "a helpful starting point for thinking about a proper or ideal
public morality for a society"425 in pursuit of moral progress.
In Magno v. Court of Appeals, et al.,426 we articulated the relationship between law and public morality. We held that under the
utilitarian theory, the "protective theory" in criminal law, "criminal law is founded upon the moral disapprobation x x x of actions
which are immoral, i.e., which are detrimental (or dangerous) to those conditions upon which depend the existence and progress
of human society. This disapprobation is inevitable to the extent that morality is generally founded and built upon a certain
concurrence in the moral opinions of all. x x x That which we call punishment is only an external means of emphasizing moral
disapprobation: the method of punishment is in reality the amount of punishment."427 Stated otherwise, there are certain standards
of behavior or moral principles which society requires to be observed and these form the bases of criminal law. Their breach is an
offense not only against the person injured but against society as a whole.428 Thus, even if all involved in the misdeed are
consenting parties, such as in the case at bar, the injury done is to the public morals and the public interest in the moral order.429
Mr. Justice Vitug expresses concern on this point in his separate opinion. He observes that certain immoral acts which appear
private and not harmful to society such as sexual congress "between a man and a prostitute, though consensual and private, and
with no injured third party, remains illegal in this country." His opinion asks whether these laws on private morality are justified
or they constitute impingement on one’s freedom of belief. Discussion on private morality, however, is not material to the case at
bar for whether respondent’s conduct, which constitutes concubinage,430 is private in the sense that there is no injured party or
the offended spouse consents to the concubinage, the inescapable fact is that the legislature has taken concubinage out of the sphere
of private morals. The legislature included concubinage as a crime under the Revised Penal Code and the constitutionality of this
law is not being raised in the case at bar. In the definition of the crime of concubinage, consent of the injured party, i.e., the legal
spouse, does not alter or negate the crime unlike in rape431 where consent of the supposed victim negates the crime. If at all, the
consent or pardon of the offended spouse in concubinage negates the prosecution of the action,432 but does not alter the
legislature’s characterization of the act as a moral disapprobation punishable by law. The separate opinion states that, "(t)he
ponencia has taken pains to distinguish between secular and private morality, and reached the conclusion that the law, as an
instrument of the secular State should only concern itself with secular morality." The Court does not draw this distinction in the
case at bar. The distinction relevant to the case is not, as averred and discussed by the separate opinion, "between secular and
private morality," but between public and secular morality on the one hand, and religious morality on the other, which will be
subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this reality in Velayo, et al. v. Shell
Co. of the Philippine Islands, et al., where we explained that for those wrongs which are not punishable by law, Articles 19 and 21
in Chapter 2 of the Preliminary Title of the New Civil Code, dealing with Human Relations, provide for the recognition of the
wrong and the concomitant punishment in the form of damages. Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due
and observe honesty and good faith.
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xxx xxx xxx
Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage. (emphasis supplied)
We then cited in Velayo the Code Commission’s comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved), would vouchsafe adequate legal remedy
for that untold numbers of moral wrongs which is impossible for human foresight to provide for specifically in the statutes.
But, it may be asked, would this proposed article obliterate the boundary line between morality and law? The answer is that, in the
last analysis, every good law draws its breath of life from morals, from those principles which are written with words of fire in the
conscience of man. If this premise is admitted, then the proposed rule is a prudent earnest of justice in the face of the impossibility
of enumerating, one by one, all wrongs which cause damages. When it is reflected that while codes of law and statutes have
changed from age to age, the conscience of man has remained fixed to its ancient moorings, one can not but feel that it is safe and
salutary to transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring quality
which ought to be one of its superlative attributes.
Furthermore, there is no belief of more baneful consequence upon the social order than that a person may with impunity cause
damage to his fellow-men so long as he does not break any law of the State, though he may be defying the most sacred postulates
of morality. What is more, the victim loses faith in the ability of the government to afford him protection or relief.
A provision similar to the one under consideration is embodied in article 826 of the German Civil Code.433 (emphases supplied)
The public morality expressed in the law is necessarily secular for in our constitutional order, the religion clauses prohibit the state
from establishing a religion, including the morality it sanctions. Religious morality proceeds from a person’s "views of his relations
to His Creator and to the obligations they impose of reverence to His being and character and obedience to His Will," in accordance
with this Court’s definition of religion in American Bible Society citing Davis. Religion also dictates "how we ought to live" for
the nature of religion is not just to know, but often, to act in accordance with man’s "views of his relations to His Creator."434 But
the Establishment Clause puts a negative bar against establishment of this morality arising from one religion or the other, and
implies the affirmative "establishment" of a civil order for the resolution of public moral disputes. This agreement on a secular
mechanism is the price of ending the "war of all sects against all"; the establishment of a secular public moral order is the social
contract produced by religious truce.435
Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of Professional Responsibility for
lawyers436 , or "public morals" in the Revised Penal Code,437 or "morals" in the New Civil Code,438 or "moral character" in the
Constitution,439 the distinction between public and secular morality on the one hand, and religious morality, on the other, should
be kept in mind.440 The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice
Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order but public moral disputes
may be resolved only on grounds articulable in secular terms."441 Otherwise, if government relies upon religious beliefs in
formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as
religious programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by
a religious belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based its actions upon
religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-
religious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens,
or even make it appear that those whose beliefs are disapproved are second-class citizens. Expansive religious freedom therefore
requires that government be neutral in matters of religion; governmental reliance upon religious justification is inconsistent with
this policy of neutrality.442
In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must
have a secular purpose. That is, the government proscribes this conduct because it is "detrimental (or dangerous) to those conditions
upon which depend the existence and progress of human society" and not because the conduct is proscribed by the beliefs of one
religion or the other. Although admittedly, moral judgments based on religion might have a compelling influence on those engaged
in public deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they might also
be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind
endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven.443
Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable
and discernible secular purpose and justification to pass scrutiny of the religion clauses. Otherwise, if a law has an apparent secular
purpose but upon closer examination shows a discriminatory and prohibitory religious purpose, the law will be struck down for
being offensive of the religion clauses as in Church of the Lukumi Babalu Aye, Inc. where the U.S. Supreme Court invalidated an
ordinance prohibiting animal sacrifice of the Santeria. Recognizing the religious nature of the Filipinos and the elevating influence
of religion in society, however, the Philippine constitution’s religion clauses prescribe not a strict but a benevolent neutrality.
Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strives to uphold
religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by
laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend
compelling state interests.
Mr. Justice Vitug’s separate opinion embraces the benevolent neutrality approach when it states that in deciding the case at bar,
the approach should consider that, "(a)s a rule . . . moral laws are justified only to the extent that they directly or indirectly serve
to protect the interests of the larger society. It is only where their rigid application would serve to obliterate the value which society
seeks to uphold, or defeat the purpose for which they are enacted would, a departure be justified." In religion clause parlance, the
separate opinion holds that laws of general applicability governing morals should have a secular purpose of directly or indirectly
protecting the interests of the state. If the strict application of these laws (which are the Civil Service Law and the laws on marriage)
would erode the secular purposes of the law (which the separate opinion identifies as upholding the sanctity of marriage and the
family), then in a benevolent neutrality framework, an accommodation of the unconventional religious belief and practice (which
the separate opinion holds should be respected on the ground of freedom of belief) that would promote the very same secular
purpose of upholding the sanctity of marriage and family through the Declaration Pledging Faithfulness that makes the union
binding and honorable before God and men, is required by the Free Exercise Clause. The separate opinion then makes a preliminary
discussion of the values society seeks to protect in adhering to monogamous marriage, but concludes that these values and the
purposes of the applicable laws should be thoroughly examined and evidence in relation thereto presented in the OCA. The
accommodation approach in the case at bar would also require a similar discussion of these values and presentation of evidence
before the OCA by the state that seeks to protect its interest on marriage and opposes the accommodation of the unconventional
religious belief and practice regarding marriage.
The distinction between public and secular morality as expressed - albeit not exclusively - in the law, on the one hand, and religious
morality, on the other, is important because the jurisdiction of the Court extends only to public and secular morality. Whatever
pronouncement the Court makes in the case at bar should be understood only in this realm where it has authority. More concretely,
should the Court declare respondent’s conduct as immoral and hold her administratively liable, the Court will be holding that in
the realm of public morality, her conduct is reprehensible or there are state interests overriding her religious freedom. For as long
as her conduct is being judged within this realm, she will be accountable to the state. But in so ruling, the Court does not and
cannot say that her conduct should be made reprehensible in the realm of her church where it is presently sanctioned and that she
is answerable for her immorality to her Jehovah God nor that other religions prohibiting her conduct are correct. On the other hand,
should the Court declare her conduct permissible, the Court will be holding that under her unique circumstances, public morality
is not offended or that upholding her religious freedom is an interest higher than upholding public morality thus her conduct should
not be penalized. But the Court is not ruling that the tenets and practice of her religion are correct nor that other churches which
do not allow respondent’s conjugal arrangement should likewise allow such conjugal arrangement or should not find anything
immoral about it and therefore members of these churches are not answerable for immorality to their Supreme Being. The Court
cannot speak more than what it has authority to say. In Ballard, the U.S. Supreme Court held that courts cannot inquire about the
truth of religious beliefs. Similarly, in Fonacier, this Court declared that matters dealing with "faith, practice, doctrine, form of
worship, ecclesiastical law, custom and rule of a church…are unquestionably ecclesiastical matters which are outside the province
of the civil courts."444 But while the state, including the Court, accords such deference to religious belief and exercise which
enjoy protection under the religious clauses, the social contract and the constitutional order are designed in such a way that when
religious belief flows into speech and conduct that step out of the religious sphere and overlap with the secular and public realm,
the state has the power to regulate, prohibit and penalize these expressions and embodiments of belief insofar as they affect the
interests of the state. The state’s inroad on religion exercise in excess of this constitutional design is prohibited by the religion
clauses; the Old World, European and American history narrated above bears out the wisdom of this proscription.
77
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 not secure the Declaration only after entering the judiciary where the moral standards are strict and defined, much less only after
contemplated by the Philippine constitution. As discussed above, Philippine jurisdiction adopts benevolent neutrality in an administrative case for immorality was filed against her. The Declaration was issued to her by her congregation after ten years
interpreting the religion clauses. 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
In the same vein, Mr. Justice Carpio’s dissent which employs strict neutrality does not reflect the constitutional intent of employing
but to make the "union" of their members under respondent’s circumstances "honorable before God and men." It is also worthy of
benevolent neutrality in interpreting the Philippine religion clauses. His dissent avers that respondent should be held
notice that the Report and Recommendation of the investigating judge annexed letters453 of the OCA to the respondent regarding
administratively liable not for "disgraceful and immoral conduct" but "conduct prejudicial to the best interest of the service" as
her request to be exempt from attending the flag ceremony after Circular No. 62-2001 was issued requiring attendance in the flag
she is a necessary co-accused of her partner in concubinage. The dissent stresses that being a court employee, her open violation
ceremony. The OCA’s letters were not submitted by respondent as evidence but annexed by the investigating judge in explaining
of the law is prejudicial to the administration of justice. Firstly, the dissent offends due process as respondent was not given an
that he was caught in a dilemma whether to find respondent guilty of immorality because the Court Administrator and Deputy
opportunity to defend herself against the charge of "conduct prejudicial to the best interest of the service." In addition, there is no
Court Administrator had different positions regarding respondent’s request for exemption from the flag ceremony on the ground
evidence of the alleged prejudice to the best interest of the service. Most importantly, the dissent concludes that respondent’s plea
of the Jehovah’s Witnesses’ contrary belief and practice. Respondent’s request for exemption from the flag ceremony shows her
of religious freedom cannot prevail without so much as employing a test that would balance respondent’s religious freedom and
sincerity in practicing the Jehovah’s Witnesses’ beliefs and not using them merely to escape punishment. She is a practicing
the state’s interest at stake in the case at bar. The foregoing discussion on the doctrine of religious freedom, however, shows that
member of the Jehovah’s Witnesses and the Jehovah ministers testified that she is a member in good standing. Nevertheless, should
with benevolent neutrality as a framework, the Court cannot simply reject respondent’s plea of religious freedom without even
the government, thru the Solicitor General, want to further question the respondent’s sincerity and the centrality of her practice in
subjecting it to the "compelling state interest" test that would balance her freedom with the paramount interests of the state. The
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
strict neutrality employed in the cases the dissent cites -Reynolds, Smith and People v. Bitdu decided before the 1935 Constitution
until this point.
which unmistakably shows adherence to benevolent neutrality - is not contemplated by our constitution.

In any event, even if the Court deems sufficient respondent’s evidence on the sincerity of her religious belief and its centrality in
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik451 cited in Mr. Justice Carpio’s dissent
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,
decisive of the immorality issue in the case at bar. In that case, the Court dismissed the charge of immorality against a Tausug
thus the parties were not aware of the burdens of proof they should discharge in the Court’s use of the "compelling state interest"
judge for engaging in an adulterous relationship with another woman with whom he had three children because "it (was) not
test. We note that the OCA found respondent’s defense of religious freedom unavailing in the face of the Court’s ruling in Dicdican
‘immoral’ by Muslim standards for Judge Malik to marry a second time while his first marriage (existed)." Putting the quoted
v. Fernan, et al., viz:
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 It bears emphasis that the image of a court of justice is mirrored in the conduct, official and otherwise, of the personnel who work
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 thereat, from the judge to the lowest of its personnel. Court personnel have been enjoined to adhere to the exacting standards of
time while his first marriage exists."452 It was by law, therefore, that the Muslim conduct in question was classified as an exception morality and decency in their professional and private conduct in order to preserve the good name and integrity of the courts of
to the crime of bigamy and thus an exception to the general standards of morality. The constitutionality of P.D. No. 1083 when justice.
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
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
conduct from the crime of bigamy in holding that the challenged act is not immoral by Muslim standards. In contradistinction, in
judiciary by maintaining among its ranks a high standard of morality and decency. However, there is nothing in the OCA’s
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
memorandum to the Court that demonstrates how this interest is so compelling that it should override respondent’s plea of religious
prevailing jurisprudence on illicit relations of civil servants. Instead, the Free Exercise Clause is being invoked to justify
freedom nor is it shown that the means employed by the government in pursuing its interest is the least restrictive to respondent’s
exemption.
religious exercise.

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
78
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.
G.R. No. 153888 July 9, 2003 Moreover, petitioner argues that the subject EO violates Sections 15 and 16 of Article XIII of the 1987 Constitution which
respectively provide:
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., herein represented by PROF. ABDULRAFIH H.
SAYEDY, petitioner, ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS
vs.
OFFICE OF THE EXECUTIVE SECRETARY of the Office of the President of the Philippines, herein represented by
Sec. 15. The State shall respect the role of independent people's organizations to enable the people to pursue and protect,
HON. ALBERTO G. ROMULO, Executive Secretary, and the OFFICE ON MUSLIM AFFAIRS, herein represented by
within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful
its Executive Director, HABIB MUJAHAB HASHIM, respondents.
means.

CORONA, J.:
People's organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest
and with identifiable leadership, membership, and structure.
Before us is a petition for prohibition filed by petitioner Islamic Da'wah Council of the Philippines, Inc. (IDCP) praying for the
declaration of nullity of Executive Order (EO) 46, s. 2001 and the prohibition of herein respondents Office of the Executive
Sec. 16. The rights of the people and their organizations to effective and reasonable participation at all levels of social,
Secretary and Office of Muslim Affairs (OMA) from implementing the subject EO.
political, and economic decision-making shall not be abridged. The State shall, by law, facilitate, the establishment of
adequate consultation mechanisms.
Petitioner IDCP, a corporation that operates under Department of Social Welfare and Development License No. SB-01-085, is a
non-governmental organization that extends voluntary services to the Filipino people, especially to Muslim communities. It claims
According to petitioner, the subject EO was issued with utter haste and without even consulting Muslim people's organizations
to be a federation of national Islamic organizations and an active member of international organizations such as the Regional
like petitioner before it became effective.
Islamic Da'wah Council of Southeast Asia and the Pacific (RISEAP)1 and The World Assembly of Muslim Youth. The RISEAP
accredited petitioner to issue halal2 certifications in the Philippines. Thus, among the functions petitioner carries out is to conduct
seminars, orient manufacturers on halal food and issue halal certifications to qualified products and manufacturers. We grant the petition.

Petitioner alleges that, on account of the actual need to certify food products as halal and also due to halal food producers' request,
petitioner formulated in 1995 internal rules and procedures based on the Qur'an3 and the Sunnah4 for the analysis of food, inspection
thereof and issuance of halal certifications. In that same year, petitioner began to issue, for a fee, certifications to qualified products
and food manufacturers. Petitioner even adopted for use on its halal certificates a distinct sign or logo registered in the Philippine
Patent Office under Patent No. 4-2000-03664.
On October 26, 2001, respondent Office of the Executive Secretary issued EO 46 5 creating the Philippine Halal Certification
Scheme and designating respondent OMA to oversee its implementation. Under the EO, respondent OMA has the exclusive
authority to issue halal certificates and perform other related regulatory activities.
On May 8, 2002, a news article entitled "OMA Warns NGOs Issuing Illegal 'Halal' Certification" was published in the Manila
Bulletin, a newspaper of general circulation. In said article, OMA warned Muslim consumers to buy only products with its official
halal certification since those without said certification had not been subjected to careful analysis and therefore could contain pork
or its derivatives. Respondent OMA also sent letters to food manufacturers asking them to secure the halal certification only from
OMA lest they violate EO 46 and RA 4109.6 As a result, petitioner lost revenues after food manufacturers stopped securing
certifications from it.
Hence, this petition for prohibition.
Petitioner contends that the subject EO violates the constitutional provision on the separation of Church and State.7 It is
unconstitutional for the government to formulate policies and guidelines on the halal certification scheme because said scheme is
a function only religious organizations, entity or scholars can lawfully and validly perform for the Muslims. According to
petitioner, a food product becomes halal only after the performance of Islamic religious ritual and prayer. Thus, only practicing
Muslims are qualified to slaughter animals for food. A government agency like herein respondent OMA cannot therefore perform
a religious function like certifying qualified food products as halal.
Petitioner also maintains that the respondents violated Section 10, Article III of the 1987 Constitution which provides that "(n)o
law impairing the obligation of contracts, shall be passed." After the subject EO was implemented, food manufacturers with
existing contracts with petitioner ceased to obtain certifications from the latter.
OMA was created in 1981 through Executive Order No. 697 (EO 697) "to ensure the integration of Muslim Filipinos into the
mainstream of Filipino society with due regard to their beliefs, customs, traditions, and institutions."8 OMA deals with the societal,
legal, political and economic concerns of the Muslim community as a "national cultural community" and not as a religious group.
Thus, bearing in mind the constitutional barrier between the Church and State, the latter must make sure that OMA does not intrude
into purely religious matters lest it violate the non-establishment clause and the "free exercise of religion" provision found in
Article III, Section 5 of the 1987 Constitution.9
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has consistently affirmed
this preferred status, well aware that it is "designed to protect the broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of
others and with the common good."10
Without doubt, classifying a food product as halal is a religious function because the standards used are drawn from the Qur'an
and Islamic beliefs. By giving OMA the exclusive power to classify food products as halal, EO 46 encroached on the religious
freedom of Muslim organizations like herein petitioner to interpret for Filipino Muslims what food products are fit for Muslim
consumption. Also, by arrogating to itself the task of issuing halal certifications, the State has in effect forced Muslims to accept
its own interpretation of the Qur'an and Sunnah on halal food.
To justify EO 46's intrusion into the subject religious activity, the Solicitor General argues that the freedom of religion is
subservient to the police power of the State. By delegating to OMA the authority to issue halal certifications, the government
allegedly seeks to protect and promote the muslim Filipinos' right to health, and to instill health consciousness in them.
We disagree.
Only the prevention of an immediate and grave danger to the security and welfare of the community can justify the infringement
of religious freedom.11 If the government fails to show the seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable. In a society with a democratic framework like ours, the State must minimize its interference with
the affairs of its citizens and instead allow them to exercise reasonable freedom of personal and religious activity.

79
In the case at bar, we find no compelling justification for the government to deprive muslim organizations, like herein petitioner,
of their religious right to classify a product as halal, even on the premise that the health of muslim Filipinos can be effectively
protected by assigning to OMA the exclusive power to issue halal certifications. The protection and promotion of the muslim
Filipinos' right to health are already provided for in existing laws and ministered to by government agencies charged with ensuring
that food products released in the market are fit for human consumption, properly labeled and safe. Unlike EO 46, these laws do
not encroach on the religious freedom of muslims.
Section 48(4) of the Administrative Code of 1987 gives to the National Meat Inspection Commission (NMIC) of the Department
of Agriculture (DOA) the power to inspect slaughtered animals intended for human consumption to ensure the safety of the meat
released in the market. Another law, RA 7394, otherwise known as "The Consumer Act of 1992," gives to certain government
departments the duty to protect the interests of the consumer, promote his general welfare and to establish standards of conduct
for business and industry.12 To this end, a food product, before its distribution to the market, is required to secure the Philippine
Standard Certification Mark after the concerned department inspects and certifies its compliance with quality and safety
standards.13
One such government agency designated by RA 7394 is the Bureau of Food and Drugs (BFD) of the Department of Health (DOH).
Under Article 22 of said law, BFD has the duty to promulgate and enforce rules and regulations fixing and establishing a reasonable
definition and standard of identity, a standard of quality and a standard of fill of containers for food. The BFD also ensures that
food products released in the market are not adulterated.14
Furthermore, under Article 48 of RA 7394, the Department of Trade and Industry (DTI) is tasked to protect the consumer against
deceptive, unfair and unconscionable sales acts or practices as defined in Article 50. 15 DTI also enforces compulsory labeling and
fair packaging to enable the consumer to obtain accurate information as to the nature, quality and quantity of the contents of
consumer products and to facilitate his comparison of the value of such products. 16
With these regulatory bodies given detailed functions on how to screen and check the quality and safety of food products, the
perceived danger against the health of muslim and non-muslim Filipinos alike is totally avoided. Of great help are the provisions
on labeling of food products (Articles 74 to 85)17 of RA 7394. In fact, through these labeling provisions, the State ably informs the
consuming public of the contents of food products released in the market. Stiff sanctions are imposed on violators of said labeling
requirements.
Through the laws on food safety and quality, therefore, the State indirectly aids muslim consumers in differentiating food from
non-food products. The NMIC guarantees that the meat sold in the market has been thoroughly inspected and fit for consumption.
Meanwhile, BFD ensures that food products are properly categorized and have passed safety and quality standards. Then, through
the labeling provisions enforced by the DTI, muslim consumers are adequately apprised of the products that contain substances or
ingredients that, according to their Islamic beliefs, are not fit for human intake. These are the non-secular steps put in place by the
State to ensure that the muslim consumers' right to health is protected. The halal certifications issued by petitioner and similar
organizations come forward as the official religious approval of a food product fit for muslim consumption.
We do not share respondents' apprehension that the absence of a central administrative body to regulate halal certifications might
give rise to schemers who, for profit, will issue certifications for products that are not actually halal. Aside from the fact that
muslim consumers can actually verify through the labels whether a product contains non-food substances, we believe that they are
discerning enough to know who the reliable and competent certifying organizations in their community are. Before purchasing a
product, they can easily avert this perceived evil by a diligent inquiry on the reliability of the concerned certifying organization.
WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2000, is hereby declared NULL AND VOID. Consequently,
respondents are prohibited from enforcing the same.
G.R. No. L-45459 March 13, 1937
80
GREGORIO AGLIPAY, petitioner,
vs.
JUAN RUIZ, respondent.
Vicente Sotto for petitioner.
Office of the Solicitor-General Tuason for respondent.
LAUREL, J.:
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church, seeks the issuance from this court
of a writ of prohibition to prevent the respondent Director of Posts from issuing and selling postage stamps commemorative of the
Thirty-third International Eucharistic Congress.
In May, 1936, the Director of Posts announced in the dailies of Manila that he would order the issues of postage stamps
commemorating the celebration in the City of Manila of the Thirty-third international Eucharistic Congress, organized by the
Roman Catholic Church. The petitioner, in the fulfillment of what he considers to be a civic duty, requested Vicente Sotto, Esq.,
member of the Philippine Bar, to denounce the matter to the President of the Philippines. In spite of the protest of the petitioner's
attorney, the respondent publicly announced having sent to the United States the designs of the postage stamps for printing as
follows:
"In the center is chalice, with grape vine and stalks of wheat as border design. The stamps are blue, green, brown, cardinal red,
violet and orange, 1 inch by 1,094 inches. The denominations are for 2, 6, 16, 20, 36 and 50 centavos." The said stamps were
actually issued and sold though the greater part thereof, to this day, remains unsold. The further sale of the stamps is sought to be
prevented by the petitioner herein.
The Solicitor-General contends that the writ of prohibition is not the proper legal remedy in the instant case, although he admits
that the writ may properly restrain ministerial functions. While, generally, prohibition as an extraordinary legal writ will not issue
to restrain or control the performance of other than judicial or quasi-judicial functions (50 C. J., 6580, its issuance and enforcement
are regulated by statute and in this jurisdiction may issue to . . . inferior tribunals, corporations, boards, or persons, whether
excercising functions judicial or ministerial, which are without or in excess of the jurisdiction of such tribunal, corporation, board,
or person, . . . ." (Secs. 516 and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used with reference to
"functions" in the statute are undoubtedly comprehensive and include the challenged act of the respondent Director of Posts in the
present case, which act because alleged to be violative of the Constitution is a fortiorari "without or in excess of . . . jurisdiction."
The statutory rule, therefore, in the jurisdiction is that the writ of prohibition is not confined exclusively to courts or tribunals to
keep them within the limits of their own jurisdiction and to prevent them from encroaching upon the jurisdiction of other tribunals,
but will issue, in appropriate cases, to an officer or person whose acts are without or in excess of his authority. Not infrequently,
"the writ is granted, where it is necessary for the orderly administration of justice, or to prevent the use of the strong arm of the
law in an oppressive or vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs. Fernandez [1923], 43 Phil.,
304, 307.)
The more important question raised refers to the alleged violation of the Constitution by the respondent in issuing and selling
postage stamps commemorative of the Thirty-third International Eucharistic Congress. It is alleged that this action of the
respondent is violative of the provisions of section 23, subsection 3, Article VI, of the Constitution of the Philippines, which
provides as follows:
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, secretarian, institution, or system of religion, or for the use, benefit, or
support of any priest, preacher, minister, 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.
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 ocassions might arise when the estate Approved, February 21, 1933.
will use the church, and the church the state, as a weapon in the furtherance of their recognized this principle of separation of
church and state in the early stages of our constitutional development; it was inserted in the Treaty of Paris between the United
It will be seen that the Act appropriates the sum of sixty thousand pesos for the costs of plates and printing of postage stamps with
States and Spain of December 10, 1898, reiterated in President McKinley's Instructions of the Philippine Commission, reaffirmed
new designs and other expenses incident thereto, and authorizes the Director of Posts, with the approval of the Secretary of Public
in the Philippine Bill of 1902 and in the autonomy Act of August 29, 1916, and finally embodied in the constitution of the
Works and Communications, to dispose of the amount appropriated in the manner indicated and "as often as may be deemed
Philippines as the supreme expression of the Filipino people. It is almost trite to say now that in this country we enjoy both religious
advantageous to the Government". The printing and issuance of the postage stamps in question appears to have been approved by
and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend
authority of the President of the Philippines in a letter dated September 1, 1936, made part of the respondent's memorandum as
the constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent
Exhibit A. The respondent alleges that the Government of the Philippines would suffer losses if the writ prayed for is granted. He
limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not
estimates the revenue to be derived from the sale of the postage stamps in question at P1,618,17.10 and states that there still remain
mere religious toleration.
to be sold stamps worth P1,402,279.02.

Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is not denial of
Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the discretionary power to determine
its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is
when the issuance of special postage stamps would be "advantageous to the Government." Of course, the phrase "advantageous to
recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly
the Government" does not authorize the violation of the Constitution. It does not authorize the appropriation, use or application of
appreciated. When the Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in order to
public money or property for the use, benefit or support of a particular sect or church. In the present case, however, the issuance
establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general
of the postage stamps in question by the Director of Posts and the Secretary of Public Works and Communications was not inspired
welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and
by any sectarian denomination. The stamps were not issue and sold for the benefit of the Roman Catholic Church. Nor were money
democracy," they thereby manifested reliance upon Him who guides the destinies of men and nations. The elevating influence of
derived from the sale of the stamps given to that church. On the contrary, it appears from the latter of the Director of Posts of June
religion in human society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to
5, 1936, incorporated on page 2 of the petitioner's complaint, that the only purpose in issuing and selling the stamps was "to
religious sects and denominations. Our Constitution and laws exempt from taxation properties devoted exclusively to religious
advertise the Philippines and attract more tourist to this country." The officials concerned merely, took advantage of an event
purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec. 4, Ordinance appended thereto; Assessment
considered of international importance "to give publicity to the Philippines and its people" (Letter of the Undersecretary of Public
Law, sec. 344, par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest, preacher, minister or other religious teacher or
Works and Communications to the President of the Philippines, June 9, 1936; p. 3, petitioner's complaint). It is significant to note
dignitary as such is assigned to the armed forces or to any penal institution, orphanage or leprosarium 9 sec. 13, subsec. 3, Art. VI,
that the stamps as actually designed and printed (Exhibit 2), instead of showing a Catholic Church chalice as originally planned,
Constitution of the Philippines). Optional religious instruction in the public schools is by constitutional mandate allowed (sec. 5,
contains a map of the Philippines and the location of the City of Manila, and an inscription as follows: "Seat XXXIII International
Art. XIII, Constitution of the Philippines, in relation to sec. 928, Adm. Code). Thursday and Friday of Holy Week, Thanksgiving
Eucharistic Congress, Feb. 3-7,1937." What is emphasized is not the Eucharistic Congress itself but Manila, the capital of the
Day, Christmas Day, and Sundays and made legal holidays (sec. 29, Adm. Code) because of the secular idea that their observance
Philippines, as the seat of that congress. It is obvious that while the issuance and sale of the stamps in question may be said to be
is conclusive to beneficial moral results. The law allows divorce but punishes polygamy and bigamy; and certain crimes against
inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church,
religious worship are considered crimes against the fundamental laws of the state (see arts. 132 and 133, Revised Penal Code).
was not the aim and purpose of the Government. We are of the opinion that the Government should not be embarassed in its
activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could
In the case at bar, it appears that the respondent Director of Posts issued the postage stamps in question under the provisions of legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its subordinate to mere
Act No. 4052 of the Philippine Legislature. This Act is as follows: incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)

No. 4052. — 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.
Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled and by the
authority of the same:
SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made immediately available out of any funds in the
Insular Treasury not otherwise appropriated, for the costs of plates and printing of postage stamps with new designs, and other
expenses incident thereto.
SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and Communications, is hereby authorized to
dispose of the whole or any portion of the amount herein appropriated in the manner indicated and as often as may be deemed
advantageous to the Government.
We are much impressed with the vehement appeal of counsel for the petitioner to maintain inviolate the complete separation of
church and state and curb any attempt to infringe by indirection a constitutional inhibition. Indeed, in the Philippines, once the
scene of religious intolerance and prescription, care should be taken that at this stage of our political development nothing is done
by the Government or its officials that may lead to the belief that the Government is taking sides or favoring a particular religious
sect or institution. But, upon very serious reflection, examination of Act No. 4052, and scrutiny of the attending circumstances,
we have come to the conclusion that there has been no constitutional infraction in the case at bar, Act No. 4052 grants the Director
of Posts, with the approval of the Secretary of Public Works and Communications, discretion to misuse postage stamps with new
designs "as often as may be deemed advantageous to the Government." Even if we were to assume that these officials made use
of a poor judgment in issuing and selling the postage stamps in question still, the case of the petitioner would fail to take in weight.
Between the exercise of a poor judgment and the unconstitutionality of the step taken, a gap exists which is yet to be filled to
justify the court in setting aside the official act assailed as coming within a constitutional inhibition.
The petition for a writ of prohibition is hereby denied, without pronouncement as to costs. So ordered.
March 7, 2017

A.M. No. 10-4-19-SC

SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the Treasury.

