G.R. No. L-45459 March 13, 1937 law in an oppressive or vindictive manner, or a multiplicity of actions.
law in an oppressive or vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs.
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
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
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 States and Spain of
December 10, 1898, reiterated in President McKinley's Instructions of the Philippine Commission,
reaffirmed in the Philippine Bill of 1902 and in the autonomy Act of August 29, 1916, and finally
embodied in the constitution of the Philippines as the supreme expression of the Filipino people. It
is almost trite to say now that in this country we enjoy both religious and civil freedom. All the
officers of the Government, from the highest to the lowest, in taking their oath to support and
defend the constitution, bind themselves to recognize and respect the constitutional guarantee of
religious freedom, with its inherent limitations and recognized implications. It should be stated that
what is guaranteed by our Constitution is religious liberty, not mere religious toleration.
Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for
religion and is not denial of its influence in human affairs. Religion as a profession of faith to an
active power that binds and elevates man to his Creator is recognized. And, in so far as it instills
into the minds the purest principles of morality, its influence is deeply felt and highly appreciated.
When the Filipino people, in the preamble of their Constitution, implored "the aid of Divine
Providence, in order to establish a government that shall embody their ideals, conserve and
develop the patrimony of the nation, promote the general welfare, and secure to themselves and
their posterity the blessings of independence under a regime of justice, liberty and democracy,"
they thereby manifested reliance upon Him who guides the destinies of men and nations. The
elevating influence of religion in human society is recognized here as elsewhere. In fact, certain
general concessions are indiscriminately accorded to religious sects and denominations. Our
Constitution and laws exempt from taxation properties devoted exclusively to religious purposes
(sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec. 4, Ordinance
appended thereto; Assessment Law, sec. 344, par. [c]. Adm. Code). Sectarian aid is not prohibited
when a 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 9 sec. 13, subsec. 3, Art. VI,
Constitution of the Philippines). Optional religious instruction in the public schools is by
constitutional mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in relation to sec.
928, Adm. Code). Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and
Sundays and made legal holidays (sec. 29, Adm. Code) because of the secular idea that their
observance is conclusive to beneficial moral results. The law allows divorce but punishes
polygamy and bigamy; and certain crimes against religious worship are considered crimes against
the fundamental laws of the state (see arts. 132 and 133, Revised Penal Code).
In the case at bar, it appears that the respondent Director of Posts issued the postage stamps in
question under the provisions of Act No. 4052 of the Philippine Legislature. This Act is as follows:
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.
SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the
Treasury.
SEC. 4. This act shall take effect on its approval.
Approved, February 21, 1933.
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 new designs and other expenses incident thereto, and authorizes
the Director of Posts, with the approval of the Secretary of Public Works and Communications, to
dispose of the amount appropriated in the manner indicated and "as often as may be deemed
advantageous to the Government". The printing and issuance of the postage stamps in question
appears to have been approved by authority of the President of the Philippines in a letter dated
September 1, 1936, made part of the respondent's memorandum as Exhibit A. The respondent
alleges that the Government of the Philippines would suffer losses if the writ prayed for is granted.
He 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 to be sold stamps worth P1,402,279.02.
Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the
discretionary power to determine when the issuance of special postage stamps would be
"advantageous to the Government." Of course, the phrase "advantageous to the Government"
does not authorize the violation of the Constitution. It does not authorize the appropriation, use or
application of public money or property for the use, benefit or support of a particular sect or
church. In the present case, however, the issuance of the postage stamps in question by the
Director of Posts and the Secretary of Public Works and Communications was not inspired by any
sectarian denomination. The stamps were not issue and sold for the benefit of the Roman Catholic
Church. Nor were money 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 5, 1936, incorporated on page 2
of the petitioner's complaint, that the only purpose in issuing and selling the stamps was "to
advertise the Philippines and attract more tourist to this country." The officials concerned merely,
took advantage of an event considered of international importance "to give publicity to the
Philippines and its people" (Letter of the Undersecretary of Public Works and Communications to
the President of the Philippines, June 9, 1936; p. 3, petitioner's complaint). It is significant to note
that the stamps as actually designed and printed (Exhibit 2), instead of showing a Catholic Church
chalice as originally planned, contains a map of the Philippines and the location of the City of
Manila, and an inscription as follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-
7,1937." What is emphasized is not the Eucharistic Congress itself but Manila, the capital of the
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 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
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 legitimately be undertaken by appropriate
legislation. The main purpose should not be frustrated by its subordinate to mere incidental results
not contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed.,
168.)
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.
G.R. No. L-53487 May 25, 1981
ANDRES GARCES, Reverend Father SERGIO MARILAO OSMEÑA, NICETAS DAGAR and
JESUS EDULLANTES, petitioners,
vs.
Hon. NUMERIANO G. ESTENZO, Presiding Judge of the Court of First Instance of Leyte,
Ormoc City Branch V, BARANGAY COUNCIL of Valencia, Ormoc City, Barangay Captain
MANUEL C. VELOSO, Councilmen GAUDENCIO LAVEZARES, TOMAS CABATINGAN and
MAXIMINO NAVARRO, Barangay Secretary CONCHITA MARAYA and Barangay Treasurer
LUCENA BALTAZAR, respondents.
AQUINO, J.:1äwphï1.ñët
This case is about the constitutionality of four resolutions of the barangay council of Valencia,
Ormoc City, regarding the acquisition of the wooden image of San Vicente Ferrer to be used in the
celebration of his annual feast day. That issue was spawned by the controversy as to whether the
parish priest or a layman should have the custody of the image.
On March 23, 1976, the said barangay council adopted Resolution No. 5, "reviving the traditional
socio-religious celebration" every fifth day of April "of the feast day of Señor San Vicente Ferrer,
the patron saint of Valencia".
That resolution designated the members of nine committees who would take charge of the 1976
festivity. lt provided for (1) the acquisition of the image of San Vicente Ferrer and (2) the
construction of a waiting shed as the barangay's projects. Funds for the two projects would be
obtained through the selling of tickets and cash donations " (Exh A or 6).
On March 26, 1976, the barangay council passed Resolution No. 6 which specified that, in
accordance with the practice in Eastern Leyte, Councilman Tomas Cabatingan, the Chairman
or hermano mayor of the fiesta, would be the caretaker of the image of San Vicente Ferrer and
that the image would remain in his residence for one year and until the election of his successor
as chairman of the next feast day.
It was further provided in the resolution that the image would be made available to the Catholic
parish church during the celebration of the saint's feast day (Exh. B or 7).
Resolutions Nos. 5 and 6 were submitted to a plebiscite and were duly ratified by the barangay
general assembly on March 26, 1976. Two hundred seventy-two voters ratified the two resolutions
(Exh. 2 and 5).
Funds were raised by means of solicitations0 and cash donations of the barangay residents and
those of the neighboring places of Valencia. With those funds, the waiting shed was constructed
and the wooden image of San Vicente Ferrer was acquired in Cebu City by the barangay council
for four hundred pesos (Exh. F-l, 3 and 4).
On April 5, 1976, the image was temporarily placed in the altar of the Catholic church of Barangay
Valencia so that the devotees could worship the saint during the mass for the fiesta.
A controversy arose after the mass when the parish priest, Father Sergio Marilao Osmeña refused
to return that image to the barangay council on the pretext that it was the property of the church
because church funds were used for its acquisition.
Several days after the fiesta or on April 11, 1976, on the occasion of his sermon during a mass,
Father Osmeña allegedly uttered defamatory remarks against the barangay captain, Manuel C.
Veloso, apparently in connection with the disputed image. That incident provoked Veloso to file
against Father Osmeña in the city court of Ormoc City a charge for grave oral defamation.
Father Osmeña retaliated by filing administrative complaints against Veloso with the city mayor's
office and the Department of Local Government and Community Development on the grounds of
immorality, grave abuse of authority, acts unbecoming a public official and ignorance of the law.
Meanwhile, the image of San Vicente Ferrer remained in the Catholic church of Valencia. Because
Father Osmeña did not accede to the request of Cabatingan to have custody of the image and
"maliciously ignored" the council's Resolution No. 6, the council enacted on May 12, 1976
Resolution No. 10, authorizing the hiring of a lawyer to file a replevin case against Father Osmeña
for the recovery of the image (Exh. C or 8). On June 14, 1976, the barangay council passed
Resolution No. 12, appointing Veloso as its representative in the replevin case (Exh. D or 9).
The replevin case was filed in the city court of Ormoc City against Father Osmeña and Bishop
Cipriano Urgel (Exh. F). After the barangay council had posted a cash bond of eight hundred
pesos, Father Osmeña turned over the image to the council (p. 10, Rollo). ln his answer to the
complaint for replevin, he assailed the constitutionality of the said resolutions (Exh. F-1).
Later, he and three other persons, Andres Garces, a member of the Aglipayan Church, and two
Catholic laymen, Jesus Edullantes and Nicetas Dagar, filed against the barangay council and its
members (excluding two members) a complaint in the Court of First Instance at Ormoc City,
praying for the annulment of the said resolutions (Civil Case No. 1680-0).
The lower court dismissed the complaint. lt upheld the validity of the resolutions. The petitioners
appealed under Republic Act No. 5440. The petitioners contend that the barangay council was not
duly constituted because lsidoro M. Mañago, Jr., the chairman of the kabataang barangay, was
not allowed to participate in its sessions.
Barangays used to be known as citizens assemblies (Presidential Decrees Nos. 86 and 86-A).
Presidential Decree No. 557, which took effect on September 21, 1974, 70 O.G. 8450-L, directed
that all barrios should be known as barangays and adopted the Revised Barrio Charter as the
Barangay Charter.
Barrios are units of municipalities or municipal districts in which they are situated. They are quasi-
municipal corporations endowed with such powers" as are provided by law "for the performance of
particular government functions, to be exercised by and through their respective barrio
governments in conformity with law" (Sec. 2, Revised Barrio Charter, R.A. No. 3590).
The barrio assembly consists of all persons who are residents of the barrio for at least six months,
eighteen years of age or over and Filipino citizens duly registered in the list kept by the barrio
secretary (Sec. 4, Ibid).
The barrio council, now barangay council, is composed of the barangay captain and six
councilmen (Sec. 7, Ibid). Section 3 of Presidential Decree No. 684, which took effect on April 15,
1975, provides that "the barangay youth chairman shall be an ex-officio member of the barangay
council", having the same powers and functions as a barangay councilman.
In this case, Mañago, the barangay youth chairman, was notified of the sessions of the barangay
council to be held on March 23 and 26, 1976 but he was not able to attend those sessions
because he was working with a construction company based at Ipil, Ormoc City (Par. 2[d] Exh. 1).
Mañago's absence from the sessions of the barangay council did not render the said resolutions
void. There was a quorum when the said resolutions were passed.
The other contention of the petitioners is that the resolutions contravene the constitutional
provisions that "no law shall be made respecting an establishment of religion" and that "no public
money or property shall ever be appropriated, applied, paid, 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
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 (Sec. 8,
Article IV and sec. 18[2], Article VIII, Constitution).
That contention is glaringly devoid of merit. The questioned resolutions do not directly or indirectly
establish any religion, nor abridge religious liberty, nor appropriate public money or property for
the benefit of any sect, priest or clergyman. The image was purchased with private funds, not with
tax money. The construction of a waiting shed is entirely a secular matter.
Manifestly puerile and flimsy is Petitioners argument that the barangay council favored the
Catholic religion by using the funds raised by solicitations and donations for the purchase of the
patron saint's wooden image and making the image available to the Catholic church.
The preposterousness of that argument is rendered more evident by the fact that counsel
advanced that argument in behalf of the petitioner, Father Osmeña the parish priest.
The wooden image was purchased in connection with the celebration of the barrio fiesta honoring
the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering
with religious matters or the religious beliefs of the barrio residents. One of the highlights of the
fiesta was the mass. Consequently, the image of the patron saint had to be placed in the church
when the mass was celebrated.
If there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the
barrio, then any activity intended to facilitate the worship of the patron saint (such as the
acquisition and display of his image) cannot be branded as illegal.
As noted in the first resolution, the barrio fiesta is a socio-religious affair. Its celebration is an
ingrained tradition in rural communities. The fiesta relieves the monotony and drudgery of the lives
of the masses.
The barangay council designated a layman as the custodian of the wooden image in order to
forestall any suspicion that it is favoring the Catholic church. A more practical reason for that
arrangement would be that the image, if placed in a layman's custody, could easily be made
available to any family desiring to borrow the image in connection with prayers and novenas.
The contradictory positions of the petitioners are shown in their affidavits. Petitioner Garces swore
that the said resolutions favored the Catholic church. On the other hand, petitioners Dagar and
Edullantes swore that the resolutions prejudiced the Catholics because they could see the image
in the church only once a year or during the fiesta (Exh. H and J).
We find that the momentous issues of separation of church and state, freedom of religion annd the
use of public money to favor any sect or church are not involved at all in this case even remotely
or indirectly. lt is not a microcosmic test case on those issues.
This case is a petty quarrel over the custody of a saint's image. lt would never have arisen if the
parties had been more diplomatic and tactful and if Father Osmeña had taken the trouble of
causing contributions to be solicited from his own parishioners for the purchase of another
image of San Vicente Ferrer to be installed in his church.
There can be no question that the image in question belongs to the barangay council. Father
Osmeña claim that it belongs to his church is wrong. The barangay council, as owner of the
image, has the right to determine who should have custody thereof.
If it chooses to change its mind and decides to give the image to the Catholic church. that action
would not violate the Constitution because the image was acquired with private funds and is its
private property.
The council has the right to take measures to recover possession of the image by enacting
Resolutions Nos. 10 and 12.
Not every governmental activity which involves the expenditure of public funds and which has
some religious tint is violative of the constitutional provisions regarding separation of church and
state, freedom of worship and banning the use of public money or property.
In Aglipay vs. Ruiz, 64 Phil. 201, what was involved was Act No. 4052 which appropriated sixty
thousand pesos for the cost of plates and the printing of postage stamps with new designs. Under
the law, the Director of Posts, with the approval of the Department Head and the President of the
Philippines, issued in 1936 postage stamps to commemorate the celebration in Manila of the 33rd
International Eucharistic Congress sponsored by the Catholic Church.

The purpose of the stamps was to raise revenue and advertise the Philippines. The design of the
stamps showed a map of the Philippines and nothing about the Catholic Church. No religious
purpose was intended.

Monsignor Gregorio Aglipay, the founder and head of the Philippine Independent Church, sought
to enjoin the sale of those commemorative postage stamps.

It was held that the issuance of the stamps, while linked inseparably with an event of a religious
character, was not designed as a propaganda for the Catholic Church. Aglipay's prohibition suit
was dismissed.

The instant case is easily distinguishable from Verzosa vs. Fernandez, 49 Phil., 627 and 55 Phil.
307, where a religious brotherhood, La Archicofradia del Santisimo Sacramento, organized for the
purpose of raising funds to meet the expenses for the annual fiesta in honor of the Most Holy
Sacrament and the Virgin Lady of Guadalupe, was held accountable for the funds which it held as
trustee. 0

Finding that the petitioners have no cause of action for the annulment of the barangay resolutions,
the lower court's judgment dismissing their amended petition is affirmed. No costs.

SO ORDERED.

Fernando C.J., Barredo, Makasiar, Guerrero, De Castro and Melencio-Herrera, JJ.,

concur.1äwphï1.ñët

Teehankee, J., concur in the result.

Fernandez, J., Concepcion Jr. J., are on leave.

 G.R. No. 153888 July 9, 2003
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., herein represented by PROF.
ABDULRAFIH H. SAYEDY, petitioner,
vs.
OFFICE OF THE EXECUTIVE SECRETARY of the Office of the President of the Philippines,
herein represented by HON. ALBERTO G. ROMULO, Executive Secretary, and the OFFICE
ON MUSLIM AFFAIRS, herein represented by its Executive Director, HABIB MUJAHAB
HASHIM, respondents.
CORONA, J.:
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 Secretary and Office of Muslim Affairs
(OMA) from implementing the subject EO.
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 to be a federation of
national Islamic organizations and an active member of international organizations such as the
Regional 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 halal2certifications 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.
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. 6As 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.
Moreover, petitioner argues that the subject EO violates Sections 15 and 16 of Article XIII of the
1987 Constitution which respectively provide:
ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS
Sec. 15. The State shall respect the role of independent people's organizations to enable
the people to pursue and protect, within the democratic framework, their legitimate and
collective interests and aspirations through peaceful and lawful means.
People's organizations are bona fide associations of citizens with demonstrated capacity
to promote the public interest and with identifiable leadership, membership, and structure.
Sec. 16. The rights of the people and their organizations to effective and reasonable
participation at all levels of social, political, and economic decision-making shall not be
abridged. The State shall, by law, facilitate, the establishment of adequate consultation
mechanisms.
According to petitioner, the subject EO was issued with utter haste and without even consulting
Muslim people's organizations like petitioner before it became effective.
We grant the petition.
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.
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.
SO ORDERED.
Davide, Jr., C .J ., Bellosillo, Panganiban, Ynares-Santiago, Carpio, Austria-Martinez, Carpio-
Morales, Callejo, Sr ., Azcuna and Tinga, JJ., concur.
Quisumbing and Sandoval-Gutierrez, JJ ., on official leave.
 G.R. No. 144801. March 10, 2005
DOMINADOR L. TARUC, WILBERTO DACERA, NICANOR GALANIDA, RENERIO CANTA,
JERRY CANTA, CORDENCIO CONSIGNA, SUSANO ALCALA, LEONARDO DIZON,
SALVADOR GELSANO and BENITO LAUGO, Petitioners,
vs.
BISHOP PORFIRIO B. DE LA CRUZ, REV. FR. RUSTOM FLORANO and DELFIN
BORDAS, Respondents.
DECISION
CORONA, J.:
This is an appeal under Rule 45 of the Revised Rules of Court of the decision of the Court of
Appeals in CA-G.R. SP No. 45480 which reversed and set aside the decision of the Regional Trial
Court of Surigao City, Branch 32 in Civil Case No. 4907 and ordered said case dismissed for lack
of jurisdiction.
The antecedents show that petitioners were lay members of the Philippine Independent Church
(PIC) in Socorro, Surigao del Norte. Respondents Porfirio de la Cruz and Rustom Florano were
the bishop and parish priest, respectively, of the same church in that locality. Petitioners, led by
Dominador Taruc, clamored for the transfer of Fr. Florano to another parish but Bishop de la Cruz
denied their request. It appears from the records that the family of Fr. Florano’s wife belonged to a
political party opposed to petitioner Taruc’s, thus the animosity between the two factions with Fr.
Florano being identified with his wife’s political camp. Bishop de la Cruz, however, found this too
flimsy a reason for transferring Fr. Florano to another parish.
Meanwhile, hostility among the members of the PIC in Socorro, Surigao del Norte worsened when
petitioner Taruc tried to organize an open mass to be celebrated by a certain Fr. Renato Z.
Ambong during the town fiesta of Socorro. When Taruc informed Bishop de la Cruz of his plan, the
Bishop tried to dissuade him from pushing through with it because Fr. Ambong was not a member
of the clergy of the diocese of Surigao and his credentials as a parish priest were in doubt. The
Bishop also appealed to petitioner Taruc to refrain from committing acts inimical and prejudicial to
the best interests of the PIC. He likewise advised petitioners to air their complaints before the
higher authorities of PIC if they believed they had valid grievances against him, the parish priest,
the laws and canons of the PIC.
Bishop de la Cruz, however, failed to stop Taruc from carrying out his plans. On June 19, 1993, at
around 3:00 p.m., Taruc and his sympathizers proceeded to hold the open mass with Fr. Ambong
as the celebrant.
On June 28, 1993, Bishop de la Cruz declared petitioners expelled/excommunicated from the
Philippine Independent Church for reasons of:
(1) disobedience to duly constituted authority in the Church;
(2) inciting dissension, resulting in division in the Parish of Our Mother of Perpetual Help, Iglesia
Filipina Independiente, Socorro, Surigao del Norte when they celebrated an open Mass at the
Plaza on June 19, 1996; and
(3) for threatening to forcibly occupy the Parish Church causing anxiety and fear among the
general membership.1
Petitioners appealed to the Obispo Maximo and sought reconsideration of the above decision. In
his letter to Bishop de la Cruz, the Obispo Maximo opined that Fr. Florano should step down
voluntarily to avert the hostility and enmity among the members of the PIC parish in Socorro but
stated that:
… I do not intervene in your diocesan decision in asking Fr. Florano to vacate Socorro parish….2
In the meantime, Bishop de la Cruz was reassigned to the diocese of Odmoczan and was
replaced by Bishop Rhee M. Timbang. Like his predecessor, Bishop Timbang did not find a valid
reason for transferring Fr. Florano to another parish. He issued a circular denying petitioners’
persistent clamor for the transfer/re-assignment of Fr. Florano. Petitioners were informed of such
denial but they continued to celebrate mass and hold other religious activities through Fr. Ambong
who had been restrained from performing any priestly functions in the PIC parish of Socorro,
Surigao del Norte.
Because of the order of expulsion/excommunication, petitioners filed a complaint for damages with
preliminary injunction against Bishop de la Cruz before the Regional Trial Court of Surigao City,
Branch 32. They impleaded Fr. Florano and one Delfin T. Bordas on the theory that they
conspired with the Bishop to have petitioners expelled and excommunicated from the PIC. They
contended that their expulsion was illegal because it was done without trial thus violating their right
to due process of law.
Respondents filed a motion to dismiss the case before the lower court on the ground of lack of
jurisdiction but it was denied. Their motion for reconsideration was likewise denied so they
elevated the case to the Court of Appeals.
The appellate court reversed and set aside the decision of the court a quo and ordered the
dismissal of the case without prejudice to its being refiled before the proper forum. It held:
… We find it unnecessary to deal on the validity of the excommunication/expulsion of the private
respondents (Taruc, et al.), said acts being purely ecclesiastical matters which this Court
considers to be outside the province of the civil courts.
…
"Civil Courts will not interfere in the internal affairs of a religious organization except for the
protection of civil or property rights. Those rights may be the subject of litigation in a civil court,
and the courts have jurisdiction to determine controverted claims to the title, use, or possession of
church property." (Ibid., p.466)
… In the leading case of Fonacier v. Court of Appeals,6 we enunciated the doctrine that in disputes
involving religious institutions or organizations, there is one area which the Court should not touch:
Obviously, there was no violation of a civil right in the present case. doctrinal and disciplinary differences.7 Thus,

… The amendments of the constitution, restatement of articles of religion and abandonment of faith
Ergo, this Court is of the opinion and so holds that the instant case does not involve a violation
and/or protection of a civil or property rights in order for the court a quo to acquire jurisdiction in
the instant case.3
Petitioners appealed from the above decision but their petition was denied. Their motion for
reconsideration was likewise denied, hence, this appeal.
The only issue to be resolved in this case is whether or not the courts have jurisdiction to hear a
case involving the expulsion/excommunication of members of a religious institution.
We rule that the courts do not.
Section 5, Article III or the Bill of Rights of the 1987 Constitution specifically provides that:
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.
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. (emphasis ours)
We would, however, like to comment on petitioners’ claim that they were not heard before they
were expelled from their church. The records show that Bishop de la Cruz pleaded with petitioners
several times not to commit acts inimical to the best interests of PIC. They were also warned of
the consequences of their actions, among them their expulsion/excommunication from PIC. Yet,
these pleas and warnings fell on deaf ears and petitioners went ahead with their plans to defy their
Bishop and foment hostility and disunity among the members of PIC in Socorro, Surigao del Norte.
They should now take full responsibility for the chaos and dissension they caused.
WHEREFORE, the petition is herby DENIED for lack of merit.
Costs against petitioners.
SO ORDERED.
Panganiban, (Chairman), and Sandoval-Gutierrez, JJ., concur.

In our jurisdiction, we hold the Church and the State to be separate and distinct from each other. Carpio-Morales, J., on leave.
"Give to Ceasar what is Ceasar’s and to God what is God’s." We have, however, observed as
early as 1928 that:
Garcia, J., no part.
upon the examination of the decisions it will be readily apparent that cases involving questions
relative to ecclesiastical rights have always received the profoundest attention from the courts, not
only because of their inherent interest, but because of the far reaching effects of the decisions in
human society. [However,] courts have learned the lesson of conservatism in dealing with such
matters, it having been found that, in a form of government where the complete separation of civil
and ecclesiastical authority is insisted upon, the civil courts must not allow themselves to intrude
unduly in matters of an ecclesiastical nature.4 (italics ours)

We agree with the Court of Appeals that the expulsion/excommunication of members of a religious
institution/organization is a matter best left to the discretion of the officials, and the laws and
canons, of said institution/organization. It is not for the courts to exercise control over church
authorities in the performance of their discretionary and official functions. Rather, it is for the
members of religious institutions/organizations to conform to just church regulations. In the words
of Justice Samuel F. Miller5:

… all who unite themselves to an ecclesiastical body do so with an implied consent to submit to
the Church government and they are bound to submit to it.
G.R. No. L-25246 September 12, 1974
BENJAMIN VICTORIANO, plaintiff-appellee,
vs.
ELIZALDE ROPE WORKERS' UNION and ELIZALDE ROPE FACTORY, INC., defendants,
ELIZALDE ROPE WORKERS' UNION, defendant-appellant.
Salonga, Ordonez, Yap, Sicat & Associates for plaintiff-appellee.
Cipriano Cid & Associates for defendant-appellant.
ZALDIVAR, J.:p
Appeal to this Court on purely questions of law from the decision of the Court of First Instance of
Manila in its Civil Case No. 58894.
The undisputed facts that spawned the instant case follow:
Benjamin Victoriano (hereinafter referred to as Appellee), a member of the religious sect known as
the "Iglesia ni Cristo", had been in the employ of the Elizalde Rope Factory, Inc. (hereinafter
referred to as Company) since 1958. As such employee, he was a member of the Elizalde Rope
Workers' Union (hereinafter referred to as Union) which had with the Company a collective
bargaining agreement containing a closed shop provision which reads as follows:
Membership in the Union shall be required as a condition of employment for all
permanent employees workers covered by this Agreement.
The collective bargaining agreement expired on March 3, 1964 but was renewed the following
day, March 4, 1964.
Under Section 4(a), paragraph 4, of Republic Act No. 875, prior to its amendment by Republic Act
No. 3350, the employer was not precluded "from making an agreement with a labor organization
to require as a condition of employment membership therein, if such labor organization is the
representative of the employees." On June 18, 1961, however, Republic Act No. 3350 was
enacted, introducing an amendment to — paragraph (4) subsection (a) of section 4 of Republic
Act No. 875, as follows: ... "but such agreement shall not cover members of any religious sects
which prohibit affiliation of their members in any such labor organization".
Being a member of a religious sect that prohibits the affiliation of its members with any labor
organization, Appellee presented his resignation to appellant Union in 1962, and when no action
was taken thereon, he reiterated his resignation on September 3, 1974. Thereupon, the Union
wrote a formal letter to the Company asking the latter to separate Appellee from the service in
view of the fact that he was resigning from the Union as a member. The management of the
Company in turn notified Appellee and his counsel that unless the Appellee could achieve a
satisfactory arrangement with the Union, the Company would be constrained to dismiss him from
the service. This prompted Appellee to file an action for injunction, docketed as Civil Case No.
58894 in the Court of First Instance of Manila to enjoin the Company and the Union from
dismissing Appellee.1 In its answer, the Union invoked the "union security clause" of the collective
bargaining agreement; assailed the constitutionality of Republic Act No. 3350; and contended that
the Court had no jurisdiction over the case, pursuant to Republic Act No. 875, Sections 24 and 9
(d) and (e).2 Upon the facts agreed upon by the parties during the pre-trial conference, the Court a
quo rendered its decision on August 26, 1965, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING, judgment is rendered enjoining the defendant
Elizalde Rope Factory, Inc. from dismissing the plaintiff from his present
employment and sentencing the defendant Elizalde Rope Workers' Union to pay
the plaintiff P500 for attorney's fees and the costs of this action.3
From this decision, the Union appealed directly to this Court on purely questions of law, assigning
the following errors:
I. That the lower court erred when it did not rule that Republic Act No. 3350 is
unconstitutional.
II. That the lower court erred when it sentenced appellant herein to pay plaintiff
the sum of P500 as attorney's fees and the cost thereof.
In support of the alleged unconstitutionality of Republic Act No. 3350, the Union contented, firstly,
that the Act infringes on the fundamental right to form lawful associations; that "the very
phraseology of said Republic Act 3350, that membership in a labor organization is banned to all
those belonging to such religious sect prohibiting affiliation with any labor organization" 4 ,
"prohibits all the members of a given religious sect from joining any labor union if such sect
prohibits affiliations of their members thereto"5 ; and, consequently, deprives said members of their
constitutional right to form or join lawful associations or organizations guaranteed by the Bill of
Rights, and thus becomes obnoxious to Article III, Section 1 (6) of the 1935 Constitution. 6
Secondly, the Union contended that Republic Act No. 3350 is unconstitutional for impairing the
obligation of contracts in that, while the Union is obliged to comply with its collective bargaining
agreement containing a "closed shop provision," the Act relieves the employer from its reciprocal
obligation of cooperating in the maintenance of union membership as a condition of employment;
and that said Act, furthermore, impairs the Union's rights as it deprives the union of dues from
members who, under the Act, are relieved from the obligation to continue as such members.7
Thirdly, the Union contended that Republic Act No. 3350 discriminatorily favors those religious
sects which ban their members from joining labor unions, in violation of Article Ill, Section 1 (7) of
the 1935 Constitution; and while said Act unduly protects certain religious sects, it leaves no rights
or protection to labor organizations.8
Fourthly, Republic Act No. 3350, asserted the Union, violates the constitutional provision that "no
religious test shall be required for the exercise of a civil right," in that the laborer's exercise of his
civil right to join associations for purposes not contrary to law has to be determined under the Act
by his affiliation with a religious sect; that conversely, if a worker has to sever his religious
connection with a sect that prohibits membership in a labor organization in order to be able to join
a labor organization, said Act would violate religious freedom.9
Fifthly, the Union contended that Republic Act No. 3350, violates the "equal protection of laws"
clause of the Constitution, it being a discriminately legislation, inasmuch as by exempting from the
operation of closed shop agreement the members of the "Iglesia ni Cristo", it has granted said
members undue advantages over their fellow workers, for while the Act exempts them from union
obligation and liability, it nevertheless entitles them at the same time to the enjoyment of all
concessions, benefits and other emoluments that the union might secure from the employer. 10
Sixthly, the Union contended that Republic Act No. 3350 violates the constitutional provision
regarding the promotion of social justice. 11
Appellant Union, furthermore, asserted that a "closed shop provision" in a collective bargaining
agreement cannot be considered violative of religious freedom, as to call for the amendment
introduced by Republic Act No. 3350; 12and that unless Republic Act No. 3350 is declared
unconstitutional, trade unionism in this country would be wiped out as employers would prefer to
hire or employ members of the Iglesia ni Cristo in order to do away with labor organizations. 13
Appellee, assailing appellant's arguments, contended that Republic Act No. 3350 does not violate
the right to form lawful associations, for the right to join associations includes the right not to join or
to resign from a labor organization, if one's conscience does not allow his membership therein,
and the Act has given substance to such right by prohibiting the compulsion of workers to join
labor organizations; 14 that said Act does not impair the obligation of contracts for said law formed
part of, and was incorporated into, the terms of the closed shop agreement; 15 that the Act does
not violate the establishment of religion clause or separation of Church and State, for Congress, in
enacting said law, merely accommodated the religious needs of those workers whose religion
prohibits its members from joining labor unions, and balanced the collective rights of organized
labor with the constitutional right of an individual to freely exercise his chosen religion; that the
constitutional right to the free exercise of one's religion has primacy and preference over union
security measures which are merely contractual16 ; that said Act does not violate the constitutional
provision of equal protection, for the classification of workers under the Act depending on their
religious tenets is based on substantial distinction, is germane to the purpose of the law, and
applies to all the members of a given class; 17 that said Act, finally, does not violate the social
justice policy of the Constitution, for said Act was enacted precisely to equalize employment
opportunities for all citizens in the midst of the diversities of their religious beliefs." 18
I. Before We proceed to the discussion of the first assigned error, it is necessary to premise that
there are some thoroughly established principles which must be followed in all cases where
questions of constitutionality as obtains in the instant case are involved. All presumptions are
indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality must
prove its invalidity beyond a reasonable doubt, that a law may work hardship does not render it
unconstitutional; that if any reasonable basis may be conceived which supports the statute, it will
be upheld, and the challenger must negate all possible bases; that the courts are not concerned
with the wisdom, justice, policy, or expediency of a statute; and that a liberal interpretation of the
constitution in favor of the constitutionality of legislation should be adopted. 19
1. Appellant Union's contention that Republic Act No. 3350 prohibits and bans the members of
such religious sects that forbid affiliation of their members with labor unions from joining labor
unions appears nowhere in the wording of Republic Act No. 3350; neither can the same be
deduced by necessary implication therefrom. It is not surprising, therefore, that appellant, having
thus misread the Act, committed the error of contending that said Act is obnoxious to the
constitutional provision on freedom of association.
Both the Constitution and Republic Act No. 875 recognize freedom of association. Section 1 (6) of
Article III of the Constitution of 1935, as well as Section 7 of Article IV of the Constitution of 1973,
provide that the right to form associations or societies for purposes not contrary to law shall not be
abridged. Section 3 of Republic Act No. 875 provides that employees shall have the right to self-
organization and to form, join of assist labor organizations of their own choosing for the purpose of
collective bargaining and to engage in concerted activities for the purpose of collective bargaining
and other mutual aid or protection. What the Constitution and the Industrial Peace Act recognize
and guarantee is the "right" to form or join associations. Notwithstanding the different theories
propounded by the different schools of jurisprudence regarding the nature and contents of a
"right", it can be safely said that whatever theory one subscribes to, a right comprehends at least
two broad notions, namely: first, liberty or freedom, i.e., the absence of legal restraint, whereby an
employee may act for himself without being prevented by law; and second, power, whereby an
employee may, as he pleases, join or refrain from Joining an association. It is, therefore, the
employee who should decide for himself whether he should join or not an association; and should
he choose to join, he himself makes up his mind as to which association he would join; and even
after he has joined, he still retains the liberty and the power to leave and cancel his membership
with said organization at any time. 20 It is clear, therefore, that the right to join a union includes the
right to abstain from joining any union. 21 Inasmuch as what both the Constitution and the
Industrial Peace Act have recognized, and guaranteed to the employee, is the "right" to join
associations of his choice, it would be absurd to say that the law also imposes, in the same
breath, upon the employee the duty to join associations. The law does not enjoin an employee to
sign up with any association.
The right to refrain from joining labor organizations recognized by Section 3 of the Industrial Peace
Act is, however, limited. The legal protection granted to such right to refrain from joining is
withdrawn by operation of law, where a labor union and an employer have agreed on a closed
shop, by virtue of which the employer may employ only member of the collective bargaining union,
and the employees must continue to be members of the union for the duration of the contract in
order to keep their jobs. Thus Section 4 (a) (4) of the Industrial Peace Act, before its amendment
by Republic Act No. 3350, provides that although it would be an unfair labor practice for an
employer "to discriminate in regard to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any labor organization" the employer is,
however, not precluded "from making an agreement with a labor organization to require as a
condition of employment membership therein, if such labor organization is the representative of
the employees". By virtue, therefore, of a closed shop agreement, before the enactment of
Republic Act No. 3350, if any person, regardless of his religious beliefs, wishes to be employed or
to keep his employment, he must become a member of the collective bargaining union. Hence, the
right of said employee not to join the labor union is curtailed and withdrawn.
To that all-embracing coverage of the closed shop arrangement, Republic Act No. 3350
introduced an exception, when it added to Section 4 (a) (4) of the Industrial Peace Act the
following proviso: "but such agreement shall not cover members of any religious sects which
prohibit affiliation of their members in any such labor organization". Republic Act No. 3350 merely
excludes ipso jure from the application and coverage of the closed shop agreement the
employees belonging to any religious sects which prohibit affiliation of their members with any
labor organization. What the exception provides, therefore, is that members of said religious sects
cannot be compelled or coerced to join labor unions even when said unions have closed shop
agreements with the employers; that in spite of any closed shop agreement, members of said
religious sects cannot be refused employment or dismissed from their jobs on the sole ground that
they are not members of the collective bargaining union. It is clear, therefore, that the assailed Act,
far from infringing the constitutional provision on freedom of association, upholds and reinforces it.
It does not prohibit the members of said religious sects from affiliating with labor unions. It still
leaves to said members the liberty and the power to affiliate, or not to affiliate, with labor unions. If,
notwithstanding their religious beliefs, the members of said religious sects prefer to sign up with
the labor union, they can do so. If in deference and fealty to their religious faith, they refuse to sign
up, they can do so; the law does not coerce them to join; neither does the law prohibit them from
joining; and neither may the employer or labor union compel them to join. Republic Act No. 3350,
therefore, does not violate the constitutional provision on freedom of association.
2. Appellant Union also contends that the Act is unconstitutional for impairing the obligation of its
contract, specifically, the "union security clause" embodied in its Collective Bargaining Agreement
with the Company, by virtue of which "membership in the union was required as a condition for
employment for all permanent employees workers". This agreement was already in existence at
the time Republic Act No. 3350 was enacted on June 18, 1961, and it cannot, therefore, be
deemed to have been incorporated into the agreement. But by reason of this amendment,
Appellee, as well as others similarly situated, could no longer be dismissed from his job even if he
should cease to be a member, or disaffiliate from the Union, and the Company could continue
employing him notwithstanding his disaffiliation from the Union. The Act, therefore, introduced a
change into the express terms of the union security clause; the Company was partly absolved by
law from the contractual obligation it had with the Union of employing only Union members in
permanent positions, It cannot be denied, therefore, that there was indeed an impairment of said
union security clause.
According to Black, any statute which introduces a change into the express terms of the contract,
or its legal construction, or its validity, or its discharge, or the remedy for its enforcement, impairs
the contract. The extent of the change is not material. It is not a question of degree or manner or
cause, but of encroaching in any respect on its obligation or dispensing with any part of its force.
There is an impairment of the contract if either party is absolved by law from its
performance. 22 Impairment has also been predicated on laws which, without destroying contracts,
derogate from substantial contractual rights. 23
It should not be overlooked, however, that the prohibition to impair the obligation of contracts is
not absolute and unqualified. The prohibition is general, affording a broad outline and requiring
construction to fill in the details. The prohibition is not to be read with literal exactness like a
mathematical formula, for it prohibits unreasonable impairment only. 24 In spite of the constitutional
prohibition, the State continues to possess authority to safeguard the vital interests of its people.
Legislation appropriate to safeguarding said interests may modify or abrogate contracts already in
effect. 25 For not only are existing laws read into contracts in order to fix the obligations as
between the parties, but the reservation of essential attributes of sovereign power is also read into
contracts as a postulate of the legal order. All contracts made with reference to any matter that is
subject to regulation under the police power must be understood as made in reference to the
possible exercise of that power. 26 Otherwise, important and valuable reforms may be precluded
by the simple device of entering into contracts for the purpose of doing that which otherwise may
be prohibited. The policy of protecting contracts against impairment presupposes the maintenance
of a government by virtue of which contractual relations are worthwhile a government which
retains adequate authority to secure the peace and good order of society. The contract clause of
the Constitution must, therefore, be not only in harmony with, but also in subordination to, in
appropriate instances, the reserved power of the state to safeguard the vital interests of the
people. It follows that not all legislations, which have the effect of impairing a contract, are
obnoxious to the constitutional prohibition as to impairment, and a statute passed in the legitimate
exercise of police power, although it incidentally destroys existing contract rights, must be upheld
by the courts. This has special application to contracts regulating relations between capital and
labor which are not merely contractual, and said labor contracts, for being impressed with public
interest, must yield to the common good. 27
In several occasions this Court declared that the prohibition against impairing the obligations of
contracts has no application to statutes relating to public subjects within the domain of the general
legislative powers of the state involving public welfare. 28 Thus, this Court also held that the Blue
Sunday Law was not an infringement of the obligation of a contract that required the employer to
furnish work on Sundays to his employees, the law having been enacted to secure the well-being
and happiness of the laboring class, and being, furthermore, a legitimate exercise of the police
power. 29
In order to determine whether legislation unconstitutionally impairs contract obligations, no
unchanging yardstick, applicable at all times and under all circumstances, by which the validity of
each statute may be measured or determined, has been fashioned, but every case must be
determined upon its own circumstances. Legislation impairing the obligation of contracts can be
sustained when it is enacted for the promotion of the general good of the people, and when the
means adopted to secure that end are reasonable. Both the end sought and the means adopted
must be legitimate, i.e., within the scope of the reserved power of the state construed in harmony
with the constitutional limitation of that power. 30
What then was the purpose sought to be achieved by Republic Act No. 3350? Its purpose was to
insure freedom of belief and religion, and to promote the general welfare by preventing
discrimination against those members of religious sects which prohibit their members from joining
labor unions, confirming thereby their natural, statutory and constitutional right to work, the fruits of
which work are usually the only means whereby they can maintain their own life and the life of
their dependents. It cannot be gainsaid that said purpose is legitimate.
The questioned Act also provides protection to members of said religious sects against two
aggregates of group strength from which the individual needs protection. The individual employee,
at various times in his working life, is confronted by two aggregates of power — collective labor,
directed by a union, and collective capital, directed by management. The union, an institution
developed to organize labor into a collective force and thus protect the individual employee from
the power of collective capital, is, paradoxically, both the champion of employee rights, and a new
source of their frustration. Moreover, when the Union interacts with management, it produces yet a
third aggregate of group strength from which the individual also needs protection — the collective
bargaining relationship. 31
The aforementioned purpose of the amendatory law is clearly seen in the Explanatory Note to
House Bill No. 5859, which later became Republic Act No. 3350, as follows:
It would be unthinkable indeed to refuse employing a person who, on account of
his religious beliefs and convictions, cannot accept membership in a labor
organization although he possesses all the qualifications for the job. This is
tantamount to punishing such person for believing in a doctrine he has a right
under the law to believe in. The law would not allow discrimination to flourish to
the detriment of those whose religion discards membership in any labor
organization. Likewise, the law would not commend the deprivation of their right
to work and pursue a modest means of livelihood, without in any manner
violating their religious faith and/or belief. 32
It cannot be denied, furthermore, that the means adopted by the Act to achieve that purpose —
exempting the members of said religious sects from coverage of union security agreements — is
reasonable.
It may not be amiss to point out here that the free exercise of religious profession or belief is
superior to contract rights. In case of conflict, the latter must, therefore, yield to the former. The
Supreme Court of the United States has also declared on several occasions that the rights in the
First Amendment, which include freedom of religion, enjoy a preferred position in the constitutional
system. 33 Religious freedom, although not unlimited, is a fundamental personal right and
liberty, 34 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 to avoid the danger.
3. In further support of its contention that Republic Act No. 3350 is unconstitutional, appellant
Union averred that said Act discriminates in favor of members of said religious sects in violation of
Section 1 (7) of Article Ill of the 1935 Constitution, and which is now Section 8 of Article IV of the
1973 Constitution, which provides:
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 and preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political rights.
The constitutional provision into 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, 35 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. 36 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.37 But if the stage 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. 38
In Aglipay v. Ruiz 39 , this Court had occasion to state that the government should not be
precluded from pursuing valid objectives secular in character even if the incidental result would be
favorable to a religion or sect. It has likewise been held that the statute, in order to withstand the
strictures of constitutional prohibition, must have a secular legislative purpose and a primary effect
that neither advances nor inhibits religion. 40 Assessed by these criteria, Republic Act No. 3350
cannot be said to violate the constitutional inhibition of the "no-establishment" (of religion) clause
of the Constitution.
The purpose of Republic Act No. 3350 is secular, worldly, and temporal, not spiritual or religious or
holy and eternal. It 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. To help its citizens to find gainful
employment whereby they can make a living to support themselves and their families is a valid
objective of the state. In fact, the state is enjoined, in the 1935 Constitution, to afford protection to
labor, and regulate the relations between labor and capital and industry. 41 More so now in the
1973 Constitution where it is mandated that "the State shall afford protection to labor, promote full
employment and equality in employment, ensure equal work opportunities regardless of sex, race
or creed and regulate the relation between workers and employers. 42
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 by eliminating to a certain
extent economic insecurity due to unemployment, which is a serious menace to the health, morals,
and welfare of the people of the State, the Act also promotes the well-being of society. It is our
view that the exemption from the effects of closed shop agreement does not directly advance, or
diminish, the interests of any particular religion. Although 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. The "establishment clause" (of religion)
does not ban regulation on conduct whose reason or effect merely happens to coincide or
harmonize with the tenets of some or all religions. 43 The free exercise clause of the Constitution
has been interpreted to require that religious exercise be preferentially aided. 44
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. It was Congress itself that imposed that
burden when it enacted the Industrial Peace Act (Republic Act 875), and, certainly, Congress, if it
so deems advisable, could take away the same burden. It is certain that not every conscience can
be accommodated by all the laws of the land; but when general laws conflict with scrupples of
conscience, exemptions ought to be granted unless some "compelling state interest"
intervenes.45 In the instant case, We see no such compelling state interest to withhold exemption.
Appellant bewails that while Republic Act No. 3350 protects members of certain religious sects, it
leaves no right to, and is silent as to the protection of, labor organizations. The purpose of
Republic Act No. 3350 was not to grant rights to labor unions. The rights of labor unions are amply
provided for in Republic Act No. 875 and the new Labor Code. As to the lamented silence of the
Act regarding the rights and protection of labor unions, suffice it to say, first, that the validity of a
statute is determined by its provisions, not by its silence 46 ; and, second, the fact that the law may
work hardship does not render it unconstitutional. 47
It would not be amiss to state, regarding this matter, that to compel persons to join and remain
members of a union to keep their jobs in violation of their religious scrupples, would hurt, rather
than help, labor unions, Congress has seen it fit to exempt religious objectors lest their resistance
spread to other workers, for religious objections have contagious potentialities more than political
and philosophic objections.
Furthermore, let it be noted that coerced unity and loyalty even to the country, and a fortiori to a
labor — union 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. 48 A desirable end cannot
be promoted by prohibited means.
4. Appellants' fourth contention, that Republic Act No. 3350 violates the constitutional prohibition
against requiring a religious test for the exercise of a civil right or a political right, is not well taken.
The Act does not require as a qualification, or condition, for joining any lawful association
membership in any particular religion or in any religious sect; neither does the Act require
affiliation with a religious sect that prohibits its members from joining a labor union as a condition
or qualification for withdrawing from a labor union. Joining or withdrawing from a labor union
requires a positive act. Republic Act No. 3350 only exempts members with such religious affiliation
from the coverage of closed shop agreements. So, under this Act, a religious objector is not
required to do a positive act — to exercise the right to join or to resign from the union. He is
exempted ipso jure without need of any positive act on his part. A conscientious religious objector
need not perform a positive act or exercise the right of resigning from the labor union — he is
exempted from the coverage of any closed shop agreement that a labor union may have entered
into. How then can there be a religious test required for the exercise of a right when no right need
be exercised?
We have said that it was within the police power of the State to enact Republic Act No. 3350, and
that its purpose was legal and in consonance with the Constitution. It is never an illegal evasion of
a constitutional provision or prohibition to accomplish a desired result, which is lawful in itself, by
discovering or following a legal way to do it. 49
5. Appellant avers as its fifth ground that Republic Act No. 3350 is a discriminatory legislation,
inasmuch as it grants to the members of certain religious sects undue advantages over other
workers, thus violating Section 1 of Article III of the 1935 Constitution which forbids the denial to
any person of the equal protection of the laws. 50
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the
laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that things which are
different in fact be treated in law as though they were the same. The equal protection clause does
not forbid discrimination as to things that are different. 51 It does not prohibit legislation which is
limited either in the object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in
law, as in the other departments of knowledge or practice, is the grouping of things in speculation
or practice because they agree with one another in certain particulars. A law is not invalid because
of simple inequality. 52 The very idea of classification is that of inequality, so that it goes without
saying that the mere fact of inequality in no manner determines the matter of constitutionality. 53 All
that is required of a valid classification is that it be reasonable, which means that the classification
should be based on substantial distinctions which make for real differences; that it must be
germane to the purpose of the law; that it must not be limited to existing conditions only; and that it
must apply equally to each member of the class. 54 This Court has held that the standard is
satisfied if the classification or distinction is based on a reasonable foundation or rational basis
and is not palpably arbitrary. 55
In the exercise of its power to make classifications for the purpose of enacting laws over matters
within its jurisdiction, the state is recognized as enjoying a wide range of discretion. 56 It is not
necessary that the classification be based on scientific or marked differences of things or in their
relation. 57 Neither is it necessary that the classification be made with mathematical
nicety. 58 Hence legislative classification may in many cases properly rest on narrow
distinctions, 59 for the equal protection guaranty does not preclude the legislature from recognizing
degrees of evil or harm, and legislation is addressed to evils as they may appear.
We believe that Republic Act No. 3350 satisfies the aforementioned requirements. The Act
classifies employees and workers, as to the effect and coverage of union shop security
agreements, into those who by reason of their religious beliefs and convictions cannot sign up with
a labor union, and those whose religion does not prohibit membership in labor unions. Tile
classification rests on real or substantial, not merely imaginary or whimsical, distinctions. There is
such real distinction in the beliefs, feelings and sentiments of employees. Employees do not
believe in the same religious faith and different religions differ in their dogmas and cannons.
Religious beliefs, manifestations and practices, though they are found in all places, and in all
times, take so many varied forms as to be almost beyond imagination. There are many views that
comprise the broad spectrum of religious beliefs among the people. There are diverse manners in
which beliefs, equally paramount in the lives of their possessors, may be articulated. Today the
country is far more heterogenous in religion than before, differences in religion do exist, and these
differences are important and should not be ignored.
Even from the phychological point of view, the classification is based on real and important
differences. Religious beliefs are not mere beliefs, mere ideas existing only in the mind, for they
carry with them practical consequences and are the motives of certain rules. of human conduct
and the justification of certain acts. 60 Religious sentiment makes a man view things and events in
their relation to his God. It gives to human life its distinctive character, its tone, its happiness or
unhappiness its enjoyment or irksomeness. Usually, a strong and passionate desire is involved in
a religious belief. To certain persons, no single factor of their experience is more important to them
than their religion, or their not having any religion. Because of differences in religious belief and
sentiments, a very poor person may consider himself better than the rich, and the man who even
lacks the necessities of life may be more cheerful than the one who has all possible luxuries. Due
to their religious beliefs people, like the martyrs, became resigned to the inevitable and accepted
cheerfully even the most painful and excruciating pains. Because of differences in religious beliefs,
the world has witnessed turmoil, civil strife, persecution, hatred, bloodshed and war, generated to
a large extent by members of sects who were intolerant of other religious beliefs. The
classification, introduced by Republic Act No. 3350, therefore, rests on substantial distinctions.
The classification introduced by said Act is also germane to its purpose. The purpose of the law is
precisely to avoid those who cannot, because of their religious belief, join labor unions, from being
deprived of their right to work and from being dismissed from their work because of union shop
security agreements.
Republic Act No. 3350, furthermore, is not limited in its application to conditions existing at the
time of its enactment. The law does not provide that it is to be effective for a certain period of time
only. It is intended to apply for all times as long as the conditions to which the law is applicable
exist. As long as there are closed shop agreements between an employer and a labor union, and
there are employees who are prohibited by their religion from affiliating with labor unions, their
exemption from the coverage of said agreements continues.
Finally, the Act applies equally to all members of said religious sects; this is evident from its
provision. The fact that the law grants a privilege to members of said religious sects cannot by
itself render the Act unconstitutional, for as We have adverted to, the Act only restores to them
their freedom of association which closed shop agreements have taken away, and puts them in
the same plane as the other workers who are not prohibited by their religion from joining labor
unions. The circumstance, that the other employees, because they are differently situated, are not
granted the same privilege, does not render the law unconstitutional, for every classification
allowed by the Constitution by its nature involves inequality.
The mere fact that the legislative classification may result in actual inequality is not violative of the
right to equal protection, for every classification of persons or things for regulation by law produces
inequality in some degree, but the law is not thereby rendered invalid. A classification otherwise
reasonable does not offend the constitution simply because in practice it results in some
inequality. 61 Anent this matter, it has been said that whenever it is apparent from the scope of the
law that its object is for the benefit of the public and the means by which the benefit is to be
obtained are of public character, the law will be upheld even though incidental advantage may
occur to individuals beyond those enjoyed by the general public. 62
6. Appellant's further contention that Republic Act No. 3350 violates the constitutional provision on
social justice is also baseless. Social justice is intended to promote the welfare of all the
people. 63 Republic Act No. 3350 promotes that welfare insofar as it looks after the welfare of
those who, because of their religious belief, cannot join labor unions; the Act prevents their being
deprived of work and of the means of livelihood. In determining whether any particular measure is
for public advantage, it is not necessary that the entire state be directly benefited — it is sufficient
that a portion of the state be benefited thereby.
Social justice also means the adoption by the Government of measures calculated to insure
economic stability of all component elements of society, through the maintenance of a proper
economic and social equilibrium in the inter-relations of the members of the
community. 64 Republic Act No. 3350 insures economic stability to the members of a religious sect,
like the Iglesia ni Cristo, who are also component elements of society, for it insures security in their
employment, notwithstanding their failure to join a labor union having a closed shop agreement
with the employer. The Act also advances the proper economic and social equilibrium between
labor unions and employees who cannot join labor unions, for it exempts the latter from the
compelling necessity of joining labor unions that have closed shop agreements and equalizes, in
so far as opportunity to work is concerned, those whose religion prohibits membership in labor
unions with those whose religion does not prohibit said membership. Social justice does not imply
social equality, because social inequality will always exist as long as social relations depend on
personal or subjective proclivities. Social justice does not require legal equality because legal
equality, being a relative term, is necessarily premised on differentiations based on personal or
natural conditions. 65 Social justice guarantees equality of opportunity 66 , and this is precisely what
Republic Act No. 3350 proposes to accomplish — it gives laborers, irrespective of their religious
scrupples, equal opportunity for work.
7. As its last ground, appellant contends that the amendment introduced by Republic Act No. 3350
is not called for — in other words, the Act is not proper, necessary or desirable. Anent this matter,
it has been held that a statute which is not necessary is not, for that reason, unconstitutional; that
in determining the constitutional validity of legislation, the courts are unconcerned with issues as
to the necessity for the enactment of the legislation in question. 67 Courts do inquire into the
wisdom of laws. 68 Moreover, legislatures, being chosen by the people, are presumed to
understand and correctly appreciate the needs of the people, and it may change the laws
accordingly. 69 The fear is entertained by appellant that unless the Act is declared unconstitutional,
employers will prefer employing members of religious sects that prohibit their members from
joining labor unions, and thus be a fatal blow to unionism. We do not agree. The threat to
unionism will depend on the number of employees who are members of the religious sects that
control the demands of the labor market. But there is really no occasion now to go further and
anticipate problems We cannot judge with the material now before Us. At any rate, the validity of a
statute is to be determined from its general purpose and its efficacy to accomplish the end
desired, not from its effects on a particular case. 70 The essential basis for the exercise of power,
and not a mere incidental result arising from its exertion, is the criterion by which the validity of a
statute is to be measured. 71
II. We now pass on the second assignment of error, in support of which the Union argued that the
decision of the trial court ordering the Union to pay P500 for attorney's fees directly contravenes
Section 24 of Republic Act No. 875, for the instant action involves an industrial dispute wherein
the Union was a party, and said Union merely acted in the exercise of its rights under the union
shop provision of its existing collective bargaining contract with the Company; that said order also
contravenes Article 2208 of the Civil Code; that, furthermore, Appellee was never actually
dismissed by the defendant Company and did not therefore suffer any damage at all . 72
In refuting appellant Union's arguments, Appellee claimed that in the instant case there was really
no industrial dispute involved in the attempt to compel Appellee to maintain its membership in the
union under pain of dismissal, and that the Union, by its act, inflicted intentional harm on Appellee;
that since Appellee was compelled to institute an action to protect his right to work, appellant could
legally be ordered to pay attorney's fees under Articles 1704 and 2208 of the Civil Code. 73

The second paragraph of Section 24 of Republic Act No. 875 which is relied upon by appellant
provides that:

No suit, action or other proceedings shall be maintainable in any court against a

labor organization or any officer or member thereof for any act done by or on
behalf of such organization in furtherance of an industrial dispute to which it is a
party, on the ground only that such act induces some other person to break a
contract of employment or that it is in restraint of trade or interferes with the
trade, business or employment of some other person or with the right of some
other person to dispose of his capital or labor. (Emphasis supplied)

That there was a labor dispute in the instant case cannot be disputed for appellant sought the
discharge of respondent by virtue of the closed shop agreement and under Section 2 (j) of
Republic Act No. 875 a question involving tenure of employment is included in the term "labor
dispute". 74 The discharge or the act of seeking it is the labor dispute itself. It being the labor
dispute itself, that very same act of the Union in asking the employer to dismiss Appellee cannot
be "an act done ... in furtherance of an industrial dispute". The mere fact that appellant is a labor
union does not necessarily mean that all its acts are in furtherance of an industrial
dispute. 75 Appellant Union, therefore, cannot invoke in its favor Section 24 of Republic Act No.
875. This case is not intertwined with any unfair labor practice case existing at the time when
Appellee filed his complaint before the lower court.

Neither does Article 2208 of the Civil Code, invoked by the Union, serve as its shield. The article
provides that attorney's fees and expenses of litigation may be awarded "when the defendant's act
or omission has compelled the plaintiff ... to incur expenses to protect his interest"; and "in any
other case where the court deems it just and equitable that attorney's fees and expenses of
litigation should be recovered". In the instant case, it cannot be gainsaid that appellant Union's act
in demanding Appellee's dismissal caused Appellee to incur expenses to prevent his being
dismissed from his job. Costs according to Section 1, Rule 142, of the Rules of Court, shall be
allowed as a matter of course to the prevailing party.

WHEREFORE, the instant appeal is dismissed, and the decision, dated August 26, 1965, of the
Court of First Instance of Manila, in its Civil Case No. 58894, appealed from is affirmed, with costs
against appellant Union. It is so ordered.

Makalintal, C.J, Castro, Teehankee, Barredo, Makasiar, Antonio, Esguerra, Muñoz Palma and
Aquino, JJ., concur.
G.R. No. 95770 March 1, 1993
ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents MR. & MRS.
LEONARDO EBRALINAG, JUSTINIANA TANTOG, represented by her father AMOS
TANTOG; JEMILOYAO & 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. FAUTO OSTIA; IRVIN SEQUINO & RENAN SEQUINO, represented by their
parents MR. & MRS. LYDIO SEQUINO; NAPTHALE TANACAO, represented by his parents
MR. & MRS. MANUEL TANACAO; 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 his 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 & JUNAR 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 parent EMERLITO
TABLASON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, respondent.
G.R. No. 95887 March 1, 1993
MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO; REDFORD ALSADO,
JOEBERT ALSADO & RUDYARD ALSADO, represented by their parents MR. & MRS.
ABELARDO ALSADO; NELIA ALSADO, REU ALSADO & LILIBETH ALSADO, represented by
their parents MR. & MRS. ROLANDO ALSADO; SUZETTE NAPOLES, represented by her
parents ISMAILITO NAPOLES & 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 & LEAH DEMOTOR, represented
by their parents MR. & MRS. LEONARDO DEMOTOR; JURELL VILLA & MELONEY 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 FELIFE 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 ROSALINDA PALATULON, represented by their
parents MARTILLANO PALATULON and CARMILA PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU and ANTONIO A. SANGUTAN,
respondents.
GRIÑO-AQUINO, J.:
These two special civil actions for certiorari, Mandamus and Prohibition were consolidated
because they raise essentially the same issue: whether school children who are members or a
religious sect known as Jehovah's Witnesses may be expelled from school (both public and
private), for refusing, on account of their religious beliefs, to take part in the flag ceremony which
includes playing (by a band) or singing the Philippine national anthem, saluting the Philippine flag
and reciting the patriotic pledge.
In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent of Schools of Cebu and
Manuel F. Biongcog, Cebu District Supervisor," the petitioners are 43 high school and elementary
school students in the towns of Daan Bantayan, Pinamungajan, Carcar, and Taburan Cebu
province. All minors, they are assisted by their parents who belong to the religious group known as
Jehovah's Witnesses which claims some 100,000 "baptized publishers" in the Philippines.
In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent of Schools of Cebu and Antonio
A. Sangutan," the petitioners are 25 high school and grade school students enrolled in public
schools in Asturias, Cebu, whose parents are Jehovah's Witnesses. Both petitions were prepared
by the same counsel, Attorney Felino M. Ganal.
All the petitioners in these two cases were expelled from their classes by the 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 of the Department of Education, Culture and Sports (DECS) making the flag
ceremony compulsory in all educational institutions. Republic Act No. 1265 provides:
Sec. 1. All educational institutions shall henceforth observe daily flag ceremony,
which shall be simple and dignified and shall include the playing or singing of the
Philippine National anthem.
Sec. 2. The Secretary of Education is hereby authorized and directed to issue or
cause to be issued rules and regulations for the proper conduct of the flag
ceremony herein provided.
Sec. 3. Failure or refusal to observe the flag ceremony provided by this Act and
in accordance with rules and regulations issued by the Secretary of Education,
after proper notice and hearing, shall subject the educational institution
concerned and its head to public censure as an administrative punishment which
shall be published at least once in a newspaper of general circulation.
 In case of failure to observe for the second time the flag-ceremony provided by
this Act, the Secretary of Education, after proper notice and hearing, shall cause
the cancellation of the recognition or permit of the private educational institution
responsible for such failure.
The implementing rules and regulations in Department Order No. 8 provide:
RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN
ALL EDUCATIONAL INSTITUTIONS.
1. The Filipino Flag shall be displayed by all educational institutions, public and
private, every school day throughout the year. It shall be raised at sunrise and
lowered at sunset. The flag-staff must be straight, slightly and gently tapering at
the end, and of such height as would give the Flag a commanding position in
front of the building or within the compound.
2. Every public and private educational institution shall hold a flag-raising
ceremony every morning except when it is raining, in which event the ceremony
may be conducted indoors in the best way possible. A retreat shall be held in the
afternoon of the same day. The flag-raising ceremony in the morning shall be
conducted in the following manner:
a. Pupils and teachers or students and faculty members who
are in school and its premises shall assemble in formation
facing the flag. At command, books shall be put away or held in
the left hand and everybody shall come to attention. Those with
hats shall uncover. No one shall enter or leave the school
grounds during the ceremony.
b. The assembly shall sing the Philippine National
Anthem accompanied by the school band or without the
accompaniment if it has none; or the anthem may be played by
the school band alone. At the first note of the Anthem, the flag
shall be raised briskly. While the flag is being raised, all persons
present shall stand at attention and execute a salute. Boys and
men with hats shall salute by placing the hat over the heart.
Those without hat may stand with their arms and hands down
and straight at the sides. Those in military or Boy Scout uniform
shall give the salute prescribed by their regulations. The salute
shall be started as the Flag rises, and completed upon last note
of the anthem.
c. Immediately following the singing of the Anthem, the
assembly shall recite in unison the following patriotic
pledge (English or vernacular version), which may bring the
ceremony to a close. This is required of all public schools and of
private schools which are intended for Filipino students or
whose population is predominantly Filipino.
English Version
I love the Philippines.
It is the land of my birth;
It is the home of my people.
It protects me and helps me to be, strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true, Filipino in thought, in word, in deed.
xxx xxx xxx
Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the national
anthem, and recite the patriotic pledge for they believe that those are "acts of worship" or
"religious devotion" (p. 10,Rollo) which they "cannot conscientiously give . . . to anyone or
anything except God" (p. 8, Rollo). They feel bound by the Bible's command to "guard ourselves
from
idols — 1 John 5:21" (p. 9, Rollo). They consider the flag as an image or idol representing the
State (p. 10, Rollo). They think the action of the local authorities in compelling the flag salute and
pledge transcends constitutional limitations on the State's power and invades the sphere of the
intellect and spirit which the Constitution protect against official control (p. 10, Rollo).
This is not the first time that the question, of whether the children of Jehovah's Witnesses may be
expelled from school for disobedience of R.A. No. 1265 and Department Order No. 8, series of
1955, has been raised before this Court.
The same issue was raised in 1959 in Gerona, et al. vs. Secretary of Education, et al., 106 Phil. 2
(1959) and Balbuna, et al. vs. Secretary of Education, 110 Phil. 150 (1960). This Court in the
Gerona case upheld the expulsion of the students, thus:
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. Under a system
of complete separation of church and state in the government, the flag is utterly
devoid of any religious significance. Saluting the flag does not involve any
religious ceremony. The flag salute is no more a religious ceremony than the
taking of an oath of office by a public official or by a candidate for admission to
the bar.
In requiring school pupils to participate in the flag salute, the State thru the
Secretary of Education is not imposing a religion or religious belief or a religious
test on said students. It is merely enforcing a
 non-discriminatory school regulation applicable to all alike whether Christian,
Moslem, Protestant or Jehovah's Witness. The State is merely carrying out the
duty imposed upon it by the Constitution which charges it with supervision over
and regulation of all educational institutions, to establish and maintain a complete
and adequate system of public education, and see to it that all schools aim to
develop, among other things, civic conscience and teach the duties of
citizenship.
The children of Jehovah's Witnesses cannot be exempted from participation in
the flag ceremony. They have no valid right to such exemption. Moreover,
exemption to the requirement will disrupt school discipline and demoralize the
rest of the school population which by far constitutes the great majority.
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.
(pp. 2-3).
Gerona was reiterated in Balbuna, as follows:
The Secretary of Education was duly authorized by the Legislature thru Republic
Act 1265 to promulgate said Department Order, and its provisions requiring the
observance of the flag salute, not being a religious ceremony but an act and
profession of love and allegiance and pledge of loyalty to the fatherland which
the flag stands for, does not violate the constitutional provision on freedom of
religion. (Balbuna, et al. vs. Secretary of Education, et al., 110 Phil. 150).
Republic Act No. 1265 and the ruling in Gerona have been incorporated in Section 28, Title VI,
Chapter 9 of the Administrative Code of 1987 (Executive Order No. 292) which took effect on
September 21, 1988 (one year after its publication in the Official Gazette, Vol. 63, No. 38 of
September 21, 1987). Paragraph 5 of Section 28 gives legislative cachet to the ruling in Gerona,
thus:
5. Any teacher or student or pupil who refuses to join or participate in the flag
ceremony may be dismissed after due investigation.
However, the petitioners herein have not raised in issue the constitutionality of the above provision
of the new Administrative Code of 1987. They have targeted only Republic Act No. 1265 and the
implementing orders of the DECS.
In 1989, the DECS Regional Office in Cebu received complaints about teachers and pupils
belonging to the Jehovah's Witnesses, and enrolled in various public and private schools, who
refused to sing the Philippine national anthem, salute the Philippine flag and recite the patriotic
pledge. Division Superintendent of Schools, Susana B. Cabahug of the Cebu Division of DECS,
and Dr. Atty. Marcelo M. Bacalso, Assistant Division Superintendent, recalling this Court's decision
in Gerona, issued Division Memorandum No. 108, dated November 17, 1989 (pp. 147-
148, Rollo of G.R. No. 95770) directing District Supervisors, High School Principals and Heads of
Private Educational institutions as follows:
1. Reports reaching this Office disclose that there are a number of teachers,
pupils, students, and school employees in public schools who refuse to salute the
Philippine flag or participate in the daily flag ceremony because of some religious
belief.
2. Such refusal not only undermines Republic Act No. 1265 and the DECS
Department Order No. 8, Series of 1955 (Implementing Rules and Regulations)
but also strikes at the heart of the DECS sustained effort to inculcate patriotism
and nationalism.
3. Let it be stressed that any belief that considers the flag as an image is not in
any manner whatever a justification for not saluting the Philippine flag or not
participating in flag ceremony. Thus, the Supreme Court of the Philippine says:
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 freedom and liberty which it and the
Constitution guarantee and protect. (Gerona, et al. vs. Sec. of
Education, et al., 106 Phil. 11.)
4. As regards the claim for freedom of belief, which an objectionist may advance,
the Supreme Court asserts:
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. (Gerona, et al. vs. Sec. of Education, et al.,
106 Phil. 11.)
5. Accordingly, teachers and school employees who choose not to participate in
the daily flag ceremony or to obey the flag salute regulation spelled out in
Department Order No. 8, Series of 1955, shall be considered removed from the
service after due process.
6. In strong language about pupils and students who do the same the Supreme
Court has this to say:
If they choose not to obey the flag salute regulation, they merely
lost the benefits of public education being maintained at the
expense of their fellow Citizens, nothing more. According to a
popular expression, they could take it or leave it! Having elected
not to comply with the regulation about the flag salute they
 forfeited their right to attend public schools. (Gerona, et al. vs.
Sec. of Education, et al., 106 Phil. 15.)
7. School administrators shall therefore submit to this Office a report on those
who choose not to participate in flag ceremony or salute the Philippine flag. (pp.
147-148, Rollo of G.R. No. 95770; Emphasis supplied).
Cebu school officials resorted to a number of ways to persuade the children of Jehovah's
Witnesses to obey the memorandum. In the Buenavista Elementary School, the children were
asked to sign an Agreement (Kasabutan) in the Cebuano dialect promising to sing the national
anthem, place their right hand on their breast until the end of the song and recite the pledge of
allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. 95770 and p. 48, Rollo of G.R. No.
95887), but they refused to sign the "Kasabutan" (p. 20, Rollo of G.R. No. 95770).
In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A. Sangutan, met with the
Jehovah's Witnesses' parents, as disclosed in his letter of October 17, 1990, excerpts from which
reveal the following:
After two (2) fruitless confrontation meetings with the Jehovah's Witnesses'
parents on October 2, 1990 and yesterday due to their firm stand not to salute
the flag of the Republic of the Philippines during Flag Ceremony and other
occasions, as mandated by law specifically Republic Act No. 1265, this Office
hereby orders the dropping from the list in the School Register (BPS Form I) of
all teachers, all Jehovah Witness pupils from Grade I up to Grade VI effective
today.
xxx xxx xxx
This order is in compliance with Division Memorandum No. 108 s. 1989 dated
November 17, 1989 by virtue of Department Order No. 8 s. 1955 dated July 21,
1955 in accordance with Republic Act No. 1265 and Supreme Court Decision of
a case "Genaro Gerona, et al., Petitioners and Appellants vs. The Honorable
Secretary of Education, et al., Respondents and Appellees' dated August 12,
1959 against their favor. (p. 149, Rollo of G.R. No. 95770.)
In the Daan Bantayan District, the District Supervisor, Manuel F. Biongcog, ordered the "dropping
from the rolls" of students who "opted to follow their religious belief which is against the Flag
Salute Law" on the theory that "they forfeited their right to attend public schools." (p. 47, Rollo of
G.R. No. 95770.)
1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990.
Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic], Agujo
Elementary School with the information that this office is sad to order the
dropping of Jeremias Diamos and Jeaneth Diamos, Grades III and IV pupils
respectively from the roll since they opted to follow their religious belief which is
against the Flag Salute Law (R.A. 1265) and DECS Order No. 8, series of 1955,
having elected not to comply with the regulation about the flag salute they
forfeited their right to attend public schools (Gerona, et al. vs. Sec. of Education,
et al., 106 Philippines 15). However, should they change their mind to respect
and follow the Flag Salute Law they may be re-accepted.
(Sgd.) MANUEL F.
BIONGCOG
District Supervisor
(p. 47, Rollo of G.R. No. 95770.)
The expulsion as of October 23, 1990 of the 43 petitioning students of the Daanbantayan National
High School, Agujo Elementary School, Calape Barangay National High School, Pinamungajan
Provincial High School, Tabuelan Central School, Canasojan Elementary School, Liboron
Elementary School, Tagaytay Primary School, San Juan Primary School and Northern Central
Elementary School of San Fernando, Cebu, upon order of then Acting Division Superintendent
Marcelo Bacalso, prompted some Jehovah's Witnesses in Cebu to appeal to the Secretary of
Education Isidro Cariño but the latter did not answer their letter. (p. 21, Rollo.)
The petition in G.R. No. 95887 was filed by 25 students who were similarly expelled because Dr.
Pablo Antopina, who succeeded Susana Cabahug as Division Superintendent of Schools, would
not recall the expulsion orders of his predecessor. Instead, he verbally caused the expulsion of
some more children of Jehovah's Witnesses.
On October 31, 1990, the students and their parents filed these special civil actions
for Mandamus,Certiorari and Prohibition alleging that the public respondents acted without or in
excess of their jurisdiction and with grave abuse of discretion — (1) in ordering their expulsion
without prior notice and hearing, hence, in violation of their right to due process, their right to free
public education, and their right to freedom of speech, religion and worship (p. 23, Rollo). The
petitioners pray that:
c. Judgment be rendered:
i. declaring null and void the expulsion or dropping from the rolls
of herein petitioners from their respective schools;
ii. prohibiting and enjoining respondent from further barring the
petitioners from their classes or otherwise implementing the
expulsion ordered on petitioners; and
iii. compelling the respondent and all persons acting for him to
admit and order the re-admission of petitioners to their
respective schools. (p. 41, Rollo.)
and that pending the determination of the merits of these cases, a temporary restraining order be
issued enjoining the respondents from enforcing the expulsion of the petitioners and to re-admit
them to their respective classes.
On November 27, 1990, the Court issued a temporary restraining order and a writ of preliminary
mandatory injunction commanding the respondents to immediately re-admit the petitioners to their
respective classes until further orders from this Court (p. 57, Rollo).
The Court also ordered the Secretary of Education and Cebu District Supervisor Manuel F.
Biongcog to be impleaded as respondents in these cases.
On May 13, 1991, the Solicitor General filed a consolidated comment to the petitions (p. 98, Rollo)
defending the expulsion orders issued by the public respondents on the grounds that:
1. Bizarre religious practices of the Jehovah's Witnesses produce rebellious and
anti-social school children and consequently disloyal and mutant Filipino citizens.
2. There are no new and valid grounds to sustain the charges of the Jehovah's
Witnesses that the DECS' rules and regulations on the flag salute ceremonies
are violative of their freedom of religion and worship.
3. The flag salute is devoid of any religious significance; instead, it inculcates
respect and love of country, for which the flag stands.
4. The State's compelling interests being pursued by the DECS' 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.
5. The issue is not freedom of speech but enforcement of law and jurisprudence.
6. State's power to regulate repressive and unlawful religious practices justified,
besides having scriptural basis.
7. The penalty of expulsion is legal and valid, more so with the enactment of
Executive Order No. 292 (The Administrative Code of 1987).
Our task here is extremely difficult, for the 30-year old decision of this court in Gerona upholding
the flag salute law and approving the expulsion of students who refuse to obey it, is not lightly to
be trifled with.
It is somewhat ironic however, that after the Gerona ruling had received legislative cachet by its in
corporation in the Administrative Code of 1987, the present Court believes that the time has come
to re-examine it. The idea that one may be compelled to salute the flag, sing the national anthem,
and recite the patriotic pledge, during a flag ceremony on pain of being dismissed from one's job
or of being expelled from school, 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 (Sec. 5, Article III, 1987 Constitution; Article IV,
Section 8, 1973 Constitution; Article III, Section 1[7], 1935 Constitution).
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 (Chief Justice
Enrique M. Fernando's separate opinion in German vs. Barangan, 135 SCRA 514, 530-531).
The right to religious profession and worship has a two-fold aspect, vis., freedom
to believe and freedom to act on one's belief. 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 (J.
Cruz, Constitutional Law, 1991 Ed., pp. 176-177).
Petitioners stress, however, that while they do not take part in the compulsory flag ceremony, they
do not engage in "external acts" or behavior that would offend their countrymen who believe in
expressing their love of country through the observance of the flag ceremony. They quietly stand
at attention during the flag ceremony to show their respect for the right of those who choose to
participate in the solemn proceedings (Annex F, Rollo of G.R. No. 95887, p. 50 and Rollo of G.R.
No. 95770, p. 48). Since they do not engage in disruptive behavior, there is no warrant for their
expulsion.
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 vs. 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.
The situation that the Court directly predicted in Gerona that:
The flag ceremony will become a thing of the past or perhaps conducted with
very few participants, and the time will come when we would have citizens
untaught and uninculcated in and not imbued with reverence for the flag and love
of country, admiration for national heroes, and patriotism — a pathetic, even
tragic situation, and all because a small portion of the school population imposed
its will, demanded and was granted an exemption. (Gerona, p. 24.)
has not come to pass. 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 vs. Sec. of
Education, 106 Phil. 2, 24). 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 of profession and be taught the virtues
of "patriotism, respect for human rights, appreciation for 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 had 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 dully constituted authorities.
As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943):
. . . To believe that patriotism will not flourish if patriotic ceremonies are voluntary
and spontaneous instead of a compulsory routine is to make an unflattering
estimate of the appeal of our institutions to free minds. . . . When they [diversity]
are so harmless to others or to the State as those we deal with here, the price is
not too great. But freedom to differ is not limited to things that do not matter
much. That would be a mere shadow of freedom. The test of its substance is the
right to differ as to things that touch the heart of the existing order.
Furthermore, let it be noted that coerced unity and loyalty even to the country, . .
. — 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.)
offend the sensibilities, both religious and patriotic, of other persons. If they quietly stand at
attention during the flag ceremony while their classmates and teachers salute the flag, sing the
national anthem and recite the patriotic pledge, we do not see how such conduct may possibly
disturb the peace, or pose "a grave and present danger 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 (German vs. Barangan, 135 SCRA 514, 517).
Before we close this decision, it is appropriate to recall the Japanese occupation of our country in
1942-1944 when every Filipino, regardless of religious persuasion, in fear of the invader, saluted
the Japanese flag and bowed before every Japanese soldier. Perhaps, if petitioners had lived
through that dark period of our history, they would not quibble now about saluting the Philippine
flag. For when liberation came in 1944 and our own flag was proudly hoisted aloft again, it was a
beautiful sight to behold that made our hearts pound with pride and joy over the newly-regained
freedom and sovereignty of our nation.
Although the Court upholds in this decision the petitioners' right under our Constitution to refuse to
salute the Philippine flag on account of their religious beliefs, we hope, nevertheless, that another
foreign invasion of our country will not be necessary in order for our countrymen to appreciate and
cherish the Philippine flag.
WHEREFORE, the petition for certiorari and prohibition is GRANTED. The expulsion orders
issued by the public respondents against the petitioners are hereby ANNULLED AND SET ASIDE.
The temporary restraining order which was issued by this Court is hereby made permanent.

Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they are SO ORDERED.
enrolled will violate their right as Philippine citizens, under the 1987 Constitution, to receive free
education, for it is the duty of the State to "protect and promote the right of all citizens to quality
education . . . and to make such education accessible to all (Sec. 1, Art. XIV).

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 labor
group:

. . . 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 interests"
intervenes. (Sherbert vs. Berner, 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. Nevertheless, their right not to participate in the flag ceremony does
not give them a right to disrupt such patriotic exercises. Paraphrasing the warning cited by this
Court in Non vs. DamesII, 185 SCRA 523, 535, while the highest regard must be afforded their
right to the free exercise of their religion, "this should not be taken to mean that school authorities
are powerless to discipline them" if they should commit breaches of the peace by actions that
G.R. No. L-68828 March 27, 1985
RELI GERMAN, RAMON PEDROSA, TIRSO SANTILLAN, JR., MA. LUISA ANDAL, NIEVA
MALINIS, RICARDO LAVIÑA, CESAR CORTES, DANILO REYES, JOSE REYES, JOSEFINA
MATE, LOURDES CALMA, MILDRED JUAN, OLIVE GUANZON, FERNANDO COCHICO,
SHERMAN CID, NAZARENO BENTULAN, ROSLINA DONAIRE, MARIO MARTINEZ, BEATRIZ
TEYLAN, ANGELINA LAPID, ROSEMARIE FLORES, DANIEL VAN SOTO, EDGARDO
MERCADER, NELLY AGUSTIN, MARILY MAGCALAS, DAVID CHAN, ARSENIO
SALANSANG, NELSON DE GUZMAN, MARCIANO ARANETA, CESAR MENESES, DIONISIO
RELLOSA, MARIO SANTIAGO, SEVERINO SANTOS, LEONORA SANTOS, NIMFA
DORONILLA, FLORENCE GUINTO, ROSALINA MANANSALA, PERCIVAL OSTONAL,
TOMMY MACARANAS, ROGER NICANDRO, petitioners,
vs.
GEN. SANTIAGO BARANGAN and MA. JOR ISABELO LARIOSA, respondents.
ESCOLIN, * J.:
Invoking their constitutional freedom to religious worship and locomotion, petitioners seek the
issuance of [1] a writ of mandamus to compel respondents to allow them to enter and pray inside
St. Jude Chapel located at J.P. Laurel Street, Manila; and [2] a writ of injunction to enjoin
respondents from preventing them from getting into and praying in said church.
The facts to be considered are the following:
At about 5:00 in the afternoon of October 2, 1984, petitioners, composed of about 50
businessmen, students and office employees converged at J.P. Laurel Street, Manila, for the
ostensible purpose of hearing Mass at the St. Jude Chapel which adjoins the Malacañang grounds
located in the same street. Wearing the now familiar inscribed yellow T-shirts, they started to
march down said street with raised clenched fists 1 and shouts of anti-government invectives.
Along the way, however, they were barred by respondent Major lsabelo Lariosa, upon orders of
his superior and co-respondent Gen. Santiago Barangan, from proceeding any further, on the
ground that St. Jude Chapel was located within the Malacañang security area. When petitioners'
protestations and pleas to allow them to get inside the church proved unavailing, they decided to
leave. However, because of the alleged warning given them by respondent Major Lariosa that any
similar attempt by petitioners to enter the church in the future would likewise be prevented,
petitioners took this present recourse.
Petitioners' alleged purpose in converging at J.P. Laurel Street was to pray and hear mass at St.
Jude church. At the hearing of this petition, respondents assured petitioners and the Court that
they have never restricted, and will never restrict, any person or persons from entering and
worshipping at said church. They maintain, however, that petitioners' intention was not really to
perform an act of religious worship, but to conduct an anti-government demonstration at a place
close to the very residence and offices of the President of the Republic. Respondents further
lament petitioners' attempt to disguise their true motive with a ritual as sacred and solemn as the
Holy Sacrifice of the Mass. Undoubtedly, the yellow T-shirts worn by some of the marchers, their
raised clenched fists, and chants of anti-government slogans strongly tend to substantiate
respondents allegation. Thus, J.P. Fenix, commenting on the motive of petitioners' mass action of
October 2, 1984, wrote the following in his article entitled "Mission Impossible", published in the
October 12-18, 1984 issue of the "Mr. & Mrs." magazine:
They couldn't go through Mendiola Bridge, and so they dared to get even closer
to the heart of the matter. But as in Mendiola , the barbed wire barricades and
the array of sheet metal shields got in the way of the members of the August
Twenty-One Movement (ATOM) as they tried last October 2 to get to the pearly
gates of power via the St. Jude Chapel on Laurel St. St. Jude happens to be a
neighbor of President Marcos, his (sic) chapel being adjacent to Malacañang. ...
The foregoing cannot but cast serious doubts on the sincerity and good faith of petitioners in
invoking the constitutional guarantee of freedom of religious worship and of locomotion. While it is
beyond debate that every citizen has the undeniable and inviolable right to religious freedom, the
exercise thereof, and of all fundamental rights for that matter, must be done in good faith. As
Article 19 of the Civil Code admonishes: "Every person must in the exercise of his rights and in the
performance of his duties ... observe honesty and good faith."
Even assuming that petitioners' claim to the free exercise of religion is genuine and valid, still
respondents reaction to the October 2, 1984 mass action may not be characterized as violative of
the freedom of religious worship. Since 1972, when mobs of demonstrators crashed through the
Malacañang gates and scaled its perimeter fence, the use by the public of J.P. Laurel Street and
the streets approaching it have been restricted. While travel to and from the affected
thoroughfares has not been absolutely prohibited, passers-by have been subjected to courteous,
unobtrusive security checks. The reasonableness of this restriction is readily perceived and
appreciated if it is considered that the same is designed to protect the lives of the President and
his family, as well as other government officials, diplomats and foreign guests transacting business
with Malacañang. The need to secure the safety of heads of state and other government officials
cannot be overemphasized. The threat to their lives and safety is constant, real and felt throughout
the world. Vivid illustrations of this grave and serious problem are the gruesome assassinations,
kidnappings and other acts of violence and terrorism that have been perpetrated against heads of
state and other public officers of foreign nations.
Said restriction is moreover intended to secure the several executive offices within the
Malacañang grounds from possible external attacks and disturbances. These offices include
communications facilities that link the central government to all places in the land. Unquestionably,
the restriction imposed is necessary to maintain the smooth functioning of the executive branch of
the government, which petitioners' mass action would certainly disrupt.
Freedom of religious worship is guaranteed under Section 8, Article IV of the 1973 Constitution,
thus:
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.
Elucidating on the meaning and scope of freedom of religion, the U.S. Supreme Court in Cantwell Alampay, J., took no part.
v. Connecticut 2said:
German vs. Barangan, 135 SCRA 514, No. L-68828 March 27, 1985
The constitutional inhibition on legislation on the subject of religion has a double
aspect. On the one hand, it forestalls compulsion by law of the acceptance of any
creed or the practice of any form of worship. Freedom of conscience and
freedom to adhere to such religious organization or form of worship as the
individual may choose cannot be restricted by law. On the other hand, it
safeguards the free exercise of the chosen form of religion. 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.

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 into
action. This curtailment is in accord with the pronouncement of this Court in Gerona v. Secretary
of Education, 3 thus:

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. 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. (Emphasis supplied)

Petitioners likewise invoke their freedom of locomotion under Section 5, Article IV of the
Constitution, which provides:

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.

Suffice it to say that the restriction imposed on the use of J.P. Laurel Street, the wisdom and
reasonableness of which have already been discussed, is allowed under the fundamental law, the
same having been established in the interest of national security.

WHEREFORE, the instant petition is hereby dismissed. No costs.

SO ORDERED.

Fernando, C.J., Concepcion, Jr., Plana, De la Fuente and Cuevas, JJ., concur.

Aquino, J., concur in the result.

G.R. No. L-34854 November 20, 1978
FORTUNATO R. PAMIL, petitioner-appellant,
vs.
HONORABLE VICTORINO C. TELERON, as Judge of the Court of First Instance of Bohol,
Branch III, and REV. FR. MARGARITO R. GONZAGA, respondents-appellees.
Urbano H. Lagunay for petitioner.
Cristeto O. Cimagala for respondents.
FERNANDO, J.:
The novel question raised in this certiorari proceeding concerns the eligibility of an ecclesiastic to
an elective municipal position. Private respondent, Father Margarito R. Gonzaga, was, in 1971,
elected to the position of municipal mayor of Alburquerque, Bohol. 1 Therefore, he was duly
proclaimed. A suit for quo warranto was then filed by petitioner, himself an aspirant for the office,
for his disqualification 2 based on this Administrative Code provision: "In no case shall there be
elected or appointed to a municipal office ecclesiastics, soldiers in active service, persons
receiving salaries or compensation from provincial or national funds, or contractors for public
works of the municipality." 3 The suit did not prosper, respondent Judge sustaining the right of
Father Gonzaga to the office of municipal mayor. He ruled that such statutory ineligibility was
impliedly repealed by the Election Code of 1971. The matter was then elevated to this Tribunal by
petitioner. It is his contention that there was no such implied repeal, that it is still in full force and
effect. Thus was the specific question raised.
There is no clear-cut answer from this Tribunal. After a lengthy and protracted deliberation, the
Court is divided on the issue. Seven members of the Court are of the view that the judgment
should be affirmed as the challenged provision is no longer operative either because it was
superseded by the 1935 Constitution or repealed. Outside of the writer of this opinion, six other
Justices are of this mind They are Justices Teehankee, Muñoz Palma Concepcion Jr., Santos,
Fernandez, and Guerrero. For them, the overriding principle of the supremacy of the Constitution
or, at the very least, the repeal of such provision bars a reversal. 4 The remaining five members of
this Court, Chief Justice Castro, Justices Barredo, Makasiar, Antonio, and Aquino, on the other
hand, hold the position that such a prohibition against an ecclesiastic running for elective office is
not tainted with any constitutional infirmity.
The vote is thus indecisive. While five members of the Court constitute a minority, the vote of the
remaining seven does not suffice to render the challenged provision ineffective. Section 2175 of
the Revised Administrative Code, as far as ecclesiastics are concerned, must be accorded
respect. The presumption of validity calls for its application. Under the circumstances, certiorari
lies. That is the conclusion arrived at by the writer of this opinion, joined by Justice Concepcion Jr.,
Santos, Fernandez, and Guerrero. They have no choice then but to vote for the reversal of the
lower court decision and declare ineligible respondent Father Margarito R. Gonzaga for the office
of municipal mayor. With the aforesaid five other members, led by the Chief Justice, entertaining
no doubt as to his lack of eligibility, this petition for certiorari must be granted.
Except for the dispositive part announcing the judgment of the Court, the remainder of this opinion
sets forth the reasons why there are constitutional objections to the continuing force and effectivity
of Section 2175 as far as ecclesiastics are concerned.
1. The Revised Administrative Code was enacted in 1917. In the 1935 Constitution, as it is now
under the present Charter, it is explicitly declared: "No religious test shall be required for the
exercise of civil or political rights." 5 The principle of the paramount character of the fundamental
law 6 thus comes into play. There are previous rulings to that effect. 6 The ban imposed by the
Administrative Code cannot survive. So the writer of this opinion would hold.
2. This is to conform to this provision of the 1935 Charter: "All laws of the Philippine Islands shall
continue in force until the inauguration of the Commonwealth of the Philippines; thereafter, such
laws shall remain operative, unless inconsistent with this Constitution, until amended, altered,
modified, or repealed by the Congress of the Philippines, and all references in such laws to the
government or officials of the Philippines shall be construed, in so far as applicable, to refer to the
Government and corresponding officials under this Constitution." 7 It was first applied in People v.
Linsangan, 8 decided in December, 1935, barely a month after that Constitution took effect. This
Court held that Section 2718 of the Revised Administrative Code that would allow the prosecution
of a person who remains delinquent in the payment of cedula tax, 9 was no longer in force. As
stated by the then Justice, later Chief Justice, Abad Santos, after setting forth that the Constitution
prohibits the imprisonment for debt or non-payment of poll tax: 10 "It seems too clear to require
demonstration that section 2718 of the Revised Administrative Code is inconsistent with section 1,
clause 12, of Article Ill of the Constitution in that, while the former authorizes imprisonment for
non-payment of the poll or cedula tax, the latter forbids it. It follows that upon the inauguration of
the Government of the Commonwealth, said section 2718 of the Revised Administrative Code
became inoperative, and no judgment of conviction can be based thereon." 11
De los Santos v. Mallare 12 came next. The President, under the Revised Administrative Code,
could remove at pleasure any of the appointive officials under the Charter of the City of
Baguio. 13 Relying on such a provision, the then President Quirino removed petitioner De los
Santos, who was appointed City Engineer of Baguio on July 16, 1946, and chose in his place
respondent Gil R. Mallare. Why such a power could not pass the test of validity under the 1935
Constitution was pointed out by Justice Tuason thus: "So, unlike legislation that is passed in
defiance of the Constitution, assertive and menacing, the questioned part of section 2545 of the
Revised Administrative Code does not need a positive declaration of nullity by the court to put it
out of the way. To all intents and purposes, it is non-existent, outlawed and eliminated from the
statute book by the Constitution itself by express mandate before the petitioner was appointed." 14
Martinez v. Morfe, 15 a 1972 decision, is likewise in point. In the light of the cited provision of the
1935 Constitution, as authoritatively construed, Article 145 of the Revised Penal Code was found
to be inoperative. As therein provided, the penalty of prision correccional is imposed on any public
officer or employee who, while the Congress was in regular or special session, would arrest or
search a member thereof, except in case he had committed a crime punishable by a penalty
higher than prision mayor. This Court ruled that the Revised Penal Code extended unduly the
legislative privilege of freedom from arrest as ordained in the Constitution. 16 Such a provision then
was contrary to and in defiance of the clear expression of the will of the Constitutional Convention
of 1934 that such immunity was never intended to exempt members of a legislative body from an
arrest for a criminal offense, the phrase treason, felony and breach of the peace being all-
inclusive. Reference was likewise made to the prevailing American doctrine to that effect as
enunciated by Williamson v. United States. 17
3. It would be an unjustified departure from a settled principle of the applicable construction of the
provision on what laws remain operative after 1935 if the plea of petitioner in this case were to be
heeded. The challenged Administrative Code provision, certainly insofar as it declares ineligible
ecclesiastics to any elective or appointive office, is, on its face, inconsistent with the religious
freedom guaranteed by the Constitution. To so exclude them is to impose a religious test. Torcaso
v. Watkins 18 an American Supreme Court decision, has persuasive weight. What was there
involved was the validity of a provision in the Maryland Constitution prescribing that "no religious
test ought ever to be required as a disqualification for any office or profit or trust in this State, other
than a declaration of belief in the existence of God ..." Such a constitutional requirement was
assailed as contrary to the First Amendment of the United States Constitution by an appointee to
the office of notary public in Maryland, who was refused a commission as he would not declare a
belief in God. He failed in the Maryland Court of Appeals but prevailed in the United States
Supreme Court, which reversed the state court decision. It could not have been otherwise. As
emphatically declared by Justice Black: "this Maryland religious test for public office
unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be
enforced against him." 19
exercised and therefore beyond dispute was likewise relied upon. Thus: "No question was made in
that case as to the jurisdiction petition. It passed sub silentio, and the court does not consider itself
bound by that case. 23 So it should be in this litigation. As set forth at the outset, it is not even
necessary to annul the challenged Administrative Code provision. It is merely declared inoperative
by virtue of the mandate of the 1935 Constitution, similarly found in the present Charter.
5. Nonetheless, tie above view failed to obtain the necessary eight votes needed to give it binding
force. The attack on the continuing effectivity of Section 2175 having failed, it must be, as noted at
the outset, given full force and application.
WHEREFORE, the petition for certiorari is granted. The judgment a quo is reversed and set aside.
Respondent Gonzaga is hereby ordered immediately to vacate the mayoralty of the municipality of
Albuquerque, Bohol, there being a failure to elect. No pronouncement as to costs.
Concepcion, Jr., Santos, Fernandez and Guerrero, JJ., concur.
Pamil vs. Teleron, 86 SCRA 413, No. L-34854 November 20, 1978

The analogy appears to be obvious. In that case, it was lack of belief in God that was a
disqualification. Here being an ecclesiastic and therefore professing a religious faith suffices to
disqualify for a public office. There is thus an incompatibility between the Administrative Code
provision relied upon by petitioner and an express constitutional mandate. It is not a valid
argument against this conclusion to assert that under the Philippine Autonomy Act of 1916, there
was such a prohibition against a religious test, and yet such a ban on holding a municipal position
had not been nullified. It suffices to answer that no question was raised as to its validity. In Vilar v.
Paraiso, 20 decided under the 1935 Constitution, it was assumed that there was no conflict with the
fundamental law.