RE: LETTER OF TONY Q. V ALENCIANO, HOLDING OF RELIGIOUS RITUALS AT THE HALL OF JUSTICE
SEC. 4. This act shall take effect on its approval.
BUILDING IN QUEZON CITY

81
RESOLUTION
MENDOZA, J.:
One of our fundamental differences lies in our chosen religion. Some put their faith in a god different from ours, while some may
not believe in a god at all. Nevertheless, despite the inconveniences this difference may cause us, we must accept it unconditionally
for only upon acceptance of the fact that we are different from each other will we learn to respect one another.
This controversy originated from a series of letters, written by Tony Q. Valenciano (Valenciano) and addressed to then Chief
Justice Reynato S.
Puno (Chief Justice Puno).
In his first Letter,1 dated January 6, 2009, Valenciano reported that the basement of the Hall of Justice of Quezon City (QC) had
been converted into a Roman Catholic Chapel, complete with offertory table, images of Catholic religious icons, a canopy, an
electric organ, and a projector. He believed that such practice violated the constitutional provision on the separation of Church and
State and the constitutional prohibition against the appropriation of public money or property for the benefit of a sect, church,
denomination, or any other system of religion.
Valenciano further averred that the holding of masses at the basement of the QC Hall of Justice showed that it tended to favor
Catholic litigants; that the rehearsals of the choir caused great disturbance to other employees; that the public could no longer use
the basement as resting place; that the employees and litigants of the Public Attorney's Office (PAO), Branches 82 and 83 of the
Regional Trial Court (RTC), Legal Library, Philippine Mediation Center, and Records Section of the Office of the Clerk of Court
(OCC) could not attend to their personal necessities such as going to the lavatories because they could not traverse the basement
between 12:00 o'clock noontime and 1: 15 o'clock in the afternoon; that the court employees became hostile toward each other as
they vied for the right to read the epistle; and that the water supply in the entire building was cut off during the mass because the
generator was turned off to ensure silence.
In his 1st Indorsement,2 dated February 6, 2009, Chief Justice Puno referred Valenciano 's letter to then Deputy Court
Administrator (DCA) and Officer-in-Charge of the Office on Halls of Justice, Antonio H. Dujua (DCA Dujua).
In turn, DCA Dujua, in his 1st Indorsement,3 dated February 11, 2009, referred the letter to Executive Judge Teodoro A. Bay
(Judge Bay) of the RTC and to Executive Judge Luis Zenon Q. Maceren (Judge Maceren) of the Metropolitan Trial Court (MeTC)
for their respective comments.
In his March 6, 2009 Letter,4 addressed to DCA Dujua, Judge Maceren clarified that the basement of the QC Hall of Justice was
known as the prayer corner. He opined that the use of the said area for holding masses did not violate the constitutional prohibition
against the use of public property for religious purposes because the religious character of such use was merely incidental to a
temporary use.
In his Memorandum,5 dated March 10, 2009, Judge Bay manifested that he was due to compulsorily retire on April 29, 2009, and
he was taking a leave of absence prior to such date to concentrate in resolving cases submitted for decision before his sala and
requested that then Vice-Executive Judge Jaime N. Salazar (Judge Salazar) be assigned to further investigate, study, and make
recommendations on the matter raised by Valenciana.
In the meantime, Judge Bay recommended that, pending the final resolution of the case, daily masses be permitted to continue,
provided that: (1) the mass be limited to thirty (30) minutes; (2) no loud singing be allowed so as not to disturb others; and (3) the
inconveniences caused by the mass be addressed.
In his 1st Indorsement,6 dated May 27, 2009, Chief Justice Puno referred another letter of Valenciano, dated May 13, 2009, to
DCA Dujua for appropriate action, as he complained that masses continued to be held at the basement of the QC Hall of Justice.
82
On March 23, 2010, Valenciano wrote another letter,7 praying that rules be promulgated by the Court to put a stop to the holding
of Catholic masses, or any other religious rituals, at the QC Hall of Justice and in all other halls of justice in the country.
In its June 22, 2010 Resolution,8 the Court noted the March 23, 2010 letter of Valenciano and referred the matter to the Office of
the Court Administrator (OCA) for evaluation, report and recommendation.
Thus, in its 1st Indorsement,9 dated September 6, 2010, the OCA, through then Assistant Court Administrator (ACA) Jenny Lind
R. AldecoaDelorino (now Deputy Court Administrator), referred the letters of Valenciano to the incumbent RTC Executive Judge
Fernando T. Sagun, Jr. (Judge Sagun, Jr.) and incumbent MeTC Executive Judge Caridad M. WalseLutero (Judge Lutero).
In his Letter-Comment,10 dated September 9, 2010, Judge Sagun, Jr. informed the Court that his office had already implemented
measures to address Valenciano's complaints. He reported that masses were shortened to a little over thirty (30) minutes; that it
was only during special holy days of obligation when the celebration of mass went beyond one (1) o'clock in the afternoon; that
the pathways leading to the lavatories were open and could be used without obstruction; that there was never an instance where
the actions of court personnel, who were vying to read the epistle during mass, caused back-biting and irritation among themselves;
that the water generator had been broken beyond repair and decommissioned since December 2009; and that the court employees
prepared for the mass before the day officially started, so that the performance of their official duties in court was not hampered.
In her letter,11 Judge Lutero reported that Catholic masses were being held only during lunch breaks and did not disturb court
proceedings; that the basement of the QC Hall of Justice could still be used as waiting area for the public; that court personnel and
the public were never physically prevented from reaching the lavatories during mass as there was a clear path from the public
offices leading to the comfort rooms; that water service interruptions were caused by maintenance problems and not because the
water pump was being shut off during mass; and that the elevators could not be used during mass because elevator attendants took
their lunch break from twelve (12) o'clock to one (1) o'clock in the afternoon.
Judge Lutero opined that it is not the conduct of masses in public places which the Constitution prohibited, but the passage of laws
or the use of public funds for the purpose of establishing a religion or prohibiting the free exercise thereof. She conveyed the fact
that no law or rule had been passed and that no public funds had been appropriated or used to support the celebration of masses.
She added that the holding of Catholic masses did not mean that Catholics had better chances of obtaining favorable resolutions
from the court.
Accordingly, Judge Lutero recommended that the holding of masses at the basement of the QC Hall of Justice be allowed to
continue considering that it was not inimical to the interests of the court employees and the public.
The OCA Report
and Recommendation
In its Memorandum,12 dated August 7, 2014, the OCA believed that the practical inconveniences cited by Valenciano were
unfounded. It, thus, recommended that his letter-complaints, dated January 6, 2009, May 13, 2009 and March 23, 2010, be
dismissed for lack of merit and that the RTC and MeTC Executive Judges of QC be directed to closely regulate and monitor the
holding of masses and other religious practices within the premises of the QC Hall of Justice.1âwphi1
The OCA opined that the principle of separation of Church and State, particularly with reference to the Establishment Clause,
ought not to be interpreted according to the rigid standards of separation; that the neutrality of the State on religion should be
benevolent because religion was an ingrained part of society and played an important role in it; and that the State, therefore, instead
of being belligerent (in the case of Strict Separation) or being aloof (in the case of Strict Neutrality) towards religion should instead
interact and forbear.13
The OCA advanced the view that the standard of Benevolent Neutrality/Accommodation was espoused because the principal
religion clauses in our Constitution were not limited to the Establishment Clause, which created a wall between the Church and
the State, but was quickly followed by the declaration of the Free Exercise Clause, which protected the right of the people to
practice their religion. In effect, the standard of Benevolent Neutrality/Accommodation balanced the interest of the State through
the Establishment Clause, and the interest and right of the individual to freely exercise his religion as guaranteed by the Free
Exercise Clause.14
The OCA observed that the present controversy did not involve a national or local law or regulation in conflict with the Free
Exercise Clause. On the contrary, Valenciano was merely questioning the propriety of holding religious masses at the basement
of the QC Hall of Justice, which was nothing more than an issue of whether the said religious practice could be accommodated or
not. It ended up concluding that based on prevailing jurisprudence, as well as the interpretations given to the religion clauses of
the 1987 Constitution, there was nothing constitutionally abhorrent in allowing the continuation of the masses.15
The OCA added that by allowing or accommodating the celebration of Catholic masses within the premises of the QC Hall of
Justice, the Court could not be said to have established Roman Catholicism as an official religion or to have endorsed the said
religion, for the reason that it also allowed other religious denominations to practice their religion within the courthouses.16
ISSUE
This, notwithstanding, the State still recognizes the inherent right of the people to have some form of belief system, whether such
may be belief in a Supreme Being, a certain way of life, or even an outright rejection of religion. Our very own Constitution
recognizes the heterogeneity and religiosity of our people as reflected in lmbong v. Ochoa,20 as follows:
At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people of diverse ethnic, cultural and
religious beliefs and backgrounds. History has shown us that our government, in law and in practice, has allowed these various
religious, cultural, social and racial groups to thrive in a single society together. It has embraced minority groups and is tolerant
towards all - the religious people of different sects and the non-believers. The undisputed fact is that our people generally believe
in a deity, whatever they conceived Him to be, and to Whom they called for guidance and enlightenment in crafting our
fundamental law. Thus, the preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society, and establish
a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and
secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth,
justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.

WHETHER THE HOLDING OF MASSES AT THE BASEMENT OF THE QUEZON CITY HALL OF JUSTICE VIOLATES
THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE AS WELL AS THE
CONSTITUTIONAL PROHIBITION AGAINST APPROPRIATION OF PUBLIC MONEY OR PROPERTY FOR THE
BENEFIT OF ANY SECT, CHURCH, DENOMINATION, SECTARIAN INSTITUTION, OR SYSTEM OF RELIGION.
The Court's Ruling
The Filipino people in "imploring the aid of Almighty God" manifested their spirituality innate in our nature and consciousness as
a people, shaped by tradition and historical experience. As this is embodied in the preamble, it means that the State recognizes
with respect the influence of religion in so far as it instills into the mind the purest principles of morality. Moreover, in recognition
of the contributions of religion to society, the 1935, 1973 and 1987 Constitutions contain benevolent and accommodating
provisions towards religions such as tax exemption of church property, salary of religious officers in government institutions, and
optional religious instructions in public schools. [Emphases supplied]

The Court agrees with the findings and recommendation of the OCA and denies the prayer of Valenciano that the holding of In Aglipay v. Ruiz21 (Aglipay), the Court acknowledged how religion could serve as a motivating force behind each person's
religious rituals of any of the world's religions in the QC Hall of Justice or any halls of justice all over the country be prohibited. actions:

The Holding of Religious Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is not a denial of
Rituals in the Halls of Justice its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is
does not Amount to a Union of recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly
Church and State 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
As earlier stated, Valenciano is against the holding of religious rituals in the halls of justice on the ground that it violates the democracy," they thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides the
constitutional provision on the separation of Church and State and the constitutional prohibition against the appropriation of public destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere. In fact, certain
money or property for the benefit of a sect, church, denomination, or any other system of religion. Indeed, Section 6, Article II of general concessions are indiscriminately accorded to religious sects and denominations. Our Constitution and laws exempt from
the 1987 Constitution provides: taxation properties devoted exclusively to religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec.
1, subsec. Ordinance appended thereto; Assessment Law, sec. 344, par [c], Adm. Code) sectarian aid is not prohibited when a
The separation of Church and State shall be inviolable.17 priest, preacher, minister or other religious teacher or dignitary as such is assigned to the armed forces or to any penal institution,
orphanage or leprosarium xxx. Optional religious instruction in the public schools is by constitutional mandate allowed xxx.
Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and Sundays are made legal holidays (sec. 29, Adm.
The Court once pronounced that "our history, not to speak of the history of mankind, has taught us that the union of church and Code) because of the secular idea that their observance is conducive to beneficial moral results. The law allows divorce but
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 punishes polygamy and bigamy; and certain crimes against religious worship are considered crimes against the fundamental laws
the furtherance of their respective ends and aims."18 of the state xxx.22 [Emphasis supplied]

Justice Isagani Cruz expounded on this doctrine, viz.: Thus, the right to believe or not to believe has again been enshrined in Section 5, Article III of the 1987 Constitution:

The rationale of the rule is summed up in the familiar saying, "Strong fences make good neighbors." The idea is to delineate the Section 5. xxx. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall
boundaries between the two institutions and, thus, avoid encroachments by one against the other because of a misunderstanding forever be allowed. xxx.
of the limits of their respective exclusive jurisdictions. The demarcation line calls on the entities to "render therefore unto Caesar
the things that are Caesar's and unto God the things that are God's."19
Free Exercise Clause

83
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has consistently affirmed
this preferred status, well aware that it is "designed to protect the broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of
others and with the common good."23
"The right to religious profession and worship has a two-fold aspect - freedom to believe and freedom to act on one's beliefs. The
first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief
is translated into external acts that affect the public welfare."24 Justice Isagani A. Cruz explained these two (2) concepts in this
wise:
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may indulge his own theories about life
and death; worship any god he chooses, or none at all; embrace or reject any religion; acknowledge the divinity of God or of any
being that appeals to his reverence; recognize or deny the immortality of his soul - in fact, cherish any religious conviction as he
and he alone sees fit. However absurd his beliefs may be to others, even if they be hostile and heretical to the majority, he has full
freedom to believe as he pleases. He may not be required to prove his beliefs. He may not be punished for his inability to do so.
Religion, after all, is a matter of faith. "Men may believe what they cannot prove." Every one has a right to his beliefs and he may
not be called to account because he cannot prove what he believes.
(2) Freedom to Act on One's Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do so becomes subject
to the authority of the State. As great as this liberty may be, religious freedom, like all other rights guaranteed in the Constitution,
can be enjoyed only with a proper regard for the rights of others.
It is error to think that the mere invocation of religious freedom will stalemate the State and render it impotent in protecting the
general welfare. The inherent police power can be exercised to prevent religious practices inimical to society. And this is true even
if such practices are pursued out of sincere religious conviction and not merely for the purpose of evading the reasonable
requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: "The 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."25
Allowing religion to flourish is not contrary to the principle of separation of Church and State. In fact, these two principles are in
perfect harmony with each other.
The State is aware of the existence of religious movements whose members believe in the divinity of Jose Rizal. Yet, it does not
implement measures to suppress the said religious sects. Such inaction or indifference on the part of the State gives meaning to
the separation of Church and State, and at the same time, recognizes the religious freedom of the members of these sects to worship
their own Supreme Being.
As pointed out by Judge Lutero, "the Roman Catholics express their worship through the holy mass and to stop these would be
tantamount to repressing the right to the free exercise of their religion. Our Muslim brethren, who are government employees, are
allowed to worship their Allah even during office hours inside their own offices. The Seventh Day Adventists are exempted from
rendering Saturday duty because their religion prohibits them from working on a Saturday. Even Christians have been allowed to
conduct their own bible studies in their own offices. All these have been allowed in respect of the workers' right to the free exercise
of their religion. xxx"26
Clearly, allowing the citizens to practice their religion is not equivalent to a fusion of Church and State.
84
No Compelling State Interest
Religious freedom, however, is not absolute. It cannot have its way if there is a compelling state interest. To successfully invoke
compelling state interest, it must be demonstrated that the masses in the QC Hall of Justice unduly disrupt the delivery of public
services or affect the judges and employees in the performance of their official functions. In Estrada v. Escritor,27 the Court
expounded on the test as follows:
The "compelling state interest" test is proper where conduct is involved for the whole gamut of human conduct has different effects
on the state's interests: some effects may be immediate and short-term while others delayed and far-reaching. A test that would
protect the interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However,
not any interest of the state would suffice to prevail over the right to religious freedom as this is a fundamental .right that enjoys a
preferred position in the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of Jefferson. This
right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of
limited government is premised upon an acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of
Almighty God in order to build a just and humane society and establish a government." As held in Sherbert, only the gravest
abuses, endangering paramount interests can limit this fundamental right. A mere balancing of interests which balances a right
with just a colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the
fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise
would allow the state to batter religion, especially the less powerful ones until they are destroyed. In determining which shall
prevail between the state's interest and religious liberty, reasonableness shall be the guide. The "compelling state interest" serves
the purpose of revering religious liberty while at the same time affording protection to the paramount interests of the state. This
was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state interest"
test, by upholding the paramount interests of the state, seeks to protect the very state, without which, religious liberty will not be
preserved.137 [Citations omitted] [Emphases supplied]
As reported by the Executive Judges of Quezon City, the masses were being conducted only during noon breaks and were not
disruptive of public services. The court proceedings were not being distracted or interrupted and that the performance of the
judiciary employees were not being adversely affected. Moreover, no Civil Service rules were being violated. As there has been
no detrimental effect on the public service or prejudice to the State, there is simply no state interest compelling enough to prohibit
the exercise of religious freedom in the halls of justice.
In fact, the Civil Service Commission (CSC) was more lenient or tolerant. On November 13, 1981, the CSC came out with
Resolution No. 81-1277, which provided, among others, that "during Friday, the Muslim pray day, Muslims are excused from
work from 10:00 o'clock in the morning to 2:00 o'clock in the afternoon." The Court struck this down28 as not sanctioned by the
law. It wrote:
To allow the Muslim employees in the Judiciary to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday (Muslim
Prayer Day) during the entire calendar year would mean a diminution of the prescribed government working hours. For then, they
would be rendering service twelve (12) hours less than that required by the civil service rules for each month. Further, this would
encourage other religious denominations to request for similar treatment.
The performance of religious practices, whether by the Muslim employees or those belonging to other religious denominations,
should not prejudice the courts and the public. Indeed, the exercise of religious freedom does not exempt anyone from compliance
with reasonable requirements of the law, including civil service laws.
Accommodation, Not Establishment of Religion
In order to give life to the constitutional right of freedom of religion, the State adopts a policy of accommodation. Accommodation
is a recognition of the reality that some governmental measures may not be imposed on a certain portion of the population for the
reason that these measures are contrary to their religious beliefs. As long as it can be shown that the exercise of the right does not
impair the public welfare, the attempt of the State to regulate or prohibit such right would be an unconstitutional encroachment.29
In Estrada v. Escritor,30 the Court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under
certain circumstances. Accommodations are government policies that take religion specifically into account not to promote the
government's favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Their
purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a person's or institution's religion. As Justice
Brennan explained, the "government [may] take religion into account ... to exempt, when possible, from generally applicable
governmental regulation individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create
without state involvement an atmosphere in which voluntary religious exercise may flourish." [Emphases supplied]
In Victoriano v. Elizalde Rope Workers Union,31 the Court upheld the exemption of members of 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 affiliate with a labor organization.
In Ebralinag v. Division Superintendent of Schools of Cebu,32 the petitioners, who were members of the Jehovah 's Witnesses,
refused to salute the flag, sing the national anthem, and recite the patriotic pledge for it is their belief that those were acts of worship
or religious devotion, which they could not conscientiously give to anyone or anything except God. The Court accommodated
them and granted them an exemption from observing the flag ceremony out of respect for their religious beliefs.
Further, several laws have been enacted to accommodate religion. The Revised Administrative Code of 1987 has declared Maundy
Thursday, Good Friday, and Christmas Day as regular holidays. Republic Act (R.A.) No. 9177 proclaimed the FIRST Day of
Shawwal, the tenth month of the Islamic Calendar, a national holiday for the observance of Eidul Fitr (the end of Ramadan). R.A.
No. 9849 declared the tenth day of Zhu/ Hijja, the twelfth month of the Islamic Calendar, a national holiday for the observance of
Eidul Adha. Presidential Decree (P.D.) No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines,
expressly allows a Filipino Muslim to have more than one (1) wife and exempts him from the crime of bigamy punishable under
Revised Penal Code (RPC). The same Code allows Muslims to have divorce.33
As to Muslims in government offices, Section 3 of P.D. No. 291, as amended by P.D. No. 322, provides:
Sec. 3. (a) During the fasting season on the month of Ramadan, all Muslim employees in the national government, government-
owned or controlled corporations, provinces, cities, municipalities and other instrumentalities shall observe office hours from
seven-thirty in the morning (7:30 a.m.) to three-thirty in the afternoon (3:30 p.m.) without lunch break or coffee breaks, and that
there shall be no diminution of salary or wages, provided, that the employee who is not fasting is not entitled to the benefit of this
provision.
Pursuant thereto, the CSC promulgated Resolution No. 81-1277, dated November 13, 1981, which reads in part:
2. During "Ramadan" the Fasting month (30 days) of the Muslims, the Civil Service official time of 8 o'clock to 12 o'clock and 1
o'clock to 5 o'clock is hereby modified to 7:30 AM. to 3:30 P.M. without noon break and the difference of 2 hours is not counted
as undertime.
Following the decree, in Re: Request of Muslim Employees in the Different Courts in Iligan City (Re: Office Hours),34 the Court
recognized that the observance of Ramadan as integral to the Islamic faith and allowed Muslim employees in the Judiciary to hold
flexible office hours from 7:30 o'clock in the morning to 3:30 o'clock in the afternoon without any break during the period. This
is a clear case of accommodation because Section 5, Rule XVII of the Omnibus Rules Implementing Book V of E.0. No. 292,
enjoins all civil servants, of whatever religious denomination, to render public service of no less than eight (8) hours a day or forty
(40) hours a week.
Non-Establishment Clause
85
On the opposite side of the spectrum is the constitutional mandate that "no law shall be made respecting an establishment of
religion,"35 otherwise known as the non-establishment clause. Indeed, there is a thin line between accommodation and
establishment, which makes it even more imperative to understand each of these concepts by placing them in the Filipino society's
perspective.
The non-establishment clause reinforces the wall of separation between Church and State. It simply means that the State cannot
set up a Church; nor pass laws which aid one religion, aid all religion, or prefer one religion over another nor 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; that the
state cannot punish a person for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance;
that no tax in any amount, large or small, can be levied to support any religious activity or institution whatever they may be called
or whatever form they may adopt or teach or practice religion; that the state cannot openly or secretly participate in the affairs of
any religious organization or group and vice versa.36 Its minimal sense is that the state cannot establish or sponsor an official
religion.37
In the same breath that the establishment clause restricts what the government can do with religion, it also limits what religious
sects can or cannot do. They can neither cause the government to adopt their particular doctrines as policy for everyone, nor can
they cause the government to restrict other groups. To do so, in simple terms, would cause the State to adhere to a particular
religion and, thus, establish a state religion.38
Father Bernas further elaborated on this matter, as follows:
"In effect, what non-establishment calls for is government neutrality in religious matters. Such government neutrality may be
summarized in four general propositions: (1) Government must not prefer one religion over another or religion over irreligion
because such preference would violate voluntarism and breed dissension; (2) Government funds must not be applied to religious
purposes because this too would violate voluntarism and breed interfaith dissension; (3) Government action must not aid religion
because this too can violate voluntarism and breed interfaith dissension; [and] (4) Government action must not result in excessive
entanglement with religion because this too can violate voluntarism and breed interfaith dissension."39
Establishment entails a positive action on the part of the State. Accommodation, on the other hand, is passive. In the former, the
State becomes involved through the use of government resources with the primary intention of setting up a state religion. In the
latter, the State, without being entangled, merely gives consideration to its citizens who want to freely exercise their religion.
In a September 12, 2003 Memorandum for Chief Justice Hilario G. Davide, Jr., the Office of the Chief Attorney recommended to
deny, on constitutional grounds, the request of Rev. Fr. Carlo M. Ilagan to hold a oneday vigil in honor of the Our Lady of Caysasay
within the premises of the Court. Such controversy must be distinguished from the present issue in that with respect to the former,
a Catholic priest was the one who requested for the vigil. Moreover, in that case, the vigil would take one (1) whole working day;
whereas in this case, the masses are held at the initiative of Catholic employees and only during the thirty-minute lunch break.
Guided by the foregoing, it is our considered view that the holding of Catholic masses at the basement of the QC Hall of Justice
is not a case of establishment, but merely accommodation. First, there is no law, ordinance or circular issued by any duly
constitutive authorities expressly mandating that judiciary employees attend the Catholic masses at the basement. Second, when
judiciary employees attend the masses to profess their faith, it is at their own initiative as they are there on their own free will and
volition, without any coercion from the judges or administrative officers. Third, no government funds are being spent because the
lightings and airconditioning continue to be operational even if there are no religious rituals there. Fourth, the basement has neither
been converted into a Roman Catholic chapel nor has it been permanently appropriated for the exclusive use of its faithful. Fifth,
the allowance of the masses has not prejudiced other religions.
No Appropriation of Public
Money or Property for the
Benefit of any Church
Section 29 (2), Article VI of the 1987 Constitution provides, "No public money or property shall be appropriated, applied, paid,
or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or
system of religion, or of any priest, preacher, minister, 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, or government orphanage or
leprosarium."
The word "apply" means "to use or employ for a particular purpose."40 "Appropriate" means "to prescribe a particular use for
particular moneys or to designate or destine a fund or property for a distinct use, or for the payment of a particular demand."41
Under the principle of noscitur a sociis, where a particular word or phrase is ambiguous in itself or is equally susceptible of various
meanings, its correct construction may be made clear and specific by considering the company of words in which it is found or
with which it is associated. This is because a word or phrase in a statute is always used in association with other words or phrases,
and its meaning may, thus, be modified or restricted by the latter. The particular words, clauses and phrases should not be studied
as detached and isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning of any
of its parts and in order to produce a harmonious whole. A statute must be so construed as to harmonize and give effect to all its
provisions whenever possible.42
Again, in Aglipay, the issuing and selling of postage stamps commemorative of the Thirty-third International Eucharistic Congress
was assailed on the ground that it violated the constitutional prohibition against the appropriation of public money or property for
the benefit of any church. In ruling that there was no such violation, the Court held:
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.48
[Emphasis supplied]
Here, the basement of the QC Hall of Justice is not appropriated, applied or employed for the sole purpose of supporting the Roman
Catholics.
Further, it has not been converted into a Roman Catholic chapel for the exclusive use of its faithful contrary to the claim of
Valenciana. Judge

Thus, the words "pay" and "employ" should be understood to mean that what is prohibited is the use of public money or property
Maceren reported that the basement is also being used as a public waiting area for most of the day and a meeting place for different
for the sole purpose of benefiting or supporting any church. The prohibition contemplates a scenario where the appropriation is
employee organizations. The use of the area for holding masses is limited to lunch break period from twelve (12) o'clock to one
primarily intended for the furtherance of a particular church.
(1) o'clock in the afternoon. Further, Judge Sagun, Jr. related that masses run for just a little over thirty (30) minutes. It is, therefore,
clear that no undue religious bias is being committed when the subject basement is allowed to be temporarily used by the Catholics
It has also been held that the aforecited constitutional provision "does not inhibit the use of public property for religious purposes to celebrate mass, as the same area can be used by other groups of people and for other purposes.49 Thus, the basement of the QC
when the religious character of such use is merely incidental to a temporary use which is available indiscriminately to the public Hall of Justice has remained to be a public property devoted for public use because the holding of Catholic masses therein is a
in general." Hence, a public street may be used for a religious procession even as it is available for a civic parade, in the same way mere incidental consequence of its primary purpose.
that a public plaza is not barred to a religious rally if it may also be used for a political assemblage.43
Conclusion
In relation thereto, the phrase "directly or indirectly" refers to the manner of appropriation of public money or property, not as to
whether a particular act involves a direct or a mere incidental benefit to any church. Otherwise, the framers of the Constitution
Directing the Executive Judges of the RTC and MeTC to regulate and closely monitor the holding of masses and other religious
would have placed it before "use, benefit or support" to describe the same. Even the exception to the same provision bolsters this
practices within the courts does not promote excessive collaboration between courts and various religions. On the contrary, this is
interpretation. The exception contemplates a situation wherein public funds are paid to a priest, preacher, minister, or other
necessary to ensure that there would be no excessive entanglement.
religious teacher, or dignitary because they rendered service in the armed forces, or to any penal institution, or government
orphanage or leprosarium. That a priest belongs to a particular church and the latter may have benefited from the money he received
is of no moment, for the purpose of the payment of public funds is merely to compensate the priest for services rendered and for To disallow the holding of religious rituals within halls of justice would set a dangerous precedent and commence a domino effect.
which other persons, who will perform the same services will also be compensated in the same manner. Strict separation, rather than benevolent neutrality/accommodation, would be the norm. Thus, the establishment of Shari'a courts,
the National Commission for Muslim Filipinos, and the exception of Muslims from the provisions of the RPC relative to the crime
of bigamy would all be rendered nugatory because of strict separation. The exception of members of Iglesia ni Cristo from joining
Ut magis valeat quam pereat. The Constitution is to be interpreted as a whole.44 As such, the foregoing interpretation finds support
a union or the non-compulsion recognized in favor of members of the Jehovah's Witnesses from doing certain gestures during the
in the
flag ceremony, will all go down the drain simply because we insist on strict separation.

Establishment Clause, which is as clear as daylight in stating that what is proscribed is the passage of any law which tends to
That the holding of masses at the basement of the QC Hall of Justice may offend non-Catholics is no reason to proscribe it. Our
establish a religion, not merely to accommodate the free exercise thereof.
Constitution ensures and mandates an unconditional tolerance, without regard to whether those who seek to profess their faith
belong to the majority or to the minority. It is emphatic in saying that "the free exercise and enjoyment of religious profession and
The Constitution even grants tax exemption to properties actually, directly and exclusively devoted to religious purposes.45 worship shall be without discrimination or preference." Otherwise, accommodation or tolerance would just be mere lip service.
Certainly, this benefits the religious sects for a portion of what could have been collected for the benefit of the public is surrendered
in their favor.
One cannot espouse that the constitutional freedom of religion ensures tolerance, but, in reality, refuses to practice what he
preaches. One cannot ask for tolerance when he refuses to do the same for others.
In Manosca v. CA,46 a parcel of land located in Taguig was determined by the National Historical Institute to be the birthsite of
Felix Y. Manalo, the founder of Iglesia ni Cristo. The Republic then sought to expropriate the said property. The exercise of the
In fine, the Court denies the plea that the holding of Catholic masses at the basement of the QC Hall of Justice be prohibited
power of eminent domain was questioned on the ground that it would only benefit members of Iglesia ni Cristo. The Court upheld
because the said practice does not violate the constitutional principle of separation of Church and State and the constitutional
the legality of the expropriation, viz.:
prohibition against appropriation of public money or property for the benefit of a sect, church, denomination, or any other system
of religion.
The practical reality that greater benefit may be derived by members of the Iglesia ni Cristo than by most others could well be true
but such a peculiar advantage still remains to be merely incidental and secondary in nature.47 [Emphasis supplied]
86
WHEREFORE, the Court resolves to:
1. NOTE the letter-complaints of Mr. Tony Q. Valenciano, dated January 6, 2009, May 13, 2009, and March 23, 2010;
2. NOTE the 1st Indorsement, dated September 21, 2010, by the Office on Halls of Justice, containing photocopies and certified
photocopies of previous actions made relative to the complaint;
3. NOTE the Letter-Comment, dated September 9, 2010, of Quezon City Regional Trial Court Executive Judge Fernando T.
Sagun, Jr.;
4. NOTE the undated Letter-Comment of Quezon City Metropolitan Trial Court Executive Judge Caridad M. Walse-Lutero;
5. DENY the prayer of Tony Q. Valenciano to prohibit the holding of religious rituals in the QC Hall of Justice and in all halls of
justice in the country; and
6. DIRECT the Executive Judges of Quezon City to REGULATE and CLOSELY MONITOR the holding of masses and other
religious practices within the Quezon City Hall of Justice by ensuring, among others, that:
(a) it does not disturb or interrupt court proceedings;
(b) it does not adversely affect and interrupt the delivery of public service; and
(c) it does not unduly inconvenience the public.
In no case shall a particular part of a public building be a permanent place for worship for the benefit of any and all religious
groups. There shall also be no permanent display of religious icons in all halls of justice in the country. In case of religious rituals,
religious icons and images may be displayed but their presentation is limited only during the celebration of such activities so as
not to offend the sensibilities of members of other religious denominations or the non-religious public. After any religious affair,
the icons and images shall be hidden or concealed from public view.
The disposition in this administrative matter shall apply to all halls of justice in the country. Other churches, religious
denominations or sects are entitled to the same rights, privileges, and practices in every hall of justice. In other buildings not owned
or controlled by the Judiciary, the Executive Judges should coordinate and seek approval of the building owners/administrators
accommodating their courts.
DISSENTING OPINION
"Imagine there's no countries, it isn't hard to do. Nothing to kill or die for, and no religion, too.
Imagine all the people living life in peace ... "
Lennon, John. "Imagine." Imagine. Ascot, 1971. Vinyl.
"But Jesus, aware of their malice, said, 'Why put me to the test, you hypocrites? Show me the money for the tax ' And they brought
him a coin. And Jesus said to them, 'Whose likeness and inscription is this?' They said, 'Caesar's. ' Then he said to them, 'Render
therefore to Caesar the things that are Caesar's, and to God the things that are God's.' When they heard it, they marveled; and
they left him and went away. "
87
- Matthew 22: 15-221
LEONEN, J.:
Tolerating and allowing court personnel to hold and celebrate daily masses within public Halls of Justice is a clear violation of the
Constitutional prohibition against the State's establishment of a religion. It has no secular purpose other than to benefit and,
therefore, promote a religion. It has the effect of imposing an insidious cultural discrimination against those whose beliefs may be
different. Religious rituals should be done in churches, chapels, mosques, synagogues, and other private places of worship.
To provide that all faiths of all denominations may likewise avail of the same public space within courts of law is a painful illusion.
Apart from violating Sections 5 and 29 (2) of Article III of the Constitution, it is a privilege that is not available to those who
profess non-belief in any god or whose conviction is that the presence or absence of god is unknowable. It likewise undermines
religious faiths, which fervently believe that rituals that worship icons and symbols are contrary to their conception of god.
Furthermore, the majority opinion invites judges to excessively entangle themselves with religious institutions and worship.
Decisions on the duration, frequency, decorations, and other facets of religious rituals are not judicial functions. This also should
certainly not be a governmental one.
By holding daily Catholic masses or any religious ritual within court premises, courts unnecessarily shed their impartiality. It
weakens our commitment to protect all religious beliefs.
I
Mr. Tony Q. Valenciano (Mr. Valenciano) wrote this Court in 20092 and again, in 2010,3 questioning the practice of holding
Roman Catholic masses at the basement of the Quezon City Hall of Justice. He submitted that the basement floor of the court of
law was practically converted into a Roman Catholic chapel, with religious icons permanently displayed, in violation of the
separation of church and State4 and the constitutional prohibition on the appropriation of public money for the benefit of a sect,
church, denomination, or any other system of religion.5
Mr. Valenciano's letters were indorsed to Executive Judge Fernando T. Sagun, Jr. (Executive Judge Sagun, Jr.) of the Regional
Trial Court and Executive Judge Caridad W. Lutero (Executive Judge Lutero) of the Metropolitan Trial Court of Quezon City for
comment.6 The Executive Judges shared the view that there was nothing constitutionally infirm in celebrating daily masses at the
Quezon City Hall of Justice during lunch break.
Executive Judge Sagun, Jr.'s Comment7 discussed the measures already implemented to address Mr. Valenciano's specific
complaints, such as the shortening of masses to 30 minutes. For her part, Executive Judge Lutero maintained that court personnel
must be allowed to freely exercise their respective religions:
The undersigned finds no reason to discontinue the masses being held at the basement since they do not disturb the proceedings
of the court and are held during lunch break. As we all know, the Roman Catholics express their worship through the holy mass
and to stop these would be tantamount to repressing the right of those holding the masses to the free exercise of their religion. Our
Muslim brethren who are government employees are allowed to worship their Allah even during office hours inside their own
offices. The Seventh Day Adventists are exempted from rendering Saturday duty because their religion prohibits them from
working on a Saturday. Even Christians have been allowed to conduct their own bible studies in their own offices. All these have
been allowed in respect of the worker's right to the free exercise of their religion. I therefore see no reason why we should stop our
Catholic brethrens (sic) from exercising their religion during lunch breaks.8 (Emphases provided)
The views of Executive Judges Sagun, Jr. and Lutero are inconsistent with the view of the Office of the Chief Attorney.
In a September 12, 2003 Memorandum for Chief Justice Hilario G. Davide, Jr., the Office of the Chief Attorney recommended to
deny, on constitutional grounds, the request of Rev. Fr. Carlo M. Ilagan to hold a one-day vigil in honor of Our Lady of Caysasay
within the premises of this Court. Said the Office of the Chief Attorney:
[T]he Court is not an ordinary government department. It is the recognized bulwark of justice and the rule of law, with its much
vaunted independence, impartiality, and integrity. It thus behooves the Court to consider the constitutional and legal issues
surrounding the request for the conduct in its premises of vigil for a religious image.
Article II of the Constitution declares, as one of the policies of the State, the inviolability of the separation of Church and State.
In consonance therewith, the Bill of Rights of the Constitution States:
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.
This provision is a reproduction of Section 8, Article IV of the 1973 Constitution, and Section 1 (7) of the 1935 Constitution. Its
basic principle regarding religions is the "establishment clause" provided for in the first sentence of the section. The "establishment
clause" is reiterated in Section 29 (2) of Article VI of the Constitution in the form of a prohibition against the enactment of laws
that support any religion. Thus:
Sec. 29 (1) ....
(2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or
support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, 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, or government orphanage or leprosarium.
The constitutional provision on religious freedom in the Bill of Rights has two aspects: freedom of conscience and freedom to
exercise the chosen form of religion. Freedom to believe is absolute while freedom to act on the belief is not. Conduct remains
subject to regulation and even prohibition for the protection of society.
In Gerona v. Secretary of Education, the Court, holding that saluting the flag does not involve a religious ceremony and hence the
requirement that students should attend the flag ceremony does not violate the religious freedom of Jehovah's Witnesses, likewise
said:
... 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.
The overt acts in pursuit of religious belief are thus subject to regulation by the State.
No case has yet been filed in this Court to restrain an act similar to the subject of the instant request; neither has there been an
instance when this Office was required to comment on a similar request. However, an American decision regarding the placing of
a religious item in a courthouse is of persuasive effect as far as this jurisdiction is concerned.
In G. County of Allegheny v. American Civil Liberties Union, since 1981 the county of Allegheny had been permitting the Holy
Name Society, a Roman Catholic Church group, to display a creche in the County Courthouse during the Christmas holiday season.
The creche, a visual representation of the nativity scene, was placed at the Grand Staircase, the most public part of the County
88
Courthouse which was used as a setting for the county's annual Christmas carol program. In ruling that the display of the creche
had the effect of endorsing religious beliefs in violation of the Establishment Clause, the court said:
... There is no doubt, of course, that the creche itself is capable of communicating a religious message .... Indeed, the creche in this
lawsuit uses words, as well as the picture of the nativity scene, to make its religious meaning unmistakably clear. "Glory to God
in the Highest!" says the angel in the creche - Glory to God because of the birth of Jesus. This praise to God in Christian terms is
indisputable religious - indeed sectarian - just as it is when said in the Gospel or in a church service.
…. …. ….
Nor does the fact that the creche was the setting for the county's annual Christmas carol-program diminish its religious meaning.
First, the carol program in 1986 lasted only from December 3 to December 23 and occupied at most two hours a day. . . . The
effect of the creche on those who viewed it when the choirs were not singing - the vast majority of the time - cannot be negated by
the presence of the choir program. Second, because some of the carols performed at the site of the creche were religious in nature,
those carols were more likely to augment the religious quality of the scene than to secularize it.
Furthermore, the creche sits on the Grand Staircase, the "main" and "most beautiful part" of the building that is the seat of county
government.... No viewer could reasonably think that it occupies this location without the support and approval of the government.
Thus, by permitting the "display of the creche in this particular physical setting,"... the county sends an unmistakable message that
it supports and promotes the Christian praise to God that is the creche's religious message.
The fact that the creche bears a sign disclosing its ownership by a Roman Catholic organization does not alter this conclusion. On
the contrary, the sign simply demonstrates that the government is endorsing the religious message of that organization, rather than
communicating a message of its own. But the Establishment Clause does not limit only the religious content of the government's
own communications. It also prohibits the government's support and promotion of religious communications by religious
organizations.... Indeed, the very concept of "endorsement" conveys the sense of promoting someone else's message. Thus, by
prohibiting governmental endorsement of religion, the Establishment Clause prohibits precisely what occurred here: the
government's lending its support to the communication of a religious organization's religious message.
Finally, the county argues that it is sufficient to validate the display of the creche on the Grand Staircase that the display celebrates
Christmas, and Christmas is a national holiday. This argument obviously proves too much. It would allow the celebration of the
Eucharist inside a courthouse on Christmas Eve. While the county may have doubts about the constitutional status of celebrating
the Eucharist inside the courthouse under the government's auspices, . . . this Court does not. The government may acknowledge
Christmas as a cultural phenomenon, but under the First Amendment it may not observe it as a Christian holy day by suggesting
that people praise God for the birth of Jesus.
In sum, Lynch teaches that government may celebrate Christmas in some manner and form, but not in a way that endorses Christian
doctrine. Here, Allegheny County has transgressed this line. It has chosen to celebrate Christmas in a way that has the effect of
endorsing a patently Christian message: Glory to God for the birth of Jesus Christ. Under Lynch, and the rest of our cases, nothing
more is required to demonstrate a violation of the Establishment Clause. The display of the creche in this context, therefore, must
be permanently enjoined.
When the image of Our Lady of Manaoag was once brought to the Court, it was displayed at the lobby of the second floor of the
Old Supreme Court Building. The choice of that area could not have been made without the permission of the Court and/or its
proper officials. The vigil conducted entailed praying the rosary, a form of prayer of Roman Catholics, by groups of employees or
by offices scheduled at an hourly basis. A vigil would thus involve not only the display of a religious image but the performance
of a religious act. Hence, it is undeniable that the "visit" of the image of Our Lady of Caysasay would involve likewise the use of
the Court's properties, resources, employees, and official working time.
There is likewise no denying that should the instant request be granted, the Court would "endorse" the Roman Catholic religion in
violation of the Constitution. By allowing the "visit" of the image in the Court, it would convey the message that the Virgin Mother
it represents is, in Fr. Hagan's words, the "Advocate of Faith," specially the Roman Catholic Church.
Although it is true that other Christian groups or sects are allowed to hold Bible-reading and other similar activities within Court religious purposes because this too would violate voluntarism and breed interfaith dissension; (3) Government action must not aid
premises, it appears that other religious groups have not made similar requests for the conduct of their religious services. In the religion because this too can violate voluntarism and breed interfaith dissension; [and] (4) Government action must not result in
event that such requests are made, the Court would have to grant such requests and thus cater to the needs of all religious excessive entanglement with religion because this too can violate voluntarism and breed interfaith dissension.16
persuasions, lest it be charged with favoritism and partiality. Obviously, the grant of such requests would result in the sacrifice of
services that are needed in the exercise of the Court's constitutional duties and responsibilities. It is thus high time that the Court
The majority views the holding of daily Roman Catholic masses at the Quezon City Hall of Justice constitutionally permissible.
clearly defines [a] policy statement founded on pertinent provisions of the Constitution, its position regarding the holding of
They see no violation of the establishment clause because court personnel are not coerced to attend masses; no government funds
religious practices and activities in Court premises.
are allegedly spent in the exercise of the religious ritual; the use of the basement for masses was not permanent; and other religions
are allegedly not prejudiced.17
The denial of the instant request on constitutional grounds is imperative but it must be stressed that such denial does not in any
way reflect the religious fervor or lack of it of the Members of the Court and its officials and employees who are Roman Catholics.
Thus, the majority disposes of this administrative matter in this wise:
Their personal beliefs and official acts are distinct and separate.

WHEREFORE, the Court resolves to:

The denial is likewise impelled by the need to prevent the cropping up of another issue against the Court that militant non-Catholics
may pick up and raise publicly to the detriment of the Court, notwithstanding its good faith and intention.9 (Emphasis in the
original; citations omitted) 1. NOTE the letter-complaints of Mr. Valenciana, dated January 9, 2009, May 13, 2009, and March 23, 2010;

II 2. NOTE the 1st Indorsement dated September 21, 2010, by the Office on Halls of Justice, containing photocopies and certified
photocopies of previous actions made relative to the complaint;
On the other hand, the Office of the Court Administrator argued for the dismissal of the complaints of Mr. Valenciano in an August
7, 2014 Memorandum addressed to Chief Justice Maria Lourdes P.A. Sereno. 3. NOTE the Letter-Comment dated September 9, 2010, of Quezon City Regional Trial Court Executive Judge Fernando T. Sagun,
Jr.;
The Office of the Court Administrator recommended that the daily Roman Catholic masses at the Quezon City Hall of Justice be
allowed, subject to the close regulation and monitoring by the Quezon City Executive Judges and so long as "(a) the public is not 4. NOTE the undated Letter-Comment of Quezon City Metropolitan Trial Court Executive Judge Caridad M. WalseLutero;
unduly inconvenienced by the exercise thereof; (b) it does not adversely affect and interrupt the delivery of public service; and (c)
display of religious icons are limited only during the celebration of such activities so as not to offend the sensibilities of members
5. DENY the prayer of Tony Q. Valenciana to prohibit the holding of religious rituals in the QC Hall of Justice and in all halls of
of other religious denominations or the non-religious public."10
justice in the country; and

In making its recommendations, the Office of the Court Administrator cited Estrada v. Escritor11 where this Court, speaking
6. DIRECT the Executive Judges of Quezon City to REGULATE and CLOSELY MONITOR the holding of masses and other
through Justice, subsequently Chief Justice, Reynato S. Puno, held that the religion clauses of our Constitution are to be read and
interpreted using the benevolent neutrality approach. The Office of the Court Administrator explained: religious practices within the Quezon City Hall of Justice by ensuring, among others, that:

(a) it does not disturb or interrupt court proceedings;

[T]he principle of Separation of Church and State, particularly with reference to the Establishment Clause, ought not to be
interpreted according to the rigid standards of Separation. Rather, the state's neutrality on religion should be benevolent because
religion is an ingrained part of society and plays an important role in it. The state therefore, instead of being belligerent (in the (b) it does not adversely affect and interrupt the delivery of public service;
case of Strict Separation) or being aloof (in the case of Strict Neutrality) toward religion should instead interact and forbear.12
(Emphasis in the original)
(c) it does not unduly inconvenience the public.

III
The majority essentially agrees with the recommendation of the Office of the Court Administrator. According to the majority, our
State adopts the policy of accommodation; that despite the separation of church and State required by the Constitution, the State
may take religion into account in forming government policies not to favor religion but only to allow its free exercise.13 The
majority cites as bases Victoriano v. Elizalde Rope Workers Union,14 where this Court allowed the exemption of members of
Iglesia ni Cristo from closed shop provisions; and Ebralinag v. Division Superintendent of Schools of Cebu,15 where this Court
allowed the exemption of members of Jehovah's Witnesses from observance of the flag ceremony.
In discussing the non-establishment clause, the majority cites Father Joaquin Bernas (Father Bernas), a Catholic priest:
In no case shall a particular part of a public building be a permanent place for worship for the benefit of any and all religious
groups. There shall also be no permanent display of religious icons in all Halls of Justice in the country. In case of religious rituals,
religious icons and images may be displayed but their presentation is limited only during the celebration of such activities so as
not to offend the sensibilities of members of other religious denominations or the non-religious public. After any religious affair,
the icons and images shall be hidden or concealed from public view.
The disposition in this administrative matter shall apply to all halls of justice in the country. Other churches and religious
denominations or sects are entitled to the same rights, privileges and practices in every hall of justice. In other buildings not owned
or controlled by the Judiciary, the Executive Judges should coordinate and seek apftroval of the building owners/administrators
accommodating their courts.18

In effect, what non-establishment calls for is government neutrality in religious matters. Such government neutrality may be IV
summarized in four general propositions: (1) Government must not prefer one religion over another religion or religion over
irreligion because such preference would violate voluntarism and breed dissension; (2) Government funds must not be applied to

89
Allowing the exercise of religious rituals within government buildings violate both Section 5, Article III and Section 29(2), Article
VI of the Constitution.
Section 5, Article III of the Constitution provides:
Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.
This provision articulates two fundamental duties of the State. The first is to respect the free exercise of any religious faith. The
second is not to establish, endorse, or favor any religion.
The parameters of the duty to respect the free exercise of any religion manifest in the context of a continuum. On the one hand,
freedom to believe is absolute. On the other, physical manifestations of one's faith in the form of rituals will largely be tolerated
except if they will tend to encroach or impede into the rights of others.19
Among those who profess adherence to the Roman Catholic Church, the Holy Eucharist is not simply a ritual, it is an important
sacrament. More than a symbolism or the occasion to display icons, it requires the active, collective and public participation of its
believers. It will require the presence of a priest and, while the ritual is ongoing, the prayers and incantations will be heard beyond
the vicinity of its participants.
The offensiveness of this ritual cannot be obvious to those who belong to this dominant majority religion. It will not be obvious to
those who will continuously enjoy the privilege of consistently hosting this in a government building charged with the impartial
adjudication of the rule of law. The inability to see how this practice will not square with those who believe otherwise will
especially be because religion is a matter of faith. The stronger one's faith is, the more tenacious the belief in the conception of
one's god and the correctness of his or her fundamental teachings.
It will take great strides in both humility and sensitivity to understand that religious practices within government buildings are
offensive to those who do not believe in any of the denominations or sects of Christianity. Those who do believe in a god but do
not practice any ritual that worships their supernatural being or their deity will also find the allowance of the full Catholic sacrament
of the Holy Eucharist demeaning.
Definitely, the sponsorship of these rituals within the halls of justice will not be acceptable to atheists, who fervently believe that
there is no god; or to agnostics, who fundamentally believe that the existence of a supernatural and divine being cannot be the
subject of either reason or blind faith.
As correctly underscored by the Chief Attorney, courts are not simply venues for the resolution of conflict. Our Halls of Justice
should symbolize our adherence to the majesty and impartiality of the rule of law. Unnecessary sponsorship of religious rituals
undermines the primacy of secular law and its impartiality. It consists of physical manifestations of a specific kind of belief which
can best be done in private churches and chapels, not in a government building. There is no urgency that it be done in halls of
justice.
V already dominant religion. Since the number of Catholics in Quezon City far outnumbers any other denomination, the number of
Justice Jardeleza is of the view that allowing the holding of religious rituals in our courts is an allowable accommodation under
the freedom to worship clause. Accommodation, also termed "benevolent neutrality," was extensively discussed in Estrada v.
Escritor.20
I disagree.
90
The precedent cited is inappropriate. It is also not a binding precedent.
Jurisprudence which provides for exceptions to State regulation is different from doctrinal support for endorsing a specific religion
without a separate overarching compelling lawful and separate state interest.
Escritor involved an administrative complaint for immorality against Soledad Escritor, a court interpreter in the Regional Trial
Court of Las Piñas, who cohabited and had a son with a married man. Invoking her religious freedom, Escritor argued that her
conjugal arrangement conformed to the teachings of the Jehovah's Witnesses, the religious sect to which she belonged.
After a review of religion cases, the Court in Escritor formulated a two-part test in resolving cases involving freedom to worship.
First, "the spirit, intent, and framework underlying the religion clauses in our Constitution"21 is benevolent neutrality or
accommodation. Government actions must neither burden nor facilitate "the exercise of a person's or institution's religion"22 and
that the State should "exempt, when possible, from generally 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."23 Second, there must be a compelling state interest should religious liberty be burdened.24
Escritor was ultimately absolved of the immorality charge against her, but only because the State failed to prove the compelling
state interest in overriding her religious freedom. Escritor therefore involved a state policy that was apparently neutral and the
question as to whether its consistent application given the ambient facts specific to a religion would violate the adherent's freedom
to worship.
This is not the situation in this administrative matter. Here, we are asked to create a policy to sponsor religious rituals. There is no
neutral state policy we are asked to interpret. We are asked to create a policy to enable a specific religion, and others similarly
situated, to conduct their rituals within government space.
Escritor involved accommodation or exceptions to a state policy. In this administrative matter, we create a policy that benefits a
group of religions that have rituals. It will not benefit believers who do not have public rituals or a deity. It certainly will not benefit
all beliefs including those who profess to atheism or agnosticism.
Escritor therefore is not the proper precedent.
Since Escritor's promulgation, benevolent neutrality has been constantly but erroneously quoted as a talisman to erase all legitimate
constitutional objections to religious activity that impinges upon secular government policy. Yet, in the 2003 Decision, where the
two-part test was formulated, only five Justices fully concurred with Justice Puno's ponencia.25 Two other Justices wrote separate
concurring opinions.26 There were five other Justices who dissented, with Justice Carpio leading in the dissent.27 That benevolent
neutrality is even doctrine is, therefore, suspect.
More importantly, benevolent neutrality in reality may turn out to be an insidious means for those who believe in a majority
decision to maintain their dominance in the guise of neutral tolerance of all religions.
Not all Buddhists have as active, collective, and public a ritual that requires a public space as Catholics. Agnostics do not practice
any ritual. Opening space in our Halls of Justice for rituals such as the Holy Eucharist in effect provides further advantage to an
requests to make use of public spaces within the Halls of Justice will likely dwarf any other Christian denomination or religion.
This is true in Quezon City. This is also true in most other Halls of Justice, including portions of the Supreme Court Compound.
Catholic rituals dominate.
Benevolent neutrality in practice, thus, favors the already dominant.
VI
The proscription in Section 5, Article III of the Constitution against the State's establishment of a religion covers not only official
government communication of its religious beliefs. It likewise generally prohibits support and endorsement of a religious
organization or any of their activities or rituals.
The non-establishment clause can be appreciated in two basic ways. First, it can be a corollary to the Constitutional respect given
to each individual's freedom of belief and freedom of exercise of one's religion. Second, it is also a restatement of the guarantee of
equality of each citizen. That is, that no person shall be discriminated against on the basis of her or his creed or religious beliefs.
Congealed in this provision is the concept that the Constitution acknowledges the cultural power of the State. Government's
resources, its reach, and ubiquity easily affect public consciousness. For example, actions of public officials are regular subjects
of media in all its forms. The statements and actions of public officials easily pervade public deliberation. They also constitute
frames for public debate on either personality or policy.
The rituals and symbolisms of government not only educate the public but also etch civic and constitutional values into mainstream
culture. The flag for instance, reminds us of our colorful history. Flag ceremonies instill passionate loyalty to the republic and the
values for which it stands. Halls of Justice consist of buildings to remind the public that their cases are given equal importance.
The arrangement of bench and bar within our courtrooms exhibits the majesty of the law by allowing the judicial occupants to
tower over the advocates to a cause. This arrangement instills the civic value that no one's cause will be above the law: that no
matter one's creed or belief, all will be equal.
Any unnecessary endorsement, policy, or program that privileges, favors, endorses, or supports a religious practice or belief per
se therefore would be constitutionally impermissible. It communicates a policy that contrary beliefs are not so privileged, not so
favored, not so endorsed and unsupported by the Constitutional order. It implies that those whose creeds or whose faiths are
different may not be as part of the political community as the other citizens who understand the rituals that are supported. It is to
install discrimination against minority faiths or even against those who do not have any faith whatsoever.
There is no urgency in holding masses within the Halls of Justice. The Catholic Church owns many elegant places of worship.
There are churches and chapels accessible to court personnel in the Quezon City Hall of Justice during their lunch hour. There are
some, which are walking distance from their offices.
Allowing masses to be held within Halls of Justice therefore have no other purpose except to allow a sect, or religious denomination
to express its beliefs. The primary purpose of the policy that is favored by the majority of this Court is not secular in nature, but
religious. This is contrary to the existing canons of our Constitutional law.
Section 5, Article III does not allow the endorsement by the State of any religion. The only exception would be if such incidental
endorsement of a religious exercise is in the context of a governmental act that satisfies the following three-part test: it has a
"secular legislative purpose";28 "its primary effect [is] that [which] neither advances nor inhibits religion";29 and that it "must not
foster 'an excessive entanglement with religion."30
In Aglipay v. Ruiz,31 this Court allowed the issuance of postage stamps with a Philippine map and an indication that the City of
Manila was the seat of the Roman Catholic Church's Eucharistic Congress in 1937. The Court held 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."32 In Aglipay, the legitimate
public purpose was to boost the country's tourism, not to celebrate religion. The Court found that the principal purpose was secular.
The religious benefit was also considered to be incidental.
There is no duration, degree of convenience, or extent of following that justifies any express or implied endorsement of any
religious message or practice. There is also no type of endorsement allowed by the provision. It is sufficient that the State, through
its agents, favors expressly or impliedly a religious practice.
91
The majority opinion cites Father Bernas in discussing the non-establishment clause. Unfortunately, Father Bernas, even as a
celebrated author in Constitutional law, is not the Supreme Court. Neither are his statements precedents for purposes of this Court.
He is also a Catholic priest and therefore his opinions on the impact of law on religion should be taken with a lot of advisement.
Furthermore, directing our Executive Judges to regulate and closely monitor the holding of masses and other religious practices
within our courts promotes excessive entanglements33 between courts and various religions. This close monitoring will result in
an unnecessary interaction between the church and the State. It will take time from our Executive Judges, who, instead of
monitoring the holding of religious rituals, could otherwise be performing their secular functions such as reducing court dockets.
They will be asked to arbitrate between religions.
VII
Justices De Castro34 and Jardeleza35 take a contrary view. For them, allowing our employees to hold religious rituals in our Halls
of Justice serves "a human resource purpose"36 in that "it renews in [our employees] daily their desire to achieve the highest
principles of morality [which] can only better equip them to meet their secular obligation to be at all times accountable to the
people."37
Unfortunately, this is a rationalization which benefits only those who are of the same faith for which the rituals will be conducted.
It does not apply to those who do not share in the same beliefs. The non-establishment clause does not protect those that believe
in the religion that is favored, privileged, endorsed, or supported. It is supposed to protect those that may be in the minority. The
alleged secular purpose of the Holy Mass therefore only benefits Catholics. It does not apply to a Buddhist, a Taoist, an atheist, or
an agnostic.
Any moralizing effect of religion notwithstanding, religion should correctly remain to be "a private matter for the individual, the
family, and the institutions of private choice."38 As Justice Jardeleza points out, setting and context determine whether the use of
a religious symbol effectively endorses a religious belief.39 There is no violation of the establishment clause if we allow an
employee to privately pray the rosary within the confines of his or her workspace.40
The case is different, however, if the religious ritual is collectively and publicly performed. Our Halls of Justice were not built for
religious purposes. Allowing the performance of religious rituals in our Halls of Justice runs roughshod over the rights of non-
believing employees and other litigants who, for non-religious purposes, are present in the courthouse but are involuntarily exposed
to the religious practice.
Moreover, the purpose and goal of our secular laws and service to our people should be enough motivation for all public officers
to do their best in their jobs. To provide the public space for a supposedly private matter like religion, in the name of morality, is
not what the Constitution concedes.
If rituals for any religion serve any human resource incentive, so should any form of non-belief, be it in the form of atheism or
agnosticism. It does not make sense for a state to favor any religious ritual yet at the same time accommodate citizens, who
fervently believe that rituals should never be done.
VIII
More specific to the prohibition against the establishment of a religion are the provisions in the second paragraph of Section 29,
Article VI of the Constitution:
Section 29.
....
(2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or
support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, 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, or government orphanage or leprosarium. (Emphasis supplied)
The Constitution specifically prohibits public property from being "employed for the benefit or support of any sect, church,
denomination, sectarian institution or system of religion."
This provision allows for no qualification. Allowing Catholic masses to be celebrated daily within the Halls of Justice definitely
employs public property for the "benefit or support" of the Catholic religion. Catholicism is a "church," "denomination," and a
"system of religion."
The majority believes that Section 29(2), Article VI of the Constitution "contemplates a scenario where the appropriation is
primarily intended for the furtherance of a particular church."41 In interpreting the provision, the majority deploys the statutory
interpretative device labelled as noscitur a sociis - the doctrine of associated words - and examined the definitions of "appropriate"
and "apply" mentioned before "use" and "employ" in the provision. Based on the definitions in Black's Law Dictionary,
"appropriate" and "apply" are similarly done for a particular purpose.42 The ponencia then concluded that "use" and "employ,"
associated with "appropriate" and "apply," must similarly be done for a particular purpose, specifically, to benefit a particular
religion.43
X
The Constitution guarantees liberty for those who choose to believe in a god. It does not, however, sanction insensibilities towards
those who believe otherwise. The Constitution is also a guarantee that those who profess a dominant religion do not, in fact and in
reality, further dominate our government spaces with their rituals or messages.
The non-establishment clause is the normative protection that ensures and mandates tolerance. It is meant to sharpen the sensitivity
of those who are powerful so that they understand the point of view of others who have different beliefs. It is a sovereign command
that those who hold important public offices - such as judges and justices - be conscious that their fervent personal and religious
beliefs should not be mirrored in the doctrines and results of their cases.
Projecting the verses of Catholic prayers in a public building, using powerful sound systems to proclaim one's faith, selecting a
space in the center of a Hall of Justice where the rituals resonate will not be obviously offensive to Catholics in the majority.
However, it is utter callousness to say that it will offend no one. It causes discomfort to all those who will pass and do not share
or have objections to the teachings broadcast in the Holy Eucharist. It offends those who believe that the State should endeavor to
be neutral and impartial and avoid situations where this will be compromised.
Certainly, there is no urgent and compelling need to allow a certain sect to exercise their rituals within the Halls of Justice on a
regular basis. There are churches, chapels, mosques, synagogues, and private spaces available for worship.

I do not agree with this interpretation. It implies that the religious use or employment of public property is allowable so long as
"Benevolent neutrality" to render state regulation impotent in a situation where a religion dominates becomes a painful illusion to
other religious groups may use or employ the property.
those at the margins of our society. For this Court to adopt this facade is to reward the dominant. It is to maintain the status quo
and reify the hegemony of those who have power. This will not be lost to those that pass our Halls of Justice.
Section 29(2), Article VI of the Constitution is straightforward and needs no statutory construction. The religious use of public
property is proscribed in its totality. This proscription applies to any religion. This is especially so if the accommodation for the
To reward the dominant would be to further ensure divisiveness, distrust, and intolerance. It will ultimately result in the
use of public property is principally, primarily, and exclusively only for a religious purpose.
accommodation of fundamentalist views embedded in popular religions. The marginalized will perceive no succor in the system.
They will see no opening and no space for their own freedoms. Religious rituals in our Halls of Justice, no matter the justification,
This holistic interpretation of the Constitution is more sensitive to those who disbelieve - the agonistics and the atheists - who are breed contempt for the impartiality of the Rule of Law.
equally protected under the Constitution. It is also more sensitive to the concept that the state remains neutral in matters pertaining
to faith: that no institutional religion, due to their dominance or resources, may have any form of advantage over another act of
The faiths which anchor our Constitution are diverse. It should not be the monopoly of any sect. The diversity mandated by our
religious belief.
Constitution deepens our potentials as sovereigns. To favor a belief system in a divine being therefore, in any shape, form, or
manner, is to undermine the very foundations of our legal order.
IX
The Constitution does mention god. It may be that the divine is the the Judeo-Christian God. It may be that it is Allah of Islam or
The other cases cited by the majority do not involve the non-establishment clause. Rather, the cases involve exceptions to a secular Yahweh of the Jews. The god may not be theistic and may simply be the Dharma of the Buddhists. It may also not be a divinity
policy. but reasoned secularism as advocated by the most militant Atheists.

Victoriano v. Elizalde Rope Workers Union44 challenged the applicability of the closed shop provisions to Members of Iglesia ni It may also be a god that is so secure in itself that it does not require any kind of religious rituals, just the humility of not imposing
Cristo. The closed shop provisions were meant to further the State's protection to labor through collective negotiations. The one's belief on others.
petitioner in that case alleged that the means through which the purpose was to be achieved interferes with the exercise of his
religion. That case did not involve allowance for any religious ritual within public property for the convenience of its adherents.
Except for our own individual consciences, we are not competent to make these religious judgments as Supreme Court Justices.
Certainly, it is not within our constitutional mandate to favor one over the other in any manner.
Ebralinag v. Division Superintendent of Schools of Cebu45 examined the plea of a group of students who adhered to the tenets of
the Jehovah's Witnesses to be exempted from certain gestures during the flag ceremony. Like Escritor and Victoriano, Ebralinag
There is no reason for the Holy Eucharist to be celebrated in our Halls of Justice. Catholic churches are ubiquitous. Should the
pursued a secular governmental interest. Religion, thus, only becomes significant as a basis to seek exemption to its application.
faithful among our judges and employees find the need to worship, I am of the belief that they should practice the compassion for
others and the virtue for humble sacrifice taught by no less that Jesus Christ himself. Thus, they should muster the patience to walk
Allowing religious rituals within the Halls of Justice is not supported by these cases. Allowing the celebration of Roman Catholic to the closest church and there to fervently pray for more humility and a socially just and tolerant society.
masses within court premises definitely is not occasioned by a need to relieve their faithful from any burdensome effect. This case
involves the State, through its employees, allowing the practice of religious rituals with no other purpose except to practice
The same doctrine applies for all other religions.
religious rituals in a public space. This cannot be done.