4. This is the first case then where this Court has to face squarely such an issue. This excerpt
from the opinion of Justice Moreland in the leading case of McGirr v. Hamilton, 21 a 1915 decision,
has a force unimpaired by the passage of time: "Relative to the theory that Act No. 1627 has stood
so long and been silently acquiesced in for so great a length of time that it should not be disturbed,
it may be said that the fact that certain individuals have, by ignorance or neglect, failed to claim
their fundamental rights, furnishes no reason why another individual, alert to his rights and their
proper enforcement, should be prevented from asserting and sustaining those rights. The fact that
Smith and Jones have failed to demand their constitutional rights furnishes no basis for the refusal
to consider and uphold the constitutional rights of Richard Roe In the case of Sadler v.
Langham (34 Ala. 311), this same question was under consideration and the court in resolving it
said: 'It may be urged, that these statutes have stood, and been silently acquiesced in for so great
a length of time, they should not now be disturbed. We are sensible of the force of this argument.
It will be observed, however, that in Tennessee, the decision which declared the private road law
unconstitutional was pronounced forty years after the enact. judgment of the statute; and in New
York, after seventy years had elapsed. It is, perhaps, never too late to re- establish constitutional
rights, the observance of which had been silently neglected." 22 To support such a conclusion, no
less than the great Chief Justice Marshall, speaking for this Court in United States v. More, in
disposing of a contention by one of the parties as to appellate jurisdiction having been previously
G.R. No. 119673 July 26, 1996
IGLESIA NI CRISTO, (INC.), petitioner,
vs.
THE HONORABLE COURT OF APPEALS, BOARD OF REVIEW FOR MOVING PICTURES
AND TELEVISION and HONORABLE HENRIETTA S. MENDOZA, respondents.
PUNO, J.:p
This is a petition for review of the Decision dated March 24, 1995 of the respondent Court of
Appeals affirming the action of the respondent Board of Review for Moving Pictures and
Television which x-rated the TV Program "Ang Iglesia ni Cristo."
Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television program
entitled "Ang Iglesia ni Cristo" aired on Channel 2 every Saturday and on Channel 13 every
Sunday. The program presents and propagates petitioner's religious beliefs, doctrines and
practices often times in comparative studies with other religions.
Sometime in the months of September, October and November 1992 petitioner submitted to the
respondent Board of Review for Moving Pictures and Television the VTR tapes of its TV program
Series Nos. 116, 119, 121 and 128. The Board classified the series 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."
Petitioner pursued two (2) courses of action against the respondent Board. On November 28,
1992, it appealed to the Office of the President the classification of its TV Series No. 128. It
succeeded in its appeal for on December 18, 1992, the Office of the President reversed the
decision of the respondent Board. Forthwith, the Board allowed Series No. 128 to be publicly
telecast.
On December 14, 1992, petitioner also filed against the respondent Board Civil Case No. Q-92-
14280, with the RTC, NCR Quezon City.1 Petitioner alleged that the respondent Board acted
without jurisdiction or with grave abuse of discretion in requiring petitioner to submit the VTR tapes
of its TV program and in x-rating them. It cited its TV Program Series Nos. 115, 119, 121 and 128.
In their Answer, respondent Board invoked its power under PD No. 1986 in relation to Article 201
of the Revised Penal Code.
On January 4, 1993, the trial court held a hearing on petitioner's prayer for a writ of preliminary
injunction. The parties orally argued and then marked their documentary evidence. Petitioner
submitted the following as its exhibits, viz.:
(1) Exhibit "A," respondent Board's Voting Slip for Television showing its
September 9, 1992 action on petitioner's Series No. 115 as follows:2
REMARKS:
There are some inconsistencies in the particular program as it is very surprising
for this program to show series of Catholic ceremonies and also some religious
sects and using it in their discussion about the bible. There are remarks which
are direct criticism which affect other religions.
Need more opinions for this particular program. Please subject to more opinions.
(2) Exhibit "A-1," respondent Board's Voting Slip for Television showing its
September 11, 1992 subsequent action on petitioner's Series No. 115 as
follows:3
REMARKS:
This program is criticizing different religions, based on their own interpretation of
the Bible.
We suggest that the program should delve on explaining their own faith and
beliefs and avoid attacks on other faith.
(3) Exhibit "B," respondent Board's Voting Slip for Television showing its October
9, 1992 action on petitioner's Series No. 119, as follows:4
REMARKS:
The Iglesia ni Cristo insists on the literal translation of the bible and says that our
(Catholic) veneration of the Virgin Mary is not to be condoned because nowhere
it is found in the bible that we should do so.
This is intolerance and robs off all sects of freedom of choice, worship and
decision.
(4) Exhibit "C," respondent Board's Voting Slip for Television showing its October
20, 1992 action on petitioner's Series No. 121 as follows:5
REMARKS:
I refuse to approve the telecast of this episode for reasons of the attacks, they do
on, specifically, the Catholic religion.
I refuse to admit that they can tell, dictate any other religion that they are right
and the rest are wrong, which they clearly present in this episode.
(5) Exhibit "D," respondent Board's Voting Slip for Television showing its
November 20, 1992 action on petitioner's Series No. 128 as follows:6
 REMARKS:
The episode presented criticizes the religious beliefs of the Catholic and
Protestant's beliefs.
We suggest a second review.
(6) Exhibits "E," "E-1," petitioner's block time contract with ABS-CBN
Broadcasting Corporation dated September 1, 1992.7
(7) Exhibit "F," petitioner's Airtime Contract with Island Broadcasting
Corporation.8
(8) Exhibit "G," letter dated December 18, 1992 of former Executive Secretary
Edelmiro A. Amante, Sr., addressed for Henrietta S. Mendez reversing the
decision of the respondent Board which x-rated the showing of petitioner's Series
No. 129. The letter reads in part:
xxx xxx xxx
The television episode in question is protected by the
constitutional guarantee of free speech and expression under
Article III, section 4 of the 1987 Constitution.
We have viewed a tape of the television episode in question, as
well as studied the passages found by MTRCB to be
objectionable and we find no indication that the episode poses
any clear and present danger sufficient to limit the said
constitutional guarantee.
(9) Exhibits "H," "H-1," letter dated November 26, 1992 of Teofilo C. Ramos, Sr.,
addressed to President Fidel V. Ramos appealing the action of the respondent
Board x-rating petitioner's Series No. 128.
On its part, respondent Board submitted the following exhibits, viz.:
(1) Exhibit "1," Permit Certificate for Television Exhibition No. 15181 dated
December 18, 1992 allowing the showing of Series No. 128 under parental
guidance.
(2) Exhibit "2," which is Exhibit "G" of petitioner.
(3) Exhibit "3," letter dated October 12, 1992 of Henrietta S. Mendez, addressed
to the Christian Era Broadcasting Service which reads in part:
xxx xxx xxx
In the matter of your television show "Ang Iglesia ni Cristo"
Series No. 119, please be informed that the Board was
constrained to deny your show a permit to exhibit. The material
involved constitute an attack against another religion which is
expressly prohibited by law. Please be guided in the submission
of future shows.
After evaluating the evidence of the parties, the trial court issued a writ of preliminary
injunction on petitioner's bond o P10,000.00.
The trial court set the pre-trial of the case and the parties submitted their pre-trial briefs.9 The pre-
trial briefs show that the parties' evidence is basically the evidence they submitted in the hearing
of the issue of preliminary injunction. The trial of the case was set and reset several times as the
parties tried to reach an amicable accord. Their efforts failed and the records show that after
submission of memoranda, the trial court rendered a Judgment, 10 on December 15, 1993, the
dispositive portion of which reads:
xxx xxx xxx
WHEREFORE, judgment is hereby rendered ordering respondent Board of
Review for Moving Pictures and Television (BRMPT) to grant petitioner Iglesia ni
Cristo the necessary permit for all the series of "Ang Iglesia ni Cristo" program.
Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and
attacking other existing religions in showing "Ang Iglesia ni Cristo" program.
SO ORDERED.
Petitioner moved for reconsideration 11 praying: (a) for the deletion of the second paragraph of the
dispositive portion of the Decision, and (b) for the Board to be perpetually enjoined from requiring
petitioner to submit for review the tapes of its program. The respondent Board opposed the
motion. 12 On March 7, 1993, the trial court granted petitioner's Motion for Reconsideration. It
ordered:13
xxx xxx xxx
WHEREFORE, the Motion for Reconsideration is granted. The second portion of
the Court's Order dated December 15, 1993, directing petitioner to refrain from
offending and attacking other existing religions in showing "Ang Iglesia ni Cristo"
program is hereby deleted and set aside. Respondents are further prohibited
from requiring petitioner Iglesia ni Cristo to submit for review VTR tapes of its
religious program "Ang Iglesia ni Cristo."
 Respondent Board appealed to the Court of Appeals after its motion for reconsideration
was denied. 14
On March 5, 1995, the respondent Court of Appeals 15 reversed the trial court. It ruled that: (1) the
respondent board has jurisdiction and power to review the TV program "Ang Iglesia ni Cristo," and
(2) the respondent Board did not act with grave abuse of discretion when it denied permit for the
exhibition on TV of the three series of "Ang Iglesia ni Cristo" on the ground that the materials
constitute an attack against another religion. It also found the series "indecent, contrary to law and
contrary to good customs.
In this petition for review on certiorari under Rule 45, petitioner raises the following issues:
I for general viewing, imported or produced in the Philippines and in the latter
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT THE "ANG IGLESIA NI CRISTO" PROGRAM IS NOT
CONSTITUTIONALLY PROTECTED AS A FORM OF RELIGIOUS EXERCISE
AND EXPRESSION.
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT
HOLDING THAT BEING AN EXERCISE OF RELIGIOUS FREEDOM, THE "ANG
IGLESIA NI CRISTO" PROGRAM IS SUBJECT TO THE POLICE POWER OF
THE STATE ONLY IN THE EXTREME CASE THAT IT POSES A CLEAR AND
PRESENT DANGER.
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT THE MTRCB IS VESTED WITH THE POWER TO CENSOR
RELIGIOUS PROGRAMS.
IV
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT THE "ANG IGLESIA NI CRISTO," A PURELY RELIGIOUS
PROGRAM IS INDECENT AND CONTRARY TO LAW AND GOOD CUSTOMS.
The basic issues can be reduced into two: (1) first, whether the respondent Board has the power
to review petitioner's TV program "Ang Iglesia ni Cristo," and (2) second, assuming it has the
power, whether it gravely abused its discretion when it prohibited the airing of petitioner's religious
program, series Nos. 115, 119 and 121, for the reason that they constitute an attack against other
religions and that they are indecent, contrary to law and good customs.
The first issue can be resolved by examining the powers of the Board under PD No. 1986. Its
section 3 pertinently provides:
Sec. 3 Powers and Functions. -- The BOARD shall have the following functions,
powers and duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein
defined, television programs, including publicity materials such as
advertisements, trailers and stills, whether such motion pictures and publicity
materials be for theatrical or non-theatrical distribution for television broadcast or
case, whether they be for local viewing or for export.
c) To approve, delete objectionable portion from and/or prohibit the importation,
exportation, production, copying, distribution, sale, lease, exhibition and/or
television broadcast of the motion pictures, television programs and publicity
materials, subject of the preceding paragraph, which, in the judgment of the
BOARD applying contemporary Filipino cultural values as standard, are
objectionable for being immoral, indecent, contrary to law and/or good customs,
injurious to the prestige of the Republic of the Philippines and its people, or with
a dangerous tendency to encourage the commission of violence or of a wrong or
crime, such as but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion
or sedition against the State, or otherwise threaten the
economic and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of
the people, their government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market
for violence or pornography;
v) Those which tend to abet the traffic in and use of prohibited
drugs;
vi) Those which are libelous or defamatory to the good name
and reputation of any person, whether living or dead;
vii) Those which may constitute contempt of court or of
any quasi-judicial tribunal, or pertain to matters which are
subjudice in nature (emphasis ours).
 The law gives the Board the power to screen, review and examine all "television
programs." By the clear terms of the law, the Board has the power to "approve, delete . . .
and/or prohibit the . . . exhibition and/or television broadcast of . . . television programs . .
." The law also directs the Board to apply "contemporary Filipino cultural values as
standard" to determine those which are objectionable for being "immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of the Republic of the
Philippines and its people, or with a dangerous tendency to encourage the commission of
violence or of a wrong or crime."
Petitioner contends that the term "television program" should not include religious programs like its
program "Ang Iglesia ni Cristo." A contrary interpretation, it is urged, will contravene section 5,
Article III of the Constitution which guarantees that "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."
We reject petitioner's submission which need not set us adrift in a constitutional voyage towards
an uncharted sea. Freedom of religion has been accorded a preferred status by the framers of our
fundamental laws, past and present. We have 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." 16 We have also laboriously defined in our
jurisprudence the intersecting umbras and penumbras of the right to religious profession and
worship. To quote the summation of Mr. Justice Isagani Cruz, our well-known constitutionalist: 17
Religious Profession and Worship
The right to religious profession and worship has a two-fold aspect, viz., 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.
(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 the 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.
Accordingly, while one has lull freedom to believe in Satan, he may not offer the
object of his piety a human sacrifice, as this would be murder. Those who literally
interpret the Biblical command to "go forth and multiply" are nevertheless not
allowed to contract plural marriages in violation of the laws against bigamy. A
person cannot refuse to pay taxes on the ground that it would be against his
religious tenets to recognize any authority except that of God alone. An atheist
cannot express in his disbelief in act of derision that wound the feelings of the
faithful. The police power can validly asserted against the Indian practice of
the suttee, born of deep religious conviction, that calls on the widow to immolate
herself at the funeral pile of her husband.
We thus reject petitioner's postulate that its religious program is per se beyond review by the
respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of
internal belief. Television is a medium that reaches even the eyes and ears of children. The Court
iterates the rule that the exercise of religious freedom can be regulated by the State when it will
bring about the clear and present danger of some substantive evil which the State is duty bound to
prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or
public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal mind
but history counsels the Court against its blind adoption as religion is and continues to be a
volatile area of concern in our country today. Across the sea and in our shore, the bloodiest and
bitterest wars fought by men were caused by irreconcilable religious differences. Our country is
still not safe from the recurrence of this stultifying strife considering our warring religious beliefs
and the fanaticism with which some of us cling and claw to these beliefs. Even now, we have yet
to settle the near century old strife in Mindanao, the roots of which have been nourished by the
mistrust and misunderstanding between our Christian and Muslim brothers and sisters. The
bewildering rise of weird religious cults espousing violence as an article of faith also proves the
wisdom of our rule rejecting a strict let alone policy on the exercise of religion. For sure, we shall
continue to subject any act pinching the space for the free exercise of religion to a heightened
scrutiny but we shall not leave its rational exercise to the irrationality of man. For when religion
divides and its exercise destroys, the State should not stand still.
It is also petitioner's submission that the respondent appellate court gravely erred when it affirmed
the ruling of the respondent Board x-rating its TV Program Series Nos. 115, 119, 121 and 128.
The records show that the respondent Board disallowed the program series for "attacking" other
religions. Thus, Exhibits "A," "A-1," (respondent Board's Voting Slip for Television) reveal that its
reviewing members x-rated Series 115 for ". . . criticizing different religions, based on their own
interpretation of the Bible." They suggested that the program should only explain petitioner's ". . .
own faith and beliefs and avoid attacks on other faiths." Exhibit "B" shows that Series No. 119 was
x-rated because "the Iglesia ni Cristo insists on the literal translation of the bible and says that our
Catholic veneration of the Virgin Mary is not to be condoned because nowhere it is found in the
bible that we should do so. This is intolerance . . ." Exhibit "C" shows that Series No. 121 was x-
rated ". . . for reasons of the attacks, they do on, specifically, the Catholic religion. . . . (T)hey can
not tell, dictate any other religion that they are right and the rest are wrong
. . ." Exhibit "D" also shows that Series No. 128 was not favorably recommended because it ". . .
outrages Catholic and Protestant's beliefs." On second review, it was x-rated because of its
"unbalanced interpretations of some parts of the bible."18 In sum, the respondent Board x-rated
petitioner's TV program series Nos. 115, 119, 121 and 128 because of petitioner's controversial
biblical interpretations and its "attacks" against contrary religious beliefs. The respondent appellate
court agreed and even held that the said "attacks" are indecent, contrary to law and good
customs.
We reverse the ruling of the appellate court.
First. Deeply ensconced in our fundamental law is its hostility against all prior restraints on speech,
including religious speech. Hence, any act that restrains speech is hobbled by the presumption of
invalidity and should be greeted with furrowed brows.19 It is the burden of the respondent Board to
overthrow this presumption. If it fails to discharge this burden, its act of censorship will be struck
down. It failed in the case at bar.
Second. The evidence shows that the respondent Board x-rated petitioners TV series for
"attacking" either religions, especially the Catholic church. An examination of the evidence,
especially Exhibits "A," "A-1," "B," "C," and "D" will show that the so-called "attacks" are
mere criticisms of some of the deeply held dogmas and tenets of other religions. The videotapes
were not viewed by the respondent court as they were not presented as evidence. Yet they were
considered by the respondent court as indecent, contrary to law and good customs, hence, can be
prohibited from public viewing under section 3(c) of PD 1986. This ruling clearly suppresses
petitioner's freedom of speech and interferes with its right to free exercise of religion. It
misappreciates the essence of freedom to differ as delineated in the benchmark case of Cantwell
v. Connecticut, so viz.: 20
xxx xxx xxx
In the realm of religious faith, and in that of political belief, sharp differences
arise. In both fields, the tenets of one man may seem the rankest error to his
neighbor. To persuade others to his own point of view, the pleader, as we know,
at times, resorts to exaggeration, to vilification of men who have been, or are
prominent in church or state or even to false statements. But the people of this
nation have ordained in the light of history that inspite 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 the citizens of democracy.
The respondent Board may disagree with the criticisms of other religions by petitioner but
that gives it no excuse to interdict such criticisms, however, unclean they may be. Under
our constitutional scheme, it is not the task of the State to favor any religion by protecting
it against an attack by another religion. Religious dogmas and beliefs are often at war and
to preserve peace among their followers, especially the fanatics, the establishment clause
of freedom of religion prohibits the State from leaning towards any religion. Vis-a-
vis religious differences, the State enjoys no banquet of options. Neutrality alone is its
fixed and immovable stance. In fine, respondent board cannot squelch the speech of
petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion
happens to be the most numerous church in our country. In a State where there ought to
be no difference between the appearance and the reality of freedom of religion, the
remedy against bad theology is better theology. The bedrock of freedom of religion is
freedom of thought and it is best served by encouraging the marketplace of dueling ideas.
When the luxury of time permits, the marketplace of ideas demands that speech should
be met by more speech for it is the spark of opposite speech, the heat of colliding ideas
that can fan the embers of truth.
Third. The respondents cannot also rely on the ground "attacks against another religion" in x-rating
the religious program of petitioner. Even a sideglance at section 3 of PD No. 1986 will reveal that it
is not among the grounds to justify an order prohibiting the broadcast of petitioner's television
program. The ground "attack against another religion" was merely added by the respondent Board
in its Rules. 21 This rule is void for it runs smack against the hoary doctrine that administrative
rules and regulations cannot expand the letter and spirit of the law they seek to enforce.
It is opined that the respondent board can still utilize" attack against any religion" as a ground
allegedly ". . . because section 3 (c) of PD No. 1986 prohibits the showing of motion pictures,
television programs and publicity materials which are contrary to law and Article 201 (2) (b) (3) of
the Revised Penal Code punishes anyone who exhibits "shows which offend any race or religion."
We respectfully disagree for it is plain that the word "attack" is not synonymous with the word
"offend." Moreover, Article 201 (2) (b) (3) of the Revised Penal Code should be invoked to justify
the subsequent punishment of a show which offends any religion. It cannot be utilized to
justifyprior censorship of speech. It must be emphasized that E.O. 876, the law prior to PD 1986,
included "attack against any religion" as a ground for censorship. The ground was not, however,
carried over by PD 1986. Its deletion is a decree to disuse it. There can be no other intent. Indeed,
even the Executive Department espouses this view.
Thus, in an Opinion dated November 28, 1985 then Minister of Justice, now President of
the Senate, Neptali Gonzales explained:
xxx xxx xxx
However, the question whether the BRMPT (now MTRCB) may preview and
censor the subject television program of INC should be viewed in the light of the
provision of Section 3, paragraph (c) of PD 1986, which is substantially the same
 as the provision of Section 3, paragraph (c) of E.O. No. 876-A, which prescribes
the standards of censorship, to wit: "immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the Republic of the Philippines or its
people or with dangerous tendency to encourage the commission of violence, or
of a wrong" as determined by the Board, "applying contemporary Filipino cultural
values as standard." As stated, the intention of the Board to subject the INC's
television program to "previewing and censorship is prompted by the fact that its
religious program makes mention of beliefs and practices of other religion." On
the face of the law itself, there can conceivably be no basis for censorship of said
program by the Board as much as the alleged reason cited by the Board does
not appear to he within the contemplation of the standards of censorship set by
law. (Emphasis supplied).
Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply the clear and
present danger rule. In American Bible Society v. City of Manila, 22 this Court held: "The
constitutional guaranty of free exercise and enjoyment of religious profession and worship carries
with it the right to disseminate religious information. Any restraint of such right can be justified like
other restraints on freedom of expression on the ground that there is a clear and present danger of
any substantive evil which the State has the right to prevent." In Victoriano vs.Elizalde Rope
Workers Union, 23 we further ruled that ". . . it is only where it is 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 to avoid the danger."
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.
It is suggested that we re-examine the application of clear and present danger rule to the case at
bar. In the United States, it is true that the clear and present danger test has undergone
permutations. It was Mr. Justice Holmes who formulated the test in Schenck v. US, 24 as follows: ".
. . the question in every case is whether the words used are used in such circumstances and are
of such a nature as to create a clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent." Admittedly, the test was originally designed to
determine the latitude which should be given to speech that espouses anti-government action.
Bannered by Justices Holmes and Brandeis, the test attained its full flowering in the decade of the
forties, when its umbrella was used to protect speech other than subversive speech.25 Thus, for
instance, the test was applied to annul a total ban on labor picketing. 26 The use of the test took a
downswing in the 1950's when the US Supreme Court decided Dennis v. United States involving
communist conspiracy. 27 In Dennis, the components of the test were altered as the High Court
adopted Judge Learned Hand's formulation that ". . . in each case [courts] must ask whether the
gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is
necessary to avoid the danger." The imminence requirement of the test was thus diminished and
to that extent, the protection of the rule was weakened. In 1969, however, the strength of the test
was reinstated in Brandenburg v. Ohio,28 when the High Court restored in the test the imminence
requirement, and even added an intent requirement which according to a noted commentator
ensured that only speech directed at inciting lawlessness could be punished. 29 Presently in the
United States, the clear and present danger test is not applied to protect low value speeches such
as obscene speech, commercial speech and defamation. Be that as it may, 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. 30 Hence, even following 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 tenribly.
It is also opined that it is inappropriate to apply the clear and present danger test to the case at bar
because the issue involves the content of speech and not the time, place or manner of speech.
Allegedly, unless the speech is first allowed, its impact cannot be measured, and the causal
connection between the speech and the evil apprehended cannot be established. The contention
overlooks the fact that the case at bar involves videotapes that are pre-taped and hence, their
speech content is known and not an X quantity. Given the specific content of the speech, it is not
unreasonable to assume that the respondent Board, with its expertise, can determine whether its
sulphur will bring about the substantive evil feared by the law.
Finally, it is also opined by Mr. Justice Kapunan that ". . . the determination of the question as to
whether or not such vilification, exaggeration or fabrication falls within or lies outside the
boundaries of protected speech or expression is a judicial function which cannot be arrogated by
an administrative body such as a Board of Censors." He submits that a "system of prior restraint
may only be validly administered by judges and not left to administrative agencies. "The same
submission is made by Mr. Justice Mendoza.
This thoughtful thesis is an attempt to transplant another American rule in our jurisdiction. Its
seedbed was laid down by Mr. Justice Brennan in his concurring opinion in the 1962 case
of Manual Enterprise v. Day 31 By 1965, the US Supreme Court in Freedman v. Maryland32 was
ready to hold that "the teaching of cases is that, becauseonly a judicial determination in an
adversary proceeding ensures the necessary sensitivity to freedom of expression only a procedure
requiring a judicial determination suffices to impose a valid final restraint." 33
While the thesis has a lot to commend itself, we are not ready to hold that it is unconstitutional for
Congress to grant an administrative body quasi-judicial power to preview and classify TV
programs and enforce its decisionsubject to review by our courts. As far back as 1921, we upheld
this set-up in Sotto vs. Ruiz, 34 viz.:
The use of the mails by private persons is in the nature of a privilege which can
be regulated in order to avoid its abuse. Persons posses no absolute right to put
into the mail anything they please, regardless of its character.
On the other hand, the exclusion of newspaper and other publications from the
mails, in the exercise of executive power, is extremely delicate in nature and can
only be justified where the statute is unequivocably applicable to the supposed
objectionable publication. In excluding any publication for the mails, the object
 should be not to interfere with the freedom of the press or with any other
fundamental right of the people. This is the more true with reference to articles
supposedly libelous than to other particulars of the law, since whether an article
is or is not libelous, is fundamentally a legal question. In order for there to be due
process of law, the action of the Director of Posts must be subject to revision by
the courts in case he had abused his discretion or exceeded his authority. (Ex
parte Jackson [1878], 96 U.S., 727;

Public Cleaning House vs. Coyne [1903], 194 U.S., 497; Post Publishing
Co. vs. Murray [1916]. 23 - Fed., 773)

As has been said, the performance of the duty of determining whether a

publication contains printed matter of a libelous character rests with the Director
of Posts and involves the exercise of his judgment and discretion. Every
intendment of the law is in favor of the correctness of his action. The rule is (and
we go only to those cases coming from the United States Supreme Court and
pertaining to the United States Postmaster-General), that the courts will not
interfere with the decision of the Director of Posts unless clearly of opinion that it
was wrong. (Bates & Guilid Co. vs. Payne [1904], 194 U.S., 106; Smith vs.
Hitchcock [1912], 226 U.S., 63; Masses Pub. Co. vs. Patten [1917], 246 Fed., 24.
But see David vs. Brown [1900], 103 Fed., 909, announcing a somewhat different
doctrine and relied upon by the Attorney-General).

To be sure, legal scholars in the United States are still debating the proposition whether
or not courts aloneare competent to decide whether speech is constitutionally
protected. 35 The issue involves highly arguable policy considerations and can be better
addressed by our legislators.

IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24, 1995 is
affirmed insofar as it sustained the jurisdiction of the respondent MTRCB to review petitioner's TV
program entitled "Ang Iglesia ni Cristo," and is reversed and set aside insofar as it sustained the
action of the respondent MTRCB x-rating petitioner's TV Program Series Nos. 115, 119, and 121.
No costs.

SO ORDERED.

Regalado, Davide, Jr., Romero and Francisco, JJ., concur.

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

Iglesia Ni Cristo vs. Court of Appeals, 259 SCRA 529, G.R. No. 119673 July 26, 1996
A.M. No. P-02-1651 August 4, 2003
ALEJANDRO ESTRADA, Complainant,
vs.
SOLEDAD S. ESCRITOR, Respondent.
DECISION
PUNO, J.:
The case at bar takes us to a most difficult area of constitutional law where man stands
accountable to an authority higher than the state. To be held on balance are the state’s interest
and the respondent’s religious freedom. In this highly sensitive area of law, the task of balancing
between authority and liberty is most delicate because to the person invoking religious freedom,
the consequences of the case are not only temporal. The task is not made easier by the American
origin of our religion clauses and the wealth of U.S. jurisprudence on these clauses for in the
United States, there is probably no more intensely controverted area of constitutional
interpretation than the religion clauses.1 The U.S. Supreme Court itself has acknowledged that in
this constitutional area, there is "considerable internal inconsistency in the opinions of the
Court."2 As stated by a professor of law, "(i)t is by now notorious that legal doctrines and judicial
decisions in the area of religious freedom are in serious disarray. In perhaps no other area of
constitutional law have confusion and inconsistency achieved such undisputed
sovereignty."3 Nevertheless, this thicket is the only path to take to conquer the mountain of a legal
problem the case at bar presents. Both the penetrating and panoramic view this climb would
provide will largely chart the course of religious freedom in Philippine jurisdiction. That the religious
freedom question arose in an administrative case involving only one person does not alter the
paramount importance of the question for the "constitution commands the positive protection by
government of religious freedom -not only for a minority, however small- not only for a majority,
however large- but for each of us."4
I. Facts
The facts of the case will determine whether respondent will prevail in her plea of religious
freedom. It is necessary therefore to lay down the facts in detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge
Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Piñas City,
requesting for an investigation of rumors that respondent Soledad Escritor, court interpreter in said
court, is living with a man not her husband. They allegedly have a child of eighteen to twenty years
old. Estrada is not personally related either to Escritor or her partner and is a resident not of Las
Piñas City but of Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he believes
that she is committing an immoral act that tarnishes the image of the court, thus she should not be
allowed to remain employed therein as it might appear that the court condones her act.5
Judge Caoibes referred the letter to Escritor who stated that "there is no truth as to the veracity of
the allegation" and challenged Estrada to "appear in the open and prove his allegation in the
proper forum."6 Judge Caoibes set a preliminary conference on October 12, 2000. Escritor moved
for the inhibition of Judge Caoibes from hearing her case to avoid suspicion and bias as she
previously filed an administrative complaint against him and said case was still pending in the
Office of the Court Administrator (OCA). Escritor’s motion was denied. The preliminary conference
proceeded with both Estrada and Escritor in attendance. Estrada confirmed that he filed the letter-
complaint for immorality against Escritor because in his frequent visits to the Hall of Justice of Las
Piñas City, he learned from conversations therein that Escritor was living with a man not her
husband and that she had an eighteen to twenty-year old son by this man. This prompted him to
write to Judge Caoibes as he believed that employees of the judiciary should be respectable and
Escritor’s live-in arrangement did not command respect.7
Respondent Escritor testified that when she entered the judiciary in 1999, 8 she was already a
widow, her husband having died in 1998.9 She admitted that she has been living with Luciano
Quilapio, Jr. without the benefit of marriage for twenty years and that they have a son. But as a
member of the religious sect known as the Jehovah’s Witnesses and the Watch Tower and Bible
Tract Society, their conjugal arrangement is in conformity with their religious beliefs. In fact, after
ten years of living together, she executed on July 28, 1991 a "Declaration of Pledging
Faithfulness," viz:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my
mate in marital relationship; that I have done all within my ability to obtain legal recognition of this
relationship by the proper public authorities and that it is because of having been unable to do so
that I therefore make this public declaration pledging faithfulness in this marital relationship.
I recognize this relationship as a binding tie before ‘Jehovah’ God and before all persons to be
held to and honored in full accord with the principles of God’s Word. I will continue to seek the
means to obtain legal recognition of this relationship by the civil authorities and if at any future
time a change in circumstances make this possible, I promise to legalize this union.
Signed this 28th day of July 1991.10
Escritor’s partner, Quilapio, executed a similar pledge on the same day. 11 Both pledges were
executed in Atimonan, Quezon and signed by three witnesses. At the time Escritor executed her
pledge, her husband was still alive but living with another woman. Quilapio was likewise married at
that time, but had been separated in fact from his wife. During her testimony, Escritor volunteered
to present members of her congregation to confirm the truthfulness of their "Declarations of
Pledging Faithfulness," but Judge Caoibes deemed it unnecessary and considered her
identification of her signature and the signature of Quilapio sufficient authentication of the
documents.12
Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in
turn, endorsed the same to Court Administrator Alfredo L. Benipayo. On July 17, 2001, the Court,
upon recommendation of Acting Court Administrator Zenaida N. Elepaño, directed Escritor to
comment on the charge against her. In her comment, Escritor reiterated her religious
congregation’s approval of her conjugal arrangement with Quilapio, viz:
Herein respondent does not ignore alleged accusation but she reiterates to state with candor that
there is no truth as to the veracity of same allegation. Included herewith are documents
denominated as Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both
respondent and her mate in marital relationship with the witnesses concurring their acceptance to
the arrangement as approved by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine
Branch.
Same marital arrangement is recognized as a binding tie before "JEHOVAH" God and before all
persons to be held to and honored in full accord with the principles of God’s Word.
xxx xxx xxx
Undersigned submits to the just, humane and fair discretion of the Court with verification from the
WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch . . . to which undersigned
believes to be a high authority in relation to her case.13
Deputy Court Administrator Christopher O. Lock recommended that the case be referred to
Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las Piñas City for investigation, report
and recommendation. In the course of Judge Maceda’s investigation, Escritor again testified that
her congregation allows her conjugal arrangement with Quilapio and it does not consider it
immoral. She offered to supply the investigating judge some clippings which explain the basis of
her congregation’s belief and practice regarding her conjugal arrangement. Escritor started living
with Quilapio twenty years ago when her husband was still alive but living with another woman.
She met this woman who confirmed to her that she was living with her (Escritor’s) husband.14
Gregorio Salazar, a member of the Jehovah’s Witnesses since 1985, also testified. He had been a
presiding minister since 1991 and in such capacity is aware of the rules and regulations of their
congregation. He explained the import of and procedure for executing a "Declaration of Pledging
Faithfulness", viz:
Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some particular rules
and regulations in your congregation?
A: Well, we of course, talk to the persons with regards (sic) to all the parties involved and then we
request them to execute a Public Declaration of Pledge of faithfulness.
Q: What is that document?
A: Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of Pledge of faithfulness, who are suppose
(sic) to execute this document?
A: This must be signed, the document must be signed by the elders of the congregation; the
couple, who is a member (sic) of the congregation, baptized member and true member of the
congregation.
Q: What standard rules and regulations do you have in relation with this document?
A: Actually, sir, the signing of that document, ah, with the couple has consent to marital
relationship (sic) gives the Christian Congregation view that the couple has put themselves on
record before God and man that they are faithful to each other. As if that relation is validated by
God.
Q: From your explanation, Minister, do you consider it a pledge or a document between the
parties, who are members of the congregation?
A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the one who contracted with the
opposite member of my congregation, opposite sex, and that this document will give us the right to
a marital relationship.
Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for you
to enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or living under the same roof?
A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital
relationship.
Q: Do you mean to say, Minister, by executing this document the contracting parties have the right
to cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we Christians
follow. The basis is herein stated in the Book of Matthew, Chapter Five, Verse Twenty-two. So, in
that verse of the Bible, Jesus said "that everyone divorcing his wife, except on account of
fornication, makes her a subject for adultery, and whoever marries a divorced woman commits
adultery.15
Escritor and Quilapio transferred to Salazar’s Congregation, the Almanza Congregation in Las
Piñas, in May 2001. The declarations having been executed in Atimonan, Quezon in 1991,
Salazar had no personal knowledge of the personal circumstances of Escritor and Quilapio when
they executed their declarations. However, when the two transferred to Almanza, Salazar inquired
about their status from the Atimonan Congregation, gathered comments of the elders therein, and
requested a copy of their declarations. The Almanza Congregation assumed that the personal
circumstances of the couple had been considered by the Atimonan Congregation when they
executed their declarations.
Escritor and Quilapio’s declarations are recorded in the Watch Tower Central office. They were
executed in the usual and approved form prescribed by the Watch Tower Bible and Tract Society
which was lifted from the article, "Maintaining Marriage in Honor Before God and Men," 16 in the
March 15, 1977 issue of the Watch Tower magazine, entitled The Watchtower.
The declaration requires the approval of the elders of the Jehovah’s Witnesses congregation and
is binding within the congregation all over the world except in countries where divorce is allowed.
The Jehovah’s congregation requires that at the time the declarations are executed, the couple
cannot secure the civil authorities’ approval of the marital relationship because of legal
impediments. It is thus standard practice of the congregation to check the couple’s marital status
before giving imprimatur to the conjugal arrangement. The execution of the declaration finds
scriptural basis in Matthew 5:32 that when the spouse commits adultery, the offended spouse can
remarry. The marital status of the declarants and their respective spouses’ commission of adultery
are investigated before the declarations are executed. Thus, in the case of Escritor, it is presumed
that the Atimonan Congregation conducted an investigation on her marital status before the
declaration was approved and the declaration is valid everywhere, including the Almanza
Congregation. That Escritor’s and Quilapio’s declarations were approved are shown by the
signatures of three witnesses, the elders in the Atimonan Congregation. Salazar confirmed from
the congregation’s branch office that these three witnesses are elders in the Atimonan
Congregation. Although in 1998 Escritor was widowed, thereby lifting the legal impediment to
marry on her part, her mate is still not capacitated to remarry. Thus, their declarations remain
valid. Once all legal impediments for both are lifted, the couple can already register their marriage
with the civil authorities and the validity of the declarations ceases. The elders in the
congregations can then solemnize their marriage as authorized by Philippine law. In sum,
therefore, insofar as the congregation is concerned, there is nothing immoral about the conjugal
arrangement between Escritor and Quilapio and they remain members in good standing in the
congregation.17
Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the
Jehovah’s Witnesses since 1974 and member of the headquarters of the Watch Tower Bible and
Tract Society of the Philippines, Inc., presented the original copy of the magazine article entitled,
"Maintaining Marriage Before God and Men" to which Escritor and Minister Salazar referred in
their testimonies. The article appeared in the March 15, 1977 issue of the Watchtower magazine
published in Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower Bible and Tract
Society of the Philippines, Inc., authorized Reyes to represent him in authenticating the article.
The article is distributed to the Jehovah’s Witnesses congregations which also distribute them to
the public.18
The parties submitted their respective memoranda to the investigating judge. Both stated that the
issue for resolution is whether or not the relationship between respondent Escritor and Quilapio is
valid and binding in their own religious congregation, the Jehovah’s Witnesses. Complainant
Estrada adds however, that the effect of the relationship to Escritor’s administrative liability must
likewise be determined. Estrada argued, through counsel, that the Declaration of Pledging
Faithfulness recognizes the supremacy of the "proper public authorities" such that she bound
herself "to seek means to . . . legalize their union." Thus, even assuming arguendo that the
declaration is valid and binding in her congregation, it is binding only to her co-members in the
congregation and serves only the internal purpose of displaying to the rest of the congregation that
she and her mate are a respectable and morally upright couple. Their religious belief and practice,
however, cannot override the norms of conduct required by law for government employees. To
rule otherwise would create a dangerous precedent as those who cannot legalize their live-in
relationship can simply join the Jehovah’s Witnesses congregation and use their religion as a
defense against legal liability.19
On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with
Quilapio based on the belief and practice of her religion, the Jehovah’s Witnesses. She quoted
portions of the magazine article entitled, "Maintaining Marriage Before God and Men," in her
memorandum signed by herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits "1" and "2") executed by the respondent and
her mate greatly affect the administrative liability of respondent. Jehovah’s Witnesses admit and
recognize (sic) the supremacy of the proper public authorities in the marriage arrangement.
However, it is helpful to understand the relative nature of Caesar’s authority regarding marriage.
From country to country, marriage and divorce legislation presents a multitude of different angles
and aspects. Rather than becoming entangled in a confusion of technicalities, the Christian, or the
one desiring to become a disciple of God’s Son, can be guided by basic Scriptural principles that
hold true in all cases.
God’s view is of first concern. So, first of all the person must consider whether that one’s present
relationship, or the relationship into which he or she contemplates entering, is one that could meet
with God’s approval, or whether in itself, it violates the standards of God’s Word. Take, for
example, the situation where a man lives with a wife but also spends time living with another
woman as a concubine. As long as such a state of concubinage prevails, the relationship of the
second woman can never be harmonized with Christian principles, nor could any declaration on
the part of the woman or the man make it so. The only right course is cessation of the relationship.
Similarly with an incestuous relationship with a member of one’s immediate family, or a
homosexual relationship or other such situation condemned by God’s Word. It is not the lack of
any legal validation that makes such relationships unacceptable; they are in themselves
unscriptural and hence, immoral. Hence, a person involved in such a situation could not make any
kind of "Declaration of Faithfulness," since it would have no merit in God’s eyes.
If the relationship is such that it can have God’s approval, then, a second principle to consider is
that one should do all one can to establish the honorableness of one’s marital union in the eyes of
all. (Heb. 13:4). If divorce is possible, then such step should now be taken so that, having obtained
the divorce (on whatever legal grounds may be available), the present union can receive civil
validation as a recognized marriage.
Finally, if the marital relationship is not one out of harmony with the principles of God’s Word, and
if one has done all that can reasonably be done to have it recognized by civil authorities and has
been blocked in doing so, then, a Declaration Pledging Faithfulness can be signed. In some
cases, as has been noted, the extreme slowness of official action may make accomplishing of
legal steps a matter of many, many years of effort. Or it may be that the costs represent a
crushingly heavy burden that the individual would need years to be able to meet. In such cases,
the declaration pledging faithfulness will provide the congregation with the basis for viewing the
existing union as honorable while the individual continues conscientiously to work out the legal
aspects to the best of his ability.
Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah God,
should be able to approach the matter in a balanced way, neither underestimating nor
overestimating the validation offered by the political state. She always gives primary concern to
God’s view of the union. Along with this, every effort should be made to set a fine example of
faithfulness and devotion to one’s mate, thus, keeping the marriage "honorable among all." Such
course will bring God’s blessing and result to the honor and praise of the author of marriage,
Jehovah God. (1 Cor. 10:31-33)20
Respondent also brought to the attention of the investigating judge that complainant’s
Memorandum came from Judge Caoibes’ chambers21 whom she claims was merely using
petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found Escritor’s factual
allegations credible as they were supported by testimonial and documentary evidence. He also
noted that "(b)y strict Catholic standards, the live-in relationship of respondent with her mate
should fall within the definition of immoral conduct, to wit: ‘that which is willful, flagrant, or
shameless, and which shows a moral indifference to the opinion of the good and respectable
members of the community’ (7 C.J.S. 959)’ (Delos Reyes vs. Aznar, 179 SCRA, at p. 666)." He
pointed out, however, that "the more relevant question is whether or not to exact from respondent
Escritor, a member of ‘Jehovah’s Witnesses,’ the strict moral standards of the Catholic faith in
determining her administrative responsibility in the case at bar."22 The investigating judge
acknowledged that "religious freedom is a fundamental right which is entitled to the highest priority
and the amplest protection among human rights, for it involves the relationship of man to his
Creator (at p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernando’s separate
opinion in German vs. Barangan, 135 SCRA 514, 530-531)" and thereby recommended the
dismissal of the complaint against Escritor.23
After considering the Report and Recommendation of Executive Judge Maceda, the Office of the
Court Administrator, through Deputy Court Administrator (DCA) Lock and with the approval of
Court Administrator Presbitero Velasco, concurred with the factual findings of Judge Maceda but
departed from his recommendation to dismiss the complaint. DCA Lock stressed that although
Escritor had become capacitated to marry by the time she joined the judiciary as her husband had
died a year before, "it is due to her relationship with a married man, voluntarily carried on, that
respondent may still be subject to disciplinary action."24 Considering the ruling of the Court
in Dicdican v. Fernan, et al.25 that "court personnel have been enjoined to adhere to the exacting
standards of morality and decency in their professional and private conduct in order to preserve
the good name and integrity of the court of justice," DCA Lock found Escritor’s defense of freedom
of religion unavailing to warrant dismissal of the charge of immorality. Accordingly, he
recommended that respondent be found guilty of immorality and that she be penalized with
suspension of six months and one day without pay with a warning that a repetition of a similar act
will be dealt with more severely in accordance with the Civil Service Rules.26
II. Issue
Whether or not respondent should be found guilty of the administrative charge of "gross and
immoral conduct." To resolve this issue, it is necessary to determine the sub-issue of whether or
not respondent’s right to religious freedom should carve out an exception from the prevailing
jurisprudence on illicit relations for which government employees are held administratively liable.
III. Applicable Laws
Respondent is charged with committing "gross and immoral conduct" under Book V, Title I,
Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil Service shall be
suspended or dismissed except for cause as provided by law and after due process.
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx
(5) Disgraceful and immoral conduct; xxx.
Not represented by counsel, respondent, in layman’s terms, invokes the religious beliefs and
practices and moral standards of her religion, the Jehovah’s Witnesses, in asserting that her
conjugal arrangement with a man not her legal husband does not constitute disgraceful and
immoral conduct for which she should be held administratively liable. While not articulated by
respondent, she invokes religious freedom under Article III, Section 5 of the Constitution, which
provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.
IV. Old World Antecedents of the American Religion Clauses
To understand the life that the religion clauses have taken, it would be well to understand not only
its birth in the United States, but its conception in the Old World. One cannot understand, much
less intelligently criticize the approaches of the courts and the political branches to religious
freedom in the recent past in the United States without a deep appreciation of the roots of these
controversies in the ancient and medieval world and in the American experience.27 This fresh look
at the religion clauses is proper in deciding this case of first impression.
In primitive times, all of life may be said to have been religious. Every significant event in the
primitive man’s life, from birth to death, was marked by religious ceremonies. Tribal society
survived because religious sanctions effectively elicited adherence to social customs. A person
who broke a custom violated a taboo which would then bring upon him "the wrathful vengeance of
a superhuman mysterious power."28 Distinction between the religious and non-religious would thus
have been meaningless to him. He sought protection from all kinds of evil - whether a wild beast or
tribe enemy and lightning or wind - from the same person. The head of the clan or the Old Man of
the tribe or the king protected his wards against both human and superhuman enemies. In time,
the king not only interceded for his people with the divine powers, but he himself was looked upon
as a divine being and his laws as divine decrees.29
Time came, however, when the function of acting as intermediary between human and spiritual
powers became sufficiently differentiated from the responsibility of leading the tribe in war and
policing it in peace as to require the full-time services of a special priest class. This saw the birth of
the social and communal problem of the competing claims of the king and priest. Nevertheless,
from the beginning, the king and not the priest was superior. The head of the tribe was the warrior,
and although he also performed priestly functions, he carried out these functions because he was
the head and representative of the community.30
There being no distinction between the religious and the secular, the same authority that
promulgated laws regulating relations between man and man promulgated laws concerning man’s
obligations to the supernatural. This authority was the king who was the head of the state and the
source of all law and who only delegated performance of rituals and sacrifice to the priests. The
Code of Hammurabi, king of Babylonia, imposed penalties for homicide, larceny, perjury, and
other crimes; regulated the fees of surgeons and the wages of masons and tailors and prescribed
rules for inheritance of property;31 and also catalogued the gods and assigned them their places in
the divine hierarchy so as to put Hammurabi’s own god to a position of equality with existing
gods.32 In sum, the relationship of religion to the state (king) in pre-Hebreic times may be
characterized as a union of the two forces, with the state almost universally the dominant
partner.33
With the rise of the Hebrew state, a new term had to be coined to describe the relation of the
Hebrew state with the Mosaic religion: theocracy. The authority and power of the state was
ascribed to God.34 The Mosaic creed was not merely regarded as the religion of the state, it was
(at least until Saul) the state itself. Among the Hebrews, patriarch, prophet, and priest preceded
king and prince. As man of God, Moses decided when the people should travel and when to pitch
camp, when they should make war and when peace. Saul and David were made kings by the
prophet Samuel, disciple of Eli the priest. Like the Code of Hammurabi, the Mosaic code combined
civil laws with religious mandates, but unlike the Hammurabi Code, religious laws were not of
secondary importance. On the contrary, religious motivation was primary and all-embracing:
sacrifices were made and Israel was prohibited from exacting usury, mistreating aliens or using
false weights, all because God commanded these.
Moses of the Bible led not like the ancient kings. The latter used religion as an engine to advance
the purposes of the state. Hammurabi unified Mesopotamia and established Babylon as its capital
by elevating its city-god to a primary position over the previous reigning gods.35 Moses, on the
other hand, capitalized on the natural yearnings of the Hebrew slaves for freedom and
independence to further God’s purposes. Liberation and Exodus were preludes to Sinai and the
receipt of the Divine Law. The conquest of Canaan was a preparation for the building of the
temple and the full worship of God.36
Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism, more than
anything else, charted not only the future of religion in western civilization, but equally, the future
of the relationship between religion and state in the west. This fact is acknowledged by many
writers, among whom is Northcott who pointed out, viz:
Historically it was the Hebrew and Christian conception of a single and universal God that
introduced a religious exclusivism leading to compulsion and persecution in the realm of religion.
Ancient religions were regarded as confined to each separate people believing in them, and the
question of change from one religious belief to another did not arise. It was not until an exclusive
fellowship, that the questions of proselytism, change of belief and liberty of religion
arose.37 (emphasis supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was
not only superior to the state, but it was all of the state. The Law of God as transmitted through
Moses and his successors was the whole of government.
With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and
David each received their kingdom from Samuel the prophet and disciple of Eli the priest, but soon
the king dominated prophet and priest. Saul disobeyed and even sought to slay Samuel the
prophet of God.38 Under Solomon, the subordination of religion to state became complete; he used
religion as an engine to further the state’s purposes. He reformed the order of priesthood
established by Moses because the high priest under that order endorsed the claim of his rival to
the throne.39
The subordination of religion to the state was also true in pre-Christian Rome which engaged in
emperor-worship. When Augustus became head of the Roman state and the priestly hierarchy, he
placed religion at a high esteem as part of a political plan to establish the real religion of pre-
Christian Rome - the worship of the head of the state. He set his great uncle Julius Caesar among
the gods, and commanded that worship of Divine Julius should not be less than worship of Apollo,
Jupiter and other gods. When Augustus died, he also joined the ranks of the gods, as other
emperors before him.40
The onset of Christianity, however, posed a difficulty to the emperor as the Christians’ dogmatic
exclusiveness prevented them from paying homage to publicly accepted gods. In the first two
centuries after the death of Jesus, Christians were subjected to persecution. By the time of the
emperor Trajan, Christians were considered outlaws. Their crime was "hatred of the human race",
placing them in the same category as pirates and brigands and other "enemies of mankind" who
were subject to summary punishments.41
In 284, Diocletian became emperor and sought to reorganize the empire and make its
administration more efficient. But the closely-knit hierarchically controlled church presented a
serious problem, being a state within a state over which he had no control. He had two options:
either to force it into submission and break its power or enter into an alliance with it and procure
political control over it. He opted for force and revived the persecution, destroyed the churches,
confiscated sacred books, imprisoned the clergy and by torture forced them to sacrifice. 42 But his
efforts proved futile.
The later emperor, Constantine, took the second option of alliance. Constantine joined with
Galerius and Licinius, his two co-rulers of the empire, in issuing an edict of toleration to Christians
"on condition that nothing is done by them contrary to discipline."43 A year later, after Galerius
died, Constantine and Licius jointly issued the epochal Edict of Milan (312 or 313), a document of
monumental importance in the history of religious liberty. It provided "that liberty of worship shall
not be denied to any, but that the mind and will of every individual shall be free to manage divine
affairs according to his own choice." (emphasis supplied) Thus, all restrictive statutes were
abrogated and it was enacted "that every person who cherishes the desire to observe the
Christian religion shall freely and unconditionally proceed to observe the same without let or
hindrance." Furthermore, it was provided that the "same free and open power to follow their own
religion or worship is granted also to others, in accordance with the tranquillity of our times, in
order that every person may have free opportunity to worship the object of his choice."(emphasis
supplied)44
Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige,
and eventually, exclusive power. Religion became an engine of state policy as Constantine
considered Christianity a means of unifying his complex empire. Within seven years after the Edict
of Milan, under the emperor’s command, great Christian edifices were erected, the clergy were
freed from public burdens others had to bear, and private heathen sacrifices were forbidden.
The favors granted to Christianity came at a price: state interference in religious affairs.
Constantine and his successors called and dismissed church councils, and enforced unity of belief
and practice. Until recently the church had been the victim of persecution and repression, but this
time it welcomed the state’s persecution and repression of the nonconformist and the orthodox on
the belief that it was better for heretics to be purged of their error than to die unsaved.
Both in theory as in practice, the partnership between church and state was not easy. It was a
constant struggle of one claiming dominance over the other. In time, however, after the collapse
and disintegration of the Roman Empire, and while monarchical states were gradually being
consolidated among the numerous feudal holdings, the church stood as the one permanent, stable
and universal power. Not surprisingly, therefore, it claimed not merely equality but superiority over
the secular states. This claim, symbolized by Pope Leo’s crowning of Charlemagne, became the
church’s accepted principle of its relationship to the state in the Middle Ages. As viewed by the
church, the union of church and state was now a union of the state in the church. The rulers of the
states did not concede to this claim of supremacy. Thus, while Charlemagne received his crown
from the Pope, he himself crowned his own son as successor to nullify the inference of
supremacy.45 The whole history of medieval Europe was a struggle for supremacy between prince
and Pope and the resulting religious wars and persecution of heretics and nonconformists. At
about the second quarter of the 13th century, the Inquisition was established, the purpose of
which was the discovery and extermination of heresy. Accused heretics were tortured with the
approval of the church in the bull Ad extirpanda issued by Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the
Catholic Church and resulting in the establishment of Protestant churches. While Protestants are
accustomed to ascribe to the Reformation the rise of religious liberty and its acceptance as the
principle governing the relations between a democratic state and its citizens, history shows that it
is more accurate to say that the "same causes that gave rise to the Protestant revolution also
resulted in the widespread acceptance of the principle of religious liberty, and ultimately of the
principle of separation of church and state."46 Pleas for tolerance and freedom of conscience can
without doubt be found in the writings of leaders of the Reformation. But just as Protestants living
in the countries of papists pleaded for toleration of religion, so did the papists that lived where
Protestants were dominant.47 Papist and Protestant governments alike accepted the idea of
cooperation between church and state and regarded as essential to national unity the uniformity of
at least the outward manifestations of religion.48 Certainly, Luther, leader of the Reformation,
stated that "neither pope, nor bishop, nor any man whatever has the right of making one syllable
binding on a Christian man, unless it be done with his own consent." 49 But when the tables had
turned and he was no longer the hunted heretic, he likewise stated when he made an alliance with
the secular powers that "(h)eretics are not to be disputed with, but to be condemned unheard, and
whilst they perish by fire, the faithful ought to pursue the evil to its source, and bathe their hands in
the blood of the Catholic bishops, and of the Pope, who is a devil in disguise." 50 To Luther, unity
among the peoples in the interests of the state was an important consideration. Other
personalities in the Reformation such as Melanchton, Zwingli and Calvin strongly espoused
theocracy or the use of the state as an engine to further religion. In establishing theocracy in
Geneva, Calvin made absence from the sermon a crime, he included criticism of the clergy in the
crime of blasphemy punishable by death, and to eliminate heresy, he cooperated in the
Inquisition.51
There were, however, those who truly advocated religious liberty. Erasmus, who belonged to the
Renaissance than the Reformation, wrote that "(t)he terrible papal edict, the more terrible imperial
edict, the imprisonments, the confiscations, the recantations, the fagots and burnings, all these
things I can see accomplish nothing except to make the evil more widespread." 52 The minority or
dissident sects also ardently advocated religious liberty. The Anabaptists, persecuted and
despised, along with the Socinians (Unitarians) and the Friends of the Quakers founded by
George Fox in the 17th century, endorsed the supremacy and freedom of the individual
conscience. They regarded religion as outside the realm of political governments.53 The English
Baptists proclaimed that the "magistrate is not to meddle with religion or matters of conscience,
nor compel men to this or that form of religion."54
Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished:
the Erastian (after the German doctor Erastus), the theocratic, and the separatist. The first
assumed state superiority in ecclesiastical affairs and the use of religion as an engine of state
policy as demonstrated by Luther’s belief that civic cohesion could not exist without religious unity
so that coercion to achieve religious unity was justified. The second was founded on ecclesiastical
supremacy and the use of state machinery to further religious interests as promoted by
Calvin. The third, which was yet to achieve ultimate and complete expression in the New
World, was discernibly in its incipient form in the arguments of some dissident minorities
that the magistrate should not intermeddle in religious affairs.55 After the Reformation,
Erastianism pervaded all Europe except for Calvin’s theocratic Geneva. In England, perhaps more
than in any other country, Erastianism was at its height. To illustrate, a statute was enacted by
Parliament in 1678, which, to encourage woolen trade, imposed on all clergymen the duty of
seeing to it that no person was buried in a shroud made of any substance other than wool.56 Under
Elizabeth, supremacy of the crown over the church was complete: ecclesiastical offices were
regulated by her proclamations, recusants were fined and imprisoned, Jesuits and proselytizing
priests were put to death for high treason, the thirty-nine Articles of the Church of England were
adopted and English Protestantism attained its present doctrinal status.57 Elizabeth was to be
recognized as "the only Supreme Governor of this realm . . . as well in all spiritual or ecclesiastical
things or causes as temporal." She and her successors were vested, in their dominions, with "all
manner of jurisdictions, privileges, and preeminences, in any wise touching or concerning any
spiritual or ecclesiastical jurisdiction."58 Later, however, Cromwell established the constitution in
1647 which granted full liberty to all Protestant sects, but denied toleration to Catholics. 59 In 1689,
William III issued the Act of Toleration which established a de facto toleration for all except
Catholics. The Catholics achieved religious liberty in the 19th century when the Roman Catholic
Relief Act of 1829 was adopted. The Jews followed suit in 1858 when they were finally permitted
to sit in Parliament.60
When the representatives of the American states met in Philadelphia in 1787 to draft the
constitutional foundation of the new republic, the theocratic state which had flourished
intermittently in Israel, Judea, the Holy Roman Empire and Geneva was completely gone. The
prevailing church-state relationship in Europe was Erastianism embodied in the system of
jurisdictionalism whereby one faith was favored as the official state-supported religion, but other
faiths were permitted to exist with freedom in various degrees. No nation had yet adopted as the
basis of its church-state relations the principle of the mutual independence of religion and
government and the concomitant principle that neither might be used as an engine to further the
policies of the other, although the principle was in its seminal form in the arguments of some
dissident minorities and intellectual leaders of the Renaissance. The religious wars of 16th and
17th century Europe were a thing of the past by the time America declared its independence from
the Old World, but their memory was still vivid in the minds of the Constitutional Fathers as
expressed by the United States Supreme Court, viz:
The centuries immediately before and contemporaneous with the colonization of America had
been filled with turmoil, civil strife, and persecution generated in large part by established sects
determined to maintain their absolute political and religious supremacy. With the power of
government supporting them, at various times and places, Catholics had persecuted Protestants,
Protestants had persecuted Catholics, Protestant sects had persecuted other protestant sects,
Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of
these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group
happened to be on top and in league with the government of a particular time and place, men and
women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these
punishments had been inflicted were such things as speaking disrespectfully of the views of
ministers of government-established churches, non-attendance at those churches, expressions of
non-belief in their doctrines, and failure to pay taxes and tithes to support them.61
In 1784, James Madison captured in this statement the entire history of church-state relations in
Europe up to the time the United States Constitution was adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of the secular arm to extinguish
religious discord, by proscribing all differences in religious opinions.62
In sum, this history shows two salient features: First, with minor exceptions, the history of church-
state relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all
in the name of the God of Love and of the Prince of Peace. Second, likewise with minor
exceptions, this history witnessed the unscrupulous use of religion by secular powers to promote
secular purposes and policies, and the willing acceptance of that role by the vanguards of religion
in exchange for the favors and mundane benefits conferred by ambitious princes and emperors in
exchange for religion’s invaluable service. This was the context in which the unique experiment of
the principle of religious freedom and separation of church and state saw its birth in American
constitutional democracy and in human history.63
V. Factors Contributing to the Adoption
of the American Religion Clauses
Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated England,
established many of the American colonies. British thought pervaded these colonies as the
immigrants brought with them their religious and political ideas from England and English books
and pamphlets largely provided their cultural fare.64 But although these settlers escaped from
Europe to be freed from bondage of laws which compelled them to support and attend
government favored churches, some of these settlers themselves transplanted into American soil
the oppressive practices they escaped from. The charters granted by the English Crown to the
individuals and companies designated to make the laws which would control the destinies of the
colonials authorized them to erect religious establishments, which all, whether believers or not,
were required to support or attend.65 At one time, six of the colonies established a state religion.
Other colonies, however, such as Rhode Island and Delaware tolerated a high degree of religious
diversity. Still others, which originally tolerated only a single religion, eventually extended support
to several different faiths.66
This was the state of the American colonies when the unique American experiment of separation
of church and state came about. The birth of the experiment cannot be attributed to a single cause
or event. Rather, a number of interdependent practical and ideological factors contributed in
bringing it forth. Among these were the "English Act of Toleration of 1689, the multiplicity of sects,
the lack of church affiliation on the part of most Americans, the rise of commercial intercourse, the
exigencies of the Revolutionary War, the Williams-Penn tradition and the success of their
experiments, the writings of Locke, the social contract theory, the Great Awakening, and the
influence of European rationalism and deism."67 Each of these factors shall be briefly discussed.
First, the practical factors. England’s policy of opening the gates of the American colonies to
different faiths resulted in the multiplicity of sects in the colonies. With an Erastian justification,
English lords chose to forego protecting what was considered to be the true and eternal church of
a particular time in order to encourage trade and commerce. The colonies were large financial
investments which would be profitable only if people would settle there. It would be difficult to
engage in trade with persons one seeks to destroy for religious belief, thus tolerance was a
necessity. This tended to distract the colonies from their preoccupations over their religion and its
exclusiveness, encouraging them "to think less of the Church and more of the State and of
commerce."68 The diversity brought about by the colonies’ open gates encouraged religious
freedom and non-establishment in several ways. First, as there were too many dissenting sects to
abolish, there was no alternative but to learn to live together. Secondly, because of the daily
exposure to different religions, the passionate conviction in the exclusive rightness of one’s
religion, which impels persecution for the sake of one’s religion, waned. Finally, because of the
great diversity of the sects, religious uniformity was not possible, and without such uniformity,
establishment could not survive.69
But while there was a multiplicity of denomination, paradoxically, there was a scarcity of
adherents. Only about four percent of the entire population of the country had a church affiliation
at the time the republic was founded.70 This might be attributed to the drifting to the American
colonies of the skepticism that characterized European Enlightenment. 71 Economic considerations
might have also been a factor. The individualism of the American colonist, manifested in the
multiplicity of sects, also resulted in much unaffiliated religion which treated religion as a personal
non-institutional matter. The prevalence of lack of church affiliation contributed to religious liberty
and disestablishment as persons who were not connected with any church were not likely to
persecute others for similar independence nor accede to compulsory taxation to support a church
to which they did not belong.72
However, for those who were affiliated to churches, the colonial policy regarding their worship
generally followed the tenor of the English Act of Toleration of 1689. In England, this Act conferred
on Protestant dissenters the right to hold public services subject to registration of their ministers
and places of worship.73 Although the toleration accorded to Protestant dissenters who qualified
under its terms was only a modest advance in religious freedom, it nevertheless was of some
influence to the American experiment.74 Even then, for practical considerations, concessions had
to be made to other dissenting churches to ensure their cooperation in the War of Independence
which thus had a unifying effect on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-18th century, an evangelical
religious revival originating in New England, caused a break with formal church religion and a
resistance to coercion by established churches. This movement emphasized an emotional,
personal religion that appealed directly to the individual, putting emphasis on the rights and duties
of the individual conscience and its answerability exclusively to God. Thus, although they had no
quarrel with orthodox Christian theology as in fact they were fundamentalists, this group became
staunch advocates of separation of church and state.75
Then there was the Williams-Penn tradition. Roger Williams was the founder of the colony of
Rhode Island where he established a community of Baptists, Quakers and other nonconformists.
In this colony, religious freedom was not based on practical considerations but on the concept of
mutual independence of religion and government. In 1663, Rhode Island obtained a charter from
the British crown which declared that settlers have it "much on their heart to hold forth a livelie
experiment that a most flourishing civil state may best be maintained . . . with full libertie in
religious concernments."76 In Williams’ pamphlet, The Bloudy Tenent of Persecution for cause of
Conscience, discussed in a Conference between Truth and Peace, 77 he articulated the
philosophical basis for his argument of religious liberty. To him, religious freedom and separation
of church and state did not constitute two but only one principle. Religious persecution is wrong
because it "confounds the Civil and Religious" and because "States . . . are proved essentially
Civil. The "power of true discerning the true fear of God" is not one of the powers that the people
have transferred to Civil Authority.78 Williams’ Bloudy Tenet is considered an epochal milestone in
the history of religious freedom and the separation of church and state. 79
William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of
toleration, having been imprisoned for his religious convictions as a member of the despised
Quakers. He opposed coercion in matters of conscience because "imposition, restraint and
persecution for conscience sake, highly invade the Divine prerogative." Aside from his idealism,
proprietary interests made toleration in Pennsylvania necessary. He attracted large numbers of
settlers by promising religious toleration, thus bringing in immigrants both from the Continent and
Britain. At the end of the colonial period, Pennsylvania had the greatest variety of religious groups.
Penn was responsible in large part for the "Concessions and agreements of the Proprietors,
Freeholders, and inhabitants of West Jersey, in America", a monumental document in the history
of civil liberty which provided among others, for liberty of conscience. 80 The Baptist followers of
Williams and the Quakers who came after Penn continued the tradition started by the leaders of
their denominations. Aside from the Baptists and the Quakers, the Presbyterians likewise greatly
contributed to the evolution of separation and freedom.81 The Constitutional fathers who convened
in Philadelphia in 1787, and Congress and the states that adopted the First Amendment in 1791
were very familiar with and strongly influenced by the successful examples of Rhode Island and
Pennsylvania.82
Undeniably, John Locke and the social contract theory also contributed to the American
experiment. The social contract theory popularized by Locke was so widely accepted as to be
deemed self-evident truth in America’s Declaration of Independence. With the doctrine of natural
rights and equality set forth in the Declaration of Independence, there was no room for religious
discrimination. It was difficult to justify inequality in religious treatment by a new nation that
severed its political bonds with the English crown which violated the self-evident truth that all men
are created equal.83
The social contract theory was applied by many religious groups in arguing against establishment,
putting emphasis on religion as a natural right that is entirely personal and not within the scope of
the powers of a political body. That Locke and the social contract theory were influential in the
development of religious freedom and separation is evident from the memorial presented by the
Baptists to the Continental Congress in 1774, viz:
Men unite in society, according to the great Mr. Locke, with an intention in every one the better to
preserve himself, his liberty and property. The power of the society, or Legislature constituted by
them, can never be supposed to extend any further than the common good, but is obliged to
secure every one’s property. To give laws, to receive obedience, to compel with the sword, belong
to none but the civil magistrate; and on this ground we affirm that the magistrate’s power extends
not to establishing any articles of faith or forms of worship, by force of laws; for laws are of no
force without penalties. The care of souls cannot belong to the civil magistrate, because his power
consists only in outward force; but pure and saving religion consists in the inward persuasion of
the mind, without which nothing can be acceptable to God.84 (emphasis supplied)
The idea that religion was outside the jurisdiction of civil government was acceptable to both the
religionist and rationalist. To the religionist, God or Christ did not desire that government have that
jurisdiction ("render unto Caesar that which is Caesar’s"; "my kingdom is not of this world") and to
the rationalist, the power to act in the realm of religion was not one of the powers conferred on
government as part of the social contract.85
Not only the social contract theory drifted to the colonies from Europe. Many of the leaders of the
Revolutionary and post-revolutionary period were also influenced by European deism and
rationalism,86 in general, and some were apathetic if not antagonistic to formal religious worship
and institutionalized religion. Jefferson, Paine, John Adams, Washington, Franklin, Madison,
among others were reckoned to be among the Unitarians or Deists. Unitarianism and Deism
contributed to the emphasis on secular interests and the relegation of historic theology to the
background.87 For these men of the enlightenment, religion should be allowed to rise and fall on its
own, and the state must be protected from the clutches of the church whose entanglements has
caused intolerance and corruption as witnessed throughout history.88 Not only the leaders but also
the masses embraced rationalism at the end of the eighteenth century, accounting for the
popularity of Paine’s Age of Reason.89
Finally, the events leading to religious freedom and separation in Virginia contributed significantly
to the American experiment of the First Amendment. Virginia was the "first state in the history of
the world to proclaim the decree of absolute divorce between church and state." 90 Many factors
contributed to this, among which were that half to two-thirds of the population were organized
dissenting sects, the Great Awakening had won many converts, the established Anglican Church
of Virginia found themselves on the losing side of the Revolution and had alienated many
influential laymen with its identification with the Crown’s tyranny, and above all, present in Virginia
was a group of political leaders who were devoted to liberty generally, 91 who had accepted the
social contract as self-evident, and who had been greatly influenced by Deism and Unitarianism.
Among these leaders were Washington, Patrick Henry, George Mason, James Madison and
above the rest, Thomas Jefferson.
The first major step towards separation in Virginia was the adoption of the following provision in
the Bill of Rights of the state’s first constitution:
That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be
directed only by reason and conviction, not by force or violence; and therefore, all men are equally
entitled to the free exercise of religion according to the dictates of conscience; and that it is the
mutual duty of all to practice Christian forbearance, love, and charity towards each
other.92 (emphasis supplied)
The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists,
Presbyterians and Lutherans flooded the first legislative assembly with petitions for abolition of
establishment. While the majority of the population were dissenters, a majority of the legislature
were churchmen. The legislature compromised and enacted a bill in 1776 abolishing the more
oppressive features of establishment and granting exemptions to the dissenters, but not
guaranteeing separation. It repealed the laws punishing heresy and absence from worship and
requiring the dissenters to contribute to the support of the establishment. 93 But the dissenters were
not satisfied; they not only wanted abolition of support for the establishment, they opposed the
compulsory support of their own religion as others. As members of the established church would
not allow that only they would pay taxes while the rest did not, the legislature enacted in 1779 a
bill making permanent the establishment’s loss of its exclusive status and its power to tax its
members; but those who voted for it did so in the hope that a general assessment bill would be
passed. Without the latter, the establishment would not survive. Thus, a bill was introduced in
1779 requiring every person to enroll his name with the county clerk and indicate which "society
for the purpose of Religious Worship" he wished to support. On the basis of this list, collections
were to be made by the sheriff and turned over to the clergymen and teachers designated by the
religious congregation. The assessment of any person who failed to enroll in any society was to be
divided proportionately among the societies.94 The bill evoked strong opposition.
In 1784, another bill, entitled "Bill Establishing a Provision for Teachers of the Christian Religion"
was introduced requiring all persons "to pay a moderate tax or contribution annually for the
support of the Christian religion, or of some Christian church, denomination or communion of
Christians, or for some form of Christian worship."95 This likewise aroused the same opposition to
the 1779 bill. The most telling blow against the 1784 bill was the monumental "Memorial and
Remonstrance against Religious Assessments" written by Madison and widely distributed before
the reconvening of legislature in the fall of 1785.96 It stressed natural rights, the government’s lack
of jurisdiction over the domain of religion, and the social contract as the ideological basis of
separation while also citing practical considerations such as loss of population through migration.
He wrote, viz:
Because we hold it for a ‘fundamental and undeniable truth,’ that religion, or the duty which we
owe to our creator, and the manner of discharging it, can be directed only by reason and
conviction, not by force or violence. The religion, then, of every man, must be left to the conviction
and conscience of every man; and it is the right of every man to exercise it as these may dictate.
This right is, in its nature, an unalienable right. It is unalienable, because the opinions of men,
depending only on the evidence contemplated in their own minds, cannot follow the dictates of
other men; it is unalienable, also, because what is here a right towards men, is a duty towards the
creator. It is the duty of every man to render the creator such homage, and such only as he
believes to be acceptable to him; this duty is precedent, both in order of time and degree of
obligation, to the claims of civil society. Before any man can be considered as a member of civil
society, he must be considered as a subject of the governor of the universe; and if a member of
civil society, who enters into any subordinate association, must always do it with a reservation of
his duty to the general authority, much more must every man who becomes a member of any
particular civil society do it with the saving his allegiance to the universal sovereign. 97 (emphases
supplied)
Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the great
number of signatures appended to the Memorial. The assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier 1779 bill of Jefferson which
had not been voted on, the "Bill for Establishing Religious Freedom", and it was finally passed in
January 1786. It provided, viz:
Well aware that Almighty God hath created the mind free; that all attempts to influence it by
temporal punishments or burdens, or by civil incapacitations, tend not only to beget habits of
hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who
being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in
his Almighty power to do;
xxx xxx xxx
Be it therefore enacted by the General Assembly. That no man shall be compelled to frequent or
support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained,
molested or burdened in his body or goods, nor shall otherwise suffer on account of his religious
opinions or beliefs, but that all men shall be free to profess, and by argument to maintain, their
opinions in matters of religion, and that the same shall in no wise diminish, enlarge or affect their
civil capacities.98 (emphases supplied)
This statute forbade any kind of taxation in support of religion and effectually ended any thought of
a general or particular establishment in Virginia.99 But the passage of this law was obtained not
only because of the influence of the great leaders in Virginia but also because of substantial
popular support coming mainly from the two great dissenting sects, namely the Presbyterians and
the Baptists. The former were never established in Virginia and an underprivileged minority of the
population. This made them anxious to pull down the existing state church as they realized that it
was impossible for them to be elevated to that privileged position. Apart from these expediential
considerations, however, many of the Presbyterians were sincere advocates of
separation100 grounded on rational, secular arguments and to the language of natural
religion.101 Influenced by Roger Williams, the Baptists, on the other hand, assumed that religion
was essentially a matter of concern of the individual and his God, i.e., subjective, spiritual and
supernatural, having no relation with the social order.102 To them, the Holy Ghost was sufficient to
maintain and direct the Church without governmental assistance and state-supported religion was
contrary ti the spirit of the Gospel.103 Thus, separation was necessary.104 Jefferson’s religious
freedom statute was a milestone in the history of religious freedom. The United States Supreme
Court has not just once acknowledged that the provisions of the First Amendment of the U.S.
Constitution had the same objectives and intended to afford the same protection against
government interference with religious liberty as the Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that government had no power to
legislate in the area of religion by restricting its free exercise or establishing it was implicit in the
Constitution of 1787. This could be deduced from the prohibition of any religious test for federal
office in Article VI of the Constitution and the assumed lack of power of Congress to act on any
subject not expressly mentioned in the Constitution.105 However, omission of an express guaranty
of religious freedom and other natural rights nearly prevented the ratification of the
Constitution.106 In the ratifying conventions of almost every state, some objection was expressed to
the absence of a restriction on the Federal Government as regards legislation on religion.107 Thus,
in 1791, this restriction was made explicit with the adoption of the religion clauses in the First
Amendment as they are worded to this day, with the first part usually referred to as the
Establishment Clause and the second part, the Free Exercise Clause, viz:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise
thereof.
VI. Religion Clauses in the United States:
Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the First Amendment religion clauses
comes an equally broad disagreement as to what these clauses specifically require, permit and
forbid. No agreement has been reached by those who have studied the religion clauses as
regards its exact meaning and the paucity of records in Congress renders it difficult to ascertain its
meaning.108 Consequently, the jurisprudence in this area is volatile and fraught with
inconsistencies whether within a Court decision or across decisions.
One source of difficulty is the difference in the context in which the First Amendment was adopted
and in which it is applied today. In the 1780s, religion played a primary role in social life - i.e.,
family responsibilities, education, health care, poor relief, and other aspects of social life with
significant moral dimension - while government played a supportive and indirect role by
maintaining conditions in which these activities may be carried out by religious or religiously-
motivated associations. Today, government plays this primary role and religion plays the
supportive role.109 Government runs even family planning, sex education, adoption and foster care
programs.110 Stated otherwise and with some exaggeration, "(w)hereas two centuries ago, in
matters of social life which have a significant moral dimension, government was the handmaid of
religion, today religion, in its social responsibilities, as contrasted with personal faith and collective
worship, is the handmaid of government."111 With government regulation of individual conduct
having become more pervasive, inevitably some of those regulations would reach conduct that for
some individuals are religious. As a result, increasingly, there may be inadvertent collisions
between purely secular government actions and religion clause values.112
Parallel to this expansion of government has been the expansion of religious organizations in
population, physical institutions, types of activities undertaken, and sheer variety of
denominations, sects and cults. Churches run day-care centers, retirement homes, hospitals,
schools at all levels, research centers, settlement houses, halfway houses for prisoners, sports
facilities, theme parks, publishing houses and mass media programs. In these activities, religious
organizations complement and compete with commercial enterprises, thus blurring the line
between many types of activities undertaken by religious groups and secular activities. Churches
have also concerned themselves with social and political issues as a necessary outgrowth of
religious faith as witnessed in pastoral letters on war and peace, economic justice, and human life,
or in ringing affirmations for racial equality on religious foundations. Inevitably, these
developments have brought about substantial entanglement of religion and government. Likewise,
the growth in population density, mobility and diversity has significantly changed the environment
in which religious organizations and activities exist and the laws affecting them are made. It is no
longer easy for individuals to live solely among their own kind or to shelter their children from
exposure to competing values. The result is disagreement over what laws should require, permit
or prohibit;113 and agreement that if the rights of believers as well as non-believers are all to be
respected and given their just due, a rigid, wooden interpretation of the religion clauses that is
blind to societal and political realities must be avoided.114
Religion cases arise from different circumstances. The more obvious ones arise from a
government action which purposely aids or inhibits religion. These cases are easier to resolve as,
in general, these actions are plainly unconstitutional. Still, this kind of cases poses difficulty in
ascertaining proof of intent to aid or inhibit religion.115 The more difficult religion clause cases
involve government action with a secular purpose and general applicability which incidentally or
inadvertently aids or burdens religious exercise. In Free Exercise Clause cases, these government
actions are referred to as those with "burdensome effect" on religious exercise even if the
government action is not religiously motivated.116 Ideally, the legislature would recognize the
religions and their practices and would consider them, when practical, in enacting laws of general
application. But when the legislature fails to do so, religions that are threatened and burdened turn
to the courts for protection.117 Most of these free exercise claims brought to the Court are for
exemption, not invalidation of the facially neutral law that has a "burdensome" effect.118
With the change in political and social context and the increasing inadvertent collisions between
law and religious exercise, the definition of religion for purposes of interpreting the religion clauses
has also been modified to suit current realities. Defining religion is a difficult task for even
theologians, philosophers and moralists cannot agree on a comprehensive definition.
Nevertheless, courts must define religion for constitutional and other legal purposes.119 It was in
the 1890 case of Davis v. Beason120 that the United States Supreme Court first had occasion to
define religion, viz:
The term ‘religion’ has reference to one’s views of his relations to his Creator, and to the
obligations they impose of reverence for his being and character, and of obedience to his will. It is
often confounded with the cultus or form of worship of a particular sect, but is distinguishable from
the latter. The First Amendment to the Constitution, in declaring that Congress shall make no law
respecting the establishment of religion, or forbidding the free exercise thereof, was intended to
allow everyone under the jurisdiction of the United States to entertain such notions respecting his
relations to his Maker and the duties they impose as may be approved by his judgment and
conscience, and to exhibit his sentiments in such form of worship as he may think proper, not
injurious to the equal rights of others, and to prohibit legislation for the support of any religious
tenets, or the modes of worship of any sect.121
The definition was clearly theistic which was reflective of the popular attitudes in 1890.
In 1944, the Court stated in United States v. Ballard122 that the free exercise of religion "embraces
the right to maintain theories of life and of death and of the hereafter which are rank heresy to
followers of the orthodox faiths."123 By the 1960s, American pluralism in religion had flourished to
include non-theistic creeds from Asia such as Buddhism and Taoism. 124 In 1961, the Court, in
Torcaso v. Watkins,125 expanded the term "religion" to non-theistic beliefs such as Buddhism,
Taoism, Ethical Culture, and Secular Humanism. Four years later, the Court faced a definitional
problem in United States v. Seeger126 which involved four men who claimed "conscientious
objector" status in refusing to serve in the Vietnam War. One of the four, Seeger, was not a
member of any organized religion opposed to war, but when specifically asked about his belief in a
Supreme Being, Seeger stated that "you could call (it) a belief in a Supreme Being or God. These
just do not happen to be the words that I use." Forest Peter, another one of the four claimed that
after considerable meditation and reflection "on values derived from the Western religious and
philosophical tradition," he determined that it would be "a violation of his moral code to take human
life and that he considered this belief superior to any obligation to the state." The Court avoided a
constitutional question by broadly interpreting not the Free Exercise Clause, but the statutory
definition of religion in the Universal Military Training and Service Act of 1940 which exempt from
combat anyone "who, by reason of religious training and belief, is conscientiously opposed to
participation in war in any form." Speaking for the Court, Justice Clark ruled, viz:
Congress, in using the expression ‘Supreme Being’ rather than the designation ‘God,’ was merely
clarifying the meaning of religious tradition and belief so as to embrace all religions and to exclude
essentially political, sociological, or philosophical views (and) the test of belief ‘in relation to a
Supreme Being’ is whether a given belief that is sincere and meaningful occupies a place in the
life of its possessor parallel to the orthodox belief in God. (emphasis supplied)
The Court was convinced that Seeger, Peter and the others were conscientious objectors
possessed of such religious belief and training.
Federal and state courts have expanded the definition of religion in Seeger to include even non-
theistic beliefs such as Taoism or Zen Buddhism. It has been proposed that basically, a creed
must meet four criteria to qualify as religion under the First Amendment. First, there must be belief
in God or some parallel belief that occupies a central place in the believer’s life. Second, the
religion must involve a moral code transcending individual belief, i.e., it cannot be purely
subjective. Third, a demonstrable sincerity in belief is necessary, but the court must not inquire
into the truth or reasonableness of the belief.127 Fourth, there must be some associational
ties,128 although there is also a view that religious beliefs held by a single person rather than being
part of the teachings of any kind of group or sect are entitled to the protection of the Free Exercise
Clause.129
Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having
hurdled the issue of definition, the court then has to draw lines to determine what is or is not
permissible under the religion clauses. In this task, the purpose of the clauses is the yardstick.
Their purpose is singular; they are two sides of the same coin.130 In devoting two clauses to
religion, the Founders were stating not two opposing thoughts that would cancel each other out,
but two complementary thoughts that apply in different ways in different circumstances. 131 The
purpose of the religion clauses - both in the restriction it imposes on the power of the government
to interfere with the free exercise of religion and the limitation on the power of government to
establish, aid, and support religion - is the protection and promotion of religious liberty.132 The end,
the goal, and the rationale of the religion clauses is this liberty. 133 Both clauses were adopted to
prevent government imposition of religious orthodoxy; the great evil against which they are
directed is government-induced homogeneity.134 The Free Exercise Clause directly articulates the
common objective of the two clauses and the Establishment Clause specifically addresses a form
of interference with religious liberty with which the Framers were most familiar and for which
government historically had demonstrated a propensity.135 In other words, free exercise is the end,
proscribing establishment is a necessary means to this end to protect the rights of those who
might dissent from whatever religion is established.136 It has even been suggested that the sense
of the First Amendment is captured if it were to read as "Congress shall make no law respecting
an establishment of religion or otherwise prohibiting the free exercise thereof" because the
fundamental and single purpose of the two religious clauses is to "avoid any infringement on the
free exercise of religions"137 Thus, the Establishment Clause mandates separation of church and
state to protect each from the other, in service of the larger goal of preserving religious liberty. The
effect of the separation is to limit the opportunities for any religious group to capture the state
apparatus to the disadvantage of those of other faiths, or of no faith at all 138 because history has
shown that religious fervor conjoined with state power is likely to tolerate far less religious
disagreement and disobedience from those who hold different beliefs than an enlightened secular
state.139 In the words of the U.S. Supreme Court, the two clauses are interrelated, viz: "(t)he
structure of our government has, for the preservation of civil liberty, rescued the temporal
institutions from religious interference. On the other hand, it has secured religious liberty from the
invasion of the civil authority."140
In upholding religious liberty as the end goal in religious clause cases, the line the court draws to
ensure that government does not establish and instead remains neutral toward religion is not
absolutely straight. Chief Justice Burger explains, viz:
The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity
could well defeat the basic purpose of these provisions, which is to insure that no religion be
sponsored or favored, none commanded and none inhibited.141 (emphasis supplied)
Consequently, U.S. jurisprudence has produced two identifiably different,142 even opposing, strains
of jurisprudence on the religion clauses: separation (in the form of strict separation or the tamer
version of strict neutrality or separation) and benevolent neutrality or accommodation. A view of
the landscape of U.S. religion clause cases would be useful in understanding these two strains,
the scope of protection of each clause, and the tests used in religious clause cases. Most of these
cases are cited as authorities in Philippine religion clause cases.
A. Free Exercise Clause
The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v. United
States.143 This landmark case involved Reynolds, a Mormon who proved that it was his religious
duty to have several wives and that the failure to practice polygamy by male members of his
religion when circumstances would permit would be punished with damnation in the life to come.
Reynolds’ act of contracting a second marriage violated Section 5352, Revised Statutes
prohibiting and penalizing bigamy, for which he was convicted. The Court affirmed Reynolds’
conviction, using what in jurisprudence would be called the belief-action test which allows absolute
protection to belief but not to action. It cited Jefferson’s Bill Establishing Religious Freedom which,
according to the Court, declares "the true distinction between what properly belongs to the Church
and what to the State."144 The bill, making a distinction between belief and action, states in
relevant part, viz:
That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the
profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy
which at once destroys all religious liberty;
that it is time enough for the rightful purposes of civil government for its officers to interfere when
principles break out into overt acts against peace and good order.145 (emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion, but was left free to reach
actions which were in violation of social duties or subversive of good order. . .
Laws are made for the government of actions, and while they cannot interfere with mere religious
belief and opinions, they may with practices. Suppose one believed that human sacrifice were a
necessary part of religious worship, would it be seriously contended that the civil government
under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it
was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the
power of the civil government to prevent her carrying her belief into practice?
So here, as a law of the organization of society under the exclusive dominion of the United States,
it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the
contrary because of his religious belief? To permit this would be to make the professed doctrines
of religious belief superior to the law of the land, and in effect to permit every citizen to become a
law unto himself. Government could exist only in name under such circumstances.146
The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause
from regulating individual religious beliefs, but placed no restriction on the ability of the state to
regulate religiously motivated conduct. It was logical for belief to be accorded absolute protection
because any statute designed to prohibit a particular religious belief unaccompanied by any
conduct would most certainly be motivated only by the legislature’s preference of a competing
religious belief. Thus, all cases of regulation of belief would amount to regulation of religion for
religious reasons violative of the Free Exercise Clause. On the other hand, most state regulations
of conduct are for public welfare purposes and have nothing to do with the legislature’s religious
preferences. Any burden on religion that results from state regulation of conduct arises only when
particular individuals are engaging in the generally regulated conduct because of their particular
religious beliefs. These burdens are thus usually inadvertent and did not figure in the belief-action
test. As long as the Court found that regulation address action rather than belief, the Free
Exercise Clause did not pose any problem.147 The Free Exercise Clause thus gave no protection
against the proscription of actions even if considered central to a religion unless the legislature
formally outlawed the belief itself.148
This belief-action distinction was held by the Court for some years as shown by cases where the
Court upheld other laws which burdened the practice of the Mormon religion by imposing various
penalties on polygamy such as the Davis case and Church of Latter Day Saints v. United
States.149 However, more than a century since Reynolds was decided, the Court has expanded the
scope of protection from belief to speech and conduct. But while the belief-action test has been
abandoned, the rulings in the earlier Free Exercise cases have gone unchallenged. The belief-
action distinction is still of some importance though as there remains an absolute prohibition of
governmental proscription of beliefs.150
The Free Exercise Clause accords absolute protection to individual religious convictions and
beliefs151 and proscribes government from questioning a person’s beliefs or imposing penalties or
disabilities based solely on those beliefs. The Clause extends protection to both beliefs and
unbelief. Thus, in Torcaso v. Watkins,152 a unanimous Court struck down a state law requiring as a
qualification for public office an oath declaring belief in the existence of God. The protection also
allows courts to look into the good faith of a person in his belief, but prohibits inquiry into the truth
of a person’s religious beliefs. As held in United States v. Ballard, 153 "(h)eresy trials are foreign to
the Constitution. Men may believe what they cannot prove. They may not be put to the proof of
their religious doctrines or beliefs."
Next to belief which enjoys virtually absolute protection, religious speech and expressive religious
conduct are accorded the highest degree of protection. Thus, in the 1940 case of Cantwell v.
Connecticut,154 the Court struck down a state law prohibiting door-to-door solicitation for any
religious or charitable cause without prior approval of a state agency. The law was challenged by
Cantwell, a member of the Jehovah’s Witnesses which is committed to active proselytizing. The
Court invalidated the state statute as the prior approval necessary was held to be a censorship of
religion prohibited by the Free Exercise Clause. The Court held, viz:
In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields
the tenets of one may seem the rankest error to his neighbor. To persuade others to his point of
view, the pleader, as we know, resorts to exaggeration, to vilification of men who have been, or
are, prominent in church or state, and even to false statement. But the people of this nation have
ordained in the light of history, that, in spite of the probability of excesses and abuses, these
liberties are, in the long view, essential to enlightened opinion and right conduct on the part of
citizens of a democracy.155
Cantwell took a step forward from the protection afforded by the Reynolds case in that it not only
affirmed protection of belief but also freedom to act for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to believe and freedom to act. The first is
absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation
for the protection of society. . . In every case, the power to regulate must be so exercised as not,
in attaining a permissible end, unduly to infringe the protected freedom. (emphasis supplied) 156
The Court stated, however, that government had the power to regulate the times, places, and
manner of solicitation on the streets and assure the peace and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of Jeanette, 157 ruled that police could not
prohibit members of the Jehovah’s Witnesses from peaceably and orderly proselytizing on
Sundays merely because other citizens complained. In another case likewise involving the
Jehovah’s Witnesses, Niemotko v. Maryland,158 the Court unanimously held unconstitutional a city
council’s denial of a permit to the Jehovah’s Witnesses to use the city park for a public meeting.
The city council’s refusal was because of the "unsatisfactory" answers of the Jehovah’s Witnesses
to questions about Catholicism, military service, and other issues. The denial of the public forum
was considered blatant censorship. While protected, religious speech in the public forum is still
subject to reasonable time, place and manner regulations similar to non-religious speech.
Religious proselytizing in congested areas, for example, may be limited to certain areas to
maintain the safe and orderly flow of pedestrians and vehicular traffic as held in the case of
Heffron v. International Society for Krishna Consciousness.159
The least protected under the Free Exercise Clause is religious conduct, usually in the form of
unconventional religious practices. Protection in this realm depends on the character of the action
and the government rationale for regulating the action.160 The Mormons’ religious conduct of
polygamy is an example of unconventional religious practice. As discussed in the Reynolds case
above, the Court did not afford protection to the practice. Reynolds was reiterated in the 1890
case of Davis again involving Mormons, where the Court held, viz: "(c)rime is not the less odious
because sanctioned by what any particular sect may designate as religion."161
The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test, regulation of
religiously dictated conduct would be upheld no matter how central the conduct was to the
exercise of religion and no matter how insignificant was the government’s non-religious regulatory
interest so long as the government is proscribing action and not belief. Thus, the Court abandoned
the simplistic belief-action distinction and instead recognized the deliberate-inadvertent distinction,
i.e., the distinction between deliberate state interference of religious exercise for religious reasons
which was plainly unconstitutional and government’s inadvertent interference with religion in
pursuing some secular objective.162 In the 1940 case of Minersville School District v. Gobitis,163 the
Court upheld a local school board requirement that all public school students participate in a daily
flag salute program, including the Jehovah’s Witnesses who were forced to salute the American
flag in violation of their religious training, which considered flag salute to be worship of a "graven
image." The Court recognized that the general requirement of compulsory flag salute inadvertently
burdened the Jehovah Witnesses’ practice of their religion, but justified the government regulation
as an appropriate means of attaining national unity, which was the "basis of national security."
Thus, although the Court was already aware of the deliberate-inadvertent distinction in
government interference with religion, it continued to hold that the Free Exercise Clause presented
no problem to interference with religion that was inadvertent no matter how serious the
interference, no matter how trivial the state’s non-religious objectives, and no matter how many
alternative approaches were available to the state to pursue its objectives with less impact on
religion, so long as government was acting in pursuit of a secular objective.
Three years later, the Gobitis decision was overturned in West Virginia v. Barnette164 which
involved a similar set of facts and issue. The Court recognized that saluting the flag, in connection
with the pledges, was a form of utterance and the flag salute program was a compulsion of
students to declare a belief. The Court ruled that "compulsory unification of opinions leads only to
the unanimity of the graveyard" and exempt the students who were members of the Jehovah’s
Witnesses from saluting the flag. A close scrutiny of the case, however, would show that it was
decided not on the issue of religious conduct as the Court said, "(n)or does the issue as we see it
turn on one’s possession of particular religious views or the sincerity with which they are held.
While religion supplies appellees’ motive for enduring the discomforts of making the issue in this
case, many citizens who do not share these religious views hold such a compulsory rite to infringe
constitutional liberty of the individual." (emphasis supplied)165 The Court pronounced, however,
that, "freedoms of speech and of press, of assembly, and of worship . . . are susceptible only of
restriction only to prevent grave and immediate danger to interests which the state may lawfully
protect."166 The Court seemed to recognize the extent to which its approach in Gobitis
subordinated the religious liberty of political minorities - a specially protected constitutional value -
to the common everyday economic and public welfare objectives of the majority in the legislature.
This time, even inadvertent interference with religion must pass judicial scrutiny under the Free
Exercise Clause with only grave and immediate danger sufficing to override religious liberty. But
the seeds of this heightened scrutiny would only grow to a full flower in the 1960s.167
Nearly a century after Reynolds employed the belief-action test, the Warren Court began the
modern free exercise jurisprudence.168 A two-part balancing test was established in Braunfeld v.
Brown169 where the Court considered the constitutionality of applying Sunday closing laws to
Orthodox Jews whose beliefs required them to observe another day as the Sabbath and abstain
from commercial activity on Saturday. Chief Justice Warren, writing for the Court, found that the
law placed a severe burden on Sabattarian retailers. He noted, however, that since the burden
was the indirect effect of a law with a secular purpose, it would violate the Free Exercise Clause
only if there were alternative ways of achieving the state’s interest. He employed a two-part
balancing test of validity where the first step was for plaintiff to show that the regulation placed a
real burden on his religious exercise. Next, the burden would be upheld only if the state showed
that it was pursuing an overriding secular goal by the means which imposed the least burden on
religious practices.170 The Court found that the state had an overriding secular interest in setting