92
ACCORDINGLY, I vote to NOTE the letter-complaints of Mr. Valenciano, dated January 9, 2009, May 13, 2009, and March
23, 2010 and GRANT his request to disallow the holding of daily Roman Catholic masses, or any other religious ritual, at the
basement of the Quezon City Hall of Justice.
G.R. No. 94284 April 8, 1991
RICARDO C. SILVERIO, petitioner,
vs.
THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of the Regional Trial Court of Cebu City, Branch
IX, and PEOPLE OF THE PHILIPPINES, respondents.
Quisumbing, Torres & Evangelista for petitioner.
MELENCIO-HERRERA, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that the Decision of respondent Court of
Appeals in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio vs. Hon. Benigno C. Gaviola, etc., et al.," dated 31 January 1990,
as well as the Resolution of 29 June 1990 denying reconsideration, be set aside.
On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the Revised Securities Act in Criminal Case No.
CBU-6304 of the Regional Trial Court of Cebu. In due time, he posted bail for his provisional liberty.
On 26 January 1988, or more than two (2) years after the filing of the Information, respondent People of the Philippines filed an
Urgent ex parte Motion to cancel the passport of and to issue a hold-departure Order against accused-petitioner on the ground that
he had gone abroad several times without the necessary Court approval resulting in postponements of the arraignment and
scheduled hearings.
Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order directing the Department of Foreign Affairs to
cancel Petitioner's passport or to deny his application therefor, and the Commission on Immigration to prevent Petitioner from
leaving the country. This order was based primarily on the Trial Court's finding that since the filing of the Information on 14
October 1985, "the accused has not yet been arraigned because he has never appeared in Court on the dates scheduled for his
arraignment and there is evidence to show that accused Ricardo C. Silverio, Sr. has left the country and has gone abroad without
the knowledge and permission of this Court" (Rollo, p. 45). Petitioner's Motion for Reconsideration was denied on 28 July 1988.
Petitioner's Certiorari Petition before the Court of Appeals met a similar fate on 31 January 1990. Hence, this Petition for Review
filed on 30 July 1990.
After the respective pleadings required by the Court were filed, we resolved to give due course and to decide the case.
Petitioner contends that respondent Court of Appeals erred in not finding that the Trial Court committed grave abuse of discretion
amounting to lack of jurisdiction in issuing its Orders, dated 4 April and 28 July 1988, (1) on the basis of facts allegedly patently
erroneous, claiming that the scheduled arraignments could not be held because there was a pending Motion to Quash the
Information; and (2) finding that the right to travel can be impaired upon lawful order of the Court, even on grounds other than the
"interest of national security, public safety or public health."
We perceive no reversible error.
93
1) Although the date of the filing of the Motion to Quash has been omitted by Petitioner, it is apparent that it was filed long after
the filing of the Information in 1985 and only after several arraignments had already been scheduled and cancelled due to
Petitioner's non-appearance. In fact, said Motion to Quash was set for hearing only on 19 February 1988. Convincingly shown by
the Trial Court and conformed to by respondent Appellate Court is the concurrence of the following circumstances:
1. The records will show that the information was filed on October 14, 1985. Until this date (28 July 1988), the case
had yet to be arraigned. Several scheduled arraignments were cancelled and reset, mostly due to the failure of accused
Silverio to appear. The reason for accused Silverio's failure to appear had invariably been because he is abroad in the
United States of America;
2. Since the information was filed, until this date, accused Silverio had never appeared in person before the Court;
3. The bond posted by accused Silverio had been cancelled twice and warrants of arrest had been issued against him all
for the same reason –– failure to appear at scheduled arraignments.
In all candidness, the Court makes the observation that it has given accused Silverio more than enough consideration.
The limit had long been reached (Order, 28 July 1988, Crim. Case No. CBU-6304, RTC, Cebu, p. 5; Rollo, p. 73).
Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July 1988, were not based on erroneous facts, as
Petitioner would want this Court to believe. To all appearances, the pendency of a Motion to Quash came about only after several
settings for arraignment had been scheduled and cancelled by reason of Petitioner's non-appearance.
2) Petitioner's further submission is that respondent Appellate Court "glaringly erred" in finding that the right to travel can be
impaired upon lawful order of the Court, even on grounds other than the "interest of national security, public safety or public
health."
To start with, and this has not been controverted by Petitioner, the bail bond he had posted had been cancelled and Warrants of
Arrest had been issued against him by reason, in both instances, of his failure to appear at scheduled arraignments. Warrants of
Arrest having been issued against him for violation of the conditions of his bail bond, he should be taken into custody. "Bail is the
security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance
before any court when so required by the Court or the Rules (1985 Rules on Criminal Procedure, as amended, Rule 114, Secs. 1
and 2).
The foregoing condition imposed upon an accused to make himself available at all times whenever the Court requires his presence
operates as a valid restriction of his right to travel (Manotoc, Jr. vs. Court of Appeals, et al. No. 62100, 30 May 1986, 142 SCRA
149). A person facing criminal charges may be restrained by the Court from leaving the country or, if abroad, compelled to return
(Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it is also that "An accused released on bail may be re-arrested
without the necessity of a warrant if he attempts to depart from the Philippines without prior permission of the Court where the
case is pending (ibid., Sec. 20 [2nd
par. ]).
Petitioner takes the posture, however, that while the 1987 Constitution recognizes the power of the Courts to curtail the liberty of
abode within the limits prescribed by law, it restricts the allowable impairment of the right to travel only on grounds of interest of
national security, public safety or public health, as compared to the provisions on freedom of movement in the 1935 and 1973
Constitutions.
Under the 1935 Constitution, the liberty of abode and of travel were treated under one provision.1âwphi1 Article III, Section 1(4)
thereof reads:
The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired.
The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel, thus: HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and TOMAS D. ACHACOSO, as Administrator
of the Philippine Overseas Employment Administration, respondents.
The liberty of abode and of travel shall not be impaired except upon lawful order of the court or when necessary in the
interest of national security, public safety, or public health (Article IV, Section 5). Gutierrez & Alo Law Offices for petitioner.

The 1987 Constitution has split the two freedoms into two distinct sentences and treats them differently, to wit:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except SARMIENTO, J.:
upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security,
public safety, or public health, as may be provided by law.
The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short), a firm "engaged principally in the recruitment
of Filipino workers, male and female, for overseas placement," 1 challenges the Constitutional validity of Department Order No.
Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel only on the grounds of "national 1, Series of 1988, of the Department of Labor and Employment, in the character of "GUIDELINES GOVERNING THE
security, public safety, or public health." TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD WORKERS," in this
petition for certiorari and prohibition. Specifically, the measure is assailed for "discrimination against males or females;" 2 that it
"does not apply to all Filipino workers but only to domestic helpers and females with similar skills;" 3 and that it is violative of
The submission is not well taken.
the right to travel. It is held likewise to be an invalid exercise of the lawmaking power, police power being legislative, and not
executive, in character.
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even
without Court Order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to
In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution, providing for worker participation
impose limitations. They can impose limits only on the basis of "national security, public safety, or public health" and "as may be
"in policy and decision-making processes affecting their rights and benefits as may be provided by law." 4 Department Order No.
provided by law," a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First
1, it is contended, was passed in the absence of prior consultations. It is claimed, finally, to be in violation of the Charter's non-
Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel
impairment clause, in addition to the "great and irreparable injury" that PASEI members face should the Order be further enforced.
imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel
upon application of an interested party (See Salonga vs. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97
SCRA 121). On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of Labor and Administrator of the Philippine
Overseas Employment Administration, filed a Comment informing the Court that on March 8, 1988, the respondent Labor
Secretary lifted the deployment ban in the states of Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway, Austria,
Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent power of the Courts to
and Switzerland. * In submitting the validity of the challenged "guidelines," the Solicitor General invokes the police power of the
use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is
Philippine State.
conferred on a Court or judicial officer, all auxillary writs, process and other means necessary to carry it into effect may be
employed by such Court or officer (Rule 135, Section 6, Rules of Court).
It is admitted that Department Order No. 1 is in the nature of a police power measure. The only question is whether or not it is
valid under the Constitution.
Petitioner's argument that the ruling in Manotoc, Jr., v. Court of Appeals, et al. (supra), to the effect that the condition imposed
upon an accused admitted to bail to make himself available at all times whenever the Court requires his presence operates as a
valid restriction on the right to travel no longer holds under the 1987 Constitution, is far from tenable. The nature and function of The concept of police power is well-established in this jurisdiction. It has been defined as the "state authority to enact legislation
a bail bond has remained unchanged whether under the 1935, the 1973, or the 1987 Constitution. Besides, the Manotoc ruling on that may interfere with personal liberty or property in order to promote the general welfare." 5 As defined, it consists of (1) an
that point was but a re-affirmation of that laid down long before in People v. Uy Tuising, 61 Phil. 404 (1935). imposition of restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact definition but
has been, purposely, veiled in general terms to underscore its all-comprehensive embrace.
Petitioner is facing a criminal charge. He has posted bail but has violated the conditions thereof by failing to appear before the
Court when required. Warrants for his arrest have been issued. Those orders and processes would be rendered nugatory if an "Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides
accused were to be allowed to leave or to remain, at his pleasure, outside the territorial confines of the country. Holding an accused enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits." 6
in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid
restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in any criminal proceeding
It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the Charter. Along with the taxing
is the People of the Philippines. It is to their best interest that criminal prosecutions should run their course and proceed to finality
power and eminent domain, it is inborn in the very fact of statehood and sovereignty. It is a fundamental attribute of government
without undue delay, with an accused holding himself amenable at all times to Court Orders and processes.
that has enabled it to perform the most vital functions of governance. Marshall, to whom the expression has been credited, 7 refers
to it succinctly as the plenary power of the State "to govern its citizens." 8
WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against petitioner, Ricardo C. Silverio.
"The police power of the State ... is a power coextensive with self- protection, and it is not inaptly termed the "law of overwhelming
G.R. No. 81958 June 30, 1988 necessity." It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the
comfort, safety, and welfare of society." 9
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,
vs. It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the conception that men in
organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to
94
enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to
ensure communal peace, safety, good order, and welfare." 10 Significantly, the Bill of Rights itself does not purport to be an
absolute guaranty of individual rights and liberties "Even liberty itself, the greatest of all rights, is not unrestricted license to act
according to one's will." 11 It is subject to the far more overriding demands and requirements of the greater number.
Notwithstanding its extensive sweep, police power is not without its own limitations. For all its awesome consequences, it may
not be exercised arbitrarily or unreasonably. Otherwise, and in that event, it defeats the purpose for which it is exercised, that is,
to advance the public good. Thus, when the power is used to further private interests at the expense of the citizenry, there is a clear
misuse of the power. 12
In the light of the foregoing, the petition must be dismissed.
As a general rule, official acts enjoy a presumed vahdity. 13 In the absence of clear and convincing evidence to the contrary, the
presumption logically stands.
that in the midst of the terrible mistreatment Filipina workers have suffered abroad, a ban on deployment will be for their own
good and welfare.
The Order does not narrowly apply to existing conditions. Rather, it is intended to apply indefinitely so long as those conditions
exist. This is clear from the Order itself ("Pending review of the administrative and legal measures, in the Philippines and in the
host countries . . ."18), meaning to say that should the authorities arrive at a means impressed with a greater degree of permanency,
the ban shall be lifted. As a stop-gap measure, it is possessed of a necessary malleability, depending on the circumstances of each
case. Accordingly, it provides:
9. LIFTING OF SUSPENSION. — The Secretary of Labor and Employment (DOLE) may, upon
recommendation of the Philippine Overseas Employment Administration (POEA), lift the suspension in
countries where there are:
1. Bilateral agreements or understanding with the Philippines, and/or,

The petitioner has shown no satisfactory reason why the contested measure should be nullified. There is no question that 2. Existing mechanisms providing for sufficient safeguards to ensure the welfare and protection of Filipino
Department Order No. 1 applies only to "female contract workers," 14 but it does not thereby make an undue discrimination workers. 19
between the sexes. It is well-settled that "equality before the law" under the Constitution 15 does not import a perfect Identity of
rights among all men and women. It admits of classifications, provided that (1) such classifications rest on substantial distinctions;
The Court finds, finally, the impugned guidelines to be applicable to all female domestic overseas workers. That it does not apply
(2) they are germane to the purposes of the law; (3) they are not confined to existing conditions; and (4) they apply equally to all
to "all Filipina workers" 20 is not an argument for unconstitutionality. Had the ban been given universal applicability, then it would
members of the same class. 16
have been unreasonable and arbitrary. For obvious reasons, not all of them are similarly circumstanced. What the Constitution
prohibits is the singling out of a select person or group of persons within an existing class, to the prejudice of such a person or
The Court is satisfied that the classification made-the preference for female workers — rests on substantial distinctions. group or resulting in an unfair advantage to another person or group of persons. To apply the ban, say exclusively to workers
deployed by A, but not to those recruited by B, would obviously clash with the equal protection clause of the Charter. It would be
a classic case of what Chase refers to as a law that "takes property from A and gives it to B." 21 It would be an unlawful invasion
As a matter of judicial notice, the Court is well aware of the unhappy plight that has befallen our female labor force abroad,
of property rights and freedom of contract and needless to state, an invalid act. 22 (Fernando says: "Where the classification is
especially domestic servants, amid exploitative working conditions marked by, in not a few cases, physical and personal abuse.
based on such distinctions that make a real difference as infancy, sex, and stage of civilization of minority groups, the better rule,
The sordid tales of maltreatment suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by
it would seem, is to recognize its validity only if the young, the women, and the cultural minorities are singled out for favorable
testimonies of returning workers, are compelling motives for urgent Government action. As precisely the caretaker of
treatment. There would be an element of unreasonableness if on the contrary their status that calls for the law ministering to their
Constitutional rights, the Court is called upon to protect victims of exploitation. In fulfilling that duty, the Court sustains the
needs is made the basis of discriminatory legislation against them. If such be the case, it would be difficult to refute the assertion
Government's efforts.
of denial of equal protection." 23 In the case at bar, the assailed Order clearly accords protection to certain women workers, and
not the contrary.)
The same, however, cannot be said of our male workers. In the first place, there is no evidence that, except perhaps for isolated
instances, our men abroad have been afflicted with an Identical predicament. The petitioner has proffered no argument that the
It is incorrect to say that Department Order No. 1 prescribes a total ban on overseas deployment. From scattered provisions of the
Government should act similarly with respect to male workers. The Court, of course, is not impressing some male chauvinistic
Order, it is evident that such a total ban has hot been contemplated. We quote:
notion that men are superior to women. What the Court is saying is that it was largely a matter of evidence (that women domestic
workers are being ill-treated abroad in massive instances) and not upon some fanciful or arbitrary yardstick that the Government
acted in this case. It is evidence capable indeed of unquestionable demonstration and evidence this Court accepts. The Court 5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers and workers of similar skills
cannot, however, say the same thing as far as men are concerned. There is simply no evidence to justify such an inference. Suffice defined herein to the following [sic] are authorized under these guidelines and are exempted from the
it to state, then, that insofar as classifications are concerned, this Court is content that distinctions are borne by the evidence. suspension.
Discrimination in this case is justified.
5.1 Hirings by immediate members of the family of Heads of State and Government;
As we have furthermore indicated, executive determinations are generally final on the Court. Under a republican regime, it is the
executive branch that enforces policy. For their part, the courts decide, in the proper cases, whether that policy, or the manner by
5.2 Hirings by Minister, Deputy Minister and the other senior government officials;
which it is implemented, agrees with the Constitution or the laws, but it is not for them to question its wisdom. As a co-equal body,
and
the judiciary has great respect for determinations of the Chief Executive or his subalterns, especially when the legislature itself has
specifically given them enough room on how the law should be effectively enforced. In the case at bar, there is no gainsaying the
fact, and the Court will deal with this at greater length shortly, that Department Order No. 1 implements the rule-making powers 5.3 Hirings by senior officials of the diplomatic corps and duly accredited
granted by the Labor Code. But what should be noted is the fact that in spite of such a fiction of finality, the Court is on its own international organizations.
persuaded that prevailing conditions indeed call for a deployment ban.
5.4 Hirings by employers in countries with whom the Philippines have [sic] bilateral
There is likewise no doubt that such a classification is germane to the purpose behind the measure. Unquestionably, it is the avowed labor agreements or understanding.
objective of Department Order No. 1 to "enhance the protection for Filipino female overseas workers" 17 this Court has no quarrel

95
 xxx xxx xxx The Court finds furthermore that the Government has not indiscriminately made use of its authority. It is not contested that it has
in fact removed the prohibition with respect to certain countries as manifested by the Solicitor General.
7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR SKILLS--Vacationing
domestic helpers and/or workers of similar skills shall be allowed to process with the POEA and leave for The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the loftier purposes targetted by the
worksite only if they are returning to the same employer to finish an existing or partially served employment Government. 31 Freedom of contract and enterprise, like all other freedoms, is not free from restrictions, more so in this
contract. Those workers returning to worksite to serve a new employer shall be covered by the suspension jurisdiction, where laissez faire has never been fully accepted as a controlling economic way of life.
and the provision of these guidelines.
This Court understands the grave implications the questioned Order has on the business of recruitment. The concern of the
xxx xxx xxx Government, however, is not necessarily to maintain profits of business firms. In the ordinary sequence of events, it is profits that
suffer as a result of Government regulation. The interest of the State is to provide a decent living to its citizens. The Government
has convinced the Court in this case that this is its intent. We do not find the impugned Order to be tainted with a grave abuse of
9. LIFTING OF SUSPENSION-The Secretary of Labor and Employment (DOLE) may, upon
discretion to warrant the extraordinary relief prayed for.
recommendation of the Philippine Overseas Employment Administration (POEA), lift the suspension in
countries where there are:
WHEREFORE, the petition is DISMISSED. No costs.
1. Bilateral agreements or understanding with the Philippines, and/or,
G.R. No. L-27833 April 18, 1969
2. Existing mechanisms providing for sufficient safeguards to ensure the welfare and
protection of Filipino workers. 24 IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE CONSTITUTIONALITY OF REPUBLIC ACT
4880. ARSENIO GONZALES and FELICISIMO R. CABIGAO, petitioners,
vs.
xxx xxx xxx
COMMISSION ON ELECTIONS, respondent.

The consequence the deployment ban has on the right to travel does not impair the right. The right to travel is subject, among other
F. R. Cabigao in his own behalf as petitioner.
things, to the requirements of "public safety," "as may be provided by law." 25 Department Order No. 1 is a valid implementation
B. F. Advincula for petitioner Arsenio Gonzales.
of the Labor Code, in particular, its basic policy to "afford protection to labor," 26 pursuant to the respondent Department of
Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo Tañada as amicus curiae.
Labor's rule-making authority vested in it by the Labor Code. 27 The petitioner assumes that it is unreasonable simply because of
its impact on the right to travel, but as we have stated, the right itself is not absolute. The disputed Order is a valid qualification
thereto. FERNANDO, J.:

Neither is there merit in the contention that Department Order No. 1 constitutes an invalid exercise of legislative power. It is true
that police power is the domain of the legislature, but it does not mean that such an authority may not be lawfully delegated. As
we have mentioned, the Labor Code itself vests the Department of Labor and Employment with rulemaking powers in the
enforcement whereof. 28
The petitioners's reliance on the Constitutional guaranty of worker participation "in policy and decision-making processes affecting
their rights and benefits" 29 is not well-taken. The right granted by this provision, again, must submit to the demands and
necessities of the State's power of regulation.
The Constitution declares that:
Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and
promote full employment and equality of employment opportunities for all. 30
"Protection to labor" does not signify the promotion of employment alone. What concerns the Constitution more paramountly is
that such an employment be above all, decent, just, and humane. It is bad enough that the country has to send its sons and daughters
to strange lands because it cannot satisfy their employment needs at home. Under these circumstances, the Government is duty-
bound to insure that our toiling expatriates have adequate protection, personally and economically, while away from home. In this
case, the Government has evidence, an evidence the petitioner cannot seriously dispute, of the lack or inadequacy of such
protection, and as part of its duty, it has precisely ordered an indefinite ban on deployment.
A statute designed to maintain the purity and integrity of the electoral process by Congress calling a halt to the undesirable practice
of prolonged political campaign bringing in their wake serious evils not the least of which is the ever increasing cost of seeking
public office, is challenged on constitutional grounds. More precisely, the basic liberties of free speech and free press, freedom of
assembly and freedom of association are invoked to nullify the act. Thus the question confronting this Court is one of
transcendental significance.
It is faced with the reconciliation of two values esteemed highly and cherished dearly in a constitutional democracy. One is the
freedom of belief and of expression availed of by an individual whether by himself alone or in association with others of similar
persuasion, a goal that occupies a place and to none in the legal hierarchy. The other is the safeguarding of the equally vital right
of suffrage by a prohibition of the early nomination of candidates and the limitation of the period of election campaign or partisan
political activity, with the hope that the time-consuming efforts, entailing huge expenditures of funds and involving the risk of
bitter rivalries that may end in violence, to paraphrase the explanatory note of the challenged legislation, could be devoted to more
fruitful endeavors.
The task is not easy, but it is unavoidable. That is of the very essence of judicial duty. To paraphrase a landmark opinion, 1 when
we act in these matters we do so not on the assumption that to us is granted the requisite knowledge to set matters right, but by
virtue of the responsibility we cannot escape under the Constitution, one that history authenticates, to pass upon every assertion of
an alleged infringement of liberty, when our competence is appropriately invoked.
This then is the crucial question: Is there an infringement of liberty? Petitioners so alleged in his action, which they entitled
Declaratory Relief with Preliminary Injunction, filed on July 22, 1967, a proceeding that should have been started in the of Court
of First Instance but treated by this Court as one of prohibition in view of the seriousness and the urgency of the constitutional
issue raised. Petitioners challenged the validity of two new sections now included in the Revised Election Code, under Republic