aside a single day for rest, recreation and tranquility and there was no alternative means of
pursuing this interest but to require Sunday as a uniform rest day.
Two years after came the stricter compelling state interest test in the 1963 case of Sherbert v.
Verner.171 This test was similar to the two-part balancing test in Braunfeld,172 but this latter test
stressed that the state interest was not merely any colorable state interest, but must be paramount
and compelling to override the free exercise claim. In this case, Sherbert, a Seventh Day
Adventist, claimed unemployment compensation under the law as her employment was terminated
for refusal to work on Saturdays on religious grounds. Her claim was denied. She sought recourse
in the Supreme Court. In laying down the standard for determining whether the denial of benefits
could withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellee’s conscientious objection to Saturday work constitutes no conduct
prompted by religious principles of a kind within the reach of state legislation. If, therefore, the
decision of the South Carolina Supreme Court is to withstand appellant’s constitutional challenge,
it must be either because her disqualification as a beneficiary represents no infringement by the
State of her constitutional rights of free exercise, or because any incidental burden on the free
exercise of appellant’s religion may be justified by a ‘compelling state interest in the regulation of a
subject within the State’s constitutional power to regulate. . .’ NAACP v. Button, 371 US 415, 438
9 L ed 2d 405, 421, 83 S Ct 328.173 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to
merely show a rational relationship of the substantial infringement to the religious right
and a colorable state interest. "(I)n this highly sensitive constitutional area, ‘[o]nly the gravest
abuses, endangering paramount interests, give occasion for permissible limitation.’ Thomas v.
Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315."174 The Court found that there was no
such compelling state interest to override Sherbert’s religious liberty. It added that even if the state
could show that Sherbert’s exemption would pose serious detrimental effects to the
unemployment compensation fund and scheduling of work, it was incumbent upon the state to
show that no alternative means of regulations would address such detrimental effects without
infringing religious liberty. The state, however, did not discharge this burden. The Court thus
carved out for Sherbert an exemption from the Saturday work requirement that caused her
disqualification from claiming the unemployment benefits. The Court reasoned that upholding the
denial of Sherbert’s benefits would force her to choose between receiving benefits and following
her religion. This choice placed "the same kind of burden upon the free exercise of religion as
would a fine imposed against (her) for her Saturday worship." This germinal case of Sherbert
firmly established the exemption doctrine, 175 viz:
It is certain that not every conscience can be accommodated by all the laws of the land; but when
general laws conflict with scruples of conscience, exemptions ought to be granted unless some
‘compelling state interest’ intervenes.
Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early as
Braunfeld), the Court moved from the doctrine that inadvertent or incidental interferences with
religion raise no problem under the Free Exercise Clause to the doctrine that such interferences
violate the Free Exercise Clause in the absence of a compelling state interest - the highest level of
constitutional scrutiny short of a holding of a per se violation. Thus, the problem posed by
the belief-action test and the deliberate-inadvertent distinction was addressed.176
Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court, the
rationale in Sherbert continued to be applied. In Thomas v. Review Board177 and Hobbie v.
Unemployment Appeals Division,178 for example, the Court reiterated the exemption doctrine and
held that in the absence of a compelling justification, a state could not withhold unemployment
compensation from an employee who resigned or was discharged due to unwillingness to depart
from religious practices and beliefs that conflicted with job requirements. But not every
governmental refusal to allow an exemption from a regulation which burdens a sincerely held
religious belief has been invalidated, even though strict or heightened scrutiny is applied. In United
States v. Lee,179 for instance, the Court using strict scrutiny and referring to Thomas, upheld the
federal government’s refusal to exempt Amish employers who requested for exemption from
paying social security taxes on wages on the ground of religious beliefs. The Court held that
"(b)ecause the broad public interest in maintaining a sound tax system is of such a high order,
religious belief in conflict with the payment of taxes affords no basis for resisting the tax." 180 It
reasoned that unlike in Sherbert, an exemption would significantly impair government’s
achievement of its objective - "the fiscal vitality of the social security system;" mandatory
participation is indispensable to attain this objective. The Court noted that if an exemption were
made, it would be hard to justify not allowing a similar exemption from general federal taxes where
the taxpayer argues that his religious beliefs require him to reduce or eliminate his payments so
that he will not contribute to the government’s war-related activities, for example.
The strict scrutiny and compelling state interest test significantly increased the degree of
protection afforded to religiously motivated conduct. While not affording absolute immunity to
religious activity, a compelling secular justification was necessary to uphold public policies that
collided with religious practices. Although the members of the Court often disagreed over which
governmental interests should be considered compelling, thereby producing dissenting and
separate opinions in religious conduct cases, this general test established a strong presumption in
favor of the free exercise of religion.181
Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder182 where the Court
upheld the religious practice of the Old Order Amish faith over the state’s compulsory high school
attendance law. The Amish parents in this case did not permit secular education of their children
beyond the eighth grade. Chief Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against
a claim that such attendance interferes with the practice of a legitimate religious belief, it must
appear either that the State does not deny the free exercise of religious belief by its requirement,
or that there is a state interest of sufficient magnitude to override the interest claiming protection
under the Free Exercise Clause. Long before there was general acknowledgement of the need for
universal education, the Religion Clauses had specially and firmly fixed the right of free exercise of
religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit,
prohibition against the establishment of any religion. The values underlying these two provisions
relating to religion have been zealously protected, sometimes even at the expense of other
interests of admittedly high social importance. . .
The essence of all that has been said and written on the subject is that only those interests of the
highest order and those not otherwise served can overbalance legitimate claims to the free
exercise of religion. . .
. . . our decisions have rejected the idea that that religiously grounded conduct is always outside
the protection of the Free Exercise Clause. It is true that activities of individuals, even when
religiously based, are often subject to regulation by the States in the exercise of their undoubted
power to promote the health, safety, and general welfare, or the Federal government in the
exercise of its delegated powers . . . But to agree that religiously grounded conduct must often be
subject to the broad police power of the State is not to deny that there are areas of conduct
protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the
State to control, even under regulations of general applicability. . . .This case, therefore, does not
become easier because respondents were convicted for their "actions" in refusing to send their
children to the public high school; in this context belief and action cannot be neatly confined in
logic-tight compartments. . . 183
The onset of the 1990s, however, saw a major setback in the protection afforded by the
Free Exercise Clause. In Employment Division, Oregon Department of Human Resources v.
Smith,184 the sharply divided Rehnquist Court dramatically departed from the heightened
scrutiny and compelling justification approach and imposed serious limits on the scope of
protection of religious freedom afforded by the First Amendment. In this case, the well-established
practice of the Native American Church, a sect outside the Judeo-Christian mainstream of
American religion, came in conflict with the state’s interest in prohibiting the use of illicit drugs.
Oregon’s controlled substances statute made the possession of peyote a criminal offense. Two
members of the church, Smith and Black, worked as drug rehabilitation counselors for a private
social service agency in Oregon. Along with other church members, Smith and Black ingested
peyote, a hallucinogenic drug, at a sacramental ceremony practiced by Native Americans for
hundreds of years. The social service agency fired Smith and Black citing their use of peyote as
"job-related misconduct". They applied for unemployment compensation, but the Oregon
Employment Appeals Board denied their application as they were discharged for job-related
misconduct. Justice Scalia, writing for the majority, ruled that "if prohibiting the exercise of religion
. . . is . . . merely the incidental effect of a generally applicable and otherwise valid law, the First
Amendment has not been offended." In other words, the Free Exercise Clause would be offended
only if a particular religious practice were singled out for proscription. The majority opinion relied
heavily on the Reynolds case and in effect, equated Oregon’s drug prohibition law with the anti-
polygamy statute in Reynolds. The relevant portion of the majority opinion held, viz:
We have never invalidated any governmental action on the basis of the Sherbert test except the
denial of unemployment compensation.
Even if we were inclined to breathe into Sherbert some life beyond the unemployment
compensation field, we would not apply it to require exemptions from a generally applicable
criminal law. . .
We conclude today that the sounder approach, and the approach in accord with the vast majority
of our precedents, is to hold the test inapplicable to such challenges. The government’s ability to
enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out
other aspects of public policy, "cannot depend on measuring the effects of a governmental action
on a religious objector’s spiritual development." . . .To make an individual’s obligation to obey such
a law contingent upon the law’s coincidence with his religious beliefs except where the State’s
interest is "compelling" - permitting him, by virtue of his beliefs, "to become a law unto himself," . . .
- contradicts both constitutional tradition and common sense.
Justice O’Connor wrote a concurring opinion pointing out that the majority’s rejection of the
compelling governmental interest test was the most controversial part of the decision. Although
she concurred in the result that the Free Exercise Clause had not been offended, she sharply
criticized the majority opinion as a dramatic departure "from well-settled First Amendment
jurisprudence. . . and . . . (as) incompatible with our Nation’s fundamental commitment to religious
liberty." This portion of her concurring opinion was supported by Justices Brennan, Marshall and
Blackmun who dissented from the Court’s decision. Justice O’Connor asserted that "(t)he
compelling state interest test effectuates the First Amendment’s command that religious liberty is
an independent liberty, that it occupies a preferred position, and that the Court will not permit
encroachments upon this liberty, whether direct or indirect, unless required by clear and
compelling government interest ‘of the highest order’." Justice Blackmun registered a separate
dissenting opinion, joined by Justices Brennan and Marshall. He charged the majority with
"mischaracterizing" precedents and "overturning. . . settled law concerning the Religion Clauses of
our Constitution." He pointed out that the Native American Church restricted and supervised the
sacramental use of peyote. Thus, the state had no significant health or safety justification for
regulating the sacramental drug use. He also observed that Oregon had not attempted to
prosecute Smith or Black, or any Native Americans, for that matter, for the sacramental use of
peyote. In conclusion, he said that "Oregon’s interest in enforcing its drug laws against religious
use of peyote (was) not sufficiently compelling to outweigh respondents’ right to the free exercise
of their religion."
The Court went back to the Reynolds and Gobitis doctrine in Smith. The Court’s standard in Smith
virtually eliminated the requirement that the government justify with a compelling state interest the
burdens on religious exercise imposed by laws neutral toward religion. The Smith doctrine is
highly unsatisfactory in several respects and has been criticized as exhibiting a shallow
understanding of free exercise jurisprudence.185 First, the First amendment was intended to protect
minority religions from the tyranny of the religious and political majority. A deliberate regulatory
interference with minority religious freedom is the worst form of this tyranny. But regulatory
interference with a minority religion as a result of ignorance or sensitivity of the religious and
political majority is no less an interference with the minority’s religious freedom. If the regulation
had instead restricted the majority’s religious practice, the majoritarian legislative process would in
all probability have modified or rejected the regulation. Thus, the imposition of the political
majority’s non-religious objectives at the expense of the minority’s religious interests implements
the majority’s religious viewpoint at the expense of the minority’s. Second, government impairment
of religious liberty would most often be of the inadvertent kind as in Smith considering the political
culture where direct and deliberate regulatory imposition of religious orthodoxy is nearly
inconceivable. If the Free Exercise Clause could not afford protection to inadvertent interference, it
would be left almost meaningless. Third, the Reynolds-Gobitis-Smith doctrine simply defies
common sense. The state should not be allowed to interfere with the most deeply held
fundamental religious convictions of an individual in order to pursue some trivial state economic or
bureaucratic objective. This is especially true when there are alternative approaches for the state
to effectively pursue its objective without serious inadvertent impact on religion.186
Thus, the Smith decision has been criticized not only for increasing the power of the state over
religion but as discriminating in favor of mainstream religious groups against smaller, more
peripheral groups who lack legislative clout,187 contrary to the original theory of the First
Amendment.188 Undeniably, claims for judicial exemption emanate almost invariably from relatively
politically powerless minority religions and Smith virtually wiped out their judicial recourse for
exemption.189 Thus, the Smith decision elicited much negative public reaction especially from the
religious community, and commentaries insisted that the Court was allowing the Free Exercise
Clause to disappear.190 So much was the uproar that a majority in Congress was convinced to
enact the Religious Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited government
at all levels from substantially burdening a person’s free exercise of religion, even if such burden
resulted from a generally applicable rule, unless the government could demonstrate a compelling
state interest and the rule constituted the least restrictive means of furthering that
interest.191 RFRA, in effect, sought to overturn the substance of the Smith ruling and restore the
status quo prior to Smith. Three years after the RFRA was enacted, however, the Court, dividing 6
to 3, declared the RFRA unconstitutional in City of Boerne v. Flores.192 The Court ruled that "RFRA
contradicts vital principles necessary to maintain separation of powers and the federal balance." It
emphasized the primacy of its role as interpreter of the Constitution and unequivocally rejected, on
broad institutional grounds, a direct congressional challenge of final judicial authority on a question
of constitutional interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 193 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.195Prior cases had made passing reference to the Establishment Clause 196 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
States198quoted Jefferson’s famous letter of 1802 to the Danbury Baptist Association in narrating
the history of the religion clauses, viz:
Believing with you that religion is a matter which lies solely between man and his God; that he
owes account to none other for his faith or his worship; that the legislative powers of the
Government reach actions only, and not opinions, I contemplate with sovereign reverence that act
of the whole American people which declared that their Legislature should ‘make no law
respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall
of separation between Church and State.199 (emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, "(c)oming as this does from an
acknowledged leader of the advocates of the measure, it may be accepted almost as an
authoritative declaration of the scope and effect of the amendment thus secured."200
The interpretation of the Establishment Clause has in large part been in cases involving education,
notably state aid to private religious schools and prayer in public schools. 201 In Everson v. Board of
Education, for example, the issue was whether a New Jersey local school board could reimburse
parents for expenses incurred in transporting their children to and from Catholic schools. The
reimbursement was part of a general program under which all parents of children in public schools
and nonprofit private schools, regardless of religion, were entitled to reimbursement for
transportation costs. Justice Hugo Black, writing for a sharply divided Court, justified the
reimbursements on the child benefit theory, i.e., that the school board was merely furthering the
state’s legitimate interest in getting children "regardless of their religion, safely and expeditiously to
and from accredited schools." The Court, after narrating the history of the First Amendment in
Virginia, interpreted the Establishment Clause, viz:
The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state
nor the Federal Government can set up a church. Neither can pass laws which aid one religion,
aid all religions, or prefer one religion over another. Neither can force nor influence a person to go
to or remain away from church against his will or force him to profess a belief or disbelief in any
religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for
church attendance or non-attendance. No tax in any amount, large or small, can be levied to
support any religious activities or institutions, whatever they may be called, or whatever form they
may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or
secretly participate in the affairs of any religious organizations or groups and vice versa. In the
words of Jefferson, the clause against establishment of religion by law was intended to erect "a
wall of separation between Church and State."202
The Court then ended the opinion, viz:
The First Amendment has erected a wall between church and state. That wall must be kept high
and impregnable. We could not approve the slightest breach. New Jersey has not breached it
here.203
By 1971, the Court integrated the different elements of the Court’s Establishment Clause
jurisprudence that evolved in the 1950s and 1960s and laid down a three-pronged test in Lemon v.
Kurtzman204 in determining the constitutionality of policies challenged under the Establishment
Clause. This case involved a Pennsylvania statutory program providing publicly funded
reimbursement for the cost of teachers’ salaries, textbooks, and instructional materials in secular
subjects and a Rhode Island statute providing salary supplements to teachers in parochial
schools. The Lemon test requires a challenged policy to meet the following criteria to pass
scrutiny under the Establishment Clause. "First, the statute must have a secular legislative
purpose; second, its primary or principal effect must be one that neither advances nor inhibits
religion (Board of Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923
[1968]); finally, the statute must not foster ‘an excessive entanglement with religion.’ (Walz v.Tax
Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409 [1970])" (emphasis
supplied)205Using this test, the Court held that the Pennsylvania statutory program and Rhode
Island statute were unconstitutional as fostering excessive entanglement between government
and religion.
The most controversial of the education cases involving the Establishment Clause are the school
prayer decisions. "Few decisions of the modern Supreme Court have been criticized more
intensely than the school prayer decisions of the early 1960s." 206 In the 1962 case of Engel v.
Vitale,207 the Court invalidated a New York Board of Regents policy that established the voluntary
recitation of a brief generic prayer by children in the public schools at the start of each school day.
The majority opinion written by Justice Black stated that "in this country it is no part of the
business of government to compose official prayers for any group of the American people to recite
as part of a religious program carried on by government." In fact, history shows that this very
practice of establishing governmentally composed prayers for religious services was one of the
reasons that caused many of the early colonists to leave England and seek religious freedom in
America. The Court called to mind that the first and most immediate purpose of the Establishment
Clause rested on the belief that a union of government and religion tends to destroy government
and to degrade religion. The following year, the Engel decision was reinforced in Abington School
District v. Schempp208 and Murray v. Curlett209 where the Court struck down the practice of Bible
reading and the recitation of the Lord’s prayer in the Pennsylvania and Maryland schools. The
Court held that to withstand the strictures of the Establishment Clause, a statute must have a
secular legislative purpose and a primary effect that neither advances nor inhibits religion. It
reiterated, viz:
The wholesome ‘neutrality’ of which this Court’s cases speak thus stems from a recognition of the
teachings of history that powerful sects or groups might bring about a fusion of governmental and
religious functions or a concert or dependency of one upon the other to the end that official
support of the State of Federal Government would be placed behind the tenets of one or of all
orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in
the Free Exercise Clause, which recognizes the value of religious training, teaching and
observance and, more particularly, the right of every person to freely choose his own course with
reference thereto, free of any compulsion from the state.210
The school prayer decisions drew furious reactions. Religious leaders and conservative members
of Congress and resolutions passed by several state legislatures condemned these
decisions.211 On several occasions, constitutional amendments have been introduced in Congress
to overturn the school prayer decisions. Still, the Court has maintained its position and has in fact
reinforced it in the 1985 case of Wallace v. Jaffree212 where the Court struck down an Alabama law
that required public school students to observe a moment of silence "for the purpose of meditation
or voluntary prayer" at the start of each school day.
Religious instruction in public schools has also pressed the Court to interpret the Establishment
Clause. Optional religious instruction within public school premises and instructional time were
declared offensive of the Establishment Clause in the 1948 case of McCollum v. Board of
Education,213 decided just a year after the seminal Everson case. In this case, interested members
of the Jewish, Roman Catholic and a few Protestant faiths obtained permission from the Board of
Education to offer classes in religious instruction to public school students in grades four to nine.
Religion classes were attended by pupils whose parents signed printed cards requesting that their
children be permitted to attend. The classes were taught in three separate groups by Protestant
teachers, Catholic priests and a Jewish rabbi and were held weekly from thirty to forty minutes
during regular class hours in the regular classrooms of the school building. The religious teachers
were employed at no expense to the school authorities but they were subject to the approval and
supervision of the superintendent of schools. Students who did not choose to take religious
instruction were required to leave their classrooms and go to some other place in the school
building for their secular studies while those who were released from their secular study for
religious instruction were required to attend the religious classes. The Court held that the use of
tax-supported property for religious instruction and the close cooperation between the school
authorities and the religious council in promoting religious education amounted to a prohibited use
of tax-established and tax-supported public school system to aid religious groups spread their
faith. The Court rejected the claim that the Establishment Clause only prohibited government
preference of one religion over another and not an impartial governmental assistance of all
religions. In Zorach v. Clauson,214 however, the Court upheld released time programs allowing
students in public schools to leave campus upon parental permission to attend religious services
while other students attended study hall. Justice Douglas, the writer of the opinion, stressed that
"(t)he First Amendment does not require that in every and all respects there shall be a separation
of Church and State." The Court distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for religious instruction and the force of the public
school was used to promote that instruction. . . We follow the McCollum case. But we cannot
expand it to cover the present released time program unless separation of Church and State
means that public institutions can make no adjustments of their schedules to accommodate the
religious needs of the people. We cannot read into the Bill of Rights such a philosophy of hostility
to religion.215
In the area of government displays or affirmations of belief, the Court has given leeway to religious
beliefs and practices which have acquired a secular meaning and have become deeply
entrenched in history. For instance, in McGowan v. Maryland,216 the Court upheld laws that
prohibited certain businesses from operating on Sunday despite the obvious religious
underpinnings of the restrictions. Citing the secular purpose of the Sunday closing laws and
treating as incidental the fact that this day of rest happened to be the day of worship for most
Christians, the Court held, viz:
It is common knowledge that the first day of the week has come to have special significance as a
rest day in this country. People of all religions and people with no religion regard Sunday as a time
for family activity, for visiting friends and relatives, for later sleeping, for passive and active
entertainments, for dining out, and the like.217
In the 1983 case of Marsh v. Chambers,218 the Court refused to invalidate Nebraska’s policy of
beginning legislative sessions with prayers offered by a Protestant chaplain retained at the
taxpayers’ expense. The majority opinion did not rely on the Lemon test and instead drew heavily
from history and the need for accommodation of popular religious beliefs, viz:
In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt
that the practice of opening legislative sessions with prayer has become the fabric of our society.
To invoke Divine guidance on a public body entrusted with making the laws is not, in these
circumstances, an "establishment" of religion or a step toward establishment; it is simply a
tolerable acknowledgement of beliefs widely held among the people of this country. As Justice
Douglas observed, "(w)e are a religious people whose institutions presuppose a Supreme Being."
(Zorach c. Clauson, 343 US 306, 313 [1952])219 (emphasis supplied)
Some view the Marsh ruling as a mere aberration as the Court would "inevitably be embarrassed if
it were to attempt to strike down a practice that occurs in nearly every legislature in the United
States, including the U.S. Congress."220 That Marsh was not an aberration is suggested by
subsequent cases. In the 1984 case of Lynch v. Donnelly,221 the Court upheld a city-sponsored
nativity scene in Rhode Island. By a 5-4 decision, the majority opinion hardly employed the Lemon
test and again relied on history and the fact that the creche had become a "neutral harbinger of
the holiday season" for many, rather than a symbol of Christianity.
The Establishment Clause has also been interpreted in the area of tax exemption. By tradition,
church and charitable institutions have been exempt from local property taxes and their income
exempt from federal and state income taxes. In the 1970 case of Walz v. Tax Commission, 222 the
New York City Tax Commission’s grant of property tax exemptions to churches as allowed by
state law was challenged by Walz on the theory that this required him to subsidize those churches
indirectly. The Court upheld the law stressing its neutrality, viz:
It has not singled out one particular church or religious group or even churches as such; rather, it
has granted exemptions to all houses of religious worship within a broad class of property owned
by non-profit, quasi-public corporations . . . The State has an affirmative policy that considers
these groups as beneficial and stabilizing influences in community life and finds this classification
useful, desirable, and in the public interest.223
The Court added that the exemption was not establishing religion but "sparing the exercise of
religion from the burden of property taxation levied on private profit institutions" 224 and preventing
excessive entanglement between state and religion. At the same time, the Court acknowledged
the long-standing practice of religious tax exemption and the Court’s traditional deference to
legislative bodies with respect to the taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-
Revolutionary colonial times, than for the government to exercise . . . this kind of benevolent
neutrality toward churches and religious exercise generally so long as none was favored over
others and none suffered interference.225 (emphasis supplied)
C. Strict Neutrality v. Benevolent Neutrality
To be sure, the cases discussed above, while citing many landmark decisions in the religious
clauses area, are but a small fraction of the hundreds of religion clauses cases that the U.S.
Supreme Court has passed upon. Court rulings contrary to or making nuances of the above cases
may be cited. Professor McConnell poignantly recognizes this, viz:
Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead the
legislature in daily prayers (Marsh v. Chambers, 463 US783, 792-93[1983]), but unconstitutional
for a state to set aside a moment of silence in the schools for children to pray if they want to
(Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a state to require employers to
accommodate their employees’ work schedules to their sabbath observances (Estate of Thornton
v. Caldor, Inc., 472 US 703, 709-10 [1985]) but constitutionally mandatory for a state to require
employers to pay workers compensation when the resulting inconsistency between work and
sabbath leads to discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is constitutional
for the government to give money to religiously-affiliated organizations to teach adolescents about
proper sexual behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not to teach them
science or history (Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the
government to provide religious school pupils with books (Board of Education v. Allen, 392 US
236, 238 [1968]), but not with maps (Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus
rides to religious schools (Everson v. Board of Education, 330 US 1, 17 [1947]), but not from
school to a museum on a field trip (Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to
pay for state-mandated standardized tests (Committee for Pub. Educ. and Religious Liberty v.
Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-related maintenance (Committee for
Pub. Educ v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess.226
But the purpose of the overview is not to review the entirety of the U.S. religion clause
jurisprudence nor to extract the prevailing case law regarding particular religious beliefs or conduct
colliding with particular government regulations. Rather, the cases discussed above suffice to
show that, as legal scholars observe, this area of jurisprudence has demonstrated two main
standards used by the Court in deciding religion clause cases: separation (in the form of strict
separation or the tamer version of strict neutrality or separation) and benevolent neutrality or
accommodation. The weight of current authority, judicial and in terms of sheer volume, appears to
lie with the separationists, strict or tame.227 But the accommodationists have also attracted a
number of influential scholars and jurists.228 The two standards producing two streams of
jurisprudence branch out respectively from the history of the First Amendment in England and the
American colonies and climaxing in Virginia as narrated in this opinion and officially acknowledged
by the Court in Everson, and from American societal life which reveres religion and practices age-
old religious traditions. Stated otherwise, separation - strict or tame - protects the principle of
church-state separation with a rigid reading of the principle while benevolent neutrality protects
religious realities, tradition and established practice with a flexible reading of the principle. 229 The
latter also appeals to history in support of its position, viz:
The opposing school of thought argues that the First Congress intended to allow government
support of religion, at least as long as that support did not discriminate in favor of one particular
religion. . . the Supreme Court has overlooked many important pieces of history. Madison, for
example, was on the congressional committee that appointed a chaplain, he declared several
national days of prayer and fasting during his presidency, and he sponsored Jefferson’s bill for
punishing Sabbath breakers; moreover, while president, Jefferson allowed federal support of
religious missions to the Indians. . . And so, concludes one recent book, ‘there is no support in the
Congressional records that either the First Congress, which framed the First Amendment, or its
principal author and sponsor, James Madison, intended that Amendment to create a state of
complete independence between religion and government. In fact, the evidence in the public
documents goes the other way.230 (emphasis supplied)
To succinctly and poignantly illustrate the historical basis of benevolent neutrality that gives room
for accommodation, less than twenty-four hours after Congress adopted the First Amendment’s
prohibition on laws respecting an establishment of religion, Congress decided to express its
thanks to God Almighty for the many blessings enjoyed by the nation with a resolution in favor of a
presidential proclamation declaring a national day of Thanksgiving and Prayer. Only two members
of Congress opposed the resolution, one on the ground that the move was a "mimicking of
European customs, where they made a mere mockery of thanksgivings", the other on
establishment clause concerns. Nevertheless, the salutary effect of thanksgivings throughout
Western history was acknowledged and the motion was passed without further recorded
discussion.231 Thus, accommodationists also go back to the framers to ascertain the meaning of
the First Amendment, but prefer to focus on acts rather than words. Contrary to the claim of
separationists that rationalism pervaded America in the late 19th century and that America was
less specifically Christian during those years than at any other time before or
since,232 accommodationaists claim that American citizens at the time of the Constitution’s origins
were a remarkably religious people in particularly Christian terms.233
The two streams of jurisprudence - separationist or accommodationist - are anchored on a
different reading of the "wall of separation." The strict separtionist view holds that Jefferson
meant the "wall of separation" to protect the state from the church. Jefferson was a man of the
Enlightenment Era of the eighteenth century, characterized by the rationalism and anticlericalism
of that philosophic bent.234 He has often been regarded as espousing Deism or the rationalistic
belief in a natural religion and natural law divorced from its medieval connection with divine law,
and instead adhering to a secular belief in a universal harmony.235 Thus, according to this
Jeffersonian view, the Establishment Clause being meant to protect the state from the church, the
state’s hostility towards religion allows no interaction between the two. 236 In fact, when Jefferson
became President, he refused to proclaim fast or thanksgiving days on the ground that these are
religious exercises and the Constitution prohibited the government from intermeddling with
religion.237 This approach erects an absolute barrier to formal interdependence of religion and
state. Religious institutions could not receive aid, whether direct or indirect, from the state. Nor
could the state adjust its secular programs to alleviate burdens the programs placed on
believers.238 Only the complete separation of religion from politics would eliminate the formal
influence of religious institutions and provide for a free choice among political views thus a strict
"wall of separation" is necessary.239 Strict separation faces difficulties, however, as it is deeply
embedded in history and contemporary practice that enormous amounts of aid, both direct and
indirect, flow to religion from government in return for huge amounts of mostly indirect aid from
religion. Thus, strict separationists are caught in an awkward position of claiming a constitutional
principle that has never existed and is never likely to.240
A tamer version of the strict separationist view, the strict neutrality or separationist view is largely
used by the Court, showing the Court’s tendency to press relentlessly towards a more secular
society.241 It finds basis in the Everson case where the Court declared that Jefferson’s "wall of
separation" encapsulated the meaning of the First Amendment but at the same time held that the
First Amendment "requires the state to be neutral in its relations with groups of religious believers
and non-believers; it does not require the state to be their adversary. State power is no more to be
used so as to handicap religions than it is to favor them." (emphasis supplied) 242 While the strict
neutrality approach is not hostile to religion, it is strict in holding that religion may not be used as a
basis for classification for purposes of governmental action, whether the action confers rights or
privileges or imposes duties or obligations. Only secular criteria may be the basis of government
action. It does not permit, much less require, accommodation of secular programs to religious
belief.243 Professor Kurland wrote, viz:
The thesis proposed here as the proper construction of the religion clauses of the first amendment
is that the freedom and separation clauses should be read as a single precept that government
cannot utilize religion as a standard for action or inaction because these clauses prohibit
classification in terms of religion either to confer a benefit or to impose a burden.244
The Court has repeatedly declared that religious freedom means government neutrality in religious
matters and the Court has also repeatedly interpreted this policy of neutrality to prohibit
government from acting except for secular purposes and in ways that have primarily secular
effects.245
Prayer in public schools is an area where the Court has applied strict neutrality and refused to
allow any form of prayer, spoken or silent, in the public schools as in Engel and Schempp. 246 The
McCollum case prohibiting optional religious instruction within public school premises during
regular class hours also demonstrates strict neutrality. In these education cases, the Court refused
to uphold the government action as they were based not on a secular but on a religious purpose.
Strict neutrality was also used in Reynolds and Smith which both held that if government acts in
pursuit of a generally applicable law with a secular purpose that merely incidentally burdens
religious exercise, the First Amendment has not been offended. However, if the strict neutrality
standard is applied in interpreting the Establishment Clause, it could de facto void religious
expression in the Free Exercise Clause. As pointed out by Justice Goldberg in his concurring
opinion in Schempp, strict neutrality could lead to "a brooding and pervasive devotion to the
secular and a passive, or even active, hostility to the religious" which is prohibited by the
Constitution.247 Professor Laurence Tribe commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea of a free
exercise clause. The Framers, whatever specific applications they may have intended, clearly
envisioned religion as something special; they enacted that vision into law by guaranteeing the
free exercise of religion but not, say, of philosophy or science. The strict neutrality approach all but
erases this distinction. Thus it is not surprising that the Supreme Court has rejected strict
neutrality, permitting and sometimes mandating religious classifications.248
The separationist approach, whether strict or tame, is caught in a dilemma because while the
Jeffersonian wall of separation "captures the spirit of the American ideal of church-state
separation", in real life church and state are not and cannot be totally separate.249 This is all the
more true in contemporary times when both the government and religion are growing and
expanding their spheres of involvement and activity, resulting in the intersection of government
and religion at many points.250
Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent
neutrality which gives room for accommodation is buttressed by a different view of the "wall of
separation" associated with Williams, founder of the Rhode Island colony. In Mark DeWolfe
Howe’s classic, The Garden and the Wilderness, he asserts that to the extent the Founders had a
wall of separation in mind, it was unlike the Jeffersonian wall that is meant to protect the state from
the church; instead, the wall is meant to protect the church from the state, 251 i.e., the "garden" of
the church must be walled in for its own protection from the "wilderness" of the world 252 with its
potential for corrupting those values so necessary to religious commitment. 253 Howe called this the
"theological" or "evangelical" rationale for church-state separation while the wall espoused by
"enlightened" statesmen such as Jefferson and Madison, was a "political" rationale seeking to
protect politics from intrusions by the church.254 But it has been asserted that this contrast between
the Williams and Jeffersonian positions is more accurately described as a difference in kinds or
styles of religious thinking, not as a conflict between "religious" and "secular (political)"; the
religious style was biblical and evangelical in character while the secular style was grounded in
natural religion, more generic and philosophical in its religious orientation. 255
The Williams wall is, however, breached for the church is in the state and so the remaining
purpose of the wall is to safeguard religious liberty. Williams’ view would therefore allow for
interaction between church and state, but is strict with regard to state action which would threaten
the integrity of religious commitment.256 His conception of separation is not total such that it
provides basis for certain interactions between church and state dictated by apparent necessity or
practicality.257 This "theological" view of separation is found in Williams’ writings, viz:
. . . when they have opened a gap in the hedge or wall of separation between the garden of the
church and the wilderness of the world, God hath ever broke down the wall itself, removed the
candlestick, and made his garden a wilderness, as this day. And that therefore if He will eer
please to restore His garden and paradise again, it must of necessity be walled in peculiarly unto
Himself from the world. . .258
Chief Justice Burger spoke of benevolent neutrality in Walz, viz:
The general principle deducible from the First Amendment and all that has been said by the Court
is this: that we will not tolerate either governmentally established religion or governmental
interference with religion. Short of those expressly proscribed governmental acts there is room for
play in the joints productive of a benevolent neutrality which will permit religious exercise to exist
without sponsorship and without interference.259 (emphasis supplied)
The Zorach case expressed the doctrine of accommodation,260 viz:
The First Amendment, however, does not say that in every and all respects there shall be a
separation of Church and State. Rather, it studiously defines the manner, the specific ways, in
which there shall be no concert or union or dependency one or the other. That is the common
sense of the matter. Otherwise, the state and religion would be aliens to each other - hostile,
suspicious, and even unfriendly. Churches could not be required to pay even property taxes.
Municipalities would not be permitted to render police or fire protection to religious groups.
Policemen who helped parishioners into their places of worship would violate the Constitution.
Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief
Executive; the proclamations making Thanksgiving Day a holiday; "so help me God" in our
courtroom oaths- these and all other references to the Almighty that run through our laws, our
public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or
agnostic could even object to the supplication with which the Court opens each session: ‘God
save the United States and this Honorable Court.
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being. We guarantee the
freedom to worship as one chooses. . . When the state encourages religious instruction or
cooperates with religious authorities by adjusting the schedule of public events, it follows the best
of our traditions. For it then respects the religious nature of our people and accommodates the
public service to their spiritual needs. To hold that it may not would be to find in the Constitution a
requirement that the government show a callous indifference to religious groups. . . But we find no
constitutional requirement which makes it necessary for government to be hostile to religion and to
throw its weight against efforts to widen their effective scope of religious influence. 261 (emphases
supplied)
Benevolent neutrality is congruent with the sociological proposition that religion serves a function
essential to the survival of society itself, thus there is no human society without one or more ways
of performing the essential function of religion. Although for some individuals there may be no felt
need for religion and thus it is optional or even dispensable, for society it is not, which is why there
is no human society without one or more ways of performing the essential function of religion.
Even in ostensibly atheistic societies, there are vigorous underground religion(s) and surrogate
religion(s) in their ideology.262 As one sociologist wrote:
It is widely held by students of society that there are certain functional prerequisites without which
society would not continue to exist. At first glance, this seems to be obvious - scarcely more than
to say that an automobile could not exist, as a going system, without a carburetor. . . Most writers
list religion among the functional prerequisites.263
Another noted sociologist, Talcott Parsons, wrote: "There is no known human society without
something which modern social scientists would classify as a religion…Religion is as much a
human universal as language."264
Benevolent neutrality thus recognizes that religion plays an important role in the public life of the
United States as shown by many traditional government practices which, to strict neutrality, pose
Establishment Clause questions. Among these are the inscription of "In God We Trust" on
American currency, the recognition of America as "one nation under God" in the official pledge of
allegiance to the flag, the Supreme Court’s time-honored practice of opening oral argument with
the invocation "God save the United States and this honorable Court," and the practice of
Congress and every state legislature of paying a chaplain, usually of a particular Protestant
denomination to lead representatives in prayer.265 These practices clearly show the preference for
one theological viewpoint -the existence of and potential for intervention by a god - over the
contrary theological viewpoint of atheism. Church and government agencies also cooperate in the
building of low-cost housing and in other forms of poor relief, in the treatment of alcoholism and
drug addiction, in foreign aid and other government activities with strong moral dimension. 266 The
persistence of these de facto establishments are in large part explained by the fact that throughout
history, the evangelical theory of separation, i.e., Williams’ wall, has demanded respect for these
de facto establishments.267 But the separationists have a different explanation. To characterize
these as de jure establishments according to the principle of the Jeffersonian wall, the U.S.
Supreme Court, the many dissenting and concurring opinions explain some of these practices as
"‘de minimis’ instances of government endorsement or as historic governmental practices that
have largely lost their religious significance or at least have proven not to lead the government into
further involvement with religion.268
With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government policies
that take religion specifically into account not to promote the government’s favored form of religion,
but to allow individuals and groups to exercise their religion without hindrance. Their purpose or
effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s
religion. As Justice Brennan explained, the "government [may] take religion into account…to
exempt, when possible, from generally applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish."269 (emphasis
supplied) Accommodation is forbearance and not alliance. it does not reflect agreement with the
minority, but respect for the conflict between the temporal and spiritual authority in which the
minority finds itself.270
Accommodation is distinguished from strict neutrality in that the latter holds that government
should base public policy solely on secular considerations, without regard to the religious
consequences of its actions. The debate between accommodation and strict neutrality is at base a
question of means: "Is the freedom of religion best achieved when the government is conscious of
the effects of its action on the various religious practices of its people, and seeks to minimize
interferences with those practices? Or is it best advanced through a policy of ‘religious blindness’ -
keeping government aloof from religious practices and issues?" An accommodationist holds that it
is good public policy, and sometimes constitutionally required, for the state to make conscious and
deliberate efforts to avoid interference with religious freedom. On the other hand, the strict
neutrality adherent believes that it is good public policy, and also constitutionally required, for the
government to avoid religion-specific policy even at the cost of inhibiting religious exercise.271
There are strong and compelling reasons, however, to take the accommodationist position rather
than the strict neutrality position. First, the accommodationist interpretation is most consistent with
the language of the First Amendment. The religion clauses contain two parallel provisions, both
specifically directed at "religion." The government may not "establish" religion and neither may
government "prohibit" it. Taken together, the religion clauses can be read most plausibly as
warding off two equal and opposite threats to religious freedom - government action that promotes
the (political) majority’s favored brand of religion and government action that impedes religious
practices not favored by the majority. The substantive end in view is the preservation of the
autonomy of religious life and not just the formal process value of ensuring that government does
not act on the basis of religious bias. On the other hand, strict neutrality interprets the religion
clauses as allowing government to do whatever it desires to or for religion, as long as it does the
same to or for comparable secular entities. Thus, for example, if government prohibits all alcoholic
consumption by minors, it can prohibit minors from taking part in communion. Paradoxically, this
view would make the religion clauses violate the religion clauses, so to speak, since the religion
clauses single out religion by name for special protection. Second, the accommodationist position
best achieves the purposes of the First Amendment. The principle underlying the First Amendment
is that freedom to carry out one’s duties to a Supreme Being is an inalienable right, not one
dependent on the grace of legislature. Although inalienable, it is necessarily limited by the rights of
others, including the public right of peace and good order. Nevertheless it is a substantive right
and not merely a privilege against discriminatory legislation. The accomplishment of the purpose
of the First Amendment requires more than the "religion blindness" of strict neutrality. With the
pervasiveness of government regulation, conflicts with religious practices become frequent and
intense. Laws that are suitable for secular entities are sometimes inappropriate for religious
entities, thus the government must make special provisions to preserve a degree of independence
for religious entities for them to carry out their religious missions according to their religious
beliefs. Otherwise, religion will become just like other secular entities subject to pervasive
regulation by majoritarian institutions. Third, the accommodationist interpretation is particularly
necessary to protect adherents of minority religions from the inevitable effects of majoritarianism,
which include ignorance and indifference and overt hostility to the minority. In a democratic
republic, laws are inevitably based on the presuppositions of the majority, thus not infrequently,
they come into conflict with the religious scruples of those holding different world views, even in
the absence of a deliberate intent to interfere with religious practice. At times, this effect is
unavoidable as a practical matter because some laws are so necessary to the common good that
exceptions are intolerable. But in other instances, the injury to religious conscience is so great and
the advancement of public purposes so small or incomparable that only indifference or hostility
could explain a refusal to make exemptions. Because of plural traditions, legislators and executive
officials are frequently willing to make such exemptions when the need is brought to their
attention, but this may not always be the case when the religious practice is either unknown at the
time of enactment or is for some reason unpopular. In these cases, a constitutional interpretation
that allows accommodations prevents needless injury to the religious consciences of those who
can have an influence in the legislature; while a constitutional interpretation that requires
accommodations extends this treatment to religious faiths that are less able to protect themselves
in the political arena. Fourth, the accommodationist position is practical as it is a commonsensical
way to deal with the various needs and beliefs of different faiths in a pluralistic nation. Without
accommodation, many otherwise beneficial laws would interfere severely with religious freedom.
Aside from laws against serving alcoholic beverages to minors conflicting with celebration of
communion, regulations requiring hard hats in construction areas can effectively exclude Amish
and Sikhs from the workplace, or employment anti-discrimination laws can conflict with the Roman
Catholic male priesthood, among others. Exemptions from such laws are easy to craft and
administer and contribute much to promoting religious freedom at little cost to public policy.
Without exemptions, legislature would be frequently forced to choose between violating religious
conscience of a segment of the population or dispensing with legislation it considers beneficial to
society as a whole. Exemption seems manifestly more reasonable than either of the alternative: no
exemption or no law.272
Benevolent neutrality gives room for different kinds of accommodation: those which are
constitutionally compelled, i.e., required by the Free Exercise Clause; and those which are
discretionary or legislative, i.e., and those not required by the Free Exercise Clause but
nonetheless permitted by the Establishment Clause.273 Some Justices of the Supreme Court have
also used the term accommodation to describe government actions that acknowledge or express
prevailing religious sentiments of the community such as display of a religious symbol on public
property or the delivery of a prayer at public ceremonial events.274 Stated otherwise, using
benevolent neutrality as a standard could result to three situations of accommodation: those
where accommodation is required, those where it is permissible, and those where it is prohibited.
In the first situation, accommodation is required to preserve free exercise protections and not
unconstitutionally infringe on religious liberty or create penalties for religious freedom. Contrary to
the Smith declaration that free exercise exemptions are "intentional government advancement",
these exemptions merely relieve the prohibition on the free exercise thus allowing the burdened
religious adherent to be left alone. The state must create exceptions to laws of general
applicability when these laws threaten religious convictions or practices in the absence of a
compelling state interest.275 By allowing such exemptions, the Free Exercise Clause does not give
believers the right or privilege to choose for themselves to override socially-prescribed decision; it
allows them to obey spiritual rather than temporal authority276 for those who seriously invoke the
Free Exercise Clause claim to be fulfilling a solemn duty. Religious freedom is a matter less of
rights than duties; more precisely, it is a matter of rights derived from duties. To deny a person or
a community the right to act upon such a duty can be justified only by appeal to a yet more
compelling duty. Of course, those denied will usually not find the reason for the denial compelling.
"Because they may turn out to be right about the duty in question, and because, even if they are
wrong, religion bears witness to that which transcends the political order, such denials should be
rare and painfully reluctant."277
The Yoder case is an example where the Court held that the state must accommodate the
religious beliefs of the Amish who objected to enrolling their children in high school as required by
law. The Sherbert case is another example where the Court held that the state unemployment
compensation plan must accommodate the religious convictions of Sherbert. 278 In these cases of
"burdensome effect", the modern approach of the Court has been to apply strict scrutiny, i.e., to
declare the burden as permissible, the Court requires the state to demonstrate that the regulation
which burdens the religious exercise pursues a particularly important or compelling government
goal through the least restrictive means. If the state’s objective could be served as well or almost
as well by granting an exemption to those whose religious beliefs are burdened by the regulation,
such an exemption must be given.279This approach of the Court on "burdensome effect" was only
applied since the 1960s. Prior to this time, the Court took the separationist view that as long as the
state was acting in pursuit of non-religious ends and regulating conduct rather than pure religious
beliefs, the Free Exercise Clause did not pose a hindrance such as in Reynolds. 280 In the second
situation where accommodation is permissible, the state may, but is not required to, accommodate
religious interests. The Walz case illustrates this situation where the Court upheld the
constitutionality of tax exemption given by New York to church properties, but did not rule that the
state was required to provide tax exemptions. The Court declared that "(t)he limits of permissible
state accommodation to religion are by no means co-extensive with the noninterference mandated
by the Free Exercise Clause."281 The Court held that New York could have an interest in
encouraging religious values and avoiding threats to those values through the burden of property
taxes. Other examples are the Zorach case allowing released time in public schools and Marsh
allowing payment of legislative chaplains from public funds. Finally, in the situation where
accommodation is prohibited, establishment concerns prevail over potential accommodation
interests. To say that there are valid exemptions buttressed by the Free Exercise Clause does not
mean that all claims for free exercise exemptions are valid.282 An example where accommodation
was prohibited is McCollum where the Court ruled against optional religious instruction in the
public school premises.283 In effect, the last situation would arrive at a strict neutrality conclusion.
In the first situation where accommodation is required, the approach follows this basic framework:
If the plaintiff can show that a law or government practice inhibits the free exercise of his religious
beliefs, the burden shifts to the government to demonstrate that the law or practice is necessary to
the accomplishment of some important (or ‘compelling’) secular objective and that it is the least
restrictive means of achieving that objective. If the plaintiff meets this burden and the government
does not, the plaintiff is entitled to exemption from the law or practice at issue. In order to be
protected, the claimant’s beliefs must be ‘sincere’, but they need not necessarily be consistent,
coherent, clearly articulated, or congruent with those of the claimant’s religious denomination.
‘Only beliefs rooted in religion are protected by the Free Exercise Clause’; secular beliefs,
however sincere and conscientious, do not suffice.284
In other words, a three-step process (also referred to as the "two-step balancing process" supra
when the second and third steps are combined) as in Sherbert is followed in weighing the state’s
interest and religious freedom when these collide. Three questions are answered in this process.
First, "(h)as the statute or government action created a burden on the free exercise of religion?"
The courts often look into the sincerity of the religious belief, but without inquiring into the truth of
the belief because the Free Exercise Clause prohibits inquiring about its truth as held in Ballard
and Cantwell. The sincerity of the claimant’s belief is ascertained to avoid the mere claim of
religious beliefs to escape a mandatory regulation. As evidence of sincerity, the U.S. Supreme
Court has considered historical evidence as in Wisconsin where the Amish people had held a
long-standing objection to enrolling their children in ninth and tenth grades in public high schools.
In another case, Dobkin v. District of Columbia,285 the Court denied the claim of a party who
refused to appear in court on Saturday alleging he was a Sabbatarian, but the Court noted that he
regularly conducted business on Saturday. Although it is true that the Court might erroneously
deny some claims because of a misjudgment of sincerity, this is not as argument to reject all
claims by not allowing accommodation as a rule. There might be injury to the particular claimant or
to his religious community, but for the most part, the injustice is done only in the particular
case.286 Aside from the sincerity, the court may look into the centrality of those beliefs, assessing
them not on an objective basis but in terms of the opinion and belief of the person seeking
exemption. In Wisconsin, for example, the Court noted that the Amish people’s convictions against
becoming involved in public high schools were central to their way of life and faith. Similarly, in
Sherbert, the Court concluded that the prohibition against Saturday work was a "cardinal
principle."287 Professor Lupu puts to task the person claiming exemption, viz:
On the claimant’s side, the meaning and significance of the relevant religious practice must be
demonstrated. Religious command should outweigh custom, individual conscience should count
for more than personal convenience, and theological principle should be of greater significance
than institutional ease. Sincerity matters, (footnote omitted) and longevity of practice - both by the
individual and within the individual’s religious tradition - reinforces sincerity. Most importantly, the
law of free exercise must be inclusive and expansive, recognizing non-Christian religions -
eastern, Western, aboriginal and otherwise - as constitutionally equal to their Christian
counterparts, and accepting of the intensity and scope of fundamentalist creed.288
Second, the court asks: "(i)s there a sufficiently compelling state interest to justify this infringement
of religious liberty?" In this step, the government has to establish that its purposes are legitimate
for the state and that they are compelling. Government must do more than assert the objectives at
risk if exemption is given; it must precisely show how and to what extent those objectives will be
undermined if exemptions are granted.289 The person claiming religious freedom, on the other
hand, will endeavor to show that the interest is not legitimate or that the purpose, although
legitimate, is not compelling compared to infringement of religious liberty. This step involves
balancing, i.e., weighing the interest of the state against religious liberty to determine which is
more compelling under the particular set of facts. The greater the state’s interests, the more
central the religious belief would have to be to overcome it. In assessing the state interest, the
court will have to determine the importance of the secular interest and the extent to which that
interest will be impaired by an exemption for the religious practice. Should the court find the
interest truly compelling, there will be no requirement that the state diminish the effectiveness of its
regulation by granting the exemption.290
Third, the court asks: "(h)as the state in achieving its legitimate purposes used the least intrusive
means possible so that the free exercise is not infringed any more than necessary to achieve the
legitimate goal of the state?"291 The analysis requires the state to show that the means in which it
is achieving its legitimate state objective is the least intrusive means, i.e., it has chosen a way to
achieve its legitimate state end that imposes as little as possible on religious liberties. In Cantwell,
for example, the Court invalidated the license requirement for the door-to-door solicitation as it
was a forbidden burden on religious liberty, noting that less drastic means of insuring peace and
tranquility existed. As a whole, in carrying out the compelling state interest test, the Court should
give careful attention to context, both religious and regulatory, to achieve refined judgment. 292
In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular
government and religious freedom create tensions that make constitutional law on the subject of
religious liberty unsettled, mirroring the evolving views of a dynamic society.293
VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket of Catholicism covered the archipelago.
There was a union of church and state and Catholicism was the state religion under the Spanish
Constitution of 1876. Civil authorities exercised religious functions and the friars exercised civil
powers.294 Catholics alone enjoyed the right of engaging in public ceremonies of
worship.295 Although the Spanish Constitution itself was not extended to the Philippines,
Catholicism was also the established church in our country under the Spanish rule. Catholicism
was in fact protected by the Spanish Penal Code of 1884 which was in effect in the Philippines.
Some of the offenses in chapter six of the Penal Code entitled "Crimes against Religion and
Worship" referred to crimes against the state religion.296The coming of the Americans to our
country, however, changed this state-church scheme for with the advent of this regime, the unique
American experiment of "separation of church and state" was transported to Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the United States and Spain on
December 10, 1898, the American guarantee of religious freedom had been extended to the
Philippines. The Treaty provided that "the inhabitants of the territories over which Spain
relinquishes or cedes her sovereignty shall be secured in the free exercise of religion."297 Even the
Filipinos themselves guaranteed religious freedom a month later or on January 22, 1899 upon the
adoption of the Malolos Constitution of the Philippine Republic under General Emilio Aguinaldo. It
provided that "the State recognizes the liberty and equality of all religion (de todos los cultos) in
the same manner as the separation of the Church and State." But the Malolos Constitution and
government was short-lived as the Americans took over the reigns of government.298
With the Philippines under the American regime, President McKinley issued Instructions to the
Second Philippine Commission, the body created to take over the civil government in the
Philippines in 1900. The Instructions guaranteed religious freedom, viz:
That no law shall be made respecting the establishment of religion or prohibiting the free exercise
thereof, and that the free exercise and enjoyment of religious profession and worship without
discrimination or preference shall forever be allowed ... that no form of religion and no minister of
religion shall be forced upon the community or upon any citizen of the Islands, that, on the other
hand, no minister of religion shall be interfered with or molested in following his calling.299
This provision was based on the First Amendment of the United States Constitution. Likewise, the
Instructions declared that "(t)he separation between State and Church shall be real, entire and
absolute."300
Thereafter, every organic act of the Philippines contained a provision on freedom of religion.
Similar to the religious freedom clause in the Instructions, the Philippine Bill of 1902 provided that:
No law shall be made respecting an establishment of religion or prohibiting the free exercise
thereof, and that free exercise and enjoyment of religious worship, without discrimination or
preference, shall forever be allowed.
In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of 1902 "caused the complete
separation of church and state, and the abolition of all special privileges and all restrictions
theretofor conferred or imposed upon any particular religious sect."302
The Jones Law of 1916 carried the same provision, but expanded it with a restriction against using
public money or property for religious purposes, viz:
That no law shall be made respecting an establishment of religion or prohibiting the free exercise
thereof, and that the free exercise and enjoyment of religious profession and worship without
discrimination or preference, shall forever be allowed; and no religious test shall be required for
the exercise of civil or political rights. No public money or property shall ever be appropriated,
applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or for the use, benefit or support of any
priest, preacher, minister, or other religious teachers or dignitary as such.
This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934 which
guaranteed independence to the Philippines and authorized the drafting of a Philippine
constitution. It enjoined Filipinos to include freedom of religion in drafting their constitution
preparatory to the grant of independence. The law prescribed that "(a)bsolute toleration of
religious sentiment shall be secured and no inhabitant or religious organization shall be molested
in person or property on account of religious belief or mode of worship."303
The Constitutional Convention then began working on the 1935 Constitution. In their proceedings,
Delegate Jose P. Laurel as Chairman of the Committee on Bill of Rights acknowledged that "(i)t
was the Treaty of Paris of December 10, 1898, which first introduced religious toleration in our
country. President McKinley’s Instructions to the Second Philippine Commission reasserted this
right which later was incorporated into the Philippine Bill of 1902 and in the Jones Law." 304 In
accordance with the Tydings-McDuffie Law, the 1935 Constitution provided in the Bill of Rights,
Article IV, Section 7, viz:
Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof, and the free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.
This provision, borrowed from the Jones Law, was readily approved by the Convention.305 In his
speech as Chairman of the Committee on Bill of Rights, Delegate Laurel said that modifications in
phraseology of the Bill of Rights in the Jones Law were avoided whenever possible because "the
principles must remain couched in a language expressive of their historical background, nature,
extent and limitations as construed and interpreted by the great statesmen and jurists that vitalized
them."306
The 1973 Constitution which superseded the 1935 Constitution contained an almost identical
provision on religious freedom in the Bill of Rights in Article IV, Section 8, viz:
Sec. 8. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.
This time, however, the General Provisions in Article XV added in Section 15 that "(t)he separation
of church and state shall be inviolable."
Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were
reproduced in the 1987 Constitution under the Bill of Rights in Article III, Section 5. 307 Likewise, the
provision on separation of church and state was included verbatim in the 1987 Constitution, but
this time as a principle in Section 6, Article II entitled Declaration of Principles and State Policies.
Considering the American origin of the Philippine religion clauses and the intent to adopt the
historical background, nature, extent and limitations of the First Amendment of the U.S.
Constitution when it was included in the 1935 Bill of Rights, it is not surprising that nearly all the
major Philippine cases involving the religion clauses turn to U.S. jurisprudence in explaining the
nature, extent and limitations of these clauses. However, a close scrutiny of these cases would
also reveal that while U.S. jurisprudence on religion clauses flows into two main streams of
interpretation - separation and benevolent neutrality - the well-spring of Philippine jurisprudence
on this subject is for the most part, benevolent neutrality which gives room for accommodation.
B. Jurisprudence
In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin with the
definition of "religion". "Religion" is derived from the Middle English religioun, from Old French
religion, from Latin religio, vaguely referring to a "bond between man and the gods."308 This pre-
Christian term for the cult and rituals of pagan Rome was first Christianized in the Latin translation
of the Bible.309 While the U.S. Supreme Court has had to take up the challenge of defining the
parameters and contours of "religion" to determine whether a non-theistic belief or act is covered
by the religion clauses, this Court has not been confronted with the same issue. In Philippine
jurisprudence, religion, for purposes of the religion clauses, has thus far been interpreted as
theistic. In 1937, the Philippine case of Aglipay v. Ruiz310 involving the Establishment Clause,
defined "religion" as a "profession of faith to an active power that binds and elevates man to his
Creator." Twenty years later, the Court cited the Aglipay definition in American Bible Society v.
City of Manila,311 a case involving the Free Exercise clause. The latter also cited the American
case of Davis in defining religion, viz: "(i)t has reference to one’s views of his relations to His
Creator and to the obligations they impose of reverence to His being and character and obedience
to His Will." The Beason definition, however, has been expanded in U.S. jurisprudence to include
non-theistic beliefs.
1. Free Exercise Clause
Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of
compulsion or burden, whether direct or indirect, in the practice of one’s religion. The Free
Exercise Clause principally guarantees voluntarism, although the Establishment Clause also
assures voluntarism by placing the burden of the advancement of religious groups on their intrinsic
merits and not on the support of the state.312
In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The early case of
Gerona v. Secretary of Education313 is instructive on the matter, viz:
The realm of belief and creed is infinite and limitless bounded only by one’s imagination and
thought. So is the freedom of belief, including religious belief, limitless and without bounds. One
may believe in most anything, however strange, bizarre and unreasonable the same may appear
to others, even heretical when weighed in the scales of orthodoxy or doctrinal standards. But
between the freedom of belief and the exercise of said belief, there is quite a stretch of road to
travel.314
The difficulty in interpretation sets in when belief is externalized into speech and action.
Religious speech comes within the pale of the Free Exercise Clause as illustrated in the American
Bible Society case. In that case, plaintiff American Bible Society was a foreign, non-stock, non-
profit, religious missionary corporation which sold bibles and gospel portions of the bible in the
course of its ministry. The defendant City of Manila required plaintiff to secure a mayor’s permit
and a municipal license as ordinarily required of those engaged in the business of general
merchandise under the city’s ordinances. Plaintiff argued that this amounted to "religious
censorship and restrained the free exercise and enjoyment of religious profession, to wit: the
distribution and sale of bibles and other religious literature to the people of the Philippines."
After defining religion, the Court, citing Tanada and Fernando, made this statement, viz:
The constitutional guaranty of the free exercise and enjoyment of religious profession and worship
carries with it the right to disseminate religious information. Any restraint of such right can only be
justified like other restraints of freedom of expression on the grounds that there is a clear and
present danger of any substantive evil which the State has the right to prevent. (Tanada and
Fernando on the Constitution of the Philippines, vol. 1, 4th ed., p. 297) (emphasis supplied)
This was the Court’s maiden unequivocal affirmation of the "clear and present danger" rule in the
religious freedom area, and in Philippine jurisprudence, for that matter.315 The case did not clearly
show, however, whether the Court proceeded to apply the test to the facts and issues of the case,
i.e., it did not identify the secular value the government regulation sought to protect, whether the
religious speech posed a clear and present danger to this or other secular value protected by
government, or whether there was danger but it could not be characterized as clear and present. It
is one thing to apply the test and find that there is no clear and present danger, and quite another
not to apply the test altogether.
Instead, the Court categorically held that the questioned ordinances were not applicable to plaintiff
as it was not engaged in the business or occupation of selling said "merchandise" for profit. To
add, the Court, citing Murdock v. Pennsylvania,316 ruled that applying the ordinance requiring it to
secure a license and pay a license fee or tax would impair its free exercise of religious profession
and worship and its right of dissemination of religious beliefs "as the power to tax the exercise of a
privilege is the power to control or suppress its enjoyment." Thus, in American Bible Society, the
"clear and present danger" rule was laid down but it was not clearly applied.
In the much later case of Tolentino v. Secretary of Finance,317 also involving the sale of religious
books, the Court distinguished the American Bible Society case from the facts and issues in
Tolentino and did not apply the American Bible Society ruling. In Tolentino, the Philippine Bible
Society challenged the validity of the registration provisions of the Value Added Tax (VAT) Law as
a prior restraint. The Court held, however, that the fixed amount of registration fee was not
imposed for the exercise of a privilege like a license tax which American Bible Society ruled was
violative of religious freedom. Rather, the registration fee was merely an administrative fee to
defray part of the cost of registration which was a central feature of the VAT system. Citing Jimmy
Swaggart Ministries v. Board of Equalization,318 the Court also declared prefatorily that "the Free
Exercise of Religion Clause does not prohibit imposing a generally applicable sales and use tax
on the sale of religious materials by a religious organization." In the Court’s resolution of the
motion for reconsideration of the Tolentino decision, the Court noted that the burden on religious
freedom caused by the tax was just similar to any other economic imposition that might make the
right to disseminate religious doctrines costly.
Two years after American Bible Society came the 1959 case of Gerona v. Secretary of
Education,319 this time involving conduct expressive of religious belief colliding with a rule
prescribed in accordance with law. In this case, petitioners were members of the Jehovah’s
Witnesses. They challenged a Department Order issued by the Secretary of Education
implementing Republic Act No. 1265 which prescribed compulsory flag ceremonies in all public
schools. In violation of the Order, petitioner’s children refused to salute the Philippine flag, sing the
national anthem, or recite the patriotic pledge, hence they were expelled from school. Seeking
protection under the Free Exercise Clause, petitioners claimed that their refusal was on account of
their religious belief that the Philippine flag is an image and saluting the same is contrary to their
religious belief. The Court stated, viz:
. . . If the exercise of religious belief clashes with the established institutions of society and with the
law, then the former must yield to the latter. The Government steps in and either restrains said
exercise or even prosecutes the one exercising it. (emphasis supplied)320
The Court then proceeded to determine if the acts involved constituted a religious ceremony in
conflict with the beliefs of the petitioners with the following justification:
After all, the determination of whether a certain ritual is or is not a religious ceremony must rest
with the courts. It cannot be left to a religious group or sect, much less to a follower of said group
or sect; otherwise, there would be confusion and misunderstanding for there might be as many
interpretations and meaning to be given to a certain ritual or ceremony as there are religious
groups or sects or followers, all depending upon the meaning which they, though in all sincerity
and good faith, may want to give to such ritual or ceremony.321
It was held that the flag was not an image, the flag salute was not a religious ceremony, and there
was nothing objectionable about the singing of the national anthem as it speaks only of love of
country, patriotism, liberty and the glory of suffering and dying for it. The Court upheld the
questioned Order and the expulsion of petitioner’s children, stressing that:
Men may differ and do differ on religious beliefs and creeds, government policies, the wisdom and
legality of laws, even the correctness of judicial decisions and decrees; but in the field of love of
country, reverence for the flag, national unity and patriotism, they can hardly afford to differ, for
these are matters in which they are mutually and vitally interested, for to them, they mean national
existence and survival as a nation or national extinction.322
In support of its ruling, the Court cited Justice Frankfurter’s dissent in the Barnette case, viz:
The constitutional protection of religious freedom x x x gave religious equality, not civil immunity.
Its essence is freedom from conformity to religious dogma, not freedom from conformity to law
because of religious dogma.323
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the Constitution does not and cannot mean
exemption from or non-compliance with reasonable and non-discriminatory laws, rules and
regulations promulgated by competent authority.324
Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon the
Court to determine whether a certain ritual is religious or not; (2) religious freedom will not be
upheld if it clashes with the established institutions of society and with the law such that when a
law of general applicability (in this case the Department Order) incidentally burdens the exercise of
one’s religion, one’s right to religious freedom cannot justify exemption from compliance with the
law. The Gerona ruling was reiterated in Balbuna, et al. v. Secretary of Education, et al.325
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union.326 In
this unanimously decided en banc case, Victoriano was a member of the Iglesia ni Cristo which
prohibits the affiliation of its members with any labor organization. He worked in the Elizalde Rope
Factory, Inc. and was a member of the Elizalde Rope Workers Union which had with the company
a closed shop provision pursuant to Republic Act No. 875 allowing closed shop arrangements.
Subsequently, Republic Act No. 3350 was enacted exempting from the application and coverage
of a closed shop agreement employees belonging to any religious sect which prohibits affiliation of
their members with any labor organization. Victoriano resigned from the union after Republic Act
No. 3350 took effect. The union notified the company of Victoriano’s resignation, which in turn
notified Victoriano that unless he could make a satisfactory arrangement with the union, the
company would be constrained to dismiss him from the service. Victoriano sought to enjoin the
company and the union from dismissing him. The court having granted the injunction, the union
came to this Court on questions of law, among which was whether Republic Act No. 3350 was
unconstitutional for impairing the obligation of contracts and for granting an exemption offensive of
the Establishment Clause. With respect to the first issue, the Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental personal right and liberty (Schneider
v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a preferred position in the
hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only where
unavoidably necessary to prevent an immediate and grave danger to the security and welfare of
the community that infringement of religious freedom may be justified, and only to the smallest
extent necessary.327 (emphasis supplied)
As regards the Establishment Clause issue, the Court after citing the constitutional provision on
establishment and free exercise of religion, declared, viz:
The constitutional provisions not only prohibits legislation for the support of any religious tenets or
the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any
creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but
also assures the free exercise of one’s chosen form of religion within limits of utmost amplitude. It
has been said that the religion clauses of the Constitution are all designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience directs, to profess
his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with
the common good. (footnote omitted). Any legislation whose effect or purpose is to impede the
observance of one or all religions, or to discriminate invidiously between the religions, is invalid,
even though the burden may be characterized as being only indirect. (Sherbert v. Verner, 374
U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by enacting, within its
power, a general law which has for its purpose and effect to advance the state’s secular goals, the
statute is valid despite its indirect burden on religious observance, unless the state can
accomplish its purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed.
2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)328 (emphasis
supplied)
Quoting Aglipay v. Ruiz,329 the Court held that "government is not precluded from pursuing valid
objectives secular in character even if the incidental result would be favorable to a religion or
sect." It also cited Board of Education v. Allen,330 which held that in order to withstand the
strictures of constitutional prohibition, a statute must have a secular legislative purpose and a
primary effect that neither advances nor inhibits religion. Using these criteria in upholding Republic
Act No. 3350, the Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular purpose of advancing the constitutional
right to the free exercise of religion, by averting that certain persons be refused work, or be
dismissed from work, or be dispossessed of their right to work and of being impeded to pursue a
modest means of livelihood, by reason of union security agreements. . . . The primary effects of
the exemption from closed shop agreements in favor of members of religious sects that prohibit
their members from affiliating with a labor organization, is the protection of said employees against