96
Act No. 4880, which was approved and took effect on June 17, 1967, prohibiting the too early nomination of candidates 2 and
limiting the period of election campaign or partisan political activity. 3
The terms "candidate" and "election campaign" or "partisan political activity" are likewise defined. The former according to Act
No. 4880 "refers to any person aspiring for or seeking an elective public office regarded of whether or not said person has already
filed his certificate of candidacy or has been nominated by any political party as its candidate." "Election campaign" or "partisan
political activity" refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a
public office." Then the acts were specified. There is a proviso that simple expression of opinion and thoughts concerning the
election shall not be considered as part of an election campaign. There is the further proviso that nothing stated in the Act "shall
be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the
names of the candidates for public office whom he supports." 4
Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent councilor in the 4th District of Manila and the
Nacionalista Party official candidate for Vice-Mayor of Manila to which he was subsequently elected on November 11, 1967;
petitioner Gonzales, on the other hand, is a private individual, a registered voter in the City of Manila and a political leader of his
co-petitioner. It is their claim that "the enforcement of said Republic Act No. 4880 in question [would] prejudice [their] basic
rights..., such as their freedom of speech, their freedom of assembly and their right to form associations or societies for purpose
not contrary to law, guaranteed under the Philippine Constitution," and that therefore said act is unconstitutional.
After invoking anew the fundamental rights to free speech, free press, freedom of association and freedom of assembly with a
citation of two American Supreme Court decisions, 5 they asserted that "there is nothing in the spirit or intention of the law that
would legally justify its passage and [enforcement] whether for reasons of public policy, public order or morality, and that therefore
the enactment of Republic Act [No.] 4880 under, the guise of regulation is but a clear and simple abridgment of the constitutional
rights of freedom of speech, freedom of assembly and the right to form associations and societies for purposes not contrary to law,
..." There was the further allegation that the nomination of a candidate and the fixing of period of election campaign are matters
of political expediency and convenience which only political parties can regulate or curtail by and among themselves through self-
restraint or mutual understanding or agreement and that the regulation and limitation of these political matters invoking the police
power, in the absence of clear and present danger to the state, would render the constitutional rights of petitioners meaningless and
without effect.
To the plea of petitioners that after hearing, Republic Act No. 4880 be declared unconstitutional, null and void, respondent
Commission on Elections, in its answer filed on August 1, 1967, after denying the allegations as to the validity of the act "for being
mere conclusions of law, erroneous at that," and setting forth special affirmative defenses, procedural and substantive character,
would have this Court dismiss the petition.
Thereafter the case was set for hearing on August 3, 1967. On the same date a resolution was passed by us to the following effect:
"At the hearing of case L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty. F. Reyes Cabigao appeared for the
petitioners and Atty. Ramon Barrios appeared for the respondent and they were given a period of four days from today within
which to submit, simultaneously,, their respective memorandum in lieu of oral argument."
On August 9, 1967, another resolution, self-explanatory in character, came from this Court. Thus: "In ease G.R. No. L-27833
(Arsenio Gonzales, et al. vs. Commission on Elections), the Court, with eight (8) Justice present, having deliberated on the issue
of the constitutionality of Republic Act No. 4880; and a divergence of views having developed among the Justices as to the
constitutionality of section 50-B, pars. (c), (d) and (e) of the Revised Election Code: considering the Constitutional provision that
"no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the (Supreme)
Court' (sec. 10, Art, VII), the Court [resolved] to defer final voting on the issue until after the return of the Justices now on official
leave."
The case was then reset for oral argument. At such hearing, one of the co-petitioners, now Vice-Mayor Felicisimo Cabigao of the
City of Manila acting as counsel, assailed the validity of the challenged legislation relying primarily on American Supreme Court
opinion that warn against curtailment in whatever guise or form of the cherished freedoms of expression, of assemble and of
association, all embraced in the First Amendment of the United States Constitution. Respondent Commission on Elections was
duly represented by Atty. Ramon Barrios.
97
Senator Lorenzo M. Tañada was asked to appear as amicus curiae. That he did, arguing most impressively with a persuasive
exposition of the existence of undeniable conditions that imperatively called for regulation of the electoral process and with full
recognition that Act No. 4880 could indeed be looked upon as a limitation on the preferred rights of speech and press, of assembly
and of association. He did justify its enactment however under the clear and present danger doctrine, there being the substantive
evil of elections, whether for national or local officials, being debased and degraded by unrestricted campaigning, excess of
partisanship and undue concentration in politics with the loss not only of efficiency in government but of lives as well.
The matter was then discussed in conference, but no final action was taken. The divergence of views with reference to the
paragraphs above mentioned having continued, on Oct. 10, 1968, this Court, by resolution, invited certain entities to submit
memoranda as amici curiae on the question of the validity of R.A. Act No. 4880. The Philippine Bar Association, the Civil Liberties
Union, the U.P. Law Center and the U.P. Women Lawyers' Circle were included, among them. They did file their respective
memoranda with this Court and aided it in the consideration of the constitutional issues involved.
1. In the course of the deliberations, a serious procedural objection was raised by five members of the Court. 6 It is their view that
respondent Commission on Elections not being sought to be restrained from performing any specific act, this suit cannot be
characterized as other than a mere request for an advisory opinion. Such a view, from the remedial law standpoint, has much to
recommend it. Nonetheless, a majority would affirm, the original stand that under the circumstances it could still rightfully be
treated as a petition for prohibition.
The language of Justice Laurel fits the case "All await the decision of this Court on the constitutional question. Considering,
therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy
demand that [its] constitutionality ... be now resolved." 7 It may likewise be added that the exceptional character of the situation
that confronts us, the paramount public interest, and the undeniable necessity for a ruling, the national elections being, barely six
months away, reinforce our stand.
It would appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to prevent the enforcement of
an alleged unconstitutional statute. We are left with no choice then; we must act on the matter.
There is another procedural obstacle raised by respondent to be hurdled. It is not insuperable. It is true that ordinarily, a party who
impugns the validity of a statute or ordinance must have a substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement. 8 Respondent cannot see such interest as being possessed by petitioners. It may indicate
the clarity of vision being dimmed, considering that one of the petitioners was a candidate for an elective position. Even if such
were the case, however, the objection is not necessarily fatal. In this jurisdiction, the rule has been sufficiently relaxed to allow a
taxpayer to bring an action to restrain the expenditure of public funds through the enforcement of an invalid or unconstitutional
legislative measure. 9
2. In the answer of the respondent as well as its memorandum, stress was laid on Republic Act No. 4880 as an exercise of the
police power of the state, designed to insure a free, orderly and honest election by regulating "conduct which Congress has
determined harmful if unstrained and carried for a long period before elections it necessarily entails huge expenditures of funds on
the part of the candidates, precipitates violence and even deaths, results in the corruption of the electorate, and inflicts direful
consequences upon public interest as the vital affairs of the country are sacrificed to purely partisan pursuits." Evidently for
respondent that would suffice to meet the constitutional questions raised as to the alleged infringement of free speech, free press,
freedom of assembly and 'freedom' of association. Would it were as simple as that?
An eloquent excerpt from a leading American decision 10 admonishes though against such a cavalier approach. "The case confronts
us again with the duty our system places on this Court to say where the individual's, freedom ends the State's power begins. Choice
on that border, now as always delicate, is perhaps more so where the usual. presumption supporting legislation is balanced by the
preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment.... That
priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of
the limitation, which determines what standard governs the choice..."
Even a leading American State court decision on a regulatory measure dealing with elections, cited in the answer of respondent,
militates against a stand minimizing the importance and significance of the alleged violation of individual rights: "As so construed
by us, it has not been made to appear that section 8189, Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face violative of
any provision of either the state or Federal Constitution on the subject of free speech or liberty of the press, nor that its operation
is in any wise subversive of any one's constitutional liberty." 11 Another leading State decision is much more emphatic: "Broad as
the power of the legislature is with respect to regulation of elections, that power is not wholly without limitation. Under the guise
of regulating elections, the legislature may not deprive a citizen of the right of trial by jury. A person charged with its violation
may not be compelled to give evidence against himself. If it destroys the right of free speech, it is to that extent void." 12
The question then of the alleged violation of Constitutional rights must be squarely met.lawphi1.nêt
3. Now as to the merits. A brief resume of the basic rights on which petitioners premise their stand that the act is unconstitutional
may prove illuminating. The primacy, the high estate accorded freedom of expression is of course a fundamental postulate of our
constitutional system. No law shall be passed abridging the freedom of speech or of the press .... 13 What does it embrace? At the
very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public
interest without censorship or punishment. 14 There is to be then no previous restraint on the communication of views or subsequent
liability whether in libel suits, 15 prosecution for sedition, 16 or action for damages, 17 or contempt proceedings 18 unless there be a
clear and present danger of substantive evil that Congress has a right to prevent.
The vital need in a constitutional democracy for freedom of expression is undeniable whether as a means of assuring individual
self-fulfillment, of attaining the truth, of assuring participation by the people in social including political decision-making, and of
maintaining the balance between stability and change. 19 The trend as reflected in Philippine and American decisions is to recognize
the broadcast scope and assure the widest latitude to this constitutional guaranty. It represents a profound commitment to the
principle that debate of public issue should be uninhibited, robust, and wide-open. 20 It is not going too far, according to another
American decision, to view the function of free speech as inviting dispute. "It may indeed best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." 21 Freedom of
speech and of the press thus means something more than the right to approve existing political beliefs or economic arrangements,
to lend support to official measures, to take refuge in the existing climate of opinion on any matter of public consequence. So
atrophied, the right becomes meaningless. The right belongs as well, if not more, for those who question, who do not conform,
who differ. To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with
us. 22
So with Emerson one may conclude that "the theory of freedom of expression involves more than a technique for arriving at better
social judgments through democratic procedures. It comprehends a vision of society, a faith and a whole way of life. The theory
grew out of an age that was awakened and invigorated by the idea of new society in which man's mind was free, his fate determined
by his own powers of reason, and his prospects of creating a rational and enlightened civilization virtually unlimited. It is put
forward as a prescription for attaining a creative, progressive, exciting and intellectually robust community. It contemplates a mode
of life that, through encouraging toleration, skepticism, reason and initiative, will allow man to realize his full potentialities. It
spurns the alternative of a society that is tyrannical, conformist, irrational and stagnant." 23
From the language of the specified constitutional provision, it would appear that the right is not susceptible of any limitation. No
law may be passed abridging the freedom of speech and of the press. The realities of life in a complex society preclude however a
literal interpretation. Freedom of expression is not an absolute. It would be too much to insist that at all times and under all
circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition. How is it to
be limited then?
This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply an acceptable criterion for permissible restriction.
Thus: "These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in a number of cases,
means that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely
high' before the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented." It
has the advantage of establishing according to the above decision "a definite rule in constitutional law. It provides the criterion as
to what words may be public established."
The Cabansag case likewise referred to the other test, the "dangerous tendency" rule and explained it thus: "If the words uttered
create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some
98
definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general
terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or
unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil
which the legislative body seeks to prevent.
We posed the issue thus: "Has the letter of Cabansag created a sufficient danger to a fair administration of justice? Did its remittance
to the PCAC create a danger sufficiently imminent to come under the two rules mentioned above?" The choice of this Court was
manifest and indisputable. It adopted the clear and present danger test. As a matter of fact, in an earlier decision, Primicias v.
Fugoso, 25 there was likewise an implicit acceptance of the clear and present danger doctrine.
Why repression is permissible only when the danger of substantive evil is present is explained by Justice Branders thus: ... the evil
apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through
discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not
enforced silence." 26 For him the apprehended evil must be "relatively serious." For "[prohibition] of free speech and assembly is
a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society." Justice Black
would go further. He would require that the substantive evil be "extremely serious." 27 Only thus may there be a realization of the
ideal envisioned by Cardozo: "There shall be no compromise of the freedom to think one's thoughts and speak them, except at
those extreme borders where thought merges into action." 28 It received its original formulation from Holmes. Thus: "The question
in every case is whether the words used in such circumstances and of such a nature as to create a clear and present danger that they
will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." 29
This test then as a limitation on freedom of expression is justified by the danger or evil a substantive character that the state has a
right to prevent. Unlike the dangerous tendency doctrine, the danger must not only be clear but also present. The term clear seems
to point to a causal connection with the danger of the substantially evil arising from the utterance questioned. Present refers to the
time element. It used to be identified with imminent and immediate danger. The danger must not only be probable but very likely
inevitable.
4. How about freedom of assembly? The Bill of Rights as thus noted prohibits abridgment by law of freedom of speech or of the
press. It likewise extends the same protection to the right of the people peaceably to assemble. As was pointed out by Justice
Malcolm in the case of United States v. Bustos, 30 this right is a necessary consequence of our republican institution and
complements the right of free speech. Assembly means a right on the part of citizens to meet peaceably for consultation in respect
to public affairs. From the same Bustos opinion: "Public policy, the welfare of society and orderly administration of government
have demanded protection for public opinion." To paraphrase the opinion of Justice Rutledge speaking for the majority in Thomas
v. Collins,31 it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single
guaranty with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these
rights while not identical are inseparable. They are cognate rights and the assurance afforded by the clause of this section of the
Bill of Rights wherein they are contained, applies to all. As emphatically put in the leading case of United States v. Cruikshank, 32
"the very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in
respect to public affairs and to petition for redress of grievances." As in the case of freedom of expression, this right is not to be
limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to
prevent.
5. Our Constitution likewise recognizes the freedom to form association for purposes not contrary to law. 33 With or without a
constitutional provision of this character, it may be assumed that the freedom to organize or to be a member of any group or society
exists. With this explicit provision, whatever doubts there may be on the matter are dispelled. Unlike the cases of other guarantee
which are mostly American in origin, this particular freedom has an indigenous cast. It can trace its origin to the Malolos
Constitution.
In the United States, in the absence of an explicit provision of such character, it is the view of Justice Douglas that it is primarily
the first amendment of her Constitution, which safeguards freedom of speech and of the press, of assembly and of petition "that
provides [associations] with the protection they need if they are to remain viable and continue to contribute to our Free Society."
34
He adopted the view of De Tocqueville on the importance and the significance of the freedom to associate. Thus: "The most
natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures
and of acting in common with them. The right of association therefore appears to me almost inalienable in its nature as the right
of personal liberty. No legislator can attack it without impairing the foundation of society." 35
There can be no dispute as to the soundness of the above observation of De Tocqueville. Since man lives in social it would be a
barren existence if he could not freely associate with others of kindred persuasion or of congenial frame of mind. As a matter of
fact, the more common form of associations may be likely to be fraternal, cultural, social or religious. Thereby, for almost
everybody, save for those exceptional few who glory in aloofness and isolation life is enriched and becomes more meaningful.
In a sense, however, the stress on this freedom of association should be on its political significance. If such a right were non-
existent then the likelihood of a one-party government is more than a possibility. Authoritarianism may become unavoidable.
Political opposition will simply cease to exist; minority groups may be outlawed, constitutional democracy as intended by the
Constitution may well become a thing of the past.
Political parties which, as is originally the case, assume the role alternately of being in the majority or in the minority as the will
of the electorate dictates, will lose their constitutional protection. It is undeniable therefore, that the utmost scope should be
afforded this freedom of association.
It is indispensable not only for its enhancing the respect that should be accorded a human personality but equally so for its assurance
that the wishes of any group to oppose whatever for the moment is the party in power and with the help of the electorate to set up
its own program of government would not be nullified or frustrated. To quote from Douglas anew: "Justice Frankfurter thought
that political and academic affiliations have a preferred position under the due process version of the First Amendment. But the
associational rights protected by the First Amendment are in my view much broader and cover the entire spectrum in political
ideology as well as in art, in journalism, in teaching, and in religion. In my view, government can neither legislate with respect to
nor probe the intimacies of political, spiritual, or intellectual relationships in the myriad of lawful societies and groups, whether
popular or unpopular, that exist in this country." 36
Nonetheless, the Constitution limits this particular freedom in the sense that there could be an abridgment of the right to form
associations or societies when their purposes are "contrary to law". How should the limitation "for purposes not contrary to law"
be interpreted? It is submitted that it is another way of expressing the clear and present danger rule for unless an association or
society could be shown to create an imminent danger to public safety, there is no justification for abridging the right to form
association societies.37 As was so aptly stated: "There is no other course consistent with the Free Society envisioned by the First
Amendment. For the views a citizen entertains, the beliefs he harbors, the utterances he makes, the ideology he embraces, and the
people he associates with are no concern to government — until and unless he moves into action. That article of faith marks indeed
the main difference between the Free Society which we espouse and the dictatorships both on the Left and on the Right." 38 With
the above principles in mind, we now consider the validity of the prohibition in Republic Act No. 4880 of the too early nomination
of candidates and the limitation found therein on the period of election campaign or partisan political activity alleged by petitioners
to offend against the rights of free speech, free press, freedom of assembly and freedom of association. In effect what are asked to
do is to declare the act void on its face evidence having been introduced as to its actual operation. There is respectable authority
for the court having the power to so act. Such fundamental liberties are accorded so high a place in our constitutional scheme that
any alleged infringement manifest in the wording of statute cannot be allowed to pass unnoticed. 39
In considering whether it is violative of any of the above rights, we cannot ignore of course the legislative declaration that its
enactment was in response to a serious substantive evil affecting the electoral process, not merely in danger of happening, but
actually in existence, and likely to continue unless curbed or remedied. To assert otherwise would be to close one's eyes to the
realities of the situation. Nor can we ignore the express legislative purpose apparent in the proviso "that simple expressions of
opinion and thoughts concerning the election shall not be considered as part of an election campaign," and in the other proviso
"that nothing herein stated shall be understood to prevent any person from expressing his views on current political problems or
issues, or from mentioning the names of the candidates for public office whom he supports." Such limitations qualify the entire
provision restricting the period of an election campaign or partisan political activity.
The prohibition of too early nomination of candidates presents a question that is not too formidable in character. According to the
act: "It shall be unlawful for any political party political committee, or political group to nominate candidates for any elective
99
public officio voted for at large earlier than one hundred and fifty days immediately preceding an election, and for any other
elective public, office earlier than ninety days immediately preceding an election." 40
The right of association is affected. Political parties have less freedom as to the time during which they may nominate candidates;
the curtailment is not such, however, as to render meaningless such a basic right. Their scope of legitimate activities, save this one,
is not unduly narrowed. Neither is there infringement of their freedom to assemble. They can do so, but not for such a purpose.
We sustain in validity. We do so unanimously.
The limitation on the period of "election campaign" or "partisan political activity" calls for a more intensive scrutiny. According
to Republic Act No. 4880: "It is unlawful for any person whether or not a voter or candidate, or for any group or association of
persons whether or not a political party or political committee, to engage in an election campaign or partisan political activity
except during the period of one hundred twenty days immediately preceding an election involving a public office voted for at large
and ninety days immediately preceding an election for any other elective public office. The term 'candidate' refers to any person
aspiring for or seeking an elective public office, regardless of whether or not said person has already filed his certificate of
candidacy or has been nominated by any political party as its candidate. The term 'election campaign' or 'partisan political activity'
refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office ..."
If that is all there is to that provision, it suffers from the fatal constitutional infirmity of vagueness and may be stricken down.
What other conclusion can there be extending as it does to so wide and all-encompassing a front that what is valid, being a
legitimate exercise of press freedom as well as freedom of assembly, becomes prohibited? That cannot be done; such an undesirable
eventuality, this Court cannot allow to pass.
It is a well-settled principle that stricter standard of permissible statutory vagueness may be applied to a statute having inhibiting
effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser. 41
Where the statutory provision then operates to inhibit the exercise of individual freedom affirmatively protected by the
Constitution, the imputation of vagueness sufficient to invalidate the statute is inescapable. 42 The language of Justice Douglas,
both appropriate and vigorous, comes to mind: "Words which are vague and fluid ... may be as much of a trap for the innocent as
the ancient laws of Caligula." 43 Nor is the reason difficult to discern: ."These freedoms are delicate and vulnerable, as well as
supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of
sanctions." 44
7. The constitutional objections are thus formidable. It cannot be denied that the limitations thus imposed on the constitutional
rights of free speech and press, of assembly, and of association cut deeply, into their substance. This on the one hand.
On the other, it cannot be denied either that evils substantial in character taint the purity of the electoral process. There can be
under the circumstances then no outright condemnation of the statute. It could not be said to be unwarranted, much less arbitrary.
There is need for refraining from the outright assumption that the constitutional infirmity is apparent from a mere reading thereof.
For under circumstances that manifest abuses of the gravest character, remedies much more drastic than what ordinarily would
suffice would indeed be called for. The justification alleged by the proponents of the measures weighs heavily with the members
of the Court, though in varying degrees, in the appraisal of the aforesaid restrictions to which such precious freedoms are subjected.
They are not unaware of the clear and present danger that calls for measures that may bear heavily on the exercise of the cherished
rights of expression, of assembly, and of association.
This is not to say, that once such a situation is found to exist there is no limit to the allowable limitations on such constitutional
rights. The clear and present danger doctrine rightly viewed requires that not only should there be an occasion for the imposition
of such restrictions but also that they be limited in scope.
There are still constitutional questions of a serious character then to be faced. The practices which the act identifies with "election
campaign" or "partisan political activity" must be such that they are free from the taint of being violative of free speech, free press,
freedom of assembly, and freedom of association. What removes the sting from constitutional objection of vagueness is the
enumeration of the acts deemed included in the terms "election campaign" or "partisan political activity."
They are: "(a) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes More specifically, in terms of the permissible scope of legislation that otherwise could be justified under the clear and present
and/or undertaking any campaign or propaganda for or against a party or candidate; (b) holding political conventions, caucuses, danger doctrine, it is the consideration opinion of the majority, though lacking the necessary vote for an adjudication of invalidity,
conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any that the challenged statute could have been more narrowly drawn and the practices prohibited more precisely delineated to satisfy
campaign or propaganda for or against a candidate or party;(c) making speeches, announcements or commentaries or holding the constitutional requirements as to a valid limitation under the clear and present danger doctrine.
interviews for or against the election or any party or candidate for public office; (d) publishing or distributing campaign literature
or materials; (e) directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any party; (f)
In a 1968 opinion, the American Supreme Court made clear that the absence of such reasonable and definite standards in a
giving, soliciting, or receiving contributions for election campaign purposes, either directly or indirectly." 45 As thus limited the
legislation of its character is fatal. 54 Where, as in the case of the above paragraphs, the majority of the Court could discern "an
objection that may be raised as to vagueness has been minimized, if not totally set at rest. 46
over breadth that makes possible oppressive or capricious application" 55 of the statutory provisions, the line dividing the valid
from the constitutionally infirm has been crossed. Such provisions offend the constitutional principle that "a governmental purpose
8. This Court, with the aforementioned five Justices unable to agree, is of the view that no unconstitutional infringement exists constitutionally subject to control or prevent activities state regulation may not be achieved by means which sweep unnecessarily
insofar as the formation of organization, associations, clubs, committees, or other groups of persons for the purpose of soliciting broadly and thereby invade the area of protected freedoms. 56
votes or undertaking any campaign or propaganda or both for or against a candidate or party is restricted 47 and that the prohibition
against giving, soliciting, or receiving contribution for election purposes, either directly or indirectly, is equally free from
It is undeniable, therefore, that even though the governmental purposes be legitimate and substantial, they cannot be pursued by
constitutional infirmity. 48
means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. 57 For precision of regulation
is the touchstone in an area so closely related to our most precious freedoms. 58
The restriction on freedom of assembly as confined to holding political conventions, caucuses, conferences, meetings, rallies,
parades or other similar assemblies for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or
Under the circumstances then, a majority of the Court feels compelled to view the statutory provisions in question as
against a candidate or party, 49 leaving untouched all other legitimate exercise of such poses a more difficult question. Nevertheless,
unconstitutional on their face inasmuch as they appear to range too widely and indiscriminately across the fundamental liberties
after a thorough consideration, and with the same Justices entertaining the opposite conviction, we reject the contention that it
associated with freedom of the mind. 59
should be annulled. Candor compels the admission that the writer of this opinion suffers from the gravest doubts. For him, such
statutory prescription could very well be within the outermost limits of validity, beyond which lies the abyss of unconstitutionality.
Such a conclusion does not find favor with the other members of the Court. For this minority group, no judgment of nullity insofar
as the challenged sections are concerned is called for. It cannot accept the conclusion that the limitations thus imposed on freedom
The other acts, likewise deemed included in "election campaign" or "partisan political activity" tax to the utmost the judicial
of expression vitiated by their latitudinarian scope, for Congress was not at all insensible to the problem that an all-encompassing
predisposition to view with sympathy legislative efforts to regulate election practices deemed inimical, because of their collision
coverage of the practices sought to be restrained would seriously pose.
with the preferred right of freedom of expression. From the outset, such provisions did occasion divergence of views among the
members of the Court. Originally only a minority was for their being adjudged as invalid. It is not so. any more. 50 This is merely
to emphasize that the scope of the curtailment to which freedom of expression may be subjected is not foreclosed by the recognition Such an approach finds support in the exposition made by the author of the measure, Senator Lorenzo M. Tañada, appearing before
of the existence of a clear and present danger of a substantive evil, the debasement of the electoral process. us as amicus curiae. He did clearly explain that such provisions were deemed by the legislative body to be part and parcel of the
necessary and appropriate response not merely to a clear and present danger but to the actual existence of a grave and substantive
evil of excessive partisanship, dishonesty and corruption as well as violence that of late has invariably marred election campaigns
The majority of the Court is thus of the belief that the solicitation or undertaking of any campaign or propaganda whether directly
and partisan political activities in this country. He did invite our attention likewise to the well-settled doctrine that in the choice of
or indirectly, by an individual, 51 the making of speeches, announcements or commentaries or holding interview for or against the
remedies for an admitted malady requiring governmental action, on the legislature primarily rests the responsibility. Nor should
election for any party or candidate for public office, 52 or the publication or distribution of campaign literature or materials, 53 suffer
the cure prescribed by it, unless clearly repugnant to fundamental rights, be ignored or disregarded.
from the corrosion of invalidity. It lacks however one more affirmative vote to call for a declaration of unconstitutionality.

More than that, he would stress the two provisos already mentioned, precisely placed in the state as a manifestation of the
This is not to deny that Congress was indeed called upon to seek remedial measures for the far-from-satisfactory condition arising
undeniable legislative determination not to transgress the preferred freedom of speech, of press, of assembly and of association. It
from the too-early nomination of candidates and the necessarily prolonged, political campaigns. The direful consequences and the
is thus provided: "That simple expressions or opinion and thoughts concerning the election shall not be considered as part of an
harmful effects on the public interest with the vital affairs of the country sacrificed many a time to purely partisan pursuits were
election campaign [and that nothing in the Act] shall be understood to prevent any person from expressing his views on current
known to all. Moreover, it is no exaggeration to state that violence and even death did frequently occur because of the heat
political problems or issues, or from mentioning the names of the candidates for public office whom he supports. 60 If properly
engendered by such political activities. Then, too, the opportunity for dishonesty and corruption, with the right to suffrage being
implemented then, as it ought to, the barrier to free, expression becomes minimal and far from unwarranted.
bartered, was further magnified.

For the minority of the Court, all of the above arguments possess sufficient persuasive force to blunt whatever cutting edge may
Under the police power then, with its concern for the general welfare and with the commendable aim of safe-guarding the right of
be ascribed to the fears entertained that Congress failed to abide by what the Constitution commands as far as freedom of the mind
suffrage, the legislative body must have felt impelled to impose the foregoing restrictions. It is understandable for Congress to
and of association are concerned. It is its opinion that it would be premature to say the least, for a judgment of nullity of any
believe that without the limitations thus set forth in the challenged legislation, the laudable purpose of Republic Act No. 4880
provision found in Republic Act No. 4880. The need for adjudication arises only if in the implementation of the Act, there is in
would be frustrated and nullified. Whatever persuasive force such approach may command failed to elicit the assent of a majority
fact an unconstitutional application of its provisions. Nor are we called upon, under this approach, to anticipate each and every
of the Court. This is not to say that the conclusion reached by the minority that the above poisons of the statute now assailed has
problem that may arise. It is time enough to consider it when there is in fact an actual, concrete case that requires an exercise of
passed the constitutional test is devoid of merit.
judicial power.