the aggregate force of the collective bargaining agreement, and relieving certain citizens of a
burden on their religious beliefs, and . . . eliminating to a certain extent economic insecurity due to
unemployment.331
The Court stressed that "(a)lthough the exemption may benefit those who are members of
religious sects that prohibit their members from joining labor unions, the benefit upon the religious
sects is merely incidental and indirect."332 In enacting Republic Act No. 3350, Congress merely
relieved the exercise of religion by certain persons of a burden imposed by union security
agreements which Congress itself also imposed through the Industrial Peace Act. The Court
concluded the issue of exemption by citing Sherbert which laid down the rule that when general
laws conflict with scruples of conscience, exemptions ought to be granted unless some
"compelling state interest" intervenes. The Court then abruptly added that "(i)n the instant case,
We see no compelling state interest to withhold exemption."333
A close look at Victoriano would show that the Court mentioned several tests in determining when
religious freedom may be validly limited. First, the Court mentioned the test of "immediate and
grave danger to the security and welfare of the community" and "infringement of religious freedom
only to the smallest extent necessary" to justify limitation of religious freedom. Second, religious
exercise may be indirectly burdened by a general law which has for its purpose and effect the
advancement of the state’s secular goals, provided that there is no other means by which the state
can accomplish this purpose without imposing such burden. Third, the Court referred to the
"compelling state interest" test which grants exemptions when general laws conflict with religious
exercise, unless a compelling state interest intervenes.
It is worth noting, however, that the first two tests were mentioned only for the purpose of
highlighting the importance of the protection of religious freedom as the secular purpose of
Republic Act No. 3350. Upholding religious freedom was a secular purpose insofar as it relieved
the burden on religious freedom caused by another law, i.e, the Industrial Peace Act providing for
union shop agreements. The first two tests were only mentioned in Victoriano but were not applied
by the Court to the facts and issues of the case. The third, the "compelling state interest" test was
employed by the Court to determine whether the exemption provided by Republic Act No. 3350
was not unconstitutional. It upheld the exemption, stating that there was no "compelling state
interest" to strike it down. However, after careful consideration of the Sherbert case from which
Victoriano borrowed this test, the inevitable conclusion is that the "compelling state interest" test
was not appropriate and could not find application in the Victoriano case. In Sherbert, appellant
Sherbert invoked religious freedom in seeking exemption from the provisions of the South
Carolina Unemployment Compensation Act which disqualified her from claiming unemployment
benefits. It was the appellees, members of the South Carolina Employment Commission, a
government agency, who propounded the state interest to justify overriding Sherbert’s claim of
religious freedom. The U.S. Supreme Court, considering Sherbert’s and the Commission’s
arguments, found that the state interest was not sufficiently compelling to prevail over Sherbert’s
free exercise claim. This situation did not obtain in the Victoriano case where it was the
government itself, through Congress, which provided the exemption in Republic Act No. 3350 to
allow Victoriano’s exercise of religion. Thus, the government could not argue against the
exemption on the basis of a compelling state interest as it would be arguing against itself; while
Victoriano would not seek exemption from the questioned law to allow the free exercose of religion
as the law in fact provides such an exemption. In sum, although Victoriano involved a religious
belief and conduct, it did not involve a free exercise issue where the Free Exercise Clause is
invoked to exempt him from the burden imposed by a law on his religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et al. v.
Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de
Filipinas,334 Anucension v. National Labor Union, et al.,335and Gonzales, et al. v. Central
Azucarera de Tarlac Labor Union.336
Then came German v. Barangan in 1985 at the height of the anti-administration rallies. Petitioners
were walking to St. Jude Church within the Malacanang security area to pray for "an end to
violence" when they were barred by the police. Invoking their constitutional freedom of religious
worship and locomotion, they came to the Court on a petition for mandamus to allow them to enter
and pray inside the St. Jude Chapel. The Court was divided on the issue. The slim majority of six
recognized their freedom of religion but noted their absence of good faith and concluded that they
were using their religious liberty to express their opposition to the government. Citing Cantwell, the
Court distinguished between freedom to believe and freedom to act on matters of religion, viz:
. . . Thus the (First) amendment embraces two concepts - freedom to believe and freedom to act.
The first is absolute, but in the nature of things, the second cannot be.337
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of
their religion, but only in the manner by which they had attempted to translate the same to action.
This curtailment is in accord with the pronouncement of this Court in Gerona v. Secretary of
Education (106 Phil. 2), thus:
. . . But between the freedom of belief and the exercise of said belief, there is quite a stretch of
road to travel. If the exercise of said religious belief clashes with the established institutions of
society and with the law, then the former must yield and give way to the latter. The government
steps in and either restrains said exercise or even prosecutes the one exercising it. (italics
supplied)
The majority found that the restriction imposed upon petitioners was "necessary to maintain the
smooth functioning of the executive branch of the government, which petitioners’ mass action
would certainly disrupt"338 and denied the petition. Thus, without considering the tests mentioned in
Victoriano, German went back to the Gerona rule that religious freedom will not be upheld if it
clashes with the established institutions of society and the law.
Then Associate Justice Teehankee registered a dissent which in subsequent jurisprudence would
be cited as a test in religious freedom cases. His dissent stated in relevant part, viz:
A brief restatement of the applicable constitutional principles as set forth in the landmark case of
J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983]) should guide us in resolving the issues.
1. The right to freely exercise one’s religion is guaranteed in Section 8 of our Bill of Rights.
(footnote omitted) Freedom of worship, alongside with freedom of expression and speech and
peaceable assembly "along with the other intellectual freedoms, are highly ranked in our scheme
of constitutional values. It cannot be too strongly stressed that on the judiciary - even more so than
on the other departments - rests the grave and delicate responsibility of assuring respect for and
deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course,
dispense with what has been so felicitously termed by Justice Holmes ‘as the sovereign
prerogative of judgment.’ Nonetheless, the presumption must be to incline the weight of the scales
of justice on the side of such rights, enjoying as they do precedence and primacy.’ (J.B.L. Reyes,
125 SCRA at pp. 569-570)
2. In the free exercise of such preferred rights, there is to be no prior restraint although there may
be subsequent punishment of any illegal acts committed during the exercise of such basic rights.
The sole justification for a prior restraint or limitation on the exercise of these basic rights is the
existence of a grave and present danger of a character both grave and imminent, of a serious evil
to public safety, public morals, public health or any other legitimate public interest, that the State
has a right (and duty) to prevent (Idem, at pp. 560-561).339 (emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankee’s dissent was
taken involved the rights to free speech and assembly, and not the exercise of religious freedom.
At issue in that case was a permit sought by retired Justice J.B.L. Reyes, on behalf of the Anti-
Bases Coalition, from the City of Manila to hold a peaceful march and rally from the Luneta to the
gates of the U.S. Embassy. Nevertheless Bagatsing was used by Justice Teehankee in his dissent
which had overtones of petitioner German and his companions’ right to assemble and petition the
government for redress of grievances.340
In 1993, the issue on the Jehovah’s Witnesses’ participation in the flag ceremony again came
before the Court in Ebralinag v. The Division Superintendent of Schools.341 A unanimous Court
overturned the Gerona ruling after three decades. Similar to Gerona, this case involved several
Jehovah’s Witnesses who were expelled from school for refusing to salute the flag, sing the
national anthem and recite the patriotic pledge, in violation of the Administrative Code of 1987. In
resolving the same religious freedom issue as in Gerona, the Court this time transported the
"grave and imminent danger" test laid down in Justice Teehankee’s dissent in German, viz:
The sole justification for a prior restraint or limitation on the exercise of religious freedom
(according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German v.
Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a character
both grave and imminent, of a serious evil to public safety, public morals, public health or any
other legitimate public interest, that the State has a right (and duty) to prevent. Absent such a
threat to public safety, the expulsion of the petitioners from the schools is not
justified.342 (emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovah’s Witnesses from saluting the flag, singing
the national anthem and reciting the patriotic pledge, this religious group which admittedly
comprises a ‘small portion of the school population’ will shake up our part of the globe and
suddenly produce a nation ‘untaught and uninculcated in and unimbued with reverence for the
flag, patriotism, love of country and admiration for national heroes’ (Gerona v. Secretary of
Education, 106 Phil. 224). After all, what the petitioners seek only is exemption from the flag
ceremony, not exclusion from the public schools where they may study the Constitution, the
democratic way of life and form of government, and learn not only the arts, sciences, Philippine
history and culture but also receive training for a vocation or profession and be taught the virtues
of ‘patriotism, respect for human rights, appreciation of national heroes, the rights and duties of
citizenship, and moral and spiritual values’ (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the
curricula. Expelling or banning the petitioners from Philippine schools will bring about the very
situation that this Court has feared in Gerona. Forcing a small religious group, through the iron
hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be
conducive to love of country or respect for duly constituted authorities.343
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x- assuming that
such unity and loyalty can be attained through coercion- is not a goal that is constitutionally
obtainable at the expense of religious liberty. A desirable end cannot be promoted by prohibited
means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046).344
Towards the end of the decision, the Court also cited the Victoriano case and its use of the
"compelling state interest" test in according exemption to the Jehovah’s Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers’ Union, 59 SCRA 54, 72-75, we upheld the exemption of
members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between their
employer and a union because it would violate the teaching of their church not to join any group:
‘x x x It is certain that not every conscience can be accommodated by all the laws of the land; but
when general laws conflict with scruples of conscience, exemptions ought to be granted unless
some ‘compelling state interest’ intervenes.’ (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965,
970, 83 S.Ct. 1790)’
We hold that a similar exemption may be accorded to the Jehovah’s Witnesses with regard to the
observance of the flag ceremony out of respect for their religious beliefs, however ‘bizarre’ those
beliefs may seem to others.345
The Court annulled the orders expelling petitioners from school.
Thus, the "grave and imminent danger" test laid down in a dissenting opinion in German which
involved prior restraint of religious worship with overtones of the right to free speech and
assembly, was transported to Ebralinag which did not involve prior restraint of religious worship,
speech or assembly. Although, it might be observed that the Court faintly implied that Ebralinag
also involved the right to free speech when in its preliminary remarks, the Court stated that
compelling petitioners to participate in the flag ceremony "is alien to the conscience of the present
generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to free
speech and the free exercise of religious profession and worship;" the Court then stated in a
footnote that the "flag salute, singing the national anthem and reciting the patriotic pledge are all
forms of utterances."346
The "compelling state interest" test was not fully applied by the Court in Ebralinag. In the Solicitor
General’s consolidated comment, one of the grounds cited to defend the expulsion orders issued
by the public respondents was that "(t)he State’s compelling interests being pursued by the DEC’s
lawful regulations in question do not warrant exemption of the school children of the Jehovah’s
Witnesses from the flag salute ceremonies on the basis of their own self-perceived religious
convictions."347 The Court, however, referred to the test only towards the end of the decision and
did not even mention what the Solicitor General argued as the compelling state interest, much less
did the Court explain why the interest was not sufficiently compelling to override petitioners’
religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v. Court of
Appeals, et al.348Although there was a dissent with respect to the applicability of the "clear and
present danger" test in this case, the majority opinion in unequivocal terms applied the "clear and
present danger" test to religious speech. This case involved the television program, "Ang Iglesia ni
Cristo," regularly aired over the television. Upon petitioner Iglesia ni Cristo’s submission of the
VTR tapes of some of its episodes, respondent Board of Review for Motion Pictures and
Television classified these as "X" or not for public viewing on the ground that they "offend and
constitute an attack against other religions which is expressly prohibited by law." Invoking religious
freedom, petitioner alleged that the Board acted without jurisdiction or with grave abuse of
discretion in requiring it to submit the VTR tapes of its television program and x-rating them. While
upholding the Board’s power to review the Iglesia television show, the Court was emphatic about
the preferred status of religious freedom. Quoting Justice Cruz’ commentary on the constitution,
the Court held that freedom to believe is absolute but freedom to act on one’s belief, where it
affects the public, is subject to the authority of the state. The commentary quoted Justice
Frankfurter’s dissent in Barnette which was quoted in Gerona, viz: "(t)he constitutional provision
on religious freedom terminated disabilities, it did not create new privileges. It gave religious
liberty, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom
from conformity to law because of religious dogma."349 Nevertheless, the Court was quick to add
the criteria by which the state can regulate the exercise of religious freedom, that is, when the
exercise will bring about the "clear and present danger of some substantive evil which the State is
duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public
morals, or public welfare."350
In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile to all prior
restraints on speech, including religious speech and the x-rating was a suppression of petitioner’s
freedom of speech as much as it was an interference with its right to free exercise of religion.
Citing Cantwell, the Court recognized that the different religions may criticize one another and their
tenets may collide, but the Establishment Clause prohibits the state from protecting any religion
from this kind of attack.
The Court then called to mind the "clear and present danger" test first laid down in the American
Bible Society case and the test of "immediate and grave danger" with "infringement only to the
smallest extent necessary to avoid danger" in Victoriano and pointed out that the reviewing board
failed to apply the "clear and present danger" test. Applying the test, the Court noted, viz:
The records show that the decision of the respondent Board, affirmed by the respondent appellate
court, is completely bereft of findings of facts to justify the conclusion that the subject video tapes
constitute impermissible attacks against another religion. There is no showing whatsoever of the
type of harm the tapes will bring about especially the gravity and imminence of the threatened
harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical
fears but only by the showing of a substantive and imminent evil which has taken the life of a
reality already on ground.
Replying to the challenge on the applicability of the "clear and present danger" test to the case,
the Court acknowledged the permutations that the test has undergone, but stressed that the test is
still applied to four types of speech: "speech that advocates dangerous ideas, speech that
provokes a hostile audience reaction, out of court contempt and release of information that
endangers a fair trial"351 and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is reason to apply the clear and
present danger test to the case at bar which concerns speech that attacks other religions and
could readily provoke hostile audience reaction. It cannot be doubted that religious truths disturb
and disturb terribly.352
In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom
cannot be invoked to seek exemption from compliance with a law that burdens one’s religious
exercise. It also reiterated the "clear and present danger" test in American Bible Society and the
"grave and imminent danger" in Victoriano, but this time clearly justifying its applicability and
showing how the test was applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law
offensive to religious freedom, but carving out an exception or upholding an exception to
accommodate religious exercise where it is justified.353
2. Establishment Clause
In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by
the Establishment Clause, namely, voluntarism and insulation of the political process from
interfaith dissension. The first, voluntarism, has both a personal and a social dimension. As a
personal value, it refers to the inviolability of the human conscience which, as discussed above, is
also protected by the free exercise clause. From the religious perspective, religion requires
voluntarism because compulsory faith lacks religious efficacy. Compelled religion is a contradiction
in terms.354 As a social value, it means that the "growth of a religious sect as a social force must
come from the voluntary support of its members because of the belief that both spiritual and
secular society will benefit if religions are allowed to compete on their own intrinsic merit without
benefit of official patronage. Such voluntarism cannot be achieved unless the political process is
insulated from religion and unless religion is insulated from politics."355 Non-establishment thus
calls for government neutrality in religious matters to uphold voluntarism and avoid breeding
interfaith dissension.356
The neutrality principle was applied in the first significant non-establishment case under the 1935
Constitution. In the 1937 case of Aglipay v. Ruiz,357 the Philippine Independent Church challenged
the issuance and sale of postage stamps commemorating the Thirty-Third International Eucharistic
Congress of the Catholic Church on the ground that the constitutional prohibition against the use
of public money for religious purposes has been violated. It appears that the Director of Posts
issued the questioned stamps under the provisions of Act No. 4052 358 which appropriated a sum
for the cost of plates and printing of postage stamps with new designs and authorized the Director
of Posts to dispose of the sum in a manner and frequency "advantageous to the Government."
The printing and issuance of the postage stamps in question appears to have been approved by
authority of the President. Justice Laurel, speaking for the Court, took pains explaining religious
freedom and the role of religion in society, and in conclusion, found no constitutional infirmity in
the issuance and sale of the stamps, viz:
The prohibition herein expressed is a direct corollary of the principle of separation of church and
state. Without the necessity of adverting to the historical background of this principle in our
country, it is sufficient to say that our history, not to speak of the history of mankind, has taught us
that the union of church and state is prejudicial to both, for occasions might arise when the state
will use the church, and the church the state, as a weapon in the furtherance of their respective
ends and aims . . . It is almost trite to say now that in this country we enjoy both religious and civil
freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to
support and defend the Constitution, bind themselves to recognize and respect the constitutional
guarantee of religious freedom, with its inherent limitations and recognized implications. It should
be stated that what is guaranteed by our Constitution is religious liberty, not mere toleration.
Religious freedom, however, as a constitutional mandate is not an inhibition of profound reverence
for religion and is not a denial of its influence in human affairs. Religion as a profession of faith to
an active power that binds and elevates man to his Creator is recognized. And, in so far as it
instills into the minds the purest principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their Constitution, implored "the aid of
Divine Providence, in order to establish a government that shall embody their ideals, conserve and
develop the patrimony of the nation, promote the general welfare, and secure to themselves and
their posterity the blessings of independence under a regime of justice, liberty and democracy,"
they thereby manifested their intense religious nature and placed unfaltering reliance upon Him
who guides the destinies of men and nations. The elevating influence of religion in human society
is recognized here as elsewhere. In fact, certain general concessions are indiscriminately
accorded to religious sects and denominations. . .359
xxx xxx xxx
It is obvious that while the issuance and sale of the stamps in question may be said to be
inseparably linked with an event of a religious character, the resulting propaganda, if any, received
by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the
opinion that the Government should not be embarrassed in its activities simply because of
incidental results, more or less religious in character, if the purpose had in view is one which could
legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated
by its subordination to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175
U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168)360 (emphases supplied)
In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or
government action with a legitimate secular purpose does not offend the Establishment Clause
even if it incidentally aids a particular religion.
Almost forty-five years after Aglipay came Garces v. Estenzo.361 Although the Court found that the
separation of church and state was not at issue as the controversy was over who should have
custody of a saint’s image, it nevertheless made pronouncements on the separation of church and
state along the same line as the Aglipay ruling. The Court held that there was nothing
unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio. It adhered to
the barrio resolutions of the barangay involved in the case stating that the barrio fiesta is a socio-
religious affair, the celebration of which is an "ingrained tradition in rural communities" that
"relieves the monotony and drudgery of the lives of the masses." Corollarily, the Court found
nothing illegal about any activity intended to facilitate the worship of the patron saint such as the
acquisition and display of his image bought with funds obtained through solicitation from the barrio
residents. The Court pointed out that the image of the patron saint was "purchased in connection
with the celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for
the purpose of favoring any religion nor interfering with religious matters or the religious beliefs of
the barrio residents." Citing the Aglipay ruling, the Court declared, viz:
Not every governmental activity which involves the expenditure of public funds and which has
some religious tint is violative of the constitutional provisions regarding separation of church and
state, freedom of worship and banning the use of public money or property.
Then came the 1978 case of Pamil v. Teleron, et al.362 which presented a novel issue involving the
religion clauses. In this case, Section 2175 of the Revised Administrative Code of 1917
disqualifying ecclesiastics from appointment or election as municipal officer was challenged. After
protracted deliberation, the Court was sharply divided on the issue. Seven members of the Court,
one short of the number necessary to declare a law unconstitutional, approached the problem
from a free exercise perspective and considered the law a religious test offensive of the
constitution. They were Justices Fernando, Teehankee, Muñoz-Palma, Concepcion, Jr., Santos,
Fernandez, and Guerrero. Then Associate Justice Fernando, the ponente, stated, viz: "The
challenged Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to
any elective or appointive office, is, on its face, inconsistent with the religious freedom guaranteed
by the Constitution." Citing Torcaso v. Watkins,363 the ponencia held, viz:
Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was
there involved was the validity of a provision in the Maryland Constitution prescribing that ‘no
religious test ought ever to be required as a disqualification for any office or profit or trust in this
State, other than a declaration of belief in the existence of God ***.’ Such a constitutional
requirement was assailed as contrary to the First Amendment of the United States Constitution by
an appointee to the office of notary public in Maryland, who was refused a commission as he
would not declare a belief in God. He failed in the Maryland Court of Appeals but prevailed in the
United States Supreme Court, which reversed the state court decision. It could not have been
otherwise. As emphatically declared by Justice Black: ‘this Maryland religious test for public office
unconstitutionally invades the appellant’s freedom of belief and religion and therefore cannot be
enforced against him.
The analogy appears to be obvious. In that case, it was lack of belief in God that was a
disqualification. Here being an ecclesiastic and therefore professing a religious faith suffices to
disqualify for a public office. There is thus an incompatibility between the Administrative Code
provision relied upon by petitioner and an express constitutional mandate.364
On the other hand, the prevailing five other members of the Court - Chief Justice Castro, Justices
Barredo, Makasiar, Antonio and Aquino - approached the case from a non-establishment
perspective and upheld the law as a safeguard against the constant threat of union of church and
state that has marked Philippine history. Justice Makasiar stated: "To allow an ecclesiastic to head
the executive department of a municipality is to permit the erosion of the principle of separation of
Church and State and thus open the floodgates for the violation of the cherished liberty of religion
which the constitutional provision seeks to enforce and protect." Consequently, the Court upheld
the validity of Section 2175 of the Revised Administrative Code and declared respondent priest
ineligible for the office of municipal mayor.
Another type of cases interpreting the establishment clause deals with intramural religious
disputes. Fonacier v. Court of Appeals365 is the leading case. The issue therein was the right of
control over certain properties of the Philippine Independent Church, the resolution of which
necessitated the determination of who was the legitimate bishop of the church. The Court cited
American Jurisprudence,366 viz:
Where, however, a decision of an ecclesiastical court plainly violates the law it professes to
administer, or is in conflict with the law of the land, it will not be followed by the civil courts. . . In
some instances, not only have the civil courts the right to inquire into the jurisdiction of the
religious tribunals and the regularity of their procedure, but they have subjected their decisions to
the test of fairness or to the test furnished by the constitution and the law of the church. . .367
The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de los
Reyes was the duly elected head of the Church, based on their internal laws. To finally dispose of
the property issue, the Court, citing Watson v. Jones,368 declared that the rule in property
controversies within religious congregations strictly independent of any other superior
ecclesiastical association (such as the Philippine Independent Church) is that the rules for
resolving such controversies should be those of any voluntary association. If the congregation
adopts the majority rule then the majority should prevail; if it adopts adherence to duly constituted
authorities within the congregation, then that should be followed. Applying these rules, Fonacier
lost the case. While the Court exercised jurisdiction over the case, it nevertheless refused to touch
doctrinal and disciplinary differences raised, viz:
The amendments of the constitution, restatement of articles of religion and abandonment of faith
or abjuration alleged by appellant, having to do with faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church and having reference to the power of excluding
from the church those allegedly unworthy of membership, are unquestionably ecclesiastical
matters which are outside the province of the civil courts.369
VIII. Free Exercise Clause vis-à-vis Establishment Clause
In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free
Exercise Clause and the Establishment Clause in their application. There is a natural antagonism
between a command not to establish religion and a command not to inhibit its practice; this
tension between the religion clauses often leaves the courts with a choice between competing
values in religion cases.370
One set of facts, for instance, can be differently viewed from the Establishment Clause perspective
and the Free Exercise Clause point of view, and decided in opposite directions. In Pamil, the
majority gave more weight to the religious liberty of the priest in holding that the prohibition of
ecclesiastics to assume elective or appointive government positions was violative of the Free
Exercise Clause. On the other hand, the prevailing five justices gave importance to the
Establishment Clause in stating that the principle of separation of church and state justified the
prohibition.
Tension is also apparent when a case is decided to uphold the Free Exercise Clause and
consequently exemptions from a law of general applicability are afforded by the Court to the
person claiming religious freedom; the question arises whether the exemption does not amount to
support of the religion in violation of the Establishment Clause. This was the case in the Free
Exercise Clause case of Sherbert where the U.S. Supreme Court ruled, viz:
In holding as we do, plainly we are not fostering the "establishment" of the Seventh-day Adventist
religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common
with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in
the face of religious differences, and does not represent that involvement of religious with secular
institutions which it is the object of the Establishment Clause to forestall. 371 (emphasis supplied)
Tension also exists when a law of general application provides exemption in order to uphold free
exercise as in the Walz case where the appellant argued that the exemption granted to religious
organizations, in effect, required him to contribute to religious bodies in violation of the
Establishment Clause. But the Court held that the exemption was not a case of establishing
religion but merely upholding the Free Exercise Clause by "sparing the exercise of religion from
the burden of property taxation levied on private profit institutions." Justice Burger wrote, viz:
(t)he Court has struggled to find a neutral course between the two religion clauses, both of which
are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to
clash with the other.372
Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption afforded by
law to religious sects who prohibit their members from joining unions did not offend the
Establishment Clause. We ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of
the constitutional provision. It acted merely to relieve the exercise of religion, by certain persons,
of a burden that is imposed by union security agreements.373 (emphasis supplied)
Finally, in some cases, a practice is obviously violative of the Establishment Clause but the Court
nevertheless upholds it. In Schempp, Justice Brennan stated: "(t)here are certain practices,
conceivably violative of the Establishment Clause, the striking down of which might seriously
interfere with certain religious liberties also protected by the First Amendment."
How the tension between the Establishment Clause and the Free Exercise Clause will be resolved
is a question for determination in the actual cases that come to the Court. In cases involving both
the Establishment Clause and the Free Exercise Clause, the two clauses should be balanced
against each other. The courts must review all the relevant facts and determine whether there is a
sufficiently strong free exercise right that should prevail over the Establishment Clause problem. In
the United States, it has been proposed that in balancing, the free exercise claim must be given
an edge not only because of abundant historical evidence in the colonial and early national period
of the United States that the free exercise principle long antedated any broad-based support of
disestablishment, but also because an Establishment Clause concern raised by merely
accommodating a citizen’s free exercise of religion seems far less dangerous to the republic than
pure establishment cases. Each time the courts side with the Establishment Clause in cases
involving tension between the two religion clauses, the courts convey a message of hostility to the
religion that in that case cannot be freely exercised.374 American professor of constitutional law,
Laurence Tribe, similarly suggests that the free exercise principle "should be dominant in any
conflict with the anti-establishment principle." This dominance would be the result of commitment
to religious tolerance instead of "thwarting at all costs even the faintest appearance of
establishment."375 In our jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of
the religion clauses does not suffice. Modern society is characterized by the expanding regulatory
arm of government that reaches a variety of areas of human conduct and an expanding concept of
religion. To adequately meet the demands of this modern society, the societal values the religion
clauses are intended to protect must be considered in their interpretation and resolution of the
tension. This, in fact, has been the approach followed by the Philippine Court.376
IX. Philippine Religion Clauses: Nature, Purpose, Tests
Based on Philippine and American Religion Clause History,
Law and Jurisprudence
The history of the religion clauses in the 1987 Constitution shows that these clauses were largely
adopted from the First Amendment of the U.S. Constitution. The religion clauses in the First
Amendment were contained in every organic Act of the Philippines under the American regime.
When the delegates of the 1934 Constitutional Convention adopted a Bill of Rights in the 1935
Constitution, they purposely retained the phraseology of the religion clauses in the First
Amendment as contained in the Jones Law in order to adopt its historical background, nature,
extent and limitations. At that time, there were not too many religion clause cases in the United
States as the U.S. Supreme Court decided an Establishment Clause issue only in the 1947
Everson case. The Free Exercise Clause cases were also scarce then. Over the years, however,
with the expanding reach of government regulation to a whole gamut of human actions and the
growing plurality and activities of religions, the number of religion clause cases in the U.S.
exponentially increased. With this increase came an expansion of the interpretation of the religion
clauses, at times reinforcing prevailing case law, at other times modifying it, and still at other times
creating contradictions so that two main streams of jurisprudence had become identifiable. The
first stream employs separation while the second employs benevolent neutrality in interpreting the
religious clauses. Alongside this change in the landscape of U.S. religion clause jurisprudence, the
Philippines continued to adopt the 1935 Constitution religion clauses in the 1973 Constitution and
later, the 1987 Constitution. Philippine jurisprudence and commentaries on the religious clauses
also continued to borrow authorities from U.S. jurisprudence without articulating the stark
distinction between the two streams of U.S. jurisprudence. One might simply conclude that the
Philippine Constitutions and jurisprudence also inherited the disarray of U.S. religion clause
jurisprudence and the two identifiable streams; thus, when a religion clause case comes before
the Court, a separationist approach or a benevolent neutrality approach might be adopted and
each will have U.S. authorities to support it. Or, one might conclude that as the history of the First
Amendment as narrated by the Court in Everson supports the separationist approach, Philippine
jurisprudence should also follow this approach in light of the Philippine religion clauses’ history. As
a result, in a case where the party claims religious liberty in the face of a general law that
inadvertently burdens his religious exercise, he faces an almost insurmountable wall in convincing
the Court that the wall of separation would not be breached if the Court grants him an exemption.
These conclusions, however, are not and were never warranted by the 1987, 1973 and 1935
Constitutions as shown by other provisions on religion in all three constitutions.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.
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.386The 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 the 1935 and 1971 Constitutions, it is obvious that the 1987 Constitution
is not hostile nor indifferent to religion;400 its wall of separation is not a wall of hostility or
indifference.401
The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church property,
salary of religious officers in government institutions, optional religious instruction and the
preamble all reveal without doubt that the Filipino people, in adopting these constitutions, did not
intend to erect a high and impregnable wall of separation between the church and state.402 The
strict neutrality approach which examines only whether government action is for a secular purpose
and does not consider inadvertent burden on religious exercise protects such a rigid barrier. By
adopting the above constitutional provisions on religion, the Filipinos manifested their adherence
to the benevolent neutrality approach in interpreting the religion clauses, an approach that looks
further than the secular purposes of government action and examines the effect of these actions
on religious exercise. Benevolent neutrality recognizes the religious nature of the Filipino people
and the elevating influence of religion in society; at the same time, it acknowledges that
government must pursue its secular goals. In pursuing these goals, however, government might
adopt laws or actions of general applicability which inadvertently burden religious exercise.
Benevolent neutrality gives room for accommodation of these religious exercises as required by
the Free Exercise Clause. It allows these breaches in the wall of separation to uphold religious
liberty, which after all is the integral purpose of the religion clauses. The case at bar involves this
first type of accommodation where an exemption is sought from a law of general applicability that
inadvertently burdens religious exercise.
Although our constitutional history and interpretation mandate benevolent neutrality, benevolent
neutrality does not mean that the Court ought to grant exemptions every time a free exercise claim
comes before it. But it does mean that the Court will not look with hostility or act indifferently
towards religious beliefs and practices and that it will strive to accommodate them when it can
within flexible constitutional limits; it does mean that the Court will not simply dismiss a claim under
the Free Exercise Clause because the conduct in question offends a law or the orthodox view for
this precisely is the protection afforded by the religion clauses of the Constitution, i.e., that in the
absence of legislation granting exemption from a law of general applicability, the Court can carve
out an exception when the religion clauses justify it. While the Court cannot adopt a doctrinal
formulation that can eliminate the difficult questions of judgment in determining the degree of
burden on religious practice or importance of the state interest or the sufficiency of the means
adopted by the state to pursue its interest, the Court can set a doctrine on the ideal towards which
religious clause jurisprudence should be directed.403 We here lay down the doctrine that in
Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of its merits
as discussed above, but more importantly, because our constitutional history and interpretation
indubitably show that benevolent neutrality is the launching pad from which the Court should take
off in interpreting religion clause cases. The ideal towards which this approach is directed is the
protection of religious liberty "not only for a minority, however small- not only for a majority,
however large- but for each of us" to the greatest extent possible within flexible constitutional
limits.
Benevolent neutrality is manifest not only in the Constitution but has also been recognized in
Philippine jurisprudence, albeit not expressly called "benevolent neutrality" or "accommodation". In
Aglipay, the Court not only stressed the "elevating influence of religion in human society" but
acknowledged the Constitutional provisions on exemption from tax of church property, salary of
religious officers in government institutions, and optional religious instruction as well as the
provisions of the Administrative Code making Thursday and Friday of the Holy Week, Christmas
Day and Sundays legal holidays. In Garces, the Court not only recognized the Constitutional
provisions indiscriminately granting concessions to religious sects and denominations, but also
acknowledged that government participation in long-standing traditions which have acquired a
social character - "the barrio fiesta is a socio-religious affair" - does not offend the Establishment
Clause. In Victoriano, the Court upheld the exemption from closed shop provisions of members of
religious sects who prohibited their members from joining unions upon the justification that the
exemption was not a violation of the Establishment Clause but was only meant to relieve the
burden on free exercise of religion. In Ebralinag, members of the Jehovah’s Witnesses were
exempt from saluting the flag as required by law, on the basis not of a statute granting exemption
but of the Free Exercise Clause without offending the Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form and origin, Philippine
constitutional law has departed from the U.S. jurisprudence of employing a separationist or strict
neutrality approach. The Philippine religion clauses have taken a life of their own, breathing the air
of benevolent neutrality and accommodation. Thus, the wall of separation in Philippine jurisdiction
is not as high and impregnable as the wall created by the U.S. Supreme Court in Everson.404 While
the religion clauses are a unique American experiment which understandably came about as a
result of America’s English background and colonization, the life that these clauses have taken in
this jurisdiction is the Philippines’ own experiment, reflective of the Filipinos’ own national soul,
history and tradition. After all, "the life of the law. . . has been experience."
But while history, constitutional construction, and earlier jurisprudence unmistakably show that
benevolent neutrality is the lens with which the Court ought to view religion clause cases, it must
be stressed that the interest of the state should also be afforded utmost protection. To do this, a
test must be applied to draw the line between permissible and forbidden religious exercise. It is
quite paradoxical that in order for the members of a society to exercise their freedoms, including
their religious liberty, the law must set a limit when their exercise offends the higher interest of the
state. To do otherwise is self-defeating for unlimited freedom would erode order in the state and
foment anarchy, eventually destroying the very state its members established to protect their
freedoms. The very purpose of the social contract by which people establish the state is for the
state to protect their liberties; for this purpose, they give up a portion of these freedoms - including
the natural right to free exercise - to the state. It was certainly not the intention of the authors of
the constitution that free exercise could be used to countenance actions that would undo the
constitutional order that guarantees free exercise.405
The all important question then is the test that should be used in ascertaining the limits of the
exercise of religious freedom. Philippine jurisprudence articulates several tests to determine these
limits. Beginning with the first case on the Free Exercise Clause, American Bible Society, the
Court mentioned the "clear and present danger" test but did not employ it. Nevertheless, this test
continued to be cited in subsequent cases on religious liberty. The Gerona case then pronounced
that the test of permissibility of religious freedom is whether it violates the established institutions
of society and law. The Victoriano case mentioned the "immediate and grave danger" test as well
as the doctrine that a law of general applicability may burden religious exercise provided the law is
the least restrictive means to accomplish the goal of the law. The case also used, albeit
inappropriately, the "compelling state interest" test. After Victoriano, German went back to the
Gerona rule. Ebralinag then employed the "grave and immediate danger" test and overruled the
Gerona test. The fairly recent case of Iglesia ni Cristo went back to the "clear and present danger"
test in the maiden case of American Bible Society. Not surprisingly, all the cases which employed
the "clear and present danger" or "grave and immediate danger" test involved, in one form or
another, religious speech as this test is often used in cases on freedom of expression. On the
other hand, the Gerona and German cases set the rule that religious freedom will not prevail over
established institutions of society and law. Gerona, however, which was the authority cited by
German has been overruled by Ebralinag which employed the "grave and immediate danger" test.
Victoriano was the only case that employed the "compelling state interest" test, but as explained
previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni
Cristo where the "clear and present danger" and "grave and immediate danger" tests were
appropriate as speech has easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human conduct has different effects on the state’s
interests: some effects may be immediate and short-term while others delayed and far-reaching. A
test that would protect the interests of the state in preventing a substantive evil, whether
immediate or delayed, is therefore necessary. However, not any interest of the state would suffice
to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - "the most inalienable and sacred of all human rights", in the
words of Jefferson.406 This right is sacred for an invocation of the Free Exercise Clause is an
appeal to a higher sovereignty. The entire constitutional order of limited government is premised
upon an acknowledgment of such higher sovereignty, 407 thus the Filipinos implore the "aid of
Almighty God in order to build a just and humane society and establish a government." As held in
Sherbert, only the gravest abuses, endangering paramount interests can limit this fundamental
right. A mere balancing of interests which balances a right with just a colorable state interest is
therefore not appropriate. Instead, only a compelling interest of the state can prevail over the
fundamental right to religious liberty. The test requires the state to carry a heavy burden, a
compelling one, for to do otherwise would allow the state to batter religion, especially the less
powerful ones until they are destroyed.408 In determining which shall prevail between the state’s
interest and religious liberty, reasonableness shall be the guide.409 The "compelling state interest"
serves the purpose of revering religious liberty while at the same time affording protection to the
paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e.
refusal to work on Saturdays. In the end, the "compelling state interest" test, by upholding the
paramount interests of the state, seeks to protect the very state, without which, religious liberty will
not be preserved.
X. Application of the Religion Clauses to the Case at Bar
A. The Religion Clauses and Morality
In a catena of cases, the Court has ruled that government employees engaged in illicit relations
are guilty of "disgraceful and immoral conduct" for which he/she may be held administratively
liable.410 In these cases, there was not one dissent to the majority’s ruling that their conduct was
immoral. The respondents themselves did not foist the defense that their conduct was not
immoral, but instead sought to prove that they did not commit the alleged act or have abated from
committing the act. The facts of the 1975 case of De Dios v. Alejo 411 and the 1999 case of Maguad
v. De Guzman,412 are similar to the case at bar - i.e., the complainant is a mere stranger and the
legal wife has not registered any objection to the illicit relation, there is no proof of scandal or
offense to the moral sensibilities of the community in which the respondent and the partner live
and work, and the government employee is capacitated to marry while the partner is not
capacitated but has long been separated in fact. Still, the Court found the government employees
administratively liable for "disgraceful and immoral conduct" and only considered the foregoing
circumstances to mitigate the penalty. Respondent Escritor does not claim that there is error in the
settled jurisprudence that an illicit relation constitutes disgraceful and immoral conduct for which a
government employee is held liable. Nor is there an allegation that the norms of morality with
respect to illicit relations have shifted towards leniency from the time these precedent cases were
decided. The Court finds that there is no such error or shift, thus we find no reason to deviate from
these rulings that such illicit relationship constitutes "disgraceful and immoral conduct" punishable
under the Civil Service Law. Respondent having admitted the alleged immoral conduct, she, like
the respondents in the above-cited cases, could be held administratively liable. However, there is
a distinguishing factor that sets the case at bar apart from the cited precedents, i.e., as a defense,
respondent invokes religious freedom since her religion, the Jehovah’s Witnesses, has, after
thorough investigation, allowed her conjugal arrangement with Quilapio based on the church’s
religious beliefs and practices. This distinguishing factor compels the Court to apply the religious
clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion
of Mme. Justice Ynares-Santiago and the separate opinion of Mr. Justice Vitug dwell more on the
standards of morality than on the religion clauses in deciding the instant case. A discussion on
morality is in order.
At base, morality refers to, in Socrates’ words, "how we ought to live" and why. Any definition of
morality beyond Socrates’ simple formulation is bound to offend one or another of the many rival
theories regarding what it means to live morally.413 The answer to the question of how we ought to
live necessarily considers that man does not live in isolation, but in society. Devlin posits that a
society is held together by a community of ideas, made up not only of political ideas but also of
ideas about the manner its members should behave and govern their lives. The latter are their
morals; they constitute the public morality. Each member of society has ideas about what is good
and what is evil. If people try to create a society wherein there is no fundamental agreement about
good and evil, they will fail; if having established the society on common agreement, the
agreement collapses, the society will disintegrate. Society is kept together by the invisible bonds
of common thought so that if the bonds are too loose, the members would drift apart. A common
morality is part of the bondage and the bondage is part of the price of society; and mankind, which
needs society, must pay its price.414 This design is parallel with the social contract in the realm of
politics: people give up a portion of their liberties to the state to allow the state to protect their
liberties. In a constitutional order, people make a fundamental agreement about the powers of
government and their liberties and embody this agreement in a constitution, hence referred to as
the fundamental law of the land. A complete break of this fundamental agreement such as by
revolution destroys the old order and creates a new one. 415 Similarly, in the realm of morality, the
breakdown of the fundamental agreement about the manner a society’s members should behave
and govern their lives would disintegrate society. Thus, society is justified in taking steps to
preserve its moral code by law as it does to preserve its government and other essential
institutions.416 From these propositions of Devlin, one cannot conclude that Devlin negates
diversity in society for he is merely saying that in the midst of this diversity, there should
nevertheless be a "fundamental agreement about good and evil" that will govern how people in a
society ought to live. His propositions, in fact, presuppose diversity hence the need to come to an
agreement; his position also allows for change of morality from time to time which may be brought
about by this diversity. In the same vein, a pluralistic society lays down fundamental rights and
principles in their constitution in establishing and maintaining their society, and these fundamental
values and principles are translated into legislation that governs the order of society, laws that
may be amended from time to time. Hart’s argument propounded in Mr. Justice Vitug’s separate
opinion that, "Devlin’s view of people living in a single society as having common moral foundation
(is) overly simplistic" because "societies have always been diverse" fails to recognize the
necessity of Devlin’s proposition in a democracy. Without fundamental agreement on political and
moral ideas, society will fall into anarchy; the agreement is necessary to the existence and
progress of society.
In a democracy, this common agreement on political and moral ideas is distilled in the public
square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral
discernment has access to the public square where people deliberate the order of their life
together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious
belief, and these citizens have equal access to the public square. In this representative
democracy, the state is prohibited from determining which convictions and moral judgments may
be proposed for public deliberation. Through a constitutionally designed process, the people
deliberate and decide. Majority rule is a necessary principle in this democratic
governance.417 Thus, when public deliberation on moral judgments is finally crystallized into law,
the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or
median groups.418 Nevertheless, in the very act of adopting and accepting a constitution and the
limits it specifies -- including protection of religious freedom "not only for a minority, however
small- not only for a majority, however large- but for each of us" -- the majority imposes upon itself
a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over
the dissenting minorities.419 In the realm of religious exercise, benevolent neutrality that gives room
for accommodation carries out this promise, provided the compelling interests of the state are not
eroded for the preservation of the state is necessary to the preservation of religious liberty. That is
why benevolent neutrality is necessary in a pluralistic society such as the United States and the
Philippines to accommodate those minority religions which are politically powerless. It is not
surprising that Smith is much criticized for it blocks the judicial recourse of the minority for religious
accommodations.
The laws enacted become expressions of public morality. As Justice Holmes put it, "(t)he law is
the witness and deposit of our moral life."420 "In a liberal democracy, the law reflects social morality
over a period of time."421Occasionally though, a disproportionate political influence might cause a
law to be enacted at odds with public morality or legislature might fail to repeal laws embodying
outdated traditional moral views.422 Law has also been defined as "something men create in their
best moments to protect themselves in their worst moments."423 Even then, laws are subject to
amendment or repeal just as judicial pronouncements are subject to modification and reversal to
better reflect the public morals of a society at a given time. After all, "the life of the law...has been
experience," in the words of Justice Holmes. This is not to say though that law is all of morality.
Law deals with the minimum standards of human conduct while morality is concerned with the
maximum. A person who regulates his conduct with the sole object of avoiding punishment under
the law does not meet the higher moral standards set by society for him to be called a morally
upright person.424 Law also serves as "a helpful starting point for thinking about a proper or ideal
public morality for a society"425 in pursuit of moral progress.
In Magno v. Court of Appeals, et al.,426 we articulated the relationship between law and public
morality. We held that under the utilitarian theory, the "protective theory" in criminal law, "criminal
law is founded upon the moral disapprobation x x x of actions which are immoral, i.e., which are
detrimental (or dangerous) to those conditions upon which depend the existence and progress of
human society. This disapprobation is inevitable to the extent that morality is generally founded
and built upon a certain concurrence in the moral opinions of all. x x x That which we call
punishment is only an external means of emphasizing moral disapprobation: the method of
punishment is in reality the amount of punishment."427 Stated otherwise, there are certain
standards of behavior or moral principles which society requires to be observed and these form
the bases of criminal law. Their breach is an offense not only against the person injured but
against society as a whole.428 Thus, even if all involved in the misdeed are consenting parties,
such as in the case at bar, the injury done is to the public morals and the public interest in the
moral order.429 Mr. Justice Vitug expresses concern on this point in his separate opinion. He
observes that certain immoral acts which appear private and not harmful to society such as sexual
congress "between a man and a prostitute, though consensual and private, and with no injured
third party, remains illegal in this country." His opinion asks whether these laws on private morality
are justified or they constitute impingement on one’s freedom of belief. Discussion on private
morality, however, is not material to the case at bar for whether respondent’s conduct, which
constitutes concubinage,430 is private in the sense that there is no injured party or the offended
spouse consents to the concubinage, the inescapable fact is that the legislature has taken
concubinage out of the sphere of private morals. The legislature included concubinage as a crime
under the Revised Penal Code and the constitutionality of this law is not being raised in the case
at bar. In the definition of the crime of concubinage, consent of the injured party, i.e., the legal
spouse, does not alter or negate the crime unlike in rape 431 where consent of the supposed victim
negates the crime. If at all, the consent or pardon of the offended spouse in concubinage negates
the prosecution of the action,432 but does not alter the legislature’s characterization of the act as a
moral disapprobation punishable by law. The separate opinion states that, "(t)he ponencia has
taken pains to distinguish between secular and private morality, and reached the conclusion that
the law, as an instrument of the secular State should only concern itself with secular morality." The
Court does not draw this distinction in the case at bar. The distinction relevant to the case is not,
as averred and discussed by the separate opinion, "between secular and private morality," but
between public and secular morality on the one hand, and religious morality on the other, which
will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this
reality in Velayo, et al. v. Shell Co. of the Philippine Islands, et al., where we explained that for
those wrongs which are not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary
Title of the New Civil Code, dealing with Human Relations, provide for the recognition of the wrong
and the concomitant punishment in the form of damages. Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due and observe honesty and good faith.
xxx xxx xxx
Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage. (emphasis
supplied)
We then cited in Velayo the Code Commission’s comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved), would
vouchsafe adequate legal remedy for that untold numbers of moral wrongs which is impossible for
human foresight to provide for specifically in the statutes.
But, it may be asked, would this proposed article obliterate the boundary line between morality
and law? The answer is that, in the last analysis, every good law draws its breath of life from
morals, from those principles which are written with words of fire in the conscience of man. If this
premise is admitted, then the proposed rule is a prudent earnest of justice in the face of the
impossibility of enumerating, one by one, all wrongs which cause damages. When it is reflected
that while codes of law and statutes have changed from age to age, the conscience of man has
remained fixed to its ancient moorings, one can not but feel that it is safe and salutary to
transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system
that enduring quality which ought to be one of its superlative attributes.
Furthermore, there is no belief of more baneful consequence upon the social order than that a
person may with impunity cause damage to his fellow-men so long as he does not break any law
of the State, though he may be defying the most sacred postulates of morality. What is more, the
victim loses faith in the ability of the government to afford him protection or relief.
A provision similar to the one under consideration is embodied in article 826 of the German Civil
Code.433(emphases supplied)
The public morality expressed in the law is necessarily secular for in our constitutional order, the
religion clauses prohibit the state from establishing a religion, including the morality it sanctions.
Religious morality proceeds from a person’s "views of his relations to His Creator and to the
obligations they impose of reverence to His being and character and obedience to His Will," in
accordance with this Court’s definition of religion in American Bible Society citing Davis. Religion
also dictates "how we ought to live" for the nature of religion is not just to know, but often, to act in
accordance with man’s "views of his relations to His Creator." 434 But the Establishment Clause
puts a negative bar against establishment of this morality arising from one religion or the other,
and implies the affirmative "establishment" of a civil order for the resolution of public moral
disputes. This agreement on a secular mechanism is the price of ending the "war of all sects
against all"; the establishment of a secular public moral order is the social contract produced by
religious truce.435
Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of
Professional Responsibility for lawyers436 , or "public morals" in the Revised Penal Code,437 or
"morals" in the New Civil Code,438or "moral character" in the Constitution,439 the distinction
between public and secular morality on the one hand, and religious morality, on the other, should
be kept in mind.440 The morality referred to in the law is public and necessarily secular, not
religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public
debate may influence the civil public order but public moral disputes may be resolved only on
grounds articulable in secular terms."441 Otherwise, if government relies upon religious beliefs in
formulating public policies and morals, the resulting policies and morals would require conformity
to what some might regard as religious programs or agenda. The non-believers would therefore
be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a
"compelled religion," anathema to religious freedom. Likewise, if government based its actions
upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly
disapprove contrary religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even make it appear that
those whose beliefs are disapproved are second-class citizens. Expansive religious freedom
therefore requires that government be neutral in matters of religion; governmental reliance upon
religious justification is inconsistent with this policy of neutrality.442
In other words, government action, including its proscription of immorality as expressed in criminal
law like concubinage, must have a secular purpose. That is, the government proscribes this
conduct because it is "detrimental (or dangerous) to those conditions upon which depend the
existence and progress of human society" and not because the conduct is proscribed by the
beliefs of one religion or the other. Although admittedly, moral judgments based on religion might
have a compelling influence on those engaged in public deliberations over what actions would be
considered a moral disapprobation punishable by law. After all, they might also be adherents of a
religion and thus have religious opinions and moral codes with a compelling influence on them; the
human mind endeavors to regulate the temporal and spiritual institutions of society in a uniform
manner, harmonizing earth with heaven.443 Succinctly put, a law could be religious or Kantian or
Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular
purpose and justification to pass scrutiny of the religion clauses. Otherwise, if a law has an
apparent secular purpose but upon closer examination shows a discriminatory and prohibitory
religious purpose, the law will be struck down for being offensive of the religion clauses as in
Church of the Lukumi Babalu Aye, Inc. where the U.S. Supreme Court invalidated an ordinance
prohibiting animal sacrifice of the Santeria. Recognizing the religious nature of the Filipinos and
the elevating influence of religion in society, however, the Philippine constitution’s religion clauses
prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government
must pursue its secular goals and interests but at the same time strives to uphold religious liberty
to the greatest extent possible within flexible constitutional limits. Thus, although the morality
contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality
based on religion, provided it does not offend compelling state interests.
Mr. Justice Vitug’s separate opinion embraces the benevolent neutrality approach when it states
that in deciding the case at bar, the approach should consider that, "(a)s a rule . . . moral laws are
justified only to the extent that they directly or indirectly serve to protect the interests of the larger
society. It is only where their rigid application would serve to obliterate the value which society
seeks to uphold, or defeat the purpose for which they are enacted would, a departure be justified."
In religion clause parlance, the separate opinion holds that laws of general applicability governing
morals should have a secular purpose of directly or indirectly protecting the interests of the state. If
the strict application of these laws (which are the Civil Service Law and the laws on marriage)
would erode the secular purposes of the law (which the separate opinion identifies as upholding
the sanctity of marriage and the family), then in a benevolent neutrality framework, an
accommodation of the unconventional religious belief and practice (which the separate opinion
holds should be respected on the ground of freedom of belief) that would promote the very same
secular purpose of upholding the sanctity of marriage and family through the Declaration Pledging
Faithfulness that makes the union binding and honorable before God and men, is required by the
Free Exercise Clause. The separate opinion then makes a preliminary discussion of the values
society seeks to protect in adhering to monogamous marriage, but concludes that these values
and the purposes of the applicable laws should be thoroughly examined and evidence in relation
thereto presented in the OCA. The accommodation approach in the case at bar would also require
a similar discussion of these values and presentation of evidence before the OCA by the state that
seeks to protect its interest on marriage and opposes the accommodation of the unconventional
religious belief and practice regarding marriage.
The distinction between public and secular morality as expressed - albeit not exclusively - in the
law, on the one hand, and religious morality, on the other, is important because the jurisdiction of
the Court extends only to public and secular morality. Whatever pronouncement the Court makes
in the case at bar should be understood only in this realm where it has authority. More concretely,
should the Court declare respondent’s conduct as immoral and hold her administratively liable, the
Court will be holding that in the realm of public morality, her conduct is reprehensible or there are
state interests overriding her religious freedom. For as long as her conduct is being judged within
this realm, she will be accountable to the state. But in so ruling, the Court does not and cannot say
that her conduct should be made reprehensible in the realm of her church where it is presently
sanctioned and that she is answerable for her immorality to her Jehovah God nor that other
religions prohibiting her conduct are correct. On the other hand, should the Court declare her
conduct permissible, the Court will be holding that under her unique circumstances, public morality
is not offended or that upholding her religious freedom is an interest higher than upholding public
morality thus her conduct should not be penalized. But the Court is not ruling that the tenets and
practice of her religion are correct nor that other churches which do not allow respondent’s
conjugal arrangement should likewise allow such conjugal arrangement or should not find
anything immoral about it and therefore members of these churches are not answerable for
immorality to their Supreme Being. The Court cannot speak more than what it has authority to say.
In Ballard, the U.S. Supreme Court held that courts cannot inquire about the truth of religious
beliefs. Similarly, in Fonacier, this Court declared that matters dealing with "faith, practice,
doctrine, form of worship, ecclesiastical law, custom and rule of a church…are unquestionably
ecclesiastical matters which are outside the province of the civil courts." 444 But while the state,
including the Court, accords such deference to religious belief and exercise which enjoy protection
under the religious clauses, the social contract and the constitutional order are designed in such a
way that when religious belief flows into speech and conduct that step out of the religious sphere
and overlap with the secular and public realm, the state has the power to regulate, prohibit and
penalize these expressions and embodiments of belief insofar as they affect the interests of the
state. The state’s inroad on religion exercise in excess of this constitutional design is prohibited by
the religion clauses; the Old World, European and American history narrated above bears out the
wisdom of this proscription.
Having distinguished between public and secular morality and religious morality, the more difficult
task is determining which immoral acts under this public and secular morality fall under the phrase
"disgraceful and immoral conduct" for which a government employee may be held administratively
liable. The line is not easy to draw for it is like "a line that divides land and sea, a coastline of
irregularities and indentations."445 But the case at bar does not require us to comprehensively
delineate between those immoral acts for which one may be held administratively liable and those
to which administrative liability does not attach. We need not concern ourselves in this case
therefore whether "laziness, gluttony, vanity, selfishness, avarice and cowardice" are immoral acts
which constitute grounds for administrative liability. Nor need we expend too much energy
grappling with the propositions that not all immoral acts are illegal or not all illegal acts are
immoral, or different jurisdictions have different standards of morality as discussed by the dissents
and separate opinions, although these observations and propositions are true and correct. It is
certainly a fallacious argument that because there are exceptions to the general rule that the "law
is the witness and deposit of our moral life," then the rule is not true; in fact, that there are
exceptions only affirms the truth of the rule. Likewise, the observation that morality is relative in
different jurisdictions only affirms the truth that there is morality in a particular jurisdiction; without,
however, discounting the truth that underneath the moral relativism are certain moral absolutes
such as respect for life and truth-telling, without which no society will survive. Only one conduct is
in question before this Court, i.e., the conjugal arrangement of a government employee whose
partner is legally married to another which Philippine law and jurisprudence consider both immoral
and illegal. Lest the Court inappropriately engage in the impossible task of prescribing
comprehensively how one ought to live, the Court must focus its attention upon the sole conduct in
question before us.
In interpreting "disgraceful and immoral conduct," the dissenting opinion of Mme. Justice Ynares-
Santiago groped for standards of morality and stated that the "ascertainment of what is moral or
immoral calls for the discovery of contemporary community standards" but did not articulate how
these standards are to be ascertained. Instead, it held that, "(f)or those in the service of the
Government, provisions of law and court precedents . . . have to be considered." It identified the
Civil Service Law and the laws on adultery and concubinage as laws which respondent’s conduct
has offended and cited a string of precedents where a government employee was found guilty of
committing a "disgraceful and immoral conduct" for maintaining illicit relations and was thereby
penalized. As stated above, there is no dispute that under settled jurisprudence, respondent’s
conduct constitutes "disgraceful and immoral conduct." However, the cases cited by the dissent do
not involve the defense of religious freedom which respondent in the case at bar invokes. Those
cited cases cannot therefore serve as precedents in settling the issue in the case at bar.
Mme. Justice Ynares-Santiago’s dissent also cites Cleveland v. United States 446 in laying down the
standard of morality, viz: "(w)hether an act is immoral within the meaning of the statute is not to be
determined by respondent’s concept of morality. The law provides the standard; the offense is
complete if respondent intended to perform, and did in fact perform, the act which it condemns."
The Mann Act under consideration in the Cleveland case declares as an offense the transportation
in interstate commerce of "any woman or girl for the purpose of prostitution or debauchery, or for
any other immoral purpose."447 The resolution of that case hinged on the interpretation of the
phrase "immoral purpose." The U.S. Supreme Court held that the petitioner Mormons’ act of
transporting at least one plural wife whether for the purpose of cohabiting with her, or for the
purpose of aiding another member of their Mormon church in such a project, was covered by the
phrase "immoral purpose." In so ruling, the Court relied on Reynolds which held that the Mormons’
practice of polygamy, in spite of their defense of religious freedom, was "odious among the
northern and western nations of Europe,"448 "a return to barbarism,"449 "contrary to the spirit of
Christianity and of the civilization which Christianity has produced in the Western world,"450 and
thus punishable by law.
The Cleveland standard, however, does not throw light to the issue in the case at bar. The
pronouncements of the U.S. Supreme Court that polygamy is intrinsically "odious" or "barbaric" do
not apply in the Philippines where Muslims, by law, are allowed to practice polygamy. Unlike in
Cleveland, there is no jurisprudence in Philippine jurisdiction holding that the defense of religious
freedom of a member of the Jehovah’s Witnesses under the same circumstances as respondent
will not prevail over the laws on adultery, concubinage or some other law. We cannot summarily
conclude therefore that her conduct is likewise so "odious" and "barbaric" as to be immoral and
punishable by law.
While positing the view that the resolution of the case at bar lies more on determining the
applicable moral standards and less on religious freedom, Mme. Justice Ynares-Santiago’s
dissent nevertheless discussed respondent’s plea of religious freedom and disposed of this
defense by stating that "(a) clear and present danger of a substantive evil, destructive to public
morals, is a ground for the reasonable regulation of the free exercise and enjoyment of religious
profession. (American Bible Society v. City of Manila, 101 Phil. 386 [1957]). In addition to the
destruction of public morals, the substantive evil in this case is the tearing down of morality, good
order, and discipline in the judiciary." However, the foregoing discussion has shown that the "clear
and present danger" test that is usually employed in cases involving freedom of expression is not
appropriate to the case at bar which involves purely religious conduct. The dissent also cites
Reynolds in supporting its conclusion that respondent is guilty of "disgraceful and immoral
conduct." The Reynolds ruling, however, was reached with a strict neutrality approach, which is
not the approach contemplated by the Philippine constitution. As discussed above, Philippine
jurisdiction adopts benevolent neutrality in interpreting the religion clauses.
In the same vein, Mr. Justice Carpio’s dissent which employs strict neutrality does not reflect the
constitutional intent of employing benevolent neutrality in interpreting the Philippine religion
clauses. His dissent avers that respondent should be held administratively liable not for
"disgraceful and immoral conduct" but "conduct prejudicial to the best interest of the service" as
she is a necessary co-accused of her partner in concubinage. The dissent stresses that being a
court employee, her open violation of the law is prejudicial to the administration of justice. Firstly,
the dissent offends due process as respondent was not given an opportunity to defend herself
against the charge of "conduct prejudicial to the best interest of the service." In addition, there is
no evidence of the alleged prejudice to the best interest of the service. Most importantly, the
dissent concludes that respondent’s plea of religious freedom cannot prevail without so much as
employing a test that would balance respondent’s religious freedom and the state’s interest at
stake in the case at bar. The foregoing discussion on the doctrine of religious freedom, however,
shows that with benevolent neutrality as a framework, the Court cannot simply reject respondent’s
plea of religious freedom without even subjecting it to the "compelling state interest" test that
would balance her freedom with the paramount interests of the state. The strict neutrality
employed in the cases the dissent cites -Reynolds, Smith and People v. Bitdu decided before the
1935 Constitution which unmistakably shows adherence to benevolent neutrality - is not
contemplated by our constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik 451 cited in Mr.
Justice Carpio’s dissent decisive of the immorality issue in the case at bar. In that case, the Court
dismissed the charge of immorality against a Tausug judge for engaging in an adulterous
relationship with another woman with whom he had three children because "it (was) not ‘immoral’
by Muslim standards for Judge Malik to marry a second time while his first marriage (existed)."
Putting the quoted portion in its proper context would readily show that the Sulu Islamic case does
not provide a precedent to the case at bar. Immediately prior to the portion quoted by the dissent,
the Court stressed, viz: "(s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim
Personal Laws of the Philippines, provides that the penal laws relative to the crime of bigamy ‘shall
not apply to a person married x x x under Muslim Law,’ it is not ‘immoral’ by Muslim standards for
Judge Malik to marry a second time while his first marriage exists." 452 It was by law, therefore, that
the Muslim conduct in question was classified as an exception to the crime of bigamy and thus an
exception to the general standards of morality. The constitutionality of P.D. No. 1083 when
measured against the Establishment Clause was not raised as an issue in the Sulu Islamic case.
Thus, the Court did not determine whether P.D. No. 1083 suffered from a constitutional infirmity
and instead relied on the provision excepting the challenged Muslim conduct from the crime of
bigamy in holding that the challenged act is not immoral by Muslim standards. In contradistinction,
in the case at bar, there is no similar law which the Court can apply as basis for treating
respondent’s conduct as an exception to the prevailing jurisprudence on illicit relations of civil
servants. Instead, the Free Exercise Clause is being invoked to justify exemption.
B. Application of Benevolent Neutrality and the
Compelling State Interest Test to the Case at Bar
The case at bar being one of first impression, we now subject the respondent’s claim of religious
freedom to the "compelling state interest" test from a benevolent neutrality stance - i.e.
entertaining the possibility that respondent’s claim to religious freedom would warrant carving out
an exception from the Civil Service Law; necessarily, her defense of religious freedom will be
unavailing should the government succeed in demonstrating a more compelling state interest.
In applying the test, the first inquiry is whether respondent’s right to religious freedom has been
burdened. There is no doubt that choosing between keeping her employment and abandoning her
religious belief and practice and family on the one hand, and giving up her employment and
keeping her religious practice and family on the other hand, puts a burden on her free exercise of
religion. In Sherbert, the Court found that Sherbert’s religious exercise was burdened as the denial
of unemployment benefits "forces her to choose between following the precepts of her religion and
forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to
accept work, on the other hand." The burden on respondent in the case at bar is even greater as
the price she has to pay for her employment is not only her religious precept but also her family
which, by the Declaration Pledging Faithfulness, stands "honorable before God and men."
The second step is to ascertain respondent’s sincerity in her religious belief. Respondent appears
to be sincere in her religious belief and practice and is not merely using the "Declaration of
Pledging Faithfulness" to avoid punishment for immorality. She did not secure the Declaration only
after entering the judiciary where the moral standards are strict and defined, much less only after
an administrative case for immorality was filed against her. The Declaration was issued to her by
her congregation after ten years of living together with her partner, Quilapio, and ten years before
she entered the judiciary. Ministers from her congregation testified on the authenticity of the
Jehovah’s Witnesses’ practice of securing a Declaration and their doctrinal or scriptural basis for
such a practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal
punishment for illicit conduct but to make the "union" of their members under respondent’s
circumstances "honorable before God and men." It is also worthy of notice that the Report and
Recommendation of the investigating judge annexed letters 453 of the OCA to the respondent
regarding her request to be exempt from attending the flag ceremony after Circular No. 62-2001
was issued requiring attendance in the flag ceremony. The OCA’s letters were not submitted by
respondent as evidence but annexed by the investigating judge in explaining that he was caught in
a dilemma whether to find respondent guilty of immorality because the Court Administrator and
Deputy Court Administrator had different positions regarding respondent’s request for exemption
from the flag ceremony on the ground of the Jehovah’s Witnesses’ contrary belief and practice.
Respondent’s request for exemption from the flag ceremony shows her sincerity in practicing the
Jehovah’s Witnesses’ beliefs and not using them merely to escape punishment. She is a
practicing member of the Jehovah’s Witnesses and the Jehovah ministers testified that she is a
member in good standing. Nevertheless, should the government, thru the Solicitor General, want
to further question the respondent’s sincerity and the centrality of her practice in her faith, it should
be given the opportunity to do so. The government has not been represented in the case at bar
from its incipience until this point.
In any event, even if the Court deems sufficient respondent’s evidence on the sincerity of her
religious belief and its centrality in her faith, the case at bar cannot still be decided using the
"compelling state interest" test. The case at bar is one of first impression, thus the parties were not
aware of the burdens of proof they should discharge in the Court’s use of the "compelling state
interest" test. We note that the OCA found respondent’s defense of religious freedom unavailing in
the face of the Court’s ruling in Dicdican v. Fernan, et al., viz:
religious freedom nor is it shown that the means employed by the government in pursuing its
interest is the least restrictive to respondent’s religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to present evidence on the
compelling interest of the state. The burden of evidence should be discharged by the proper
agency of the government which is the Office of the Solicitor General. To properly settle the issue
in the case at bar, the government should be given the opportunity to demonstrate the compelling
state interest it seeks to uphold in opposing the respondent’s stance that her conjugal
arrangement is not immoral and punishable as it comes within the scope of free exercise
protection. Should the Court prohibit and punish her conduct where it is protected by the Free
Exercise Clause, the Court’s action would be an unconstitutional encroachment of her right to
religious freedom.454 We cannot therefore simply take a passing look at respondent’s claim of
religious freedom, but must instead apply the "compelling state interest" test. The government
must be heard on the issue as it has not been given an opportunity to discharge its burden of
demonstrating the state’s compelling interest which can override respondent’s religious belief and
practice. To repeat, this is a case of first impression where we are applying the "compelling state
interest" test in a case involving purely religious conduct. The careful application of the test is
indispensable as how we will decide the case will make a decisive difference in the life of the
respondent who stands not only before the Court but before her Jehovah God.
IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The
Solicitor General is ordered to intervene in the case where it will be given the opportunity (a) to
examine the sincerity and centrality of respondent’s claimed religious belief and practice; (b) to
present evidence on the state’s "compelling interest" to override respondent’s religious belief and
practice; and (c) to show that the means the state adopts in pursuing its interest is the least
restrictive to respondent’s religious freedom. The rehearing should be concluded thirty (30) days
from the Office of the Court Administrator’s receipt of this Decision.
SO ORDERED.