It only indicates that for the majority, the prohibition of any speeches, announcements or commentaries, or the holding of
9. To recapitulate, we give due recognition to the legislative concern to cleanse, and, if possible, render spotless, the electoral
interviews for or against the election of any party or candidate for public office and the prohibition of the publication or distribution
process. There is full acceptance by the Court of the power of Congress, under narrowly drawn legislation to impose the necessary
of campaign literature or materials, against the solicitation of votes whether directly or indirectly, or the undertaking of any
restrictions to what otherwise would be liberties traditionally accorded the widest scope and the utmost deference, freedom of
campaign literature or propaganda for or against any candidate or party is repugnant to a constitutional command. To that extent,
speech and of the press, of assembly, and of association. We cannot, however, be recreant to the trust reposed on us; we are called
the challenged statute prohibits what under the Constitution cannot by any law be abridged.
upon to safeguard individual rights. In the language of Justice Laurel: "This Court is perhaps the last bulwark of constitutional
100
government. It shall not obstruct the popular will as manifested through proper organs... But, in the same way that it cannot
renounce the life breathed into it by the Constitution, so may it not forego its obligation, in proper cases, to apply the necessary,..."
61
We recognize the wide discretion accorded Congress to protect vital interests. Considering the responsibility incumbent on the
judiciary, it is not always possible, even with the utmost sympathy shown for the legislative choice of means to cure an admitted
evil, that the legislative judgment arrived at, with its possible curtailment of the preferred freedoms, be accepted uncritically. There
may be times, and this is one of them, with the majority, with all due reject to a coordinate branch, unable to extend their approval
to the aforesaid specific provisions of one of the sections of the challenged statute. The necessary two-third vote, however, not
being obtained, there is no occasion for the power to annul statutes to come into play.
Such being the case, it is the judgment of this Court that Republic Act No. 4880 cannot be declared unconstitutional.
G.R. No. 85279 July 28, 1989
SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON, RAMON
MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO
AGUSTIN, VIRGILIO MAGPAYO, petitioner,
vs.
THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98,
QUEZON CITY, respondents.
Vicente T. Ocampo & Associates for petitioners.
CORTES, J:
Primarily, the issue raised in this petition is whether or not the Regional Trial Court can enjoin the Social Security System
Employees Association (SSSEA) from striking and order the striking employees to return to work. Collaterally, it is whether or
not employees of the Social Security System (SSS) have the right to strike.
The antecedents are as follows:
On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of
preliminary injunction against petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged an illegal
strike and baricaded the entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS
members from transacting business with the SSS; that the strike was reported to the Public Sector Labor - Management Council,
which ordered the strikers to return to work; that the strikers refused to return to work; and that the SSS suffered damages as a
result of the strike. The complaint prayed that a writ of preliminary injunction be issued to enjoin the strike and that the strikers be
ordered to return to work; that the defendants (petitioners herein) be ordered to pay damages; and that the strike be declared illegal.
It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which included: implementation of
the provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued
overtime pay, night differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or
more of service into regular and permanent employees and their entitlement to the same salaries, allowances and benefits given to
other regular employees of the SSS; and payment of the children's allowance of P30.00, and after the SSS deducted certain amounts
from the salaries of the employees and allegedly committed acts of discrimination and unfair labor practices [Rollo, pp. 21-241].
The court a quo, on June 11, 1987, issued a temporary restraining order pending resolution of the application for a writ of
preliminary injunction [Rollo, p. 71.] In the meantime, petitioners filed a motion to dismiss alleging the trial court's lack of
101
jurisdiction over the subject matter [Rollo, pp. 72-82.] To this motion, the SSS filed an opposition, reiterating its prayer for the
issuance of a writ of injunction [Rollo, pp. 209-222]. On July 22,1987, in a four-page order, the court a quo denied the motion to
dismiss and converted the restraining order into an injunction upon posting of a bond, after finding that the strike was illegal [Rollo,
pp. 83- 86]. As petitioners' motion for the reconsideration of the aforesaid order was also denied on August 14, 1988 [Rollo, p.
94], petitioners filed a petition for certiorari and prohibition with preliminary injunction before this Court. Their petition was
docketed as G.R. No. 79577. In a resolution dated October 21, 1987, the Court, through the Third Division, resolved to refer the
case to the Court of Appeals. Petitioners filed a motion for reconsideration thereof, but during its pendency the Court of Appeals
on March 9,1988 promulgated its decision on the referred case [Rollo, pp. 130-137]. Petitioners moved to recall the Court of
Appeals' decision. In the meantime, the Court on June 29,1988 denied the motion for reconsideration in G.R. No. 97577 for being
moot and academic. Petitioners' motion to recall the decision of the Court of Appeals was also denied in view of this Court's denial
of the motion for reconsideration [Rollo, pp. 141- 143]. Hence, the instant petition to review the decision of the Court of Appeals
[Rollo, pp. 12-37].
Upon motion of the SSS on February 6,1989, the Court issued a temporary restraining order enjoining the petitioners from staging
another strike or from pursuing the notice of strike they filed with the Department of Labor and Employment on January 25, 1989
and to maintain the status quo [Rollo, pp. 151-152].
The Court, taking the comment as answer, and noting the reply and supplemental reply filed by petitioners, considered the issues
joined and the case submitted for decision.
The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case initiated by the SSS and to issue
the restraining order and the writ of preliminary injunction, as jurisdiction lay with the Department of Labor and Employment or
the National Labor Relations Commission, since the case involves a labor dispute.
On the other hand, the SSS advances the contrary view, on the ground that the employees of the SSS are covered by civil service
laws and rules and regulations, not the Labor Code, therefore they do not have the right to strike. Since neither the DOLE nor the
NLRC has jurisdiction over the dispute, the Regional Trial Court may enjoin the employees from striking.
In dismissing the petition for certiorari and prohibition with preliminary injunction filed by petitioners, the Court of Appeals held
that since the employees of the SSS, are government employees, they are not allowed to strike, and may be enjoined by the Regional
Trial Court, which had jurisdiction over the SSS' complaint for damages, from continuing with their strike.
Thus, the sequential questions to be resolved by the Court in deciding whether or not the Court of Appeals erred in finding that
the Regional Trial Court did not act without or in excess of jurisdiction when it took cognizance of the case and enjoined the strike
are as follows:
1. Do the employees of the SSS have the right to strike?
2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the SSS and to enjoin the strikers from continuing
with the strike and to order them to return to work?
These shall be discussed and resolved seriatim
I
The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the State "shall guarantee the rights of all
workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike
in accordance with law" [Art. XIII, Sec. 31].
By itself, this provision would seem to recognize the right of all workers and employees, including those in the public sector, to
strike. But the Constitution itself fails to expressly confirm this impression, for in the Sub-Article on the Civil Service Commission,
it provides, after defining the scope of the civil service as "all branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled corporations with original charters," that "[t]he right to self-organization
shall not be denied to government employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also provides
that "[tlhe right of the people, including those employed in the public and private sectors, to form unions, associations, or societies
for purposes not contrary to law shall not abridged" [Art. III, Sec. 8]. Thus, while there is no question that the Constitution
recognizes the right of government employees to organize, it is silent as to whether such recognition also includes the right to
strike.
Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning of these provisions. A reading
of the proceedings of the Constitutional Commission that drafted the 1987 Constitution would show that in recognizing the right
of government employees to organize, the commissioners intended to limit the right to the formation of unions or associations
only, without including the right to strike.
Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that "[tlhe right to self-organization shall not be
denied to government employees" [Art. IX(B), Sec. 2(5)], in answer to the apprehensions expressed by Commissioner Ambrosio
B. Padilla, Vice-President of the Commission, explained:
MR. LERUM. I think what I will try to say will not take that long. When we proposed this amendment
providing for self-organization of government employees, it does not mean that because they have the right
to organize, they also have the right to strike. That is a different matter. We are only talking about organizing,
uniting as a union. With regard to the right to strike, everyone will remember that in the Bill of Rights, there
is a provision that the right to form associations or societies whose purpose is not contrary to law shall not
be abridged. Now then, if the purpose of the state is to prohibit the strikes coming from employees exercising
government functions, that could be done because the moment that is prohibited, then the union which will
go on strike will be an illegal union. And that provision is carried in Republic Act 875. In Republic Act 875,
workers, including those from the government-owned and controlled, are allowed to organize but they are
prohibited from striking. So, the fear of our honorable Vice- President is unfounded. It does not mean that
because we approve this resolution, it carries with it the right to strike. That is a different matter. As a matter
of fact, that subject is now being discussed in the Committee on Social Justice because we are trying to find
a solution to this problem. We know that this problem exist; that the moment we allow anybody in the
government to strike, then what will happen if the members of the Armed Forces will go on strike? What
will happen to those people trying to protect us? So that is a matter of discussion in the Committee on Social
Justice. But, I repeat, the right to form an organization does not carry with it the right to strike. [Record of
the Constitutional Commission, vol. 1, p. 569].
It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the Labor Code (P.D. 442) in 1974, expressly
banned strikes by employees in the Government, including instrumentalities exercising governmental functions, but excluding
entities entrusted with proprietary functions:
.Sec. 11. Prohibition Against Strikes in the Government. — The terms and conditions of employment in the
Government, including any political subdivision or instrumentality thereof, are governed by law and it is
declared to be the policy of this Act that employees therein shall not strike for the purpose of securing
changes or modification in their terms and conditions of employment. Such employees may belong to any
labor organization which does not impose the obligation to strike or to join in strike: Provided, however,
That this section shall apply only to employees employed in governmental functions and not those employed
in proprietary functions of the Government including but not limited to governmental corporations.
No similar provision is found in the Labor Code, although at one time it recognized the right of employees of government
corporations established under the Corporation Code to organize and bargain collectively and those in the civil service to "form
organizations for purposes not contrary to law" [Art. 244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it
provided that "[t]he terms and conditions of employment of all government employees, including employees of government owned
and controlled corporations, shall be governed by the Civil Service Law, rules and regulations" [now Art. 276]. Understandably,
the Labor Code is silent as to whether or not government employees may strike, for such are excluded from its coverage [Ibid].
But then the Civil Service Decree [P.D. No. 807], is equally silent on the matter.
102
On June 1, 1987, to implement the constitutional guarantee of the right of government employees to organize, the President issued
E.O. No. 180 which provides guidelines for the exercise of the right to organize of government employees. In Section 14 thereof,
it is provided that "[t]he Civil Service law and rules governing concerted activities and strikes in the government service shall be
observed, subject to any legislation that may be enacted by Congress." The President was apparently referring to Memorandum
Circular No. 6, s. 1987 of the Civil Service Commission under date April 21, 1987 which, "prior to the enactment by Congress of
applicable laws concerning strike by government employees ... enjoins under pain of administrative sanctions, all government
officers and employees from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will
result in temporary stoppage or disruption of public service." The air was thus cleared of the confusion. At present, in the absence
of any legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right,
they are prohibited from striking, by express provision of Memorandum Circular No. 6 and as implied in E.O. No. 180. [At this
juncture, it must be stated that the validity of Memorandum Circular No. 6 is not at issue].
But are employees of the SSS covered by the prohibition against strikes?
The Court is of the considered view that they are. Considering that under the 1987 Constitution "[t]he civil service embraces all
branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled
corporations with original charters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the civil service
are denominated as "government employees"] and that the SSS is one such government-controlled corporation with an original
charter, having been created under R.A. No. 1161, its employees are part of the civil service [NASECO v. NLRC, G.R. Nos. 69870
& 70295, November 24,1988] and are covered by the Civil Service Commission's memorandum prohibiting strikes. This being
the case, the strike staged by the employees of the SSS was illegal.
The statement of the Court in Alliance of Government Workers v. Minister of Labor and Employment [G.R. No. 60403, August 3,
1:983, 124 SCRA 11 is relevant as it furnishes the rationale for distinguishing between workers in the private sector and
government employees with regard to the right to strike:
The general rule in the past and up to the present is that 'the terms and conditions of employment in the
Government, including any political subdivision or instrumentality thereof are governed by law" (Section
11, the Industrial Peace Act, R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No. 442, as
amended). Since the terms and conditions of government employment are fixed by law, government workers
cannot use the same weapons employed by workers in the private sector to secure concessions from their
employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured
through compulsion by law. Relations between private employers and their employees rest on an essentially
voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation,
the terms and conditions of employment in the unionized private sector are settled through the process of
collective bargaining. In government employment, however, it is the legislature and, where properly given
delegated power, the administrative heads of government which fix the terms and conditions of employment.
And this is effected through statutes or administrative circulars, rules, and regulations, not through collective
bargaining agreements. [At p. 13; Emphasis supplied].
Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper submitted to the 1971 Constitutional
Convention, and quoted with approval by the Court in Alliance, to wit:
It is the stand, therefore, of this Commission that by reason of the nature of the public employer and the
peculiar character of the public service, it must necessarily regard the right to strike given to unions in
private industry as not applying to public employees and civil service employees. It has been stated that the
Government, in contrast to the private employer, protects the interest of all people in the public service, and
that accordingly, such conflicting interests as are present in private labor relations could not exist in the
relations between government and those whom they employ. [At pp. 16-17; also quoted in National Housing
Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA 172,178-179].
E.O. No. 180, which provides guidelines for the exercise of the right to organize of government employees, while clinging to the
same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are
not among those fixed by law. Thus:
.SECTION 13. Terms and conditions of employment or improvements thereof, except those that are fixed
by law, may be the subject of negotiations between duly recognized employees' organizations and
appropriate government authorities.
The same executive order has also provided for the general mechanism for the settlement of labor disputes in the public sector to
wit:
.SECTION 16. The Civil Service and labor laws and procedures, whenever applicable, shall be followed in
the resolution of complaints, grievances and cases involving government employees. In case any dispute
remains unresolved after exhausting all the available remedies under existing laws and procedures, the
parties may jointly refer the dispute to the [Public Sector Labor- Management] Council for appropriate
action.
Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the
terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government
agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be
referred to the Public Sector Labor - Management Council for appropriate action. But employees in the civil service may not resort
to strikes, walk-outs and other temporary work stoppages, like workers in the private sector, to pressure the Govemment to accede
to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of
Government- Employees to Self- Organization, which took effect after the instant dispute arose, "[t]he terms and conditions of
employment in the government, including any political subdivision or instrumentality thereof and government- owned and
controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing
changes thereof."
II
The strike staged by the employees of the SSS belonging to petitioner union being prohibited by law, an injunction may be issued
to restrain it.
It is futile for the petitioners to assert that the subject labor dispute falls within the exclusive jurisdiction of the NLRC and, hence,
the Regional Trial Court had no jurisdiction to issue a writ of injunction enjoining the continuance of the strike. The Labor Code
itself provides that terms and conditions of employment of government employees shall be governed by the Civil Service Law,
rules and regulations [Art. 276]. More importantly, E.O. No. 180 vests the Public Sector Labor - Management Council with
jurisdiction over unresolved labor disputes involving government employees [Sec. 16]. Clearly, the NLRC has no jurisdiction over
the dispute.
This being the case, the Regional Trial Court was not precluded, in the exercise of its general jurisdiction under B.P. Blg. 129, as
amended, from assuming jurisdiction over the SSS's complaint for damages and issuing the injunctive writ prayed for therein.
Unlike the NLRC, the Public Sector Labor - Management Council has not been granted by law authority to issue writs of injunction
in labor disputes within its jurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over the instant labor
dispute, resort to the general courts of law for the issuance of a writ of injunction to enjoin the strike is appropriate.
Neither could the court a quo be accused of imprudence or overzealousness, for in fact it had proceeded with caution. Thus, after
issuing a writ of injunction enjoining the continuance of the strike to prevent any further disruption of public service, the respondent
judge, in the same order, admonished the parties to refer the unresolved controversies emanating from their employer- employee
relationship to the Public Sector Labor - Management Council for appropriate action [Rollo, p. 86].
III
103
In their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their reply and supplemental reply,
petitioners allege that the SSS unlawfully withheld bonuses and benefits due the individual petitioners and they pray that the Court
issue a writ of preliminary prohibitive and mandatory injunction to restrain the SSS and its agents from withholding payment
thereof and to compel the SSS to pay them. In their supplemental reply, petitioners annexed an order of the Civil Service
Commission, dated May 5, 1989, which ruled that the officers of the SSSEA who are not preventively suspended and who are
reporting for work pending the resolution of the administrative cases against them are entitled to their salaries, year-end bonuses
and other fringe benefits and affirmed the previous order of the Merit Systems Promotion Board.
The matter being extraneous to the issues elevated to this Court, it is Our view that petitioners' remedy is not to petition this Court
to issue an injunction, but to cause the execution of the aforesaid order, if it has already become final.
WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant petition for review is hereby
DENIED and the decision of the appellate court dated March 9, 1988 in CA-G.R. SP No. 13192 is AFFIRMED. Petitioners'
"Petition/Application for Preliminary and Mandatory Injunction" dated December 13,1988 is DENIED.
530 U.S. 640 (2000)
BOY SCOUTS OF AMERICA et al.
v.
DALE
No. 99-699.
United States Supreme Court.
Argued April 26, 2000.
Decided June 28, 2000.
CERTIORARI TO THE SUPREME COURT OF NEW JERSEY
641*641 642*642 Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ.,
joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 663. Souter, J., filed a
dissenting opinion, in which Ginsburg and Breyer, JJ., joined, post, p. 700.
George A. Davidson argued the cause for petitioners. With him on the briefs were Carla A. Kerr, David K. Park, Michael W.
McConnell, and Sanford D. Brown.
Evan Wolfson argued the cause for respondent. With him on the brief were Ruth E. Harlow, David Buckel, Jon W. Davidson,
Beatrice Dohrn, Patricia M. Logue, Thomas J. Moloney, Allyson W. Haynes, and Lewis H. Robertson.[*]
643*643 Chief Justice Rehnquist delivered the opinion of the Court.
Petitioners are the Boy Scouts of America and the Monmouth Council, a division of the Boy Scouts of America (collectively,
644*644 Boy Scouts). The Boy Scouts is a private, not-forprofit organization engaged in instilling its system of values in young
people. The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill. Respondent is James
Dale, a former Eagle Scout whose adult membership in the Boy Scouts was revoked when the Boy Scouts learned that he is an
avowed homosexual and gay rights activist. The New Jersey Supreme Court held that New Jersey's public accommodations law
requires that the Boy Scouts readmit Dale. This case presents the question whether applying New Jersey's public accommodations
law in this way violates the Boy Scouts' First Amendment right of expressive association. We hold that it does.
I
James Dale entered Scouting in 1978 at the age of eight by joining Monmouth Council's Cub Scout Pack 142. Dale became a Boy
Scout in 1981 and remained a Scout until he turned 18. By all accounts, Dale was an exemplary Scout. In 1988, he achieved the
rank of Eagle Scout, one of Scouting's highest honors.
Dale applied for adult membership in the Boy Scouts in 1989. The Boy Scouts approved his application for the position of assistant
scoutmaster of Troop 73. Around the same time, Dale left home to attend Rutgers University. After arriving at Rutgers, Dale first
acknowledged to himself and 645*645 others that he is gay. He quickly became involved with, and eventually became the
copresident of, the Rutgers University Lesbian/Gay Alliance. In 1990, Dale attended a seminar addressing the psychological and
health needs of lesbian and gay teenagers. A newspaper covering the event interviewed Dale about his advocacy of homosexual
teenagers' need for gay role models. In early July 1990, the newspaper published the interview and Dale's photograph over a
caption identifying him as the copresident of the Lesbian/ Gay Alliance.
Later that month, Dale received a letter from Monmouth Council Executive James Kay revoking his adult membership. Dale wrote
to Kay requesting the reason for Monmouth Council's decision. Kay responded by letter that the Boy Scouts "specifically forbid
membership to homosexuals." App. 137.
In 1992, Dale filed a complaint against the Boy Scouts in the New Jersey Superior Court. The complaint alleged that the Boy
Scouts had violated New Jersey's public accommodations statute and its common law by revoking Dale's membership based solely
on his sexual orientation. New Jersey's public accommodations statute prohibits, among other things, discrimination on the basis
of sexual orientation in places of public accommodation. N. J. Stat. Ann. §§ 10:5-4 and 10:5-5 (West Supp. 2000); see Appendix,
infra, at 661-663.
The New Jersey Superior Court's Chancery Division granted summary judgment in favor of the Boy Scouts. The court held that
New Jersey's public accommodations law was inapplicable because the Boy Scouts was not a place of public accommodation, and
that, alternatively, the Boy Scouts is a distinctly private group exempted from coverage under New Jersey's law. The court rejected
Dale's common-law claim, holding that New Jersey's policy is embodied in the public accommodations law. The court also
concluded that the Boy Scouts' position in respect of active homosexuality was clear 646*646 and held that the First Amendment
freedom of expressive association prevented the government from forcing the Boy Scouts to accept Dale as an adult leader.
The New Jersey Superior Court's Appellate Division affirmed the dismissal of Dale's common-law claim, but otherwise reversed
and remanded for further proceedings. 308 N. J. Super. 516, 706 A. 2d 270 (1998). It held that New Jersey's public accommodations
law applied to the Boy Scouts and that the Boy Scouts violated it. The Appellate Division rejected the Boy Scouts' federal
constitutional claims.
The New Jersey Supreme Court affirmed the judgment of the Appellate Division. It held that the Boy Scouts was a place of public
accommodation subject to the public accommodations law, that the organization was not exempt from the law under any of its
express exceptions, and that the Boy Scouts violated the law by revoking Dale's membership based on his avowed homosexuality.
After considering the state-law issues, the court addressed the Boy Scouts' claims that application of the public accommodations
law in this case violated its federal constitutional rights "`to enter into and maintain . . . intimate or private relationships . . . [and]
to associate for the purpose of engaging in protected speech.' " 160 N. J. 562, 605, 734 A. 2d 1196, 1219 (1999) (quoting Board
of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U. S. 537, 544 (1987)). With respect to the right to intimate association,
the court concluded that the Boy Scouts' "large size, nonselectivity, inclusive rather than exclusive purpose, and practice of inviting
or allowing nonmembers to attend meetings, establish that the organization is not `sufficiently personal or private to warrant
constitutional protection' under the freedom of intimate association." 160 N. J., at 608-609, 734 A. 2d, at 1221 (quoting Duarte,
supra, at 546). With respect to the right of expressive association, the court "agree[d] that Boy Scouts expresses a belief in moral
values and uses its activities to encourage the moral development 647*647 of its members." 160 N. J., at 613, 734 A. 2d, at 1223.
But the court concluded that it was "not persuaded . . . that a shared goal of Boy Scout members is to associate in order to preserve
the view that homosexuality is immoral." Ibid., 734 A. 2d, at 1223-1224 (internal quotation marks omitted). Accordingly, the court
held "that Dale's membership does not violate the Boy Scouts' right of expressive association because his inclusion would not
`affect in any significant way [the Boy Scouts'] existing members' ability to carry out their various purposes.' " Id., at 615, 734 A.
2d, at 1225 (quoting Duarte, supra, at 548). The court also determined that New Jersey has a compelling interest in eliminating
"the destructive consequences of discrimination from our society," and that its public accommodations law abridges no more
speech than is necessary to accomplish its purpose. 160 N. J., at 619-620, 734 A. 2d, at 1227-1228. Finally, the court addressed
the Boy Scouts' reliance on Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995), in
104
support of its claimed First Amendment right to exclude Dale. The court determined that Hurley did not require deciding the case
in favor of the Boy Scouts because "the reinstatement of Dale does not compel Boy Scouts to express any message." 160 N. J., at
624, 734 A. 2d, at 1229.
We granted the Boy Scouts' petition for certiorari to determine whether the application of New Jersey's public accommodations
law violated the First Amendment. 528 U. S. 1109 (2000).
II
In Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984), we observed that "implicit in the right to engage in activities
protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social,
economic, educational, religious, and cultural ends." This right is crucial in preventing the majority from imposing its views on
groups that would 648*648 rather express other, perhaps unpopular, ideas. See ibid. (stating that protection of the right to
expressive association is "especially important in preserving political and cultural diversity and in shielding dissident expression
from suppression by the majority"). Government actions that may unconstitutionally burden this freedom may take many forms,
one of which is "intrusion into the internal structure or affairs of an association" like a "regulation that forces the group to accept
members it does not desire." Id., at 623. Forcing a group to accept certain members may impair the ability of the group to express
those views, and only those views, that it intends to express. Thus, "[f]reedom of association . . . plainly presupposes a freedom
not to associate." Ibid.
The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of
that person affects in a significant way the group's ability to advocate public or private viewpoints. New York State Club Assn.,
Inc. v. City of New York, 487 U. S. 1, 13 (1988). But the freedom of expressive association, like many freedoms, is not absolute.
We have held that the freedom could be overridden "by regulations adopted to serve compelling state interests, unrelated to the
suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms." Roberts,
supra, at 623.
To determine whether a group is protected by the First Amendment's expressive associational right, we must determine whether
the group engages in "expressive association." The First Amendment's protection of expressive association is not reserved for
advocacy groups. But to come within its ambit, a group must engage in some form of expression, whether it be public or private.
Because this is a First Amendment case where the ultimate conclusions of law are virtually inseparable from findings of fact, we
are obligated to independently review the 649*649 factual record to ensure that the state court's judgment does not unlawfully
intrude on free expression. See Hurley, supra, at 567-568. The record reveals the following. The Boy Scouts is a private, nonprofit
organization. According to its mission statement:
"It is the mission of the Boy Scouts of America to serve others by helping to instill values in young people and, in other ways, to
prepare them to make ethical choices over their lifetime in achieving their full potential. "The values we strive to instill are based
on those found in the Scout Oath and Law:
"Scout Oath "On my honor I will do my best "To do my duty to God and my country "and to obey the Scout Law; "To help other
people at all times; "To keep myself physically strong, "mentally awake, and morally straight. "Scout Law "A Scout is:
"Trustworthy Obedient "Loyal Cheerful "Helpful Thrifty "Friendly Brave "Courteous Clean "Kind Reverent." App. 184.
Thus, the general mission of the Boy Scouts is clear: "[T]o instill values in young people." Ibid. The Boy Scouts seeks to instill
these values by having its adult leaders spend time with the youth members, instructing and engaging them in activities like
camping, archery, and fishing. During the time spent with the youth members, the scoutmasters and assistant scoutmasters inculcate
them with the Boy 650*650 Scouts' values—both expressly and by example. It seems indisputable that an association that seeks
to transmit such a system of values engages in expressive activity. See Roberts, supra, at 636 (O'Connor, J., concurring) ("Even
the training of outdoor survival skills or participation in community service might become expressive when the activity is intended
to develop good morals, reverence, patriotism, and a desire for self-improvement").
Given that the Boy Scouts engages in expressive activity, we must determine whether the forced inclusion of Dale as an assistant
scoutmaster would significantly affect the Boy Scouts' ability to advocate public or private viewpoints. This inquiry necessarily
requires us first to explore, to a limited extent, the nature of the Boy Scouts' view of homosexuality.
The values the Boy Scouts seeks to instill are "based on" those listed in the Scout Oath and Law. App. 184. The Boy Scouts
explains that the Scout Oath and Law provide "a positive moral code for living; they are a list of `do's' rather than `don'ts.' " Brief
for Petitioners 3. The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and
Law, particularly with the values represented by the terms "morally straight" and "clean."
Obviously, the Scout Oath and Law do not expressly mention sexuality or sexual orientation. See supra, at 649. And the terms
"morally straight" and "clean" are by no means self-defining. Different people would attribute to those terms very different
meanings. For example, some people may believe that engaging in homosexual conduct is not at odds with being "morally straight"
and "clean." And others may believe that engaging in homosexual conduct is contrary to being "morally straight" and "clean." The
Boy Scouts says it falls within the latter category.
The New Jersey Supreme Court analyzed the Boy Scouts' beliefs and found that the "exclusion of members solely on the basis of
their sexual orientation is inconsistent with Boy 651*651 Scouts' commitment to a diverse and `representative' membership . . .
[and] contradicts Boy Scouts' overarching objective to reach `all eligible youth.' " 160 N. J., at 618, 734 A. 2d, at 1226. The court
concluded that the exclusion of members like Dale "appears antithetical to the organization's goals and philosophy." Ibid. But our
cases reject this sort of inquiry; it is not the role of the courts to reject a group's expressed values because they disagree with those
values or find them internally inconsistent. See Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107,
124 (1981) ("[A]s is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they
view a particular expression as unwise or irrational"); see also Thomas v. Review Bd. of Indiana Employment Security Div., 450
U. S. 707, 714 (1981) ("[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit
First Amendment protection").
The Boy Scouts asserts that it "teach[es] that homosexual conduct is not morally straight," Brief for Petitioners 39, and that it does
"not want to promote homosexual conduct as a legitimate form of behavior," Reply Brief for Petitioners 5. We accept the Boy
Scouts' assertion. We need not inquire further to determine the nature of the Boy Scouts' expression with respect to homosexuality.
But because the record before us contains written evidence of the Boy Scouts' viewpoint, we look to it as instructive, if only on
the question of the sincerity of the professed beliefs.
A 1978 position statement to the Boy Scouts' Executive Committee, signed by Downing B. Jenks, the President of the Boy Scouts,
and Harvey L. Price, the Chief Scout Executive, expresses the Boy Scouts' "official position" with regard to "homosexuality and
Scouting":
"Q. May an individual who openly declares himself to be a homosexual be a volunteer Scout leader?
652*652 "A. No. The Boy Scouts of America is a private, membership organization and leadership therein is a privilege and not
a right. We do not believe that homosexuality and leadership in Scouting are appropriate. We will continue to select only those
who in our judgment meet our standards and qualifications for leadership." App. 453-454.
Thus, at least as of 1978—the year James Dale entered Scouting—the official position of the Boy Scouts was that avowed
homosexuals were not to be Scout leaders.
A position statement promulgated by the Boy Scouts in 1991 (after Dale's membership was revoked but before this litigation was
filed) also supports its current view:
"We believe that homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and
in the Scout Law that a Scout be clean in word and deed, and that homosexuals do not provide a desirable role model for Scouts."
Id., at 457.
105
This position statement was redrafted numerous times but its core message remained consistent. For example, a 1993 position
statement, the most recent in the record, reads, in part:
"The Boy Scouts of America has always reflected the expectations that Scouting families have had for the organization. We do
not believe that homosexuals provide a role model consistent with these expectations. Accordingly, we do not allow for the
registration of avowed homosexuals as members or as leaders of the BSA." Id., at 461. The Boy Scouts publicly expressed its
views with respect to homosexual conduct by its assertions in prior litigation. For example, throughout a California case with
similar facts filed in the early 1980's, the Boy Scouts consistently asserted the same position with respect to homosexuality that it
asserts today. See Curran v. Mount Diablo Council of Boy 653*653 Scouts of America, No. C-365529 (Cal. Super. Ct., July 25,
1991); 48 Cal. App. 4th 670, 29 Cal. Rptr. 2d 580 (1994); 17 Cal. 4th 670, 952 P. 2d 218 (1998). We cannot doubt that the Boy
Scouts sincerely holds this view.
We must then determine whether Dale's presence as an assistant scoutmaster would significantly burden the Boy Scouts' desire to
not "promote homosexual conduct as a legitimate form of behavior." Reply Brief for Petitioners 5. As we give deference to an
association's assertions regarding the nature of its expression, we must also give deference to an association's view of what would
impair its expression. See, e. g., La Follette, supra, at 123-124 (considering whether a Wisconsin law burdened the National Party's
associational rights and stating that "a State, or a court, may not constitutionally substitute its own judgment for that of the Party").
That is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere
acceptance of a member from a particular group would impair its message. But here Dale, by his own admission, is one of a group
of gay Scouts who have "become leaders in their community and are open and honest about their sexual orientation." App. 11.
Dale was the copresident of a gay and lesbian organization at college and remains a gay rights activist. Dale's presence in the Boy
Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy
Scouts accepts homosexual conduct as a legitimate form of behavior.
Hurley is illustrative on this point. There we considered whether the application of Massachusetts' public accommodations law to
require the organizers of a private St. Patrick's Day parade to include among the marchers an IrishAmerican gay, lesbian, and
bisexual group, GLIB, violated the parade organizers' First Amendment rights. We noted that the parade organizers did not wish
to exclude the GLIB members because of their sexual orientations, but because they wanted to march behind a GLIB banner. We
observed:
654*654 "[A] contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay,
lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations
have as much claim to unqualified social acceptance as heterosexuals . . . . The parade's organizers may not believe these facts
about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason
for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to
propound a particular point of view, and that choice is presumed to lie beyond the government's power to control." 515 U. S., at
574-575.
Here, we have found that the Boy Scouts believes that homosexual conduct is inconsistent with the values it seeks to instill in its
youth members; it will not "promote homosexual conduct as a legitimate form of behavior." Reply Brief for Petitioners 5. As the
presence of GLIB in Boston's St. Patrick's Day parade would have interfered with the parade organizers' choice not to propound a
particular point of view, the presence of Dale as an assistant scoutmaster would just as surely interfere with the Boy Scout's choice
not to propound a point of view contrary to its beliefs.
The New Jersey Supreme Court determined that the Boy Scouts' ability to disseminate its message was not significantly affected
by the forced inclusion of Dale as an assistant scoutmaster because of the following findings:
"Boy Scout members do not associate for the purpose of disseminating the belief that homosexuality is immoral; Boy Scouts
discourages its leaders from disseminating any views on sexual issues; and Boy Scouts includes sponsors and members who
subscribe to different views 655*655 in respect of homosexuality." 160 N. J., at 612, 734 A. 2d, at 1223.
We disagree with the New Jersey Supreme Court's conclusion drawn from these findings.
First, associations do not have to associate for the "purpose" of disseminating a certain message in order to be entitled to the
protections of the First Amendment. An association must merely engage in expressive activity that could be impaired in order to
be entitled to protection. For example, the purpose of the St. Patrick's Day parade in Hurley was not to espouse any views about
sexual orientation, but we held that the parade organizers had a right to exclude certain participants nonetheless.
Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual issues—a fact that the Boy Scouts
disputes with contrary evidence—the First Amendment protects the Boy Scouts' method of expression. If the Boy Scouts wishes
Scout leaders to avoid questions of sexuality and teach only by example, this fact does not negate the sincerity of its belief discussed
above.
In Hurley, we said that public accommodations laws "are well within the State's usual power to enact when a legislature has reason
to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth
Amendments." 515 U. S., at 572. But we went on to note that in that case "the Massachusetts [public accommodations] law has
been applied in a peculiar way" because "any contingent of protected individuals with a message would have the right to participate
in petitioners' speech, so that the communication produced by the private organizers would be shaped by all those protected by the
law who wished to join in with some expressive demonstration of their own." Id., at 572-573. And in the associational freedom
cases such as Roberts, Duarte, and New York State Club Assn., after finding a compelling state interest, the Court went on to
examine whether or not the application of the state law would impose any "serious burden" on the organization's rights of
expressive association. So in these cases, the associational interest in freedom of expression has 659*659 been set on one side of
the scale, and the State's interest on the other.

Third, the First Amendment simply does not require that every member of a group agree on every issue in order for the group's
Dale contends that we should apply the intermediate standard of review enunciated in United States v. O'Brien, 391 U. S. 367
policy to be "expressive association." The Boy Scouts takes an official position with respect to homosexual conduct, and that is
(1968), to evaluate the competing interests. There the Court enunciated a four-part test for review of a governmental regulation
sufficient for First Amendment purposes. In this same vein, Dale makes much of the claim that the Boy Scouts does not revoke
that has only an incidental effect on protected speech—in that case the symbolic burning of a draft card. A law prohibiting the
the membership of heterosexual Scout leaders that openly disagree with the Boy Scouts' policy on sexual orientation. But if this is
destruction of draft cards only incidentally affects the free speech rights of those who happen to use a violation of that law as a
true, it is irrelevant.[1] The presence of an avowed homosexual and gay 656*656 rights activist in an assistant scoutmaster's uniform
symbol of protest. But New Jersey's public accommodations law directly and immediately affects associational rights, in this case
sends a distinctly different message from the presence of a heterosexual assistant scoutmaster who is on record as disagreeing with
associational rights that enjoy First Amendment protection. Thus, O'Brien is inapplicable.
Boy Scouts policy. The Boy Scouts has a First Amendment right to choose to send one message but not the other. The fact that
the organization does not trumpet its views from the housetops, or that it tolerates dissent within its ranks, does not mean that its
views receive no First Amendment protection. In Hurley, we applied traditional First Amendment analysis to hold that the application of the Massachusetts public
accommodations law to a parade violated the First Amendment rights of the parade organizers. Although we did not explicitly
deem the parade in Hurley an expressive association, the analysis we applied there is similar to the analysis we apply here. We
Having determined that the Boy Scouts is an expressive association and that the forced inclusion of Dale would significantly affect
have already concluded that a state requirement that the Boy Scouts retain Dale as an assistant scoutmaster would significantly
its expression, we inquire whether the application of New Jersey's public accommodations law to require that the Boy Scouts
burden the organization's right to oppose or disfavor homosexual conduct. The state interests embodied in New Jersey's public
accept Dale as an assistant scoutmaster runs afoul of the Scouts' freedom of expressive association. We conclude that it does.
accommodations law do not justify such a severe intrusion on the Boy Scouts' rights to freedom of expressive association. That
being the case, we hold that the First Amendment prohibits the State from imposing such a requirement through the application of
State public accommodations laws were originally enacted to prevent discrimination in traditional places of public its public accommodations law.[4]
accommodation—like inns and trains. See, e. g., Hurley, supra, at 571-572 (explaining the history of Massachusetts' public
accommodations law); Romer v. Evans, 517 U. S. 620, 627-629 (1996) (describing the evolution of public accommodations laws).
660*660 Justice Stevens' dissent makes much of its observation that the public perception of homosexuality in this country has
Over time, the public accommodations laws have expanded to cover more places. [2] New Jersey's statutory 657*657 definition of
changed. See post, at 699-700. Indeed, it appears that homosexuality has gained greater societal acceptance. See ibid. But this is
"`[a] place of public accommodation' " is extremely broad. The term is said to "include, but not be limited to," a list of over 50
scarcely an argument for denying First Amendment protection to those who refuse to accept these views. The First Amendment
types of places. N. J. Stat. Ann. § 10:5-5(l ) (West Supp. 2000); see Appendix, infra, at 661— 663. Many on the list are what one
protects expression, be it of the popular variety or not. See, e. g., Texas v. Johnson, 491 U. S. 397 (1989) (holding that Johnson's
would expect to be places where the public is invited. For example, the statute includes as places of public accommodation taverns,
conviction for burning the American flag violates the First Amendment); Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam)
restaurants, retail shops, and public libraries. But the statute also includes places that often may not carry with them open invitations
(holding that a Ku Klux Klan leader's conviction for advocating unlawfulness as a means of political reform violates the First
to the public, like summer camps and roof gardens. In this case, the New Jersey Supreme Court went a step further and applied its
Amendment). And the fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to
public accommodations law to a private entity without even attempting to tie the term "place" to a physical location.[3] As the
protect the First Amendment rights of those who wish to voice a different view.
definition of "public accommodation" has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to
membership organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the
First Amendment rights of organizations has increased. Justice Stevens' extolling of Justice Brandeis' comments in New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (dissenting
opinion); see post, at 664, 700, confuses two entirely different principles. In New State Ice, the Court struck down an Oklahoma
regulation prohibiting the manufacture, sale, and distribution of ice without a license. Justice Brandeis, a champion of state
We recognized in cases such as Roberts and Duarte that States have a compelling interest in eliminating discrimination against
experimentation in the economic realm, dissented. But Justice Brandeis was never a champion of state experimentation in the
women in public accommodations. But in each of these cases we went on to conclude that the enforcement of these statutes would
suppression of free speech. To the contrary, his First Amendment commentary provides compelling support for the Court's opinion
not materially interfere with the ideas that the organization sought to express. In Roberts, we said "[i]ndeed, the Jaycees has failed
in this case. In speaking of the Founders of this Nation, Justice Brandeis emphasized that they "believed that freedom 661*661 to
to demonstrate . . . 658*658 any serious burdens on the male members' freedom of expressive association." 468 U. S., at 626. In
think as you will and to speak as you think are means indispensable to the discovery and spread of political truth." Whitney v.
Duarte, we said:
California, 274 U. S. 357, 375 (1927) (concurring opinion). He continued:

"[I]mpediments to the exercise of one's right to choose one's associates can violate the right of association protected by the First
"Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of
Amendment. In this case, however, the evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any
force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free
significant way the existing members' ability to carry out their various purposes." 481 U. S., at 548 (internal quotation marks and
speech and assembly should be guaranteed." Id., at 375-376.
citations omitted).

We are not, as we must not be, guided by our views of whether the Boy Scouts' teachings with respect to homosexual conduct are
We thereupon concluded in each of these cases that the organizations' First Amendment rights were not violated by the application
right or wrong; public or judicial disapproval of a tenet of an organization's expression does not justify the State's effort to compel
of the States' public accommodations laws.
the organization to accept members where such acceptance would derogate from the organization's expressive message. "While
the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better

106
reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the
government." Hurley, 515 U. S., at 579.
The judgment of the New Jersey Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
N. J. Stat. Ann. § 10:5-4 (West Supp. 2000). "Obtaining employment, accommodations and privileges without discrimination;
civil right
"All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and
privileges of any place of public accommodation, 662*662 publicly assisted housing accommodation, and other real property
without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation,
familial status, or sex, subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as
and declared to be a civil right." N. J. Stat. Ann. § 10:5-5 (West Supp. 2000). "Definitions
"As used in this act, unless a different meaning clearly appears from the context:
.....
"l. `A place of public accommodation' shall include, but not be limited to: any tavern, roadhouse, hotel, motel, trailer camp, summer
camp, day camp, or resort camp, whether for entertainment of transient guests or accommodation of those seeking health, recreation
or rest; any producer, manufacturer, wholesaler, distributor, retail shop, store, establishment, or concession dealing with goods or
services of any kind; any restaurant, eating house, or place where food is sold for consumption on the premises; any place
maintained for the sale of ice cream, ice and fruit preparations or their derivatives, soda water or confections, or where any
beverages of any kind are retailed for consumption on the premises; any garage, any public conveyance operated on land or water,
or in the air, any stations and terminals thereof; any bathhouse, boardwalk, or seashore accommodation; any auditorium, meeting
place, or hall; any theatre, motion-picture house, music hall, roof garden, skating rink, swimming pool, amusement and recreation
park, fair, bowling alley, gymnasium, shooting gallery, billiard and pool parlor, or other place of amusement; any comfort station;
any dispensary, clinic or hospital; any public library; any kindergarten, primary and secondary school, trade or business school,
high school, academy, college and university, or any educational institution under the supervision of the State Board of Education,
or the Commissioner of Education of the State of New Jersey. 663*663 Nothing herein contained shall be construed to include or
to apply to any institution, bona fide club, or place of accommodation, which is in its nature distinctly private; nor shall anything
herein contained apply to any educational facility operated or maintained by a bona fide religious or sectarian institution, and the
right of a natural parent or one in loco parentis to direct the education and upbringing of a child under his control is hereby affirmed;
nor shall anything herein contained be construed to bar any private secondary or post secondary school from using in good faith
criteria other than race, creed, color, national origin, ancestry or affectional or sexual orientation in the admission of students."
Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.
New Jersey "prides itself on judging each individual by his or her merits" and on being "in the vanguard in the fight to eradicate
the cancer of unlawful discrimination of all types from our society." Peper v. Princeton Univ. Bd. of Trustees, 77 N. J. 55, 80, 389
A. 2d 465, 478 (1978). Since 1945, it has had a law against discrimination. The law broadly protects the opportunity of all persons
to obtain the advantages and privileges "of any place of public accommodation." N. J. Stat. Ann. § 10:5-4 (West Supp. 2000). The
New Jersey Supreme Court's construction of the statutory definition of a "place of public accommodation" has given its statute a
more expansive coverage than most similar state statutes. And as amended in 1991, the law prohibits discrimination on the basis
of nine different traits including an individual's "sexual orientation."[1] The question in this case is whether that expansive 664*664
construction trenches on the federal constitutional rights of the Boy Scouts of America (BSA).
107
Because every state law prohibiting discrimination is designed to replace prejudice with principle, Justice Brandeis' comment on
the States' right to experiment with "things social" is directly applicable to this case.
"To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught
with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may,
if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.
This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our
opinion, the measure is arbitrary, capricious or unreasonable. We have power to do this, because the due process clause has been
held by the Court applicable to matters of substantive law as well as to matters of procedure. But in the exercise of this high power,
we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must
let our minds be bold." New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (dissenting opinion).
In its "exercise of this high power" today, the Court does not accord this "courageous State" the respect that is its due.
The majority holds that New Jersey's law violates BSA's right to associate and its right to free speech. But that law 665*665 does
not "impos[e] any serious burdens" on BSA's "collective effort on behalf of [its] shared goals," Roberts v. United States Jaycees,
468 U. S. 609, 622, 626-627 (1984), nor does it force BSA to communicate any message that it does not wish to endorse. New
Jersey's law, therefore, abridges no constitutional right of BSA.
I
James Dale joined BSA as a Cub Scout in 1978, when he was eight years old. Three years later he became a Boy Scout, and he
remained a member until his 18th birthday. Along the way, he earned 25 merit badges, was admitted into the prestigious Order of
the Arrow, and was awarded the rank of Eagle Scout—an honor given to only three percent of all Scouts. In 1989, BSA approved
his application to be an Assistant Scoutmaster.
On July 19, 1990, after more than 12 years of active and honored participation, the BSA sent Dale a letter advising him of the
revocation of his membership. The letter stated that membership in BSA "is a privilege" that may be denied "whenever there is a
concern that an individual may not meet the high standards of membership which the BSA seeks to provide for American youth."
App. 135. Expressing surprise at his sudden expulsion, Dale sent a letter requesting an explanation of the decision. Id., at 136. In
response, BSA sent him a second letter stating that the grounds for the decision "are the standards for leadership established by
the Boy Scouts of America, which specifically forbid membership to homosexuals." Id., at 137. At that time, no such standard had
been publicly expressed by BSA.
In this case, BSA contends that it teaches the young boys who are Scouts that homosexuality is immoral. Consequently, it argues,
it would violate its right to associate to force it to admit homosexuals as members, as doing so would be at odds with its own
shared goals and values. This contention, quite plainly, requires us to look at what, exactly, are the values that BSA actually
teaches.
666*666 BSA's mission statement reads as follows: "It is the mission of the Boy Scouts of America to serve others by helping to
instill values in young people and, in other ways, to prepare them to make ethical choices over their lifetime in achieving their full
potential." Id., at 184. Its federal charter declares its purpose is "to promote, through organization, and cooperation with other
agencies, the ability of boys to do things for themselves and others, to train them in scoutcraft, and to teach them patriotism,
courage, self-reliance, and kindred values, using the methods which were in common use by Boy Scouts on June 15, 1916." 36 U.
S. C. § 23; see also App. 315-316. BSA describes itself as having a "representative membership," which it defines as "boy
membership [that] reflects proportionately the characteristics of the boy population of its service area." Id., at 65. In particular, the
group emphasizes that "[n]either the charter nor the bylaws of the Boy Scouts of America permits the exclusion of any boy. . . .
To meet these responsibilities we have made a commitment that our membership shall be representative of all the population in
every community, district, and council." Id., at 66-67 (emphasis in original).
To instill its shared values, BSA has adopted a "Scout Oath" and a "Scout Law" setting forth its central tenets. For example, the
Scout Law requires a member to promise, among other things, that he will be "obedient." Accompanying definitions for the terms
found in the Oath and Law are provided in the Boy Scout Handbook and the Scoutmaster Handbook. For instance, the Boy Scout
Handbook defines "obedient" as follows:
"A Scout is OBEDIENT. A Scout follows the rules of his family, school, and troop. He obeys the laws of his community and
country. If he thinks these rules and laws are unfair, he tries to have them changed in an orderly manner rather than disobey them."
Id., at 188 (emphasis deleted).
667*667 To bolster its claim that its shared goals include teaching that homosexuality is wrong, BSA directs our attention to two
terms appearing in the Scout Oath and Law. The first is the phrase "morally straight," which appears in the Oath ("On my honor I
will do my best . . . To keep myself . . . morally straight"); the second term is the word "clean," which appears in a list of 12
characteristics together constituting the Scout Law.
The Boy Scout Handbook defines "morally straight," as such:
"To be a person of strong character, guide your life with honesty, purity, and justice. Respect and defend the rights of all people.
Your relationships with others should be honest and open. Be clean in your speech and actions, and faithful in your religious
beliefs. The values you follow as a Scout will help you become virtuous and self-reliant." Id., at 218 (emphasis deleted).
The Scoutmaster Handbook emphasizes these points about being "morally straight":
"In any consideration of moral fitness, a key word has to be `courage.' A boy's courage to do what his head and his heart tell him
is right. And the courage to refuse to do what his heart and his head say is wrong. Moral fitness, like emotional fitness, will clearly
present opportunities for wise guidance by an alert Scoutmaster." Id., at 239-240.
As for the term "clean," the Boy Scout Handbook offers the following:
"A Scout is CLEAN. A Scout keeps his body and mind fit and clean. He chooses the company of those who live by these same
ideals. He helps keep his home and community clean. "You never need to be ashamed of dirt that will wash off. If you play hard
and work hard you can't help getting 668*668 dirty. But when the game is over or the work is done, that kind of dirt disappears
with soap and water. "There's another kind of dirt that won't come off by washing. It is the kind that shows up in foul language
and harmful thoughts. "Swear words, profanity, and dirty stories are weapons that ridicule other people and hurt their feelings. The
same is true of racial slurs and jokes making fun of ethnic groups or people with physical or mental limitations. A Scout knows
there is no kindness or honor in such mean-spirited behavior. He avoids it in his own words and deeds. He defends those who are
targets of insults." Id., at 225-226 (emphasis in original); see also id., at 189.[2]
It is plain as the light of day that neither one of these principles—"morally straight" and "clean"—says the slightest thing about
homosexuality. Indeed, neither term in the Boy 669*669 Scouts' Law and Oath expresses any position whatsoever on sexual
matters.
BSA's published guidance on that topic underscores this point. Scouts, for example, are directed to receive their sex education at
home or in school, but not from the organization: "Your parents or guardian or a sex education teacher should give you the facts
about sex that you must know." Boy Scout Handbook (1992) (reprinted in App. 211). To be sure, Scouts are not forbidden from
asking their Scoutmaster about issues of a sexual nature, but Scoutmasters are, literally, the last person Scouts are encouraged to
ask: "If you have questions about growing up, about relationships, sex, or making good decisions, ask. Talk with your parents,
religious leaders, teachers, or Scoutmaster." Ibid. Moreover, Scoutmasters are specifically directed to steer curious adolescents to
other sources of information:
"If Scouts ask for information regarding . . . sexual activity, answer honestly and factually, but stay within your realm of expertise
and comfort. If a Scout has serious concerns that you cannot answer, refer him to his family, religious leader, doctor, or other
professional." Scoutmaster Handbook (1990) (reprinted in App. 264).
108
More specifically, BSA has set forth a number of rules for Scoutmasters when these types of issues come up:
"You may have boys asking you for information or advice about sexual matters. . . . "How should you handle such matters? "Rule
number 1: You do not undertake to instruct Scouts, in any formalized manner, in the subject of sex and family life. The reasons are
that it is not con- strued to be Scouting's proper area, and that you are probably not well qualified to do this. "Rule number 2: If
Scouts come to you to ask questions or to seek advice, you would give it within your competence. 670*670 A boy who appears to
be asking about sexual intercourse, however, may really only be worried about his pimples, so it is well to find out just what
information is needed. "Rule number 3: You should refer boys with sexual problems to persons better qualified than you [are] to
handle them. If the boy has a spiritual leader or a doctor who can deal with them, he should go there. If such persons are not
available, you may just have to do the best you can. But don't try to play a highly professional role. And at the other extreme, avoid
passing the buck." Scoutmaster Handbook (1972) (reprinted in App. 546— 547) (emphasis added).
In light of BSA's self-proclaimed ecumenism, furthermore, it is even more difficult to discern any shared goals or common moral
stance on homosexuality. Insofar as religious matters are concerned, BSA's bylaws state that it is "absolutely nonsectarian in its
attitude toward . . . religious training." Id., at 362. "The BSA does not define what constitutes duty to God or the practice of
religion. This is the responsibility of parents and religious leaders." Id., at 76. In fact, many diverse religious organizations sponsor
local Boy Scout troops. Brief for Petitioners 3. Because a number of religious groups do not view homosexuality as immoral or
wrong and reject discrimination against homosexuals,[3] it is exceedingly difficult to believe that BSA nonetheless 671*671 adopts
a single particular religious or moral philosophy when it comes to sexual orientation. This is especially so in light of the fact that
Scouts are advised to seek guidance on sexual matters from their religious leaders (and Scoutmasters are told to refer Scouts to
them);[4] BSA surely is aware that some religions do not teach that homosexuality is wrong.
II
The Court seeks to fill the void by pointing to a statement of "policies and procedures relating to homosexuality and Scouting,"
App. 453, signed by BSA's President and Chief Scout Executive in 1978 and addressed to the members of the Executive Committee
of the national organization. Ante, at 651-652. The letter says that the BSA does "not believe that homosexuality and leadership in
Scouting are appropriate." App. 454. But when the entire 1978 letter is read, BSA's position is far more equivocal:
"4. Q. May an individual who openly declares himself to be a homosexual be employed by the Boy Scouts of America as a
professional or non-professional?
"A. Boy Scouts of America does not knowingly employ homosexuals as professionals or non-professionals. We are unaware of
any present laws which would prohibit this policy.
672*672 "5. Q. Should a professional or non-professional individual who openly declares himself to be a homosexual be
terminated?
"A. Yes, in the absence of any law to the contrary. At the present time we are unaware of any statute or ordinance in the United
States which prohibits discrimination against individual's employment upon the basis of homosexuality. In the event that such a
law was appli- cable, it would be necessary for the Boy Scouts of America to obey it, in this case as in Paragraph 4 above. It is
our position, however, that homosexuality and professional or non-professional employment in Scouting are not appropriate." Id.,
at 454-455 (emphasis added).
Four aspects of the 1978 policy statement are relevant to the proper disposition of this case. First, at most this letter simply adopts
an exclusionary membership policy. But simply adopting such a policy has never been considered sufficient, by itself, to prevail
on a right to associate claim. See infra, at 678-685.
Second, the 1978 policy was never publicly expressed—unlike, for example, the Scout's duty to be "obedient." It was an internal
memorandum, never circulated beyond the few members of BSA's Executive Committee. It remained, in effect, a secret Boy
Scouts policy. Far from claiming any intent to express an idea that would be burdened by the presence of homosexuals, BSA's
public posture—to the world and to the Scouts themselves—remained what it had always been: one of tolerance, welcoming all
classes of boys and young men. In this respect, BSA's claim is even weaker than those we have rejected in the past. See ibid.
Third, it is apparent that the draftsmen of the policy statement foresaw the possibility that laws against discrimination might one
day be amended to protect homosexuals from employment discrimination. Their statement clearly provided that, in the event such
a law conflicted with their policy, a Scout's duty to be "obedient" and "obe[y] the laws," even if "he thinks [the laws] are unfair,"
would prevail in such a 673*673 contingency. See supra, at 666. In 1978, however, BSA apparently did not consider it to be a
serious possibility that a State might one day characterize the Scouts as a "place of public accommodation" with a duty to open its
membership to all qualified individuals. The portions of the statement dealing with membership simply assume that membership
in the Scouts is a "privilege" that BSA is free to grant or to withhold. The statement does not address the question whether the
publicly proclaimed duty to obey the law should prevail over the private discriminatory policy if, and when, a conflict between
the two should arise—as it now has in New Jersey. At the very least, then, the statement reflects no unequivocal view on
homosexuality. Indeed, the statement suggests that an appropriate way for BSA to preserve its unpublished exclusionary policy
would include an open and forthright attempt to seek an amendment of New Jersey's statute. ("If he thinks these rules and laws are
unfair, he tries to have them changed in an orderly manner rather than disobey them.")
676*676 Third, BSA never took any clear and unequivocal position on homosexuality. Though the 1991 and 1992 policies state
one interpretation of "morally straight" and "clean," the group's published definitions appearing in the Boy Scout and Scoutmaster
Handbooks take quite another view. And BSA's broad religious tolerance combined with its declaration that sexual matters are not
its "proper area" render its views on the issue equivocal at best and incoherent at worst. We have never held, however, that a group
can throw together any mixture of contradictory positions and then invoke the right to associate to defend any one of those views.
At a minimum, a group seeking to prevail over an antidiscrimination law must adhere to a clear and unequivocal view.
Fourth, at most the 1991 and 1992 statements declare only that BSA believed "homosexual conduct is inconsistent with the
requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed." App.
457 (emphasis added). But New Jersey's law prohibits discrimination on the basis of sexual orientation. And when Dale was
expelled from the Boy Scouts, BSA said it did so because of his sexual orientation, not because of his sexual conduct. [8]

It is clear, then, that nothing in these policy statements supports BSA's claim. The only policy written before the revocation of
Fourth, the 1978 statement simply says that homosexuality is not "appropriate." It makes no effort to connect that statement to a
Dale's membership was an equivocal, undisclosed statement that evidences no connection between the group's discriminatory
shared goal or expressive activity of the Boy Scouts. Whatever values BSA seeks to instill in Scouts, the idea that homosexuality
intentions and its expressive interests. The later policies demonstrate a brief—though ultimately 677*677 abandoned—attempt to
is not "appropriate" appears entirely unconnected to, and is mentioned nowhere in, the myriad of publicly declared values and
tie BSA's exclusion to its expression, but other than a single sentence, BSA fails to show that it ever taught Scouts that
creeds of the BSA. That idea does not appear to be among any of the principles actually taught to Scouts. Rather, the 1978 policy
homosexuality is not "morally straight" or "clean," or that such a view was part of the group's collective efforts to foster a belief.
appears to be no more than a private statement of a few BSA executives that the organization wishes to exclude gays—and that
Furthermore, BSA's policy statements fail to establish any clear, consistent, and unequivocal position on homosexuality. Nor did
wish has nothing to do with any expression BSA actually engages in.
BSA have any reason to think Dale's sexual conduct, as opposed to his orientation, was contrary to the group's values.

The majority also relies on four other policy statements that were issued between 1991 and 1993.[5] All of them were 674*674
written and issued after BSA revoked Dale's membership. Accordingly, they have little, if any, relevance to the legal question
before this Court.[6] In any event, they do not bolster BSA's claim.
In 1991, BSA issued two statements both stating: "We believe that homosexual conduct is inconsistent with the requirement in the
Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed, and that homosexuals do
not provide a desirable role model for Scouts." App. 457-458. A third statement issued in 1992 was substantially the same. Id., at
459. By 1993, however, the policy had changed:
"BSA Position
"The Boy Scouts of America has always reflected the expectations that Scouting families have had for the organization. "We do
not believe that homosexuals provide a role model consistent with these expectations. "Accordingly, we do not allow for the
registration of avowed homosexuals as members or as leaders of the BSA." Id., at 461.
BSA's inability to make its position clear and its failure to connect its alleged policy to its expressive activities is highly significant.
By the time Dale was expelled from the Boy Scouts in 1990, BSA had already been engaged in several suits under a variety of
state antidiscrimination public accommodation laws challenging various aspects of its membership policy.[9] Indeed, BSA had filed
amicus briefs before this Court in two earlier right to associate cases (Roberts v. United States Jaycees, 468 U. S. 609 (1984), and
Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U. S. 537 (1987)) pointing to these very cases; it was clearly on
notice by 1990 that it might well be subjected to state public accommodation antidiscrimination laws, and that a court might one
day reject its claimed right to associate. Yet it took no steps prior to Dale's expulsion to clarify how its exclusivity was connected
to its expression. It speaks volumes about the credibility of BSA's claim to a shared goal that homosexuality is incompatible with
Scouting that since at least 1984 it had been aware of this issue—indeed, concerned enough to twice file amicus briefs before this
678*678 Court—yet it did nothing in the intervening six years (or even in the years after Dale's explusion) to explain clearly and
openly why the presence of homosexuals would affect its expressive activities, or to make the view of "morally straight" and
"clean" taken in its 1991 and 1992 policies a part of the values actually instilled in Scouts through the Handbook, lessons, or
otherwise.
III

Aside from the fact that these statements were all issued after Dale's membership was revoked, there are four important points
BSA's claim finds no support in our cases. We have recognized "a right to associate for the purpose of engaging in those activities
relevant to them. First, while the 1991 and 1992 675*675 statements tried to tie BSA's exclusionary policy to the meaning of the
protected by the First Amendment— speech, assembly, petition for the redress of grievances, and the exercise of religion." Roberts,
Scout Oath and Law, the 1993 statement abandoned that effort. Rather, BSA's 1993 homosexual exclusion policy was based on
468 U. S., at 618. And we have acknowledged that "when the State interferes with individuals' selection of those with whom they
its view that including gays would be contrary to "the expectations that Scouting families have had for the organization." Ibid.
wish to join in a common endeavor, freedom of association . . . may be implicated." Ibid. But "[t]he right to associate for expressive
Instead of linking its policy to its central tenets or shared goals—to teach certain definitions of what it means to be "morally
purposes is not . . . absolute"; rather, "the nature and degree of constitutional protection afforded freedom of association may vary
straight" and "clean"—BSA chose instead to justify its policy on the "expectatio[n]" that its members preferred to exclude
depending on the extent to which . . . the constitutionally protected liberty is at stake in a given case." Id., at 623, 618. Indeed, the
homosexuals. The 1993 policy statement, in other words, was not based on any expressive activity or on any moral view about
right to associate does not mean "that in every setting in which individuals exercise some discrimination in choosing associates,
homosexuality. It was simply an exclusionary membership policy, similar to those we have held insufficient in the past. See infra,
their selective process of inclusion and exclusion is protected by the Constitution." New York State Club Assn., Inc. v. City of New
at 678-685.
York, 487 U. S. 1, 13 (1988). For example, we have routinely and easily rejected assertions of this right by expressive organizations
with discriminatory membership policies, such as private schools,[10] law 679*679 firms,[11] and labor organizations.[12] In fact,
Second, even during the brief period in 1991 and 1992, when BSA tried to connect its exclusion of homosexuals to its definition until today, we have never once found a claimed right to associate in the selection of members to prevail in the face of a State's
of terms found in the Oath and Law, there is no evidence that Scouts were actually taught anything about homosexuality's alleged antidiscrimination law. To the contrary, we have squarely held that a State's antidiscrimination law does not violate a group's right
inconsistency with those principles. Beyond the single sentence in these policy statements, there is no indication of any shared to associate simply because the law conflicts with that group's exclusionary membership policy.
goal of teaching that homosexuality is incompatible with being "morally straight" and "clean." Neither BSA's mission statement
nor its official membership policy was altered; no Boy Scout or Scoutmaster Handbook was amended to reflect the policy
In Roberts v. United States Jaycees, 468 U. S. 609 (1984), we addressed just such a conflict. The Jaycees was a nonprofit
statement; no lessons were imparted to Scouts; no change was made to BSA's policy on limiting discussion of sexual matters; and
membership organization "`designed to inculcate in the individual membership . . . a spirit of genuine Americanism and civic
no effort was made to restrict acceptable religious affiliations to those that condemn homosexuality. In short, there is no evidence
interest, and . . . to provide . . . an avenue for intelligent participation by young men in the affairs of their community.' " Id., at
that this view was part of any collective effort to foster beliefs about homosexuality.[7]
612-613. The organization was divided into local chapters, described as "`young men's organization[s],' " in which regular
109
membership was restricted to males between the ages of 18 and 35. Id., at 613. But Minnesota's Human Rights Act, which applied
to the Jaycees, made it unlawful to "`deny any person the full and equal 680*680 enjoyment of . . . a place of public accommodation
because of . . . sex.' " Id., at 615. The Jaycees, however, claimed that applying the law to it violated its right to associate—in
particular its right to maintain its selective membership policy.
We rejected that claim. Cautioning that the right to associate is not "absolute," we held that "[i]nfringements on that right may be
justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved
through means significantly less restrictive of associational freedoms." Id., at 623. We found the State's purpose of eliminating
discrimination is a compelling state interest that is unrelated to the suppression of ideas. Id., at 623-626. We also held that
Minnesota's law is the least restrictive means of achieving that interest. The Jaycees had "failed to demonstrate that the Act imposes
any serious burdens on the male members' freedom of expressive association." Id., at 626. Though the Jaycees had "taken public
positions on a number of diverse issues, [and] . . . regularly engage in a variety of . . . activities worthy of constitutional protection
under the First Amendment," there was "no basis in the record for concluding that admission of women as full voting members
will impede the organization's ability to engage in these protected activities or to disseminate its preferred views." Id., at 626-627.
"The Act," we held, "requires no change in the Jaycees' creed of promoting the interest of young men, and it imposes no restrictions
on the organization's ability to exclude individuals with ideologies or philosophies different from those of its existing members."
Id., at 627.
We took a similar approach in Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U. S. 537 (1987). Rotary
International, a nonprofit corporation, was founded as "`an organization of business and professional men united worldwide who
provide humanitarian service, encourage high ethical standards in all vocations, and help build goodwill 681*681 and peace in the
world.' " Id., at 539. It admitted a cross section of worthy business and community leaders, id., at 540, but refused membership to
women. "[T]he exclusion of women," explained the group's General Secretary, "results in an `aspect of fellowship . . . that is
enjoyed by the present male membership.' " Id., at 541. That policy also allowed the organization "to operate effectively in foreign
countries with varied cultures and social mores." Ibid. Though California's Civil Rights Act, which applied to Rotary International,
prohibited discrimination on the basis of sex, id., at 541-542, n. 2, the organization claimed a right to associate, including the right
to select its members.
As in Jaycees, we rejected the claim, holding that "the evidence fails to demonstrate that admitting women to Rotary Clubs will
affect in any significant way the existing members' ability to carry out their various purposes." 481 U. S., at 548. "To be sure," we
continued, "Rotary Clubs engage in a variety of commendable service activities that are protected by the First Amendment. But
[California's Civil Rights Act] does not require the clubs to abandon or alter any of these activities. It does not require them to
abandon their basic goals of humanitarian service, high ethical standards in all vocations, good will, and peace. Nor does it require
them to abandon their classification system or admit members who do not reflect a cross section of the community." Ibid. Finally,
even if California's law worked a "slight infringement on Rotary members' right of expressive association, that infringement is
justified because it serves the State's compelling interest in eliminating discrimination against women." Id., at 549.[13]
682*682 Several principles are made perfectly clear by Jaycees and Rotary Club. First, to prevail on a claim of expressive
association in the face of a State's antidiscrimination law, it is not enough simply to engage in some kind of expressive activity.
Both the Jaycees and the Rotary Club engaged in expressive activity protected by the First Amendment,[14] yet that fact was not
dispositive. Second, it is not enough to adopt an openly avowed exclusionary membership policy. Both the Jaycees and the Rotary
Club did that as well.[15] Third, it is not sufficient merely to articulate some connection between the group's expressive activities
and its exclusionary policy. The Rotary Club, for example, justified its male-only membership policy by pointing to the "`aspect
of fellowship . . . that is enjoyed by the [exclusively] male membership' " and by claiming that only with an exclusively male
membership 683*683 could it "operate effectively" in foreign countries. Rotary Club, 481 U. S., at 541.
Rather, in Jaycees, we asked whether Minnesota's Human Rights Law requiring the admission of women "impose[d] any serious
burdens " on the group's "collective effort on behalf of [its] shared goals. " 468 U. S., at 622, 626-627 (emphases added).
Notwithstanding the group's obvious publicly stated exclusionary policy, we did not view the inclusion of women as a "serious
burden" on the Jaycees' ability to engage in the protected speech of its choice. Similarly, in Rotary Club, we asked whether
California's law would "affect in any significant way the existing members' ability" to engage in their protected speech, or whether
the law would require the clubs "to abandon their basic goals. " 481 U. S., at 548 (emphases added); see also Hurley v. Irish-
American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 581 (1995) ("[A] private club could exclude an
applicant whose manifest views were at odds with a position taken by the club's existing members"); New York State Club Assn.,
487 U. S., at 13 (to prevail on a right to associate claim, the group must "be able to show that it is organized for specific expressive
110
purposes and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to
those who share the same sex, for example, or the same religion"); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462-463
(1958) (asking whether law "entail[ed] the likelihood of a substantial restraint upon the exercise by petitioner's members of their
right to freedom of association" and whether law is "likely to affect adversely the ability of petitioner and its members to pursue
their collective effort to foster beliefs"). The relevant question is whether the mere inclusion of the person at issue would "impose
any serious burden," "affect in any significant way," or be "a substantial restraint upon" the organization's "shared goals," "basic
goals," or "collective effort to foster beliefs." Accordingly, it is necessary to examine what, exactly, are 684*684 BSA's shared
goals and the degree to which its expressive activities would be burdened, affected, or restrained by including homosexuals.
The evidence before this Court makes it exceptionally clear that BSA has, at most, simply adopted an exclusionary membership
policy and has no shared goal of disapproving of homosexuality. BSA's mission statement and federal charter say nothing on the
matter; its official membership policy is silent; its Scout Oath and Law—and accompanying definitions—are devoid of any view
on the topic; its guidance for Scouts and Scoutmasters on sexuality declare that such matters are "not construed to be Scouting's
proper area," but are the province of a Scout's parents and pastor; and BSA's posture respecting religion tolerates a wide variety of
views on the issue of homosexuality. Moreover, there is simply no evidence that BSA otherwise teaches anything in this area, or
that it instructs Scouts on matters involving homosexuality in ways not conveyed in the Boy Scout or Scoutmaster Handbooks. In
short, Boy Scouts of America is simply silent on homosexuality. There is no shared goal or collective effort to foster a belief about
homosexuality at all—let alone one that is significantly burdened by admitting homosexuals.
As in Jaycees, there is "no basis in the record for concluding that admission of [homosexuals] will impede the [Boy Scouts'] ability
to engage in [its] protected activities or to disseminate its preferred views" and New Jersey's law "requires no change in [BSA's]
creed." 468 U. S., at 626-627. And like Rotary Club, New Jersey's law "does not require [BSA] to abandon or alter any of" its
activities. 481 U. S., at 548. The evidence relied on by the Court is not to the contrary. The undisclosed 1978 policy certainly adds
nothing to the actual views disseminated to the Scouts. It simply says that homosexuality is not "appropriate." There is no reason
to give that policy statement more weight than Rotary International's assertion that all-male membership 685*685 fosters the
group's "fellowship" and was the only way it could "operate effectively." As for BSA's postrevocation statements, at most they
simply adopt a policy of discrimination, which is no more dispositive than the openly discriminatory policies held insufficient in
Jaycees and Rotary Club; there is no evidence here that BSA's policy was necessary to— or even a part of—BSA's expressive
activities or was ever taught to Scouts.
Equally important is BSA's failure to adopt any clear position on homosexuality. BSA's temporary, though ultimately abandoned,
view that homosexuality is incompatible with being "morally straight" and "clean" is a far cry from the clear, unequivocal statement
necessary to prevail on its claim. Despite the solitary sentences in the 1991 and 1992 policies, the group continued to disclaim any
single religious or moral position as a general matter and actively eschewed teaching any lesson on sexuality. It also continued to
define "morally straight" and "clean" in the Boy Scout and Scoutmaster Handbooks without any reference to homosexuality. As
noted earlier, nothing in our cases suggests that a group can prevail on a right to expressive association if it, effectively, speaks
out of both sides of its mouth. A State's antidiscrimination law does not impose a "serious burden" or a "substantial restraint" upon
the group's "shared goals" if the group itself is unable to identify its own stance with any clarity.
IV
The majority pretermits this entire analysis. It finds that BSA in fact "`teach[es] that homosexual conduct is not morally straight.'
" Ante, at 651. This conclusion, remarkably, rests entirely on statements in BSA's briefs. See ibid. (citing Brief for Petitioners 39;
Reply Brief for Petitioners 5). Moreover, the majority insists that we must "give deference to an association's assertions regarding
the nature of its expression" and "we must also give deference to an association's view of what would impair its expression." Ante,
at 686*686 653. So long as the record "contains written evidence" to support a group's bare assertion, "[w]e need not inquire
further." Ante, at 651. Once the organization "asserts" that it engages in particular expression, ibid., "[w]e cannot doubt" the truth
of that assertion, ante, at 653.
This is an astounding view of the law. I am unaware of any previous instance in which our analysis of the scope of a constitutional
right was determined by looking at what a litigant asserts in his or her brief and inquiring no further. It is even more astonishing
in the First Amendment area, because, as the majority itself acknowledges, "we are obligated to independently review the factual
record." Ante, at 648— 649. It is an odd form of independent review that consists of deferring entirely to whatever a litigant claims.
But the majority insists that our inquiry must be "limited," ante, at 650, because "it is not the role of the courts to reject a group's
expressed values because they disagree with those values or find them internally inconsistent," ante, at 651. See also Brief for
Petitioners 25 ("[T]he Constitution protects [BSA's] ability to control its own message").
But nothing in our cases calls for this Court to do any such thing. An organization can adopt the message of its choice, and it is
not this Court's place to disagree with it. But we must inquire whether the group is, in fact, expressing a message (whatever it may
be) and whether that message (if one is expressed) is significantly affected by a State's antidiscrimination law. More critically, that
inquiry requires our independent analysis, rather than deference to a group's litigating posture. Reflection on the subject dictates
that such an inquiry is required.
Surely there are instances in which an organization that truly aims to foster a belief at odds with the purposes of a State's
antidiscrimination laws will have a First Amendment right to association that precludes forced compliance with those laws. But
that right is not a freedom to discriminate at will, nor is it a right to maintain an exclusionary membership 687*687 policy simply
out of fear of what the public reaction would be if the group's membership were opened up. It is an implicit right designed to
protect the enumerated rights of the First Amendment, not a license to act on any discriminatory impulse. To prevail in asserting
a right of expressive association as a defense to a charge of violating an antidiscrimination law, the organization must at least show
it has adopted and advocated an unequivocal position inconsistent with a position advocated or epitomized by the person whom
the organization seeks to exclude. If this Court were to defer to whatever position an organization is prepared to assert in its briefs,
there would be no way to mark the proper boundary between genuine exercises of the right to associate, on the one hand, and sham
claims that are simply attempts to insulate nonexpressive private discrimination, on the other hand. Shielding a litigant's claim
from judicial scrutiny would, in turn, render civil rights legislation a nullity, and turn this important constitutional right into a farce.
Accordingly, the Court's prescription of total deference will not do. In this respect, Justice Frankfurter's words seem particularly
apt:
"Elaborately to argue against this contention is to dignify a claim devoid of constitutional substance. Of course a State may leave
abstention from such discriminations to the conscience of individuals. On the other hand, a State may choose to put its authority
behind one of the cherished aims of American feeling by forbidding indulgence in racial or religious prejudice to another's hurt.
To use the Fourteenth Amendment as a sword against such State power would stultify that Amendment. Certainly the insistence
by individuals on their private prejudices as to race, color or creed, in relations like those now before us, ought not to have a higher
constitutional sanction than the determination of a State to extend the area of nondiscrimination beyond that which the Constitution
itself exacts." Railway
688*688 Mail Assn. v. Corsi, 326 U. S. 88, 98 (1945) (concurring opinion).
There is, of course, a valid concern that a court's independent review may run the risk of paying too little heed to an organization's
sincerely held views. But unless one is prepared to turn the right to associate into a free pass out of antidiscrimination laws, an
independent inquiry is a necessity. Though the group must show that its expressive activities will be substantially burdened by the
State's law, if that law truly has a significant effect on a group's speech, even the subtle speaker will be able to identify that impact.
In this case, no such concern is warranted. It is entirely clear that BSA in fact expresses no clear, unequivocal message burdened
by New Jersey's law.
V
Even if BSA's right to associate argument fails, it nonetheless might have a First Amendment right to refrain from including debate
and dialogue about homosexuality as part of its mission to instill values in Scouts. It can, for example, advise Scouts who are
entering adulthood and have questions about sex to talk "with your parents, religious leaders, teachers, or Scoutmaster," and, in
turn, it can direct Scoutmasters who are asked such questions "not undertake to instruct Scouts, in any formalized manner, in the
subject of sex and family life" because "it is not construed to be Scouting's proper area." See supra, at 669-670. Dale's right to
advocate certain beliefs in a public forum or in a private debate does not include a right to advocate these ideas when he is working
as a Scoutmaster. And BSA cannot be compelled to include a message about homosexuality among the values it actually chooses
to teach its Scouts, if it would prefer to remain silent on that subject.
111
In West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), we recognized that the government may not "requir[e] affirmation
of a belief and an attitude of mind," nor 689*689 "force an American citizen publicly to profess any statement of belief," even if
doing so does not require the person to "forego any contrary convictions of their own." Id., at 633— 634. "[O]ne important
manifestation of the principle of free speech is that one who chooses to speak may also decide `what not to say.' " Hurley, 515 U.
S., at 573. Though the majority mistakenly treats this statement as going to the right to associate, it actually refers to a free speech
claim. See id., at 564-565, 580-581 (noting distinction between free speech and right to associate claims). As with the right to
associate claim, though, the court is obligated to engage in an independent inquiry into whether the mere inclusion of homosexuals
would actually force BSA to proclaim a message it does not want to send. Id., at 567.
In its briefs, BSA implies, even if it does not directly argue, that Dale would use his Scoutmaster position as a "bully pulpit" to
convey immoral messages to his troop, and therefore his inclusion in the group would compel BSA to include a message it does
not want to impart. Brief for Petitioners 21-22. Even though the majority does not endorse that argument, I think it is important to
explain why it lacks merit, before considering the argument the majority does accept.
BSA has not contended, nor does the record support, that Dale had ever advocated a view on homosexuality to his troop before
his membership was revoked. Accordingly, BSA's revocation could only have been based on an assumption that he would do so
in the future. But the only information BSA had at the time it revoked Dale's membership was a newspaper article describing a
seminar at Rutgers University on the topic of homosexual teenagers that Dale attended. The relevant passage reads:
"James Dale, 19, co-president of the Rutgers University Lesbian Gay Alliance with Sharice Richardson, also 19, said he lived a
double life while in high school, pretending to be straight while attending a military academy.
690*690 "He remembers dating girls and even laughing at homophobic jokes while at school, only admitting his homosexuality
during his second year at Rutgers. "`I was looking for a role model, someone who was gay and accepting of me,' Dale said, adding
he wasn't just seeking sexual experiences, but a community that would take him in and provide him with a support network and
friends." App. 517.
Nothing in that article, however, even remotely suggests that Dale would advocate any views on homosexuality to his troop. The
Scoutmaster Handbook instructs Dale, like all Scoutmasters, that sexual issues are not their "proper area," and there is no evidence
that Dale had any intention of violating this rule. Indeed, from all accounts Dale was a model Boy Scout and Assistant Scoutmaster
up until the day his membership was revoked, and there is no reason to believe that he would suddenly disobey the directives of
BSA because of anything he said in the newspaper article.
To be sure, the article did say that Dale was co-president of the Lesbian/Gay Alliance at Rutgers University, and that group
presumably engages in advocacy regarding homosexual issues. But surely many members of BSA engage in expressive activities
outside of their troop, and surely BSA does not want all of that expression to be carried on inside the troop. For example, a
Scoutmaster may be a member of a religious group that encourages its followers to convert others to its faith. Or a Scoutmaster
may belong to a political party that encourages its members to advance its views among family and friends.[16] Yet BSA does not
think it is appropriate for Scoutmasters to proselytize a particular faith to unwilling Scouts or to attempt to convert them from one
691*691 religion to another.[17] Nor does BSA think it appropriate for Scouts or Scoutmasters to bring politics into the troop. [18]
From all accounts, then, BSA does not discourage or forbid outside expressive activity, but relies on compliance with its policies
and trusts Scouts and Scoutmasters alike not to bring unwanted views into the organization. Of course, a disobedient member who
flouts BSA's policy may be expelled. But there is no basis for BSA to presume that a homosexual will be unable to comply with
BSA's policy not to discuss sexual matters any more than it would presume that politically or religiously active members could
not resist the urge to proselytize or politicize during troop meetings. [19] As BSA itself puts it, its rights are "not implicated unless
a prospective leader presents himself as a role model inconsistent 692*692 with Boy Scouting's understanding of the Scout Oath
and Law." Brief for Petitioners 6 (emphases added).[20]
The majority, though, does not rest its conclusion on the claim that Dale will use his position as a bully pulpit. Rather, it contends
that Dale's mere presence among the Boy Scouts will itself force the group to convey a message about homosexuality—even if
Dale has no intention of doing so. The majority holds that "[t]he presence of an avowed homosexual and gay rights activist in an
assistant scoutmaster's uniform sends a distinc[t] . . . message," and, accordingly, BSA is entitled to exclude that message. Ante,
at 655-656. In particular, "Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message,
both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."
693*693 Ante, at 653; see also Brief for Petitioners 24 ("By donning the uniform of an adult leader in Scouting, he would `celebrate 696*696 The only apparent explanation for the majority's holding, then, is that homosexuals are simply so different from the rest
[his] identity' as an openly gay Scout leader"). of society that their presence alone—unlike any other individual's—should be singled out for special First Amendment treatment.
Under the majority's reasoning, an openly gay male is irreversibly affixed with the label "homosexual." That label, even though
unseen, communicates a message that permits his exclusion wherever he goes. His openness is the sole and sufficient justification
The majority's argument relies exclusively on Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.
for his ostracism. Though unintended, reliance on such a justification is tantamount to a constitutionally prescribed symbol of
S. 557 (1995). In that case, petitioners John Hurley and the South Boston Allied War Veterans Council ran a privately operated
inferiority.[23] As counsel for BSA remarked, Dale "put a banner around his neck when he . . . got himself into the newspaper. . . .
St. Patrick's Day parade. Respondent, an organization known as "GLIB," represented a contingent of gays, lesbians, and bisexuals
He created a reputation. . . . He can't take that banner off. He put it on himself and, indeed, he has continued to put it on himself."
who sought to march in the petitioners' parade "as a way to express pride in their Irish heritage as openly gay, lesbian, and bisexual
See Tr. of Oral Arg. 25.
individuals." Id., at 561. When the parade organizers refused GLIB's admission, GLIB brought suit under Massachusetts'
antidiscrimination law. That statute, like New Jersey's law, prohibited discrimination on account of sexual orientation in any place
of public accommodation, which the state courts interpreted to include the parade. Petitioners argued that forcing them to include Another difference between this case and Hurley lies in the fact that Hurley involved the parade organizers' claim to determine the
GLIB in their parade would violate their free speech rights. content of the message they wish to give at a particular time and place. The standards governing such a claim are simply different
from the standards that govern BSA's claim of a right of expressive association. Generally, a private person or a private organization
has a right to refuse to broadcast a message with which it disagrees, and a right to refuse to contradict or garble its own specific
We agreed. We first pointed out that the St. Patrick's Day parade—like most every parade—is an inherently expressive undertaking.
statement at any given place or time by including the messages of others. An expressive association claim, however, normally
Id., at 568-570. Next, we reaffirmed that the government may not compel anyone to proclaim a belief with which he or she
involves the avowal and advocacy of a consistent position on some issue over time. This is why a different kind of scrutiny must
disagrees. Id., at 573-574. We then found that GLIB's marching in the parade would be an expressive act suggesting the view "that
be given to an expressive association claim, lest the right of expressive association simply turn into a right to discriminate whenever
people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals." Id., at 574. Finally, we
some group can think of an expressive object that would seem to be inconsistent with the admission 697*697 of some person as a
held that GLIB's participation in the parade "would likely be perceived" as the parade organizers' own speech—or at least as a
member or at odds with the appointment of a person to a leadership position in the group.
view which they approved—because of a parade organizer's customary control over who marches in the parade. Id., at 575. Though
Hurley has a superficial similarity to the present case, a close inspection reveals a wide gulf between that case and the one before
us today. Furthermore, it is not likely that BSA would be understood to send any message, either to Scouts or to the world, simply by
admitting someone as a member. Over the years, BSA has generously welcomed over 87 million young Americans into its ranks.
In 1992 over one million adults were active BSA members. 160 N. J. 562, 571, 734 A. 2d 1196, 1200 (1999). The notion that an
694*694 First, it was critical to our analysis that GLIB was actually conveying a message by participating in the parade—
organization of that size and enormous prestige implicitly endorses the views that each of those adults may express in a non-
otherwise, the parade organizers could hardly claim that they were being forced to include any unwanted message at all. Our
Scouting context is simply mind boggling. Indeed, in this case there is no evidence that the young Scouts in Dale's troop, or
conclusion that GLIB was conveying a message was inextricably tied to the fact that GLIB wanted to march in a parade, as well
members of their families, were even aware of his sexual orientation, either before or after his public statements at Rutgers
as the manner in which it intended to march. We noted the "inherent expressiveness of marching [in a parade] to make a point,"
University.[24] It is equally farfetched to assert that Dale's open declaration of his homosexuality, reported in a local newspaper,
id., at 568, and in particular that GLIB was formed for the purpose of making a particular point about gay pride, id., at 561, 570.
will effectively force BSA to send a message to anyone simply because it allows Dale to be an Assistant Scoutmaster. For an
More specifically, GLIB "distributed a fact sheet describing the members' intentions" and, in a previous parade, had "marched
Olympic gold medal winner or a Wimbledon tennis champion, being "openly gay" perhaps communicates a message—for
behind a shamrock-strewn banner with the simple inscription `Irish American Gay, Lesbian and Bisexual Group of Boston.' " Id.,
example, that openness about one's sexual orientation is more virtuous than concealment; that a homosexual person can be a
at 570. "[A] contingent marching behind the organization's banner," we said, would clearly convey a message. Id., at 574. Indeed,
capable and virtuous person who should be judged like anyone else; and that homosexuality is not immoral— but it certainly does
we expressly distinguished between the members of GLIB, who marched as a unit to express their views about their own sexual
not follow that they necessarily send a message on behalf of the organizations that sponsor the activities in which they excel. The
orientation, on the one hand, and homosexuals who might participate as individuals in the parade without intending to express
fact that such persons participate in these organizations is not usually construed to convey a message on behalf of those
anything about their sexuality by doing so. Id., at 572-573.
organizations any more than does the inclusion of women, African-Americans, religious 698*698 minorities, or any other discrete
group.[25] Surely the organizations are not forced by antidiscrimination laws to take any position on the legitimacy of any
Second, we found it relevant that GLIB's message "would likely be perceived" as the parade organizers' own speech. Id., at 575. individual's private beliefs or private conduct.
That was so because "[p]arades and demonstrations . . . are not understood to be so neutrally presented or selectively viewed" as,
say, a broadcast by a cable operator, who is usually considered to be "merely `a conduit' for the speech" produced by others. Id.,
The State of New Jersey has decided that people who are open and frank about their sexual orientation are entitled to equal access
at 575-576. Rather, parade organizers are usually understood to make the "customary determination about a unit admitted to the
to employment as schoolteachers, police officers, librarians, athletic coaches, and a host of other jobs filled by citizens who serve
parade." Id., at 575.
as role models for children and adults alike. Dozens of Scout units throughout the State are sponsored by public agencies, such as
schools and fire departments, that employ such role models. BSA's affiliation with numerous public agencies that comply with
Dale's inclusion in the Boy Scouts is nothing like the case in Hurley. His participation sends no cognizable message to the Scouts New Jersey's law against discrimination cannot be understood to convey any particular message endorsing or condoning the
or to the world. Unlike GLIB, Dale did not 695*695 carry a banner or a sign; he did not distribute any factsheet; and he expressed activities of all these people.[26]
no intent to send any message. If there is any kind of message being sent, then, it is by the mere act of joining the Boy Scouts.
Such an act does not constitute an instance of symbolic speech under the First Amendment.[21]
699*699 VI