It bears emphasis that the image of a court of justice is mirrored in the conduct, official and
otherwise, of the personnel who work thereat, from the judge to the lowest of its personnel. Court
personnel have been enjoined to adhere to the exacting standards of morality and decency in their
professional and private conduct in order to preserve the good name and integrity of the courts of
justice.

It is apparent from the OCA’s reliance upon this ruling that the state interest it upholds is the
preservation of the integrity of the judiciary by maintaining among its ranks a high standard of
morality and decency. However, there is nothing in the OCA’s memorandum to the Court that
demonstrates how this interest is so compelling that it should override respondent’s plea of
G.R. No. 164785 April 29, 2009 Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged
by Jessie L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo
ELISEO F. SORIANO, Petitioner, (INC),2 against petitioner in connection with the above broadcast. Respondent Michael M.
vs. Sandoval, who felt directly alluded to in petitioner’s remark, was then a minister of INC and a
MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and regular host of the TV program Ang Tamang Daan.3 Forthwith, the MTRCB sent petitioner a notice
Television Review and Classification Board, MOVIE AND TELEVISION REVIEW AND of the hearing on August 16, 2004 in relation to the alleged use of some cuss words in the August
CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. 10, 2004 episode of Ang Dating Daan.4
HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL
M. SANDOVAL, and ROLDAN A. GAVINO, Respondents. After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August 16,
2004, preventively suspended the showing of Ang Dating Daan program for 20 days, in
x - - - - - - - - - - - - - - - - - - - - - - -x accordance with Section 3(d) of Presidential Decree No. (PD) 1986, creating the MTRCB, in
relation to Sec. 3, Chapter XIII of the 2004 Implementing Rules and Regulations (IRR) of PD 1986
and Sec. 7, Rule VII of the MTRCB Rules of Procedure.5The same order also set the case for
G.R. No. 165636 April 29, 2009
preliminary investigation.