It is true, of course, that some acts are so imbued with symbolic meaning that they qualify as "speech" under the First Amendment.
Unfavorable opinions about homosexuals "have ancient roots." Bowers v. Hardwick, 478 U. S. 186, 192 (1986). Like equally
See United States v. O'Brien, 391 U. S. 367, 376 (1968). At the same time, however, "[w]e cannot accept the view that an
atavistic opinions about certain racial groups, those roots have been nourished by sectarian doctrine. Id., at 196-197 (Burger, C. J.,
apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to
concurring); Loving v. Virginia, 388 U. S. 1, 3 (1967).[27] See also Mathews v. Lucas, 427 U. S. 495, 520 (1976) (Stevens, J.,
express an idea." Ibid. Though participating in the Scouts could itself conceivably send a message on some level, it is not the kind
dissenting) ("Habit, rather than analysis, makes it seem acceptable and natural to distinguish between male and female, alien and
of act that we have recognized as speech. See Dallas v. Stanglin, 490 U. S. 19, 24-25 (1989).[22] Indeed, if merely joining a group
citizen, legitimate and illegitimate; for too much of our history there was the same inertia in distinguishing between black and
did constitute symbolic speech; and such speech were attributable to the group being joined; and that group has the right to exclude
white"). Over the years, however, interaction with real people, rather than mere adherence to traditional ways of thinking about
that speech (and hence, the right to exclude that person from joining), then the right of free speech effectively becomes a limitless
members of unfamiliar classes, have modified those opinions. A few examples: The American Psychiatric Association's and the
right to exclude for every organization, whether or not it engages in any expressive activities. That cannot be, and never has been,
American Psychological Association's removal of "homosexuality" from their lists of mental disorders; [28] a move toward greater
the law.
understanding within some religious communities; [29] Justice Blackmun's classic opinion in Bowers;[30] 700*700 Georgia's

112
invalidation of the statute upheld in Bowers;[31] and New Jersey's enactment of the provision at issue in this case. Indeed, the past
month alone has witnessed some remarkable changes in attitudes about homosexuals. [32]
That such prejudices are still prevalent and that they have caused serious and tangible harm to countless members of the class New
Jersey seeks to protect are established matters of fact that neither the Boy Scouts nor the Court disputes. That harm can only be
aggravated by the creation of a constitutional shield for a policy that is itself the product of a habitual way of thinking about
strangers. As Justice Brandeis so wisely advised, "we must be ever on our guard, lest we erect our prejudices into legal principles."
If we would guide by the light of reason, we must let our minds be bold. I respectfully dissent.
Justice Souter, with whom Justice Ginsburg and Justice Breyer join, dissenting.
I join Justice Stevens's dissent but add this further word on the significance of Part VI of his opinion. There, Justice Stevens
describes the changing attitudes toward gay people and notes a parallel with the decline of stereotypical thinking about race and
gender. The legitimacy of New 701*701 Jersey's interest in forbidding discrimination on all these bases by those furnishing public
accommodations is, as Justice Stevens indicates, acknowledged by many to be beyond question. The fact that we are cognizant of
this laudable decline in stereotypical thinking on homosexuality should not, however, be taken to control the resolution of this
case.
Boy Scouts of America (BSA) is entitled, consistently with its own tenets and the open doors of American courts, to raise a federal
constitutional basis for resisting the application of New Jersey's law. BSA has done that and has chosen to defend against
enforcement of the state public accommodations law on the ground that the First Amendment protects expressive association:
individuals have a right to join together to advocate opinions free from government interference. See Roberts v. United States
Jaycees, 468 U. S. 609, 622 (1984). BSA has disclaimed any argument that Dale's past or future actions, as distinct from his
unapologetic declaration of sexual orientation, would justify his exclusion from BSA. See Tr. of Oral Arg. 12-13.
The right of expressive association does not, of course, turn on the popularity of the views advanced by a group that claims
protection. Whether the group appears to this Court to be in the vanguard or rearguard of social thinking is irrelevant to the group's
rights. I conclude that BSA has not made out an expressive association claim, therefore, not because of what BSA may espouse,
but because of its failure to make sexual orientation the subject of any unequivocal advocacy, using the channels it customarily
employs to state its message. As Justice Stevens explains, no group can claim a right of expressive association without identifying
a clear position to be advocated over time in an unequivocal way. To require less, and to allow exemption from a public
accommodations statute based on any individual's difference from an alleged group ideal, however expressed and however
inconsistently claimed, would convert the right of expressive 702*702 association into an easy trump of any antidiscrimination
law.[*]
If, on the other hand, an expressive association claim has met the conditions Justice Stevens describes as necessary, there may well
be circumstances in which the antidiscrimination law must yield, as he says. It is certainly possible for an individual to become so
identified with a position as to epitomize it publicly. When that position is at odds with a group's advocated position, applying an
antidiscrimination statute to require the group's acceptance of the individual in a position of group leadership could so modify or
muddle or frustrate the group's advocacy as to violate the expressive associational right. While it is not our business here to rule
on any such hypothetical, it is at least clear that our estimate of the progressive character of the group's position will be irrelevant
to the First Amendment analysis if such a case comes to us for decision.
G.R. No. 126102 December 4, 2000
ORTIGAS & CO. LTD., petitioner,
vs.
THE COURT OF APPEALS and ISMAEL G. MATHAY III, respondents.
DECISION
113
QUISUMBING, J.:
This petition seeks to reverse the decision of the Court of Appeals, dated March 25, 1996, in CA-G.R. SP No. 39193, which
nullified the writ of preliminary injunction issued by the Regional Trial Court of Pasig City, Branch 261, in Civil Case No. 64931.
It also assails the resolution of the appellate court, dated August 13, 1996, denying petitioner’s motion for reconsideration.
The facts of this case, as culled from the records, are as follows:
On August 25, 1976, petitioner Ortigas & Company sold to Emilia Hermoso, a parcel of land known as Lot 1, Block 21, Psd-
66759, with an area of 1,508 square meters, located in Greenhills Subdivision IV, San Juan, Metro Manila, and covered by Transfer
Certificate of Title No. 0737. The contract of sale provided that the lot:
1. …(1) be used exclusively…for residential purposes only, and not more than one single-family residential building
will be constructed thereon,…
xxx
6. The BUYER shall not erect…any sign or billboard on the roof…for advertising purposes…
xxx
11. No single-family residential building shall be erected…until the building plans, specification…have been approved
by the SELLER…
xxx
14....restrictions shall run with the land and shall be construed as real covenants until December 31, 2025 when they
shall cease and terminate…1
These and the other conditions were duly annotated on the certificate of title issued to Emilia.
In 1981, the Metropolitan Manila Commission (now Metropolitan Manila Development Authority) enacted MMC Ordinance No.
81-01, also known as the Comprehensive Zoning Area for the National Capital Region. The ordinance reclassified as a commercial
area a portion of Ortigas Avenue from Madison to Roosevelt Streets of Greenhills Subdivision where the lot is located.
On June 8, 1984, private respondent Ismael Mathay III leased the lot from Emilia Hermoso and J.P. Hermoso Realty Corp.. The
lease contract did not specify the purposes of the lease. Thereupon, private respondent constructed a single story commercial
building for Greenhills Autohaus, Inc., a car sales company.
On January 18, 1995, petitioner filed a complaint against Emilia Hermoso with the Regional Trial Court of Pasig, Branch 261.
Docketed as Civil Case No. 64931, the complaint sought the demolition of the said commercial structure for having violated the
terms and conditions of the Deed of Sale. Complainant prayed for the issuance of a temporary restraining order and a writ of
preliminary injunction to prohibit petitioner from constructing the commercial building and/or engaging in commercial activity on
the lot. The complaint was later amended to implead Ismael G. Mathay III and J.P. Hermoso Realty Corp., which has a ten percent
(10%) interest in the lot.
In his answer, Mathay III denied any knowledge of the restrictions on the use of the lot and filed a cross-claim against the
Hermosos.
On June 16, 1995, the trial court issued the writ of preliminary injunction. On June 29, 1995, Mathay III moved to set aside the
injunctive order, but the trial court denied the motion.
Mathay III then filed with the Court of Appeals a special civil action for certiorari, docketed as CA-G.R. SP No. 39193, ascribing
to the trial court grave abuse of discretion in issuing the writ of preliminary injunction. He claimed that MMC Ordinance No. 81-
01 classified the area where the lot was located as commercial area and said ordinance must be read into the August 25, 1976 Deed
of Sale as a concrete exercise of police power.
Ortigas and Company averred that inasmuch as the restrictions on the use of the lot were duly annotated on the title it issued to
Emilia Hermoso, said restrictions must prevail over the ordinance, specially since these restrictions were agreed upon before the
passage of MMC Ordinance No. 81-01.
On March 25, 1996, the appellate court disposed of the case as follows:
WHEREFORE, in light of the foregoing, the petition is hereby GRANTED. The assailed orders are hereby nullified and set aside.
SO ORDERED.2
In finding for Mathay III, the Court of Appeals held that the MMC Ordinance No. 81-01 effectively nullified the restrictions
allowing only residential use of the property in question.
Ortigas seasonably moved for reconsideration, but the appellate court denied it on August 13, 1996.
Hence, the instant petition.
In its Memorandum, petitioner now submits that the "principal issue in this case is whether respondent Court of Appeals correctly
set aside the Order dated June 16, 1995 of the trial court which issued the writ of preliminary injunction on the sole ground that
MMC Ordinance No. 81-01 nullified the building restriction imposing exclusive residential use on the property in question."3 It
also asserts that "Mathay III lacks legal capacity to question the validity of conditions of the deed of sale; and he is barred by
estoppel or waiver to raise the same question like his principals, the owners."4 Lastly, it avers that the appellate court
"unaccountably failed to address" several questions of fact.
Principally, we must resolve the issue of whether the Court of Appeals erred in holding that the trial court committed grave abuse
of discretion when it refused to apply MMC Ordinance No.81-01 to Civil Case No. 64931.
But first, we must address petitioner’s allegation that the Court of Appeals "unaccountably failed to address" questions of fact. For
basic is the rule that factual issues may not be raised before this Court in a petition for review and this Court is not duty-bound to
consider said questions.5 CA-G.R. SP No. 39193 was a special civil action for certiorari, and the appellate court only had to
determine if the trial court committed grave abuse of discretion amounting to want or excess of jurisdiction in issuing the writ of
preliminary injunction. Thus, unless vital to our determination of the issue at hand, we shall refrain from further consideration of
factual questions.
Petitioner contends that the appellate court erred in limiting its decision to the cited zoning ordinance. It avers that a contractual
right is not automatically discarded once a claim is made that it conflicts with police power. Petitioner submits that the restrictive
clauses in the questioned contract is not in conflict with the zoning ordinance. For one, according to petitioner, the MMC Ordinance
No. 81-01 did not prohibit the construction of residential buildings. Petitioner argues that even with the zoning ordinance, the
seller and buyer of the re-classified lot can voluntarily agree to an exclusive residential use thereof. Hence, petitioner concludes
that the Court of Appeals erred in holding that the condition imposing exclusive residential use was effectively nullified by the
zoning ordinance.
114
In its turn, private respondent argues that the appellate court correctly ruled that the trial court had acted with grave abuse of
discretion in refusing to subject the contract to the MMC Ordinance No. 81-01. He avers that the appellate court properly held the
police power superior to the non-impairment of contract clause in the Constitution. He concludes that the appellate court did not
err in dissolving the writ of preliminary injunction issued by the trial court in excess of its jurisdiction.
We note that in issuing the disputed writ of preliminary injunction, the trial court observed that the contract of sale was entered
into in August 1976, while the zoning ordinance was enacted only in March 1981. The trial court reasoned that since private
respondent had failed to show that MMC Ordinance No. 81-01 had retroactive effect, said ordinance should be given prospective
application only,6 citing Co vs. Intermediate Appellate Court, 162 SCRA 390 (1988).
In general, we agree that laws are to be construed as having only prospective operation. Lex prospicit, non respicit. Equally settled,
only laws existing at the time of the execution of a contract are applicable thereto and not later statutes, unless the latter are
specifically intended to have retroactive effect.7 A later law which enlarges, abridges, or in any manner changes the intent of the
parties to the contract necessarily impairs the contract itself8 and cannot be given retroactive effect without violating the
constitutional prohibition against impairment of contracts.9
But, the foregoing principles do admit of certain exceptions. One involves police power. A law enacted in the exercise of police
power to regulate or govern certain activities or transactions could be given retroactive effect and may reasonably impair vested
rights or contracts. Police power legislation is applicable not only to future contracts, but equally to those already in existence.10
Nonimpairment of contracts or vested rights clauses will have to yield to the superior and legitimate exercise by the State of police
power to promote the health, morals, peace, education, good order, safety, and general welfare of the people.11 Moreover, statutes
in exercise of valid police power must be read into every contract.12 Noteworthy, in Sangalang vs. Intermediate Appellate Court,13
we already upheld MMC Ordinance No. 81-01 as a legitimate police power measure.
The trial court’s reliance on the Co vs. IAC,14 is misplaced. In Co, the disputed area was agricultural and Ordinance No. 81-01
did not specifically provide that "it shall have retroactive effect so as to discontinue all rights previously acquired over lands
located within the zone which are neither residential nor light industrial in nature,"15 and stated with respect to agricultural areas
covered that "the zoning ordinance should be given prospective operation only."16 The area in this case involves not agricultural
but urban residential land. Ordinance No. 81-01 retroactively affected the operation of the zoning ordinance in Greenhills by
reclassifying certain locations therein as commercial.
Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank & Trust Co., 94 SCRA 533 (1979), the contractual stipulations annotated
on the Torrens Title, on which Ortigas relies, must yield to the ordinance. When that stretch of Ortigas Avenue from Roosevelt
Street to Madison Street was reclassified as a commercial zone by the Metropolitan Manila Commission in March 1981, the
restrictions in the contract of sale between Ortigas and Hermoso, limiting all construction on the disputed lot to single-family
residential buildings, were deemed extinguished by the retroactive operation of the zoning ordinance and could no longer be
enforced. While our legal system upholds the sanctity of contract so that a contract is deemed law between the contracting
parties,17 nonetheless, stipulations in a contract cannot contravene "law, morals, good customs, public order, or public policy."18
Otherwise such stipulations would be deemed null and void. Respondent court correctly found that the trial court committed in
this case a grave abuse of discretion amounting to want of or excess of jurisdiction in refusing to treat Ordinance No. 81-01 as
applicable to Civil Case No. 64931. In resolving matters in litigation, judges are not only duty-bound to ascertain the facts and the
applicable laws,19 they are also bound by their oath of office to apply the applicable law.20
As a secondary issue, petitioner contends that respondent Mathay III, as a mere lessee of the lot in question, is a total stranger to
the deed of sale and is thus barred from questioning the conditions of said deed. Petitioner points out that the owners of the lot
voluntarily agreed to the restrictions on the use of the lot and do not question the validity of these restrictions. Petitioner argues
that Mathay III as a lessee is merely an agent of the owners, and could not override and rise above the status of his principals.
Petitioner submits that he could not have a higher interest than those of the owners, the Hermosos, and thus had no locus standi to
file CA-G.R. SP No. 39193 to dissolve the injunctive writ issued by the RTC of Pasig City.
For his part, private respondent argues that as the lessee who built the commercial structure, it is he and he alone who stands to be
either benefited or injured by the results of the judgment in Civil Case No. 64931. He avers he is the party with real interest in the
subject matter of the action, as it would be his business, not the Hermosos’, which would suffer had not the respondent court
dissolved the writ of preliminary injunction.
A real party in interest is defined as "the party who stands to be benefited or injured by the judgment or the party entitled to the
avails of the suit." "Interest" within the meaning of the rule means material interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question involved, or a mere incidental interest.21 By real interest is meant a
present substantial interest, as distinguished from a mere expectancy or a future, contingent, subordinate, or consequential
interest.22
Tested by the foregoing definition, private respondent in this case is clearly a real party in interest.1âwphi1 It is not disputed that
he is in possession of the lot pursuant to a valid lease. He is a possessor in the concept of a "holder of the thing" under Article 525
of the Civil Code.23 He was impleaded as a defendant in the amended complaint in Civil Case No. 64931. Further, what petitioner
seeks to enjoin is the building by respondent of a commercial structure on the lot. Clearly, it is private respondent’s acts which are
in issue, and his interest in said issue cannot be a mere incidental interest. In its amended complaint, petitioner prayed for, among
others, judgment "ordering the demolition of all improvements illegally built on the lot in question."24 These show that it is
petitioner Mathay III, doing business as "Greenhills Autohaus, Inc.," and not only the Hermosos, who will be adversely affected
by the court’s decree.
Petitioner also cites the rule that a stranger to a contract has no rights or obligations under it,25 and thus has no standing to challenge
its validity.26 But in seeking to enforce the stipulations in the deed of sale, petitioner impleaded private respondent as a defendant.
Thus petitioner must recognize that where a plaintiff has impleaded a party as a defendant, he cannot subsequently question the
latter’s standing in court.27
WHEREFORE, the instant petition is DENIED. The challenged decision of the Court of Appeals dated March 25, 1996, as well
as the assailed resolution of August 13, 1996, in CA-G.R. SP No. 39193 is AFFIRMED. Costs against petitioner.
G.R. No. L-21707 March 18, 1967
FELIPE ACAR, ET AL., petitioners,
vs.
HON. INOCENCIO ROSAL, in his capacity as Executive Judge, Court of First Instance of Negros Oriental, 12th Judicial
District, respondent.
F. S. Villarin for petitioners.
Jose B. Navarro for respondent.
BENGZON J.P., J.:
All over the world, Constitutions share one purpose: to protect and enhance the people's interest, as a nation collectively and as
persons individually. The Philippine Constitution is no exception. Interpretation of its provisions, therefore, should be done with
a view to realizing this fundamental objective. Among the provisions in our Constitution is one both, timely and far-reaching, as
it affects the people at large and relates to social justice problems of the day. It is Subsec. 21, Sec. I of Art. III: "Free access to the
courts shall not be denied to any person by reason of poverty." It is the one involved in this case.
A suit was filed in the Court of First Instance of Negros Oriental on February 21, 1963 by ten persons for their own behalf and
that of 9,000 other farm laborers working off and on in sugar cane plantations at the Bais milling district, Negros Oriental, against
Compañia General de Tabacos de Filipinas, Central Azucarera de Bais, Compañia Celulosa de Filipinas, Ramon Barata, Aurelio
Montinola, Sr., and Miguel Franco. Plaintiffs sought to recover their alleged participations or shares amounting to the aggregate
sum of P14,031,836.74, in the sugar, molasses, bagasse and other derivatives based on the provisions of Republic Act 809 (The
Sugar Act of 1952), particularly Sections 1 and 9 thereof:
115
SECTION 1. In the absence of written milling agreements between the majority of planters and the millers of sugarcane
in any milling district in the Philippines, the unrefined sugar produced in that district from the milling by any sugar
central of the sugar-cane of any sugar-cane planter or plantation owner, as well as all by-products and derivatives
thereof, shall be divided between them as follows:
Sixty per centum for the planter, and forty per centum for the central in any milling district the maximum actual
production of which is not more than four hundred thousand piculs: Provided, That the provisions of this section shall
not apply to sugar centrals with an actual production of less than one hundred fifty thousand piculs;
Sixty-two and one-half per centum for the planter, and thirty-seven and one-half per centum for the central in any
milling district the maximum actual production of which exceeds four hundred thousand piculs but does not exceed six
hundred thousand piculs;
Sixty-five per centum for the planter, and thirty-five per centum for the central in any milling district the maximum
actual production of which exceeds six hundred thousand piculs but does not exceed nine hundred thousand piculs;
Sixty-seven and one-half per centum for the planter, and thirty-two and one-half per centum for the central in any
milling district the maximum actual production of which exceeds nine hundred thousand piculs but does not exceed
one million two hundred thousand piculs;
Seventy per centum for the planter, and thirty per centum for the central in any milling district the maximum actual
production of which exceeds one million two hundred thousand piculs.1äwphï1.ñët
By actual production is meant the total production of the mill for the crop year immediately preceding.
xxx xxx xxx
SEC. 9. In addition to the benefits granted by the Minimum Wage Law, the proceeds of any increase in the participation
granted the planters under this Act and above their present share shall be divided between the planter and his laborers
in the plantation in the following proportion:
Sixty per centum of the increased participation for the laborers and forty per centum for the planters. The distribution
of the share corresponding to the laborers shall be made under the supervision of the Department of Labor.
The benefits granted to laborers in sugar plantations under this Act and in the Minimum Wage Law shall not in any
way be diminished by such labor contracts known as "by the piece," "by the volume," "by the area," or by any other
system of "pakyaw," the Secretary of Labor being hereby authorized to issue the necessary orders for the enforcement
of this provision."
Furthermore, plaintiffs asked thereunder as well as by separate motion, that the aforementioned court authorize them to sue as
pauper litigants, under Sec. 22, Rule 3 of the Rules of Court:
SEC. 22. Pauper litigant. — Any court may authorize a litigant to prosecute his action or defense as a pauper upon a
proper showing that he has no means to that effect by affidavits, certificate of the corresponding provincial, city or
municipal treasurer, or otherwise. Such authority once given shall include an exemption from payment of legal fees
and from filing appeal bond, printed record and printed brief. The legal fees shall be a lien to any judgment rendered
in the case favorably to the pauper, unless the court otherwise provides.
invoking Sec. 1, subsec. (21) of Art. III of the Constitution of the Philippines. They alleged that they had no means, to
pay the docket fee of P14,500.00, being laborers dependent solely on their daily wages for livehood and possessed of
 no properties. And in support of the foregoing, the ten named plaintiffs submitted certificates of the municipal treasurers Returning to the purpose of all Constitutions, as mentioned earlier, We find this course the most sensible, logical and practical
of their places of residence stating that they have no real property declared in their names in said municipalities. construction demanded by the free access clause of the Constitution. For a contrary interpretation could not make said provision
the living reality that it is designed to be.
Acting on the petition to litigate in forma pauperis, the Court of First Instance issued an order on May 27, 1963, denying the same
upon the ground that the plaintiffs have regular employment and sources of income and, thus, can not be classified as poor or As regards the fact that the supporting certifications of indigence refer only to the ten named plaintiffs, suffice it to reiterate that
paupers. this involves a class suit, where it is not practicable to bring all the other 9,000 laborers before the court. This Court finds the
supporting evidence of indigence adequate, showing in petitioners' favor, as plaintiffs in the suit before respondent Judge, the right
not to be denied free access to the courts by reason of poverty. Since they were excluded from the use and enjoyment of said right,
Plaintiffs sought reconsideration of said order but reconsideration was denied in an order dated June 11, 1963. Assailing said two
mandamus lies to enforce it. Appeal was unavailing, since they were not even accorded the status of litigants, for non-payment of
CFI orders and asserting their alleged right not to be denied free access to the courts by reason of poverty, plaintiffs in said case
docket fee; and perfecting an appeal would have presented the same question of exemption from legal fees, appeal bond and similar
filed herein, on August 1, 1963, the present special civil action or certiorari and mandamus. Petition to litigate as pauper in the
requisites.
instant case before Us was also filed. And on August 16, 1963, We allowed petitioners herein to litigate in this Court as paupers
and required respondent to answer. Respondent's answer was filed on November 2, 1963. After hearing on February 10, 1964 this
case was submitted for decision. Wherefore, petitioners are declared entitled to litigate as paupers in their class suit before respondent Judge and the latter is hereby
ordered to grant their petition to litigate in forma pauperis. No costs. So ordered.
The sole issue herein is whether petitioners were deprived, by the orders in question, of free access to the courts by reason of
poverty. In denying petitioners' motion to litigate as paupers, respondent Judge adopted the definition at "pauper" in Black's Law
Dictionary (at p. 1284) as "a person so poor that he must be supported at public expense". And, as afore-stated, he ruled that
petitioners are not that poor.

Such interpretation, to our mind, does not fit with the purpose of the rules on suits in forma pauperis and the provision of the
Constitution, in the Bill of Rights, that: "Free access to the courts shall not be denied to any person by reason of poverty." As
applied to statutes or provisions on the right to sue in forma pauperis, the term has a broader meaning. It has thus been recognized
that: "An applicant for leave to sue in forma pauperis need not be a pauper; the fact that he is able-bodied and may earn the
necessary money is no answer to his statement that he has not sufficient means to prosecute the action or to secure the costs" (14
Am. Jur. 31). It suffices that plaintiff is indigent (Ibid.), the not a public charge. And the difference between "paupers" and
"indigent" persons is that the latter are "persons who have no property or source of income sufficient for their support aside from
their own labor, though self-supporting when able to work and in employment" (Black's Law Dictionary, p. 913, "Indigent", citing
People vs. Schoharie County, 121 NY 345, 24 NE 830). It is therefore in this sense of being indigent that "pauper" is taken when
referring to suits in forma pauperis. Black's Law Dictionary in fact defines pauper, thus: "A person so poor that he must be
supported at public expense; also a suitor who, on account of poverty, is allowed to sue or defend without being chargeable with
costs" (p. 1284, emphasis supplied).

It is further argued that the docket fee of P14,500 would very well be shouldered by petitioners since there are around 9,000 of
them. It must be remembered, however that the action in question was filed by way of a class suit. And the Rules of Court allowing
such procedure state under Sec. 12, Rule 3:

SEC. 12. Class suit. — When the subject matter of the controversy is one of common or general interest to many
persons, and the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue
or defend for the benefit of all. But in such case the court shall make sure that the parties actually before it are
sufficiently numerous and representative so that all interest concerned are fully protected. Any party in interest shall
have a right to intervene in protection of his individual interest.

So that in the suit before respondent Judge the ten named petitioners herein are the ones suing, albeit for the benefit of all the
others. It follows that the payment of docket fee would be directly charged upon them, not upon the unnamed "9,000 other
laborers." And even if the 9,000 other laborers should later bear the payment of said docket fee of P14,500, the same would be
spread among them at about P1.60 each. Said cost of pressing their respective average demand of P1.60 each is, to Our mind, a
substantial imposition on a seasonal farm laborer earning barely subsistent wages. And as pointed out, this is only the initial fee;
subsequent fees and charges would have to be paid. The philosophy underlying the constitutional mandate of free access to the
courts notwithstanding poverty, therefore, calls for exemption of herein petitioners from payment of the aforesaid legal fees in
their assertion and claim of substantial rights under the Sugar Act of 1952.

116