ELISEO F. SORIANO Petitioner,

The following day, petitioner sought reconsideration of the preventive suspension order, praying
vs.
that Chairperson Consoliza P. Laguardia and two other members of the adjudication board recuse
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G. ALEGRE,
themselves from hearing the case.6 Two days after, however, petitioner sought to withdraw7 his
JACKIE AQUINO-GAVINO, NOEL R. DEL PRADO, EMMANUEL BORLAZA, JOSE E.
motion for reconsideration, followed by the filing with this Court of a petition for certiorari and
ROMERO IV, and FLORIMONDO C. ROUS, in their capacity as members of the Hearing and
prohibition,8 docketed as G.R. No. 164785, to nullify the preventive suspension order thus issued.
Adjudication Committee of the MTRCB, JESSIE L. GALAPON, ANABEL M. DELA CRUZ,
MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR.,
MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, in their capacity as complainants On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as
before the MTRCB Respondents. follows:

DECISION
VELASCO, JR., J.:
In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F. Soriano
seeks to nullify and set aside an order and a decision of the Movie and Television Review and
Classification Board (MTRCB) in connection with certain utterances he made in his television
show, Ang Dating Daan.
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding respondent
Soriano liable for his utterances and thereby imposing on him a penalty of three (3) months
suspension from his program, "Ang Dating Daan".
Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner, PBC, are
hereby exonerated for lack of evidence.
SO ORDERED.9

Facts of the Case
On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan,
aired on UNTV 37, made the following remarks:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang
gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol
pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang
kasinungalingan ng mga demonyong ito.1 x x x
Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive relief,
docketed as G.R. No. 165636.
In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No.
165636.
In G.R. No. 164785, petitioner raises the following issues:
THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB]
DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x x
IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION
 (A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE
ISSUANCE OF PREVENTIVE SUSPENSION ORDERS;
(B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;
(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;
(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND
(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.10
In G.R. No. 165636, petitioner relies on the following grounds:
SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT
OR IN EXCESS OF JURISDICTION x x x CONSIDERING THAT:
I given should be liberally construed.14
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE
CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION
AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE
SAME; CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS, RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION
DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH;
II
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE
CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION
UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL
ACTS OF THE MTRCB PURSUANT THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS
APPLIED IN THE CASE AT BENCH; AND
III
[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT
STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION
OF LEGISLATIVE POWER BY REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES
FOR VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION
DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH11
G.R. No. 164785
We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of preventive
suspension, although its implementability had already been overtaken and veritably been
rendered moot by the equally assailed September 27, 2004 decision.
It is petitioner’s threshold posture that the preventive suspension imposed against him and the
relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not expressly
authorize the MTRCB to issue preventive suspension.
Petitioner’s contention is untenable.
Administrative agencies have powers and functions which may be administrative, investigatory,
regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred by the
Constitution or by statute.12 They have in fine only such powers or authority as are granted or
delegated, expressly or impliedly, by law.13 And in determining whether an agency has certain
powers, the inquiry should be from the law itself. But once ascertained as existing, the authority
A perusal of the MTRCB’s basic mandate under PD 1986 reveals the possession by the agency of
the authority, albeit impliedly, to issue the challenged order of preventive suspension. And this
authority stems naturally from, and is necessary for the exercise of, its power of regulation and
supervision.
Sec. 3 of PD 1986 pertinently provides the following:
Section 3. Powers and Functions.—The BOARD shall have the following functions, powers and
duties:
xxxx
c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x
production, x x x exhibition and/or television broadcast of the motion pictures, television programs
and publicity materials subject of the preceding paragraph, which, in the judgment of the board
applying contemporary Filipino cultural values as standard, are objectionable for being immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the
Philippines or its people, or with a dangerous tendency to encourage the commission of violence
or of wrong or crime such as but not limited to:
xxxx
vi) Those which are libelous or defamatory to the good name and reputation of any person,
whether living or dead;
xxxx
(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production, copying,
distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television
programs and publicity materials, to the end that no such pictures, programs and materials as are
determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x
x x produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by
television;
xxxx
k) To exercise such powers and functions as may be necessary or incidental to the attainment of
the purposes and objectives of this Act x x x. (Emphasis added.)
The issuance of a preventive suspension comes well within the scope of the MTRCB’s authority
and functions expressly set forth in PD 1986, more particularly under its Sec. 3(d), as quoted
above, which empowers the MTRCB to "supervise, regulate, and grant, deny or cancel, permits for
the x x x exhibition, and/or television broadcast of all motion pictures, television programs and
publicity materials, to the end that no such pictures, programs and materials as are determined by
the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x exhibited
and/or broadcast by television."
Surely, the power to issue preventive suspension forms part of the MTRCB’s express regulatory
and supervisory statutory mandate and its investigatory and disciplinary authority subsumed in or
implied from such mandate. Any other construal would render its power to regulate, supervise, or
discipline illusory.
Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a preliminary
step in an administrative investigation.15 And the power to discipline and impose penalties, if
granted, carries with it the power to investigate administrative complaints and, during such
investigation, to preventively suspend the person subject of the complaint.16
To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred
under PD 1986. The MTRCB did not, as petitioner insinuates, empower itself to impose preventive
suspension through the medium of the IRR of PD 1986. It is true that the matter of imposing
preventive suspension is embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR
provides:
Sec. 3. PREVENTION SUSPENSION ORDER.––Any time during the pendency of the case, and
in order to prevent or stop further violations or for the interest and welfare of the public, the
Chairman of the Board may issue a Preventive Suspension Order mandating the preventive x x x
suspension of the permit/permits involved, and/or closure of the x x x television network, cable TV
station x x x provided that the temporary/preventive order thus issued shall have a life of not more
than twenty (20) days from the date of issuance.
But the mere absence of a provision on preventive suspension in PD 1986, without more, would
not work to deprive the MTRCB a basic disciplinary tool, such as preventive suspension. Recall
that the MTRCB is expressly empowered by statute to regulate and supervise television programs
to obviate the exhibition or broadcast of, among others, indecent or immoral materials and to
impose sanctions for violations and, corollarily, to prevent further violations as it investigates.
Contrary to petitioner’s assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor
extended the effect of the law. Neither did the MTRCB, by imposing the assailed preventive
suspension, outrun its authority under the law. Far from it. The preventive suspension was actually
done in furtherance of the law, imposed pursuant, to repeat, to the MTRCB’s duty of regulating or
supervising television programs, pending a determination of whether or not there has actually
been a violation. In the final analysis, Sec. 3, Chapter XIII of the 2004 IRR merely formalized a
power which PD 1986 bestowed, albeit impliedly, on MTRCB.
Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the
MTRCB’s assailed action. Petitioner’s restrictive reading of PD 1986, limiting the MTRCB to
functions within the literal confines of the law, would give the agency little leeway to operate,
stifling and rendering it inutile, when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB a
wide room for flexibility in its operation. Sec. 3(k), we reiterate, provides, "To exercise such powers
and functions as may be necessary or incidental to the attainment of the purposes and objectives
of this Act x x x." Indeed, the power to impose preventive suspension is one of the implied powers
of MTRCB. As distinguished from express powers, implied powers are those that can be inferred
or are implicit in the wordings or conferred by necessary or fair implication of the enabling act. 17 As
we held in Angara v. Electoral Commission, when a general grant of power is conferred or a duty
enjoined, every particular power necessary for the exercise of one or the performance of the other
is also conferred by necessary implication.18 Clearly, the power to impose preventive suspension
pending investigation is one of the implied or inherent powers of MTRCB.
We cannot agree with petitioner’s assertion that the aforequoted IRR provision on preventive
suspension is applicable only to motion pictures and publicity materials. The scope of the
MTRCB’s authority extends beyond motion pictures. What the acronym MTRCB stands for would
suggest as much. And while the law makes specific reference to the closure of a television
network, the suspension of a television program is a far less punitive measure that can be
undertaken, with the purpose of stopping further violations of PD 1986. Again, the MTRCB would
regretfully be rendered ineffective should it be subject to the restrictions petitioner envisages.
Just as untenable is petitioner’s argument on the nullity of the preventive suspension order on the
ground of lack of hearing. As it were, the MTRCB handed out the assailed order after petitioner, in
response to a written notice, appeared before that Board for a hearing on private respondents’
complaint. No less than petitioner admitted that the order was issued after the adjournment of the
hearing,19 proving that he had already appeared before the MTRCB. Under Sec. 3, Chapter XIII of
the IRR of PD 1986, preventive suspension shall issue "[a]ny time during the pendency of the
case." In this particular case, it was done after MTRCB duly apprised petitioner of his having
possibly violated PD 198620 and of administrative complaints that had been filed against him for
such violation.21
At any event, that preventive suspension can validly be meted out even without a hearing.22
Petitioner next faults the MTRCB for denying him his right to the equal protection of the law,
arguing that, owing to the preventive suspension order, he was unable to answer the criticisms
coming from the INC ministers.
Petitioner’s position does not persuade. The equal protection clause demands that "all persons
subject to legislation should be treated alike, under like circumstances and conditions both in the
privileges conferred and liabilities imposed."23 It guards against undue favor and individual
privilege as well as hostile discrimination.24Surely, petitioner cannot, under the premises, place
himself in the same shoes as the INC ministers, who, for one, are not facing administrative
complaints before the MTRCB. For another, he offers no proof that the said ministers, in their TV
programs, use language similar to that which he used in his own, necessitating the MTRCB’s
disciplinary action. If the immediate result of the preventive suspension order is that petitioner
remains temporarily gagged and is unable to answer his critics, this does not become a
deprivation of the equal protection guarantee. The Court need not belabor the fact that the
circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the INC ministers, as
hosts of Ang Tamang Daan, on the other, are, within the purview of this case, simply too different
to even consider whether or not there is a prima facie indication of oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that what he uttered was religious
speech, adding that words like "putang babae" were said in exercise of his religious freedom.
The argument has no merit.
The Court is at a loss to understand how petitioner’s utterances in question can come within the
pale of Sec. 5, Article III of the 1987 Constitution on religious freedom. The section reads as
follows:
No law shall be made respecting the establishment of a 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.
There is nothing in petitioner’s statements subject of the complaints expressing any particular
religious belief, nothing furthering his avowed evangelical mission. The fact that he came out with
his statements in a televised bible exposition program does not automatically accord them the
character of a religious discourse. Plain and simple insults directed at another person cannot be
elevated to the status of religious speech. Even petitioner’s attempts to place his words in context
show that he was moved by anger and the need to seek retribution, not by any religious
conviction. His claim, assuming its veracity, that some INC ministers distorted his statements
respecting amounts Ang Dating Daan owed to a TV station does not convert the foul language
used in retaliation as religious speech. We cannot accept that petitioner made his statements in
defense of his reputation and religion, as they constitute no intelligible defense or refutation of the
alleged lies being spread by a rival religious group. They simply illustrate that petitioner had
descended to the level of name-calling and foul-language discourse. Petitioner could have chosen
to contradict and disprove his detractors, but opted for the low road.
Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day preventive
suspension order, being, as insisted, an unconstitutional abridgement of the freedom of speech
and expression and an impermissible prior restraint. The main issue tendered respecting the
adverted violation and the arguments holding such issue dovetails with those challenging the
three-month suspension imposed under the assailed September 27, 2004 MTRCB decision
subject of review under G.R. No. 165636. Both overlapping issues and arguments shall be jointly
addressed.
G.R. No. 165636
Petitioner urges the striking down of the decision suspending him from hosting Ang Dating Daan
for three months on the main ground that the decision violates, apart from his religious freedom,
his freedom of speech and expression guaranteed under Sec. 4, Art. III of the Constitution, which
reads:
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 grievance.
He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional for
reasons articulated in this petition.
We are not persuaded as shall be explained shortly. But first, we restate certain general concepts
and principles underlying the freedom of speech and expression.
It is settled that expressions by means of newspapers, radio, television, and motion pictures come
within the broad protection of the free speech and expression clause.25 Each method though,
because of its dissimilar presence in the lives of people and accessibility to children, tends to
present its own problems in the area of free speech protection, with broadcast media, of all forms
of communication, enjoying a lesser degree of protection.26Just as settled is the rule that
restrictions, be it in the form of prior restraint, e.g., judicial injunction against publication or threat of
cancellation of license/franchise, or subsequent liability, whether in libel and damage suits,
prosecution for sedition, or contempt proceedings, are anathema to the freedom of expression.
Prior restraint means official government restrictions on the press or other forms of expression in
advance of actual publication or dissemination.27 The freedom of expression, as with the other
freedoms encased in the Bill of Rights, is, however, not absolute. It may be regulated to some
extent to serve important public interests, some forms of speech not being protected. As has been
held, the limits of the freedom of expression are reached when the expression touches upon
matters of essentially private concern.28 In the oft-quoted expression of Justice Holmes, the
constitutional guarantee "obviously was not intended to give immunity for every possible use of
language."29From Lucas v. Royo comes this line: "[T]he freedom to express one’s sentiments and
belief does not grant one the license to vilify in public the honor and integrity of another. Any
sentiments must be expressed within the proper forum and with proper regard for the rights of
others."30
Indeed, as noted in Chaplinsky v. State of New Hampshire,31 "there are certain well-defined and
narrowly limited classes of speech that are harmful, the prevention and punishment of which has
never been thought to raise any Constitutional problems." In net effect, some forms of speech are
not protected by the Constitution, meaning that restrictions on unprotected speech may be
decreed without running afoul of the freedom of speech clause. 32 A speech would fall under the
unprotected type if the utterances involved are "no essential part of any exposition of ideas, and
are of such slight social value as a step of truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality."33 Being of little or no value, there
is, in dealing with or regulating them, no imperative call for the application of the clear and present
danger rule or the balancing-of-interest test, they being essentially modes of weighing competing
values,34 or, with like effect, determining which of the clashing interests should be advanced.
Petitioner asserts that his utterance in question is a protected form of speech.
The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or
low-value expression refers to libelous statements, obscenity or pornography, false or misleading
advertisement, insulting or "fighting words", i.e., those which by their very utterance inflict injury or
tend to incite an immediate breach of peace and expression endangering national security.
The Court finds that petitioner’s statement can be treated as obscene, at least with respect to the
average child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of Appeals,
the Court expressed difficulty in formulating a definition of obscenity that would apply to all cases,
but nonetheless stated the ensuing observations on the matter:
There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which
established basic guidelines, to wit: (a) whether to the average person, applying contemporary
standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value. But, it would be a serious misreading of Miller to conclude that the trier
of facts has the unbridled discretion in determining what is "patently offensive." x x x What remains
clear is that obscenity is an issue proper for judicial determination and should be treated on a case
to case basis and on the judge’s sound discretion.35
Following the contextual lessons of the cited case of Miller v. California, 36 a patently offensive
utterance would come within the pale of the term obscenity should it appeal to the prurient interest
of an average listener applying contemporary standards.
A cursory examination of the utterances complained of and the circumstances of the case reveal
that to an average adult, the utterances "Gago ka talaga x x x, masahol ka pa sa putang babae x x
x. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana
ang itaas, o di ba!" may not constitute obscene but merely indecent utterances. They can be
viewed as figures of speech or merely a play on words. In the context they were used, they may
not appeal to the prurient interests of an adult. The problem with the challenged statements is that
they were uttered in a TV program that is rated "G" or for general viewership, and in a time slot
that would likely reach even the eyes and ears of children.
While adults may have understood that the terms thus used were not to be taken literally, children
could hardly be expected to have the same discernment. Without parental guidance, the unbridled
use of such language as that of petitioner in a television broadcast could corrupt impressionable
young minds. The term "putang babae" means "a female prostitute," a term wholly inappropriate
for children, who could look it up in a dictionary and just get the literal meaning, missing the
context within which it was used. Petitioner further used the terms, "ang gumagana lang doon
yung ibaba," making reference to the female sexual organ and how a female prostitute uses it in
her trade, then stating that Sandoval was worse than that by using his mouth in a similar manner.
Children could be motivated by curiosity and ask the meaning of what petitioner said, also without
placing the phrase in context. They may be inquisitive as to why Sandoval is different from a
female prostitute and the reasons for the dissimilarity. And upon learning the meanings of the
words used, young minds, without the guidance of an adult, may, from their end, view this kind of
indecent speech as obscene, if they take these words literally and use them in their own speech or
form their own ideas on the matter. In this particular case, where children had the opportunity to
hear petitioner’s words, when speaking of the average person in the test for obscenity, we are
speaking of the average child, not the average adult. The average child may not have the adult’s
grasp of figures of speech, and may lack the understanding that language may be colorful, and
words may convey more than the literal meaning. Undeniably the subject speech is very
suggestive of a female sexual organ and its function as such. In this sense, we find petitioner’s
utterances obscene and not entitled to protection under the umbrella of freedom of speech.
Even if we concede that petitioner’s remarks are not obscene but merely indecent speech, still the
Court rules that petitioner cannot avail himself of the constitutional protection of free speech. Said
statements were made in a medium easily accessible to children. With respect to the young
minds, said utterances are to be treated as unprotected speech.
No doubt what petitioner said constitutes indecent or offensive utterances. But while a
jurisprudential pattern involving certain offensive utterances conveyed in different mediums has
emerged, this case is veritably one of first impression, it being the first time that indecent speech
communicated via television and the applicable norm for its regulation are, in this jurisdiction,
made the focal point. Federal Communications Commission (FCC) v. Pacifica Foundation,37 a
1978 American landmark case cited in Eastern Broadcasting Corporation v. Dans,
Jr.38and Chavez v. Gonzales,39 is a rich source of persuasive lessons. Foremost of these relates
to indecent speech without prurient appeal component coming under the category of protected
speech depending on the context within which it was made, irresistibly suggesting that, within a
particular context, such indecent speech may validly be categorized as unprotected, ergo,
susceptible to restriction.
In FCC, seven of what were considered "filthy" words40 earlier recorded in a monologue by a
satiric humorist later aired in the afternoon over a radio station owned by Pacifica Foundation.
Upon the complaint of a man who heard the pre-recorded monologue while driving with his son,
FCC declared the language used as "patently offensive" and "indecent" under a prohibiting law,
though not necessarily obscene. FCC added, however, that its declaratory order was issued in a
"special factual context," referring, in gist, to an afternoon radio broadcast when children were
undoubtedly in the audience. Acting on the question of whether the FCC could regulate the
subject utterance, the US Supreme Court ruled in the affirmative, owing to two special features of
the broadcast medium, to wit: (1) radio is a pervasive medium and (2) broadcasting is uniquely
accessible to children. The US Court, however, hastened to add that the monologue would be
protected speech in other contexts, albeit it did not expound and identify a compelling state
interest in putting FCC’s content-based regulatory action under scrutiny.
The Court in Chavez41 elucidated on the distinction between regulation or restriction of protected
speech that is content-based and that which is content-neutral. A content-based restraint is aimed
at the contents or idea of the expression, whereas a content-neutral restraint intends to regulate
the time, place, and manner of the expression under well-defined standards tailored to serve a
compelling state interest, without restraint on the message of the expression. Courts subject
content-based restraint to strict scrutiny.
With the view we take of the case, the suspension MTRCB imposed under the premises was, in
one perspective, permissible restriction. We make this disposition against the backdrop of the
following interplaying factors: First, the indecent speech was made via television, a pervasive
medium that, to borrow from Gonzales v. Kalaw Katigbak,42 easily "reaches every home where
there is a set [and where] [c]hildren will likely be among the avid viewers of the programs therein
shown"; second, the broadcast was aired at the time of the day when there was a reasonable risk
that children might be in the audience; and third, petitioner uttered his speech on a "G" or "for
general patronage" rated program. Under Sec. 2(A) of Chapter IV of the IRR of the MTRCB, a
show for general patronage is "[s]uitable for all ages," meaning that the "material for television x x
x in the judgment of the BOARD, does not contain anything unsuitable for children and minors,
and may be viewed without adult guidance or supervision." The words petitioner used were, by
any civilized norm, clearly not suitable for children. Where a language is categorized as indecent,
as in petitioner’s utterances on a general-patronage rated TV program, it may be readily
proscribed as unprotected speech.
A view has been advanced that unprotected speech refers only to pornography,43 false or
misleading advertisement,44 advocacy of imminent lawless action, and expression endangering
national security. But this list is not, as some members of the Court would submit, exclusive or
carved in stone. Without going into specifics, it may be stated without fear of contradiction that US
decisional law goes beyond the aforesaid general exceptions. As the Court has been impelled to
recognize exceptions to the rule against censorship in the past, this particular case constitutes yet
another exception, another instance of unprotected speech, created by the necessity of protecting
the welfare of our children. As unprotected speech, petitioner’s utterances can be subjected to
restraint or regulation.
Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts
that his utterances must present a clear and present danger of bringing about a substantive evil
the State has a right and duty to prevent and such danger must be grave and imminent.45
Petitioner’s invocation of the clear and present danger doctrine, arguably the most permissive of
speech tests, would not avail him any relief, for the application of said test is uncalled for under the
premises. The doctrine, first formulated by Justice Holmes, accords protection for utterances so
that the printed or spoken words may not be subject to prior restraint or subsequent punishment
unless its expression creates a clear and present danger of bringing about a substantial evil which
the government has the power to prohibit.46 Under the doctrine, freedom of speech and of press is
susceptible of restriction when and only when necessary to prevent grave and immediate danger
to interests which the government may lawfully protect. As it were, said doctrine evolved in the
context of prosecutions for rebellion and other crimes involving the overthrow of government. 47 It
was originally designed to determine the latitude which should be given to speech that espouses
anti-government action, or to have serious and substantial deleterious consequences on the
security and public order of the community.48 The clear and present danger rule has been applied
to this jurisdiction.49 As a standard of limitation on free speech and press, however, the clear and
present danger test is not a magic incantation that wipes out all problems and does away with
analysis and judgment in the testing of the legitimacy of claims to free speech and which compels
a court to release a defendant from liability the moment the doctrine is invoked, absent proof of
imminent catastrophic disaster.50 As we observed in Eastern Broadcasting Corporation, the clear
and present danger test "does not lend itself to a simplistic and all embracing interpretation
applicable to all utterances in all forums."51
To be sure, the clear and present danger doctrine is not the only test which has been applied by
the courts. Generally, said doctrine is applied to cases involving the overthrow of the government
and even other evils which do not clearly undermine national security. Since not all evils can be
measured in terms of "proximity and degree" the Court, however, in several cases—Ayer
Productions v. Capulong52 and Gonzales v. COMELEC,53 applied the balancing of interests test.
Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate
Opinion that "where the legislation under constitutional attack interferes with the freedom of
speech and assembly in a more generalized way and where the effect of the speech and
assembly in terms of the probability of realization of a specific danger is not susceptible even of
impressionistic calculation,"54 then the "balancing of interests" test can be applied.
The Court explained also in Gonzales v. COMELEC the "balancing of interests" test:
When particular conduct is regulated in the interest of public order, and the regulation results in an
indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of
the two conflicting interests demands the greater protection under the particular circumstances
presented. x x x We must, therefore, undertake the "delicate and difficult task x x x to weigh the
circumstances and to appraise the substantiality of the reasons advanced in support of the
regulation of the free enjoyment of rights x x x.
In enunciating standard premised on a judicial balancing of the conflicting social values and
individual interests competing for ascendancy in legislation which restricts expression, the court in
Douds laid the basis for what has been called the "balancing-of-interests" test which has found
application in more recent decisions of the U.S. Supreme Court. Briefly stated, the "balancing" test
requires a court to take conscious and detailed consideration of the interplay of interests
observable in a given situation or type of situation.
xxxx
Although the urgency of the public interest sought to be secured by Congressional power
restricting the individual’s freedom, and the social importance and value of the freedom so
restricted, "are to be judged in the concrete, not on the basis of abstractions," a wide range of
factors are necessarily relevant in ascertaining the point or line of equilibrium. Among these are (a)
the social value and importance of the specific aspect of the particular freedom restricted by the
legislation; (b) the specific thrust of the restriction, i.e., whether the restriction is direct or indirect,
whether or not the persons affected are few; (c) the value and importance of the public interest
sought to be secured by the legislation––the reference here is to the nature and gravity of the evil
which Congress seeks to prevent; (d) whether the specific restriction decreed by Congress is
reasonably appropriate and necessary for the protection of such public interest; and (e) whether
the necessary safeguarding of the public interest involved may be achieved by some other
measure less restrictive of the protected freedom.55
This balancing of interest test, to borrow from Professor Kauper, 56 rests on the theory that it is the
court’s function in a case before it when it finds public interests served by legislation, on the one
hand, and the free expression clause affected by it, on the other, to balance one against the other
and arrive at a judgment where the greater weight shall be placed. If, on balance, it appears that
the public interest served by restrictive legislation is of such nature that it outweighs the
abridgment of freedom, then the court will find the legislation valid. In short, the balance-of-
interests theory rests on the basis that constitutional freedoms are not absolute, not even those
stated in the free speech and expression clause, and that they may be abridged to some extent to
serve appropriate and important interests.57 To the mind of the Court, the balancing of interest
doctrine is the more appropriate test to follow.
In the case at bar, petitioner used indecent and obscene language and a three (3)-month
suspension was slapped on him for breach of MTRCB rules. In this setting, the assertion by
petitioner of his enjoyment of his freedom of speech is ranged against the duty of the government
to protect and promote the development and welfare of the youth.
After a careful examination of the factual milieu and the arguments raised by petitioner in support
of his claim to free speech, the Court rules that the government’s interest to protect and promote
the interests and welfare of the children adequately buttresses the reasonable curtailment and
valid restraint on petitioner’s prayer to continue as program host of Ang Dating Daan during the
suspension period.
No doubt, one of the fundamental and most vital rights granted to citizens of a State is the
freedom of speech or expression, for without the enjoyment of such right, a free, stable, effective,
and progressive democratic state would be difficult to attain. Arrayed against the freedom of
speech is the right of the youth to their moral, spiritual, intellectual, and social being which the
State is constitutionally tasked to promote and protect. Moreover, the State is also mandated to
recognize and support the vital role of the youth in nation building as laid down in Sec. 13, Art. II of
the 1987 Constitution.
The Constitution has, therefore, imposed the sacred obligation and responsibility on the State to
provide protection to the youth against illegal or improper activities which may prejudice their
general well-being. The Article on youth, approved on second reading by the Constitutional
Commission, explained that the State shall "extend social protection to minors against all forms of
neglect, cruelty, exploitation, immorality, and practices which may foster racial, religious or other
forms of discrimination."58
Indisputably, the State has a compelling interest in extending social protection to minors against
all forms of neglect, exploitation, and immorality which may pollute innocent minds. It has a
compelling interest in helping parents, through regulatory mechanisms, protect their children’s
minds from exposure to undesirable materials and corrupting experiences. The Constitution, no
less, in fact enjoins the State, as earlier indicated, to promote and protect the physical, moral,
spiritual, intellectual, and social well-being of the youth to better prepare them fulfill their role in the
field of nation-building.59 In the same way, the State is mandated to support parents in the rearing
of the youth for civic efficiency and the development of moral character.60
Petitioner’s offensive and obscene language uttered in a television broadcast, without doubt, was
easily accessible to the children. His statements could have exposed children to a language that is
unacceptable in everyday use. As such, the welfare of children and the State’s mandate to protect
and care for them, as parens patriae,61 constitute a substantial and compelling government
interest in regulating petitioner’s utterances in TV broadcast as provided in PD 1986.
FCC explains the duty of the government to act as parens patriae to protect the children who,
because of age or interest capacity, are susceptible of being corrupted or prejudiced by offensive
language, thus:
[B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohen’s
written message, ["Fuck the Draft"], might have been incomprehensible to a first grader, Pacifica’s
broadcast could have enlarged a child’s vocabulary in an instant. Other forms of offensive
expression may be withheld from the young without restricting the expression at its source.
Bookstores and motion picture theaters, for example, may be prohibited from making indecent
material available to children. We held in Ginsberg v. New York that the government’s interest in
the "well-being of its youth" and in supporting "parents’ claim to authority in their own household"
justified the regulation of otherwise protected expression. The ease with which children may obtain
access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify
special treatment of indecent broadcasting.
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the
welfare of the young:
x x x It is the consensus of this Court that where television is concerned, a less liberal approach
calls for observance. This is so because unlike motion pictures where the patrons have to pay
their way, television reaches every home where there is a set. Children then will likely will be
among the avid viewers of the programs therein shown. As was observed by Circuit Court of
Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies
of the adult population. It cannot be denied though that the State as parens patriae is called upon
to manifest an attitude of caring for the welfare of the young.62
The compelling need to protect the young impels us to sustain the regulatory action MTRCB took
in the narrow confines of the case. To reiterate, FCC justified the restraint on the TV broadcast
grounded on the following considerations: (1) the use of television with its unique accessibility to
children, as a medium of broadcast of a patently offensive speech; (2) the time of broadcast; and
(3) the "G" rating of the Ang Dating Daan program. And in agreeing with MTRCB, the court takes
stock of and cites with approval the following excerpts from FCC:
It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not
involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an
Elizabethan comedy. We have not decided that an occasional expletive in either setting would
justify any sanction. x x x The [FFC’s] decision rested entirely on a nuisance rationale under which
context is all important. The concept requires consideration of a host of variables. The time of day
was emphasized by the [FFC]. The content of the program in which the language is used will
affect the composition of the audience x x x. As Mr. Justice Sutherland wrote a ‘nuisance may be
merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.’ We simply
hold that when the [FCC] finds that a pig has entered the parlor, the exercise of its regulatory
power does not depend on proof that the pig is obscene. (Citation omitted.)
There can be no quibbling that the remarks in question petitioner uttered on prime-time television
are blatantly indecent if not outright obscene. It is the kind of speech that PD 1986 proscribes
necessitating the exercise by MTRCB of statutory disciplinary powers. It is the kind of speech that
the State has the inherent prerogative, nay duty, to regulate and prevent should such action
served and further compelling state interests. One who utters indecent, insulting, or offensive
words on television when unsuspecting children are in the audience is, in the graphic language of
FCC, a "pig in the parlor." Public interest would be served if the "pig" is reasonably restrained or
even removed from the "parlor."
Ergo, petitioner’s offensive and indecent language can be subjected to prior restraint.
Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent
punishment that, however, includes prior restraint, albeit indirectly.
After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an
administrative sanction or subsequent punishment for his offensive and obscene language in Ang
Dating Daan.
To clarify, statutes imposing prior restraints on speech are generally illegal and presumed
unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are movies,
television, and radio broadcast censorship in view of its access to numerous people, including the
young who must be insulated from the prejudicial effects of unprotected speech. PD 1986 was
passed creating the Board of Review for Motion Pictures and Television (now MTRCB) and which
requires prior permit or license before showing a motion picture or broadcasting a TV program.
The Board can classify movies and television programs and can cancel permits for exhibition of
films or television broadcast.lavvphi1.net
The power of MTRCB to regulate and even impose some prior restraint on radio and television
shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of Appeals. Speaking
through Chief Justice Reynato S. Puno, the Court wrote:
We thus reject petitioner’s postulate that its religious program is per se beyond review by the
respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of
internal belief. Television is a medium that reaches even the eyes and ears of children. The Court
iterates the rule that the exercise of religious freedom can be regulated by the State when it will
bring about the clear and present danger of some substantive evil which the State is duty bound to
prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or
public welfare. x x x
xxxx
While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is
unconstitutional for Congress to grant an administrative body quasi-judicial power to preview and
classify TV programs and enforce its decision subject to review by our courts. As far back as 1921,
we upheld this setup in Sotto vs. Ruiz, viz:
"The use of the mails by private persons is in the nature of a privilege which can be regulated in
order to avoid its abuse. Persons possess no absolute right to put into the mail anything they
please, regardless of its character."63
Bernas adds:
Under the decree a movie classification board is made the arbiter of what movies and television
programs or parts of either are fit for public consumption. It decides what movies are "immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the
Philippines or its people," and what "tend to incite subversion, insurrection, rebellion or sedition,"
or "tend to undermine the faith and confidence of the people in their government and/or duly
constituted authorities," etc. Moreover, its decisions are executory unless stopped by a court. 64
Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,65 it was held that the power of
review and prior approval of MTRCB extends to all television programs and is valid despite the
freedom of speech guaranteed by the Constitution. Thus, all broadcast networks are regulated by
the MTRCB since they are required to get a permit before they air their television programs.
Consequently, their right to enjoy their freedom of speech is subject to that requirement. As lucidly
explained by Justice Dante O. Tinga, government regulations through the MTRCB became "a
necessary evil" with the government taking the role of assigning bandwidth to individual
broadcasters. The stations explicitly agreed to this regulatory scheme; otherwise, chaos would
result in the television broadcast industry as competing broadcasters will interfere or co-opt each
other’s signals. In this scheme, station owners and broadcasters in effect waived their right to the
full enjoyment of their right to freedom of speech in radio and television programs and impliedly
agreed that said right may be subject to prior restraint—denial of permit or subsequent
punishment, like suspension or cancellation of permit, among others.
The three (3) months suspension in this case is not a prior restraint on the right of petitioner to
continue with the broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB
for such broadcast. Rather, the suspension is in the form of permissible administrative sanction or
subsequent punishment for the offensive and obscene remarks he uttered on the evening of
August 10, 2004 in his television program, Ang Dating Daan. It is a sanction that the MTRCB may
validly impose under its charter without running afoul of the free speech clause. And the imposition
is separate and distinct from the criminal action the Board may take pursuant to Sec. 3(i) of PD
1986 and the remedies that may be availed of by the aggrieved private party under the provisions
on libel or tort, if applicable. As FCC teaches, the imposition of sanctions on broadcasters who
indulge in profane or indecent broadcasting does not constitute forbidden censorship. Lest it be
overlooked, the sanction imposed is not per se for petitioner’s exercise of his freedom of speech
via television, but for the indecent contents of his utterances in a "G" rated TV program.
More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his freedom
of speech to regulation under PD 1986 and its IRR as television station owners, program
producers, and hosts have impliedly accepted the power of MTRCB to regulate the broadcast
industry.
Neither can petitioner’s virtual inability to speak in his program during the period of suspension be
plausibly treated as prior restraint on future speech. For viewed in its proper perspective, the
suspension is in the nature of an intermediate penalty for uttering an unprotected form of speech.
It is definitely a lesser punishment than the permissible cancellation of exhibition or broadcast
permit or license. In fine, the suspension meted was simply part of the duties of the MTRCB in the
enforcement and administration of the law which it is tasked to implement. Viewed in its proper
context, the suspension sought to penalize past speech made on prime-time "G" rated TV
program; it does not bar future speech of petitioner in other television programs; it is a permissible
subsequent administrative sanction; it should not be confused with a prior restraint on speech.
While not on all fours, the Court, in MTRCB,66 sustained the power of the MTRCB to penalize a
broadcast company for exhibiting/airing a pre-taped TV episode without Board authorization in
violation of Sec. 7 of PD 1986.
Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority
were it to regulate and even restrain the prime-time television broadcast of indecent or obscene
speech in a "G" rated program is not acceptable. As made clear in Eastern Broadcasting
Corporation, "the freedom of television and radio broadcasting is somewhat lesser in scope than
the freedom accorded to newspaper and print media." The MTRCB, as a regulatory agency, must
have the wherewithal to enforce its mandate, which would not be effective if its punitive actions
would be limited to mere fines. Television broadcasts should be subject to some form of
regulation, considering the ease with which they can be accessed, and violations of the
regulations must be met with appropriate and proportional disciplinary action. The suspension of a
violating television program would be a sufficient punishment and serve as a deterrent for those
responsible. The prevention of the broadcast of petitioner’s television program is justified, and
does not constitute prohibited prior restraint. It behooves the Court to respond to the needs of the
changing times, and craft jurisprudence to reflect these times.
Petitioner, in questioning the three-month suspension, also tags as unconstitutional the very law
creating the MTRCB, arguing that PD 1986, as applied to him, infringes also upon his freedom of
religion. The Court has earlier adequately explained why petitioner’s undue reliance on the
religious freedom cannot lend justification, let alone an exempting dimension to his licentious
utterances in his program. The Court sees no need to address anew the repetitive arguments on
religious freedom. As earlier discussed in the disposition of the petition in G.R. No. 164785, what
was uttered was in no way a religious speech. Parenthetically, petitioner’s attempt to characterize
his speech as a legitimate defense of his religion fails miserably. He tries to place his words in
perspective, arguing evidently as an afterthought that this was his method of refuting the alleged
distortion of his statements by the INC hosts of Ang Tamang Daan. But on the night he uttered
them in his television program, the word simply came out as profane language, without any
warning or guidance for undiscerning ears.
As to petitioner’s other argument about having been denied due process and equal protection of
the law, suffice it to state that we have at length debunked similar arguments in G.R. No. 164785.
There is no need to further delve into the fact that petitioner was afforded due process when he
attended the hearing of the MTRCB, and that he was unable to demonstrate that he was unjustly
discriminated against in the MTRCB proceedings.
Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986
does not provide for the range of imposable penalties that may be applied with respect to
violations of the provisions of the law.
The argument is without merit.
In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in the
following wise:
It is a fundamental principle flowing from the doctrine of separation of powers that Congress may
not delegate its legislative power to the two other branches of the government, subject to the
exception that local governments may over local affairs participate in its exercise. What cannot be
delegated is the authority under the Constitution to make laws and to alter and repeal them; the
test is the completeness of the statute in all its term and provisions when it leaves the hands of the
legislature. To determine whether or not there is an undue delegation of legislative power, the
inquiry must be directed to the scope and definiteness of the measure enacted. The legislature
does not abdicate its functions when it describes what job must be done, who is to do it, and what
is the scope of his authority. For a complex economy, that may indeed be the only way in which
the legislative process can go forward. A distinction has rightfully been made between delegation
of power to make laws which necessarily involves a discretion as to what it shall be, which
constitutionally may not be done, and delegation of authority or discretion as to its execution to be
exercised under and in pursuance of the law, to which no valid objection can be made. The
Constitution is thus not to be regarded as denying the legislature the necessary resources of
flexibility and practicability.
To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least
that the legislature itself determines matters of principle and lays down fundamental policy.
Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines
legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply
it. It indicates the circumstances under which the legislative command is to be effected. It is the
criterion by which legislative purpose may be carried out. Thereafter, the executive or
administrative office designated may in pursuance of the above guidelines promulgate
supplemental rules and regulations.67
Based on the foregoing pronouncements and analyzing the law in question, petitioner’s
protestation about undue delegation of legislative power for the sole reason that PD 1986 does not
provide for a range of penalties for violation of the law is untenable. His thesis is that MTRCB, in
promulgating the IRR of PD 1986, prescribing a schedule of penalties for violation of the
provisions of the decree, went beyond the terms of the law.
Petitioner’s posture is flawed by the erroneous assumptions holding it together, the first
assumption being that PD 1986 does not prescribe the imposition of, or authorize the MTRCB to
impose, penalties for violators of PD 1986. As earlier indicated, however, the MTRCB, by express
and direct conferment of power and functions, is charged with supervising and regulating,
granting, denying, or canceling permits for the exhibition and/or television broadcast of all motion
pictures, television programs, and publicity materials to the end that no such objectionable
pictures, programs, and materials shall be exhibited and/or broadcast by television.
Complementing this provision is Sec. 3(k) of the decree authorizing the MTRCB "to exercise such
powers and functions as may be necessary or incidental to the attainment of the purpose and
objectives of [the law]." As earlier explained, the investiture of supervisory, regulatory, and
disciplinary power would surely be a meaningless grant if it did not carry with it the power to
penalize the supervised or the regulated as may be proportionate to the offense committed,
charged, and proved. As the Court said in Chavez v. National Housing Authority:
x x x [W]hen a general grant of power is conferred or duty enjoined, every particular power
necessary for the exercise of the one or the performance of the other is also conferred. x x x
[W]hen the statute does not specify the particular method to be followed or used by a government
agency in the exercise of the power vested in it by law, said agency has the authority to adopt any
reasonable method to carry out its function.68
Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and
supervise the exhibition of TV programs carries with it or necessarily implies the authority to take
effective punitive action for violation of the law sought to be enforced. And would it not be logical
too to say that the power to deny or cancel a permit for the exhibition of a TV program or
broadcast necessarily includes the lesser power to suspend?
The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference,
provides that agency with the power "[to] promulgate such rules and regulations as are necessary
or proper for the implementation of this Act, and the accomplishment of its purposes and
objectives x x x." And Chapter XIII, Sec. 1 of the IRR providing:
Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.––Without prejudice to the
immediate filing of the appropriate criminal action and the immediate seizure of the pertinent
articles pursuant to Section 13, any violation of PD 1986 and its Implementing Rules and
Regulations governing motion pictures, television programs, and related promotional materials
shall be penalized with suspension or cancellation of permits and/or licenses issued by the Board
and/or with the imposition of fines and other administrative penalty/penalties. The Board
recognizes the existing Table of Administrative Penalties attached without prejudice to the power
of the Board to amend it when the need arises. In the meantime the existing revised Table of
Administrative Penalties shall be enforced. (Emphasis added.)
This is, in the final analysis, no more than a measure to specifically implement the aforequoted
provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does not expand the
mandate of the MTRCB under the law or partake of the nature of an unauthorized administrative
legislation. The MTRCB cannot shirk its responsibility to regulate the public airwaves and employ
such means as it can as a guardian of the public.
In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the standards
to be applied to determine whether there have been statutory breaches. The MTRCB may
evaluate motion pictures, television programs, and publicity materials "applying contemporary
Filipino cultural values as standard," and, from there, determine whether these audio and video
materials "are objectionable for being immoral, indecent, contrary to law and/or good customs,
[etc.] x x x" and apply the sanctions it deems proper. The lawmaking body cannot possibly provide
for all the details in the enforcement of a particular statute. 69 The grant of the rule-making power to
administrative agencies is a relaxation of the principle of separation of powers and is an exception
to the non-delegation of legislative powers.70 Administrative regulations or "subordinate legislation"
calculated to promote the public interest are necessary because of "the growing complexity of
modern life, the multiplication of the subjects of governmental regulations, and the increased
difficulty of administering the law."71 Allowing the MTRCB some reasonable elbow-room in its
operations and, in the exercise of its statutory disciplinary functions, according it ample latitude in
fixing, by way of an appropriate issuance, administrative penalties with due regard for the severity
of the offense and attending mitigating or aggravating circumstances, as the case may be, would
be consistent with its mandate to effectively and efficiently regulate the movie and television
industry.
But even as we uphold the power of the MTRCB to review and impose sanctions for violations of
PD 1986, its decision to suspend petitioner must be modified, for nowhere in that issuance,
particularly the power-defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties
effective January 1, 1999 is the Board empowered to suspend the program host or even to
prevent certain people from appearing in television programs. The MTRCB, to be sure, may
prohibit the broadcast of such television programs or cancel permits for exhibition, but it may not
suspend television personalities, for such would be beyond its jurisdiction. The MTRCB cannot
extend its exercise of regulation beyond what the law provides. Only persons, offenses, and
penalties clearly falling clearly within the letter and spirit of PD 1986 will be considered to be within
the decree’s penal or disciplinary operation. And when it exists, the reasonable doubt must be
resolved in favor of the person charged with violating the statute and for whom the penalty is
sought. Thus, the MTRCB’s decision in Administrative Case No. 01-04 dated September 27, 2004
and the subsequent order issued pursuant to said decision must be modified. The suspension
should cover only the television program on which petitioner appeared and uttered the offensive
and obscene language, which sanction is what the law and the facts obtaining call for.
In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which
absolute permissiveness is the norm. Petitioner’s flawed belief that he may simply utter gutter
profanity on television without adverse consequences, under the guise of free speech, does not
lend itself to acceptance in this jurisdiction. We repeat: freedoms of speech and expression are
not absolute freedoms. To say "any act that restrains speech should be greeted with furrowed
brows" is not to say that any act that restrains or regulates speech or expression is per se invalid.
This only recognizes the importance of freedoms of speech and expression, and indicates the
necessity to carefully scrutinize acts that may restrain or regulate speech.
WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27, 2004 is
hereby AFFIRMED with the MODIFICATION of limiting the suspension to the program Ang Dating
Daan. As thus modified, the fallo of the MTRCB shall read as follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a penalty of
THREE (3) MONTHS SUSPENSION on the television program, Ang Dating Daan, subject of the
instant petition.
Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its owner, PBC, are
hereby exonerated for lack of evidence.
Costs against petitioner.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice
A.M. No. 02-2-10-SC December 14, 2005
RE: REQUEST OF MUSLIM EMPLOYEES IN THE DIFFERENT COURTS IN ILIGAN CITY (RE:
OFFICE HOURS)
RESOLUTION
CALLEJO, SR., J.:
In their Letter dated November 19, 2001 addressed to Executive Judge Valerio M. Salazar,
Regional Trial Court of Iligan City, several Muslim employees in the different courts in the said city
request that they be allowed to enjoy the following privileges:
1. to hold office hours from 7:30 a.m. to 3:30 p.m. without lunch break or coffee breaks during the
month of Ramadan;
2. 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.
Judge Salazar forwarded the said letter-request to the Office of the Court Administrator (OCA).
Judge Salazar expressed his conformity with the first request, i.e., allowing them to hold office
from 7:30 a.m. to 3:30 p.m. without any break during the month of Ramadan. However, he
expressed some misgivings about the second request, i.e., excusing them from work from 10:00
a.m. to 2:00 p.m. every Friday during the entire calendar year.
In support of their requests, the Muslim employees invoke Presidential Decree (P.D.) No. 2911 as
amended by P.D. No. 3222 enacted by then President Ferdinand E. Marcos. The avowed purpose
of P.D. No. 291 was to reinforce national unity by recognizing Muslim holidays and making them
part of our national holidays. Section 2 thereof, as amended by P.D. No. 322, provides that the
following are recognized Muslim holidays:
a. Eid-ul-Fitr (Hariraya Puasa) - which falls on the 1st day of the lunar month of Shawwal
commemorating the end of the fasting season;
b. Eid-ul-Adha (Hariraya Haj) - which falls on the 10th day of the 12th Lunar month of Zul Hajj;
c. Mauledan Nabi - Birthday of Prophet Mohammad (P.B.U.H), which falls on the 12th day of the
3rd Lunar month of Rabbiol-Awwal;
d. Lailatul Isra Wal Miraj - (Ascension) which falls on the 27th day of the 8th Lunar month of
Rajjab;
e. Muharram (Ashura) - which falls on the 10th Lunar month of Muharram; and
f. Amon Jaded (New Year) - which falls on the 1st day of the 1st Lunar month of Muharram.
Muslims employees in the government are excused from reporting to office during these holidays
in order that they may be able to properly observe them.
Section 3 of the same law, as amended by P.D. No. 322, further provides that:
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.
(b) Regulations for the implementation of this section shall be issued together with the
implementing directives on Muslim holidays.
Pursuant thereto, the Civil Service Commission (CSC) promulgated Resolution No. 81-1277 dated
November 13, 1981 which states 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 A.M. to 3:30 P.M.
without noon break and the difference of 2 hours is not counted as undertime;
3. During Friday, the Muslim pray day, Muslims are excused from work from 10 o’clock in the
morning to 2 o’clock in the afternoon.
Moreover, in its Resolution No. 00-0227 dated January 26, 2000, the CSC clarified that the term
"Friday" in the above resolution is not limited to the Fridays during the month of Ramadan, but
refers to "all Fridays of the
calendar year." However, in order not to run afoul of Section 5, 3 Rule XVII of the Omnibus Rules
Implementing Book V of Executive Order (E.O.) No. 2924 which enjoins civil servants to render
public service not less than eight hours a day or forty (40) hours a week, the CSC prescribes the
adoption of a flexible working schedule to accommodate the Muslims’ Friday Prayer Day subject to
certain conditions, e.g., the flexible working hours shall not start earlier than 7:00 a.m. and end not
later than 7:00 p.m.5
In the Resolution dated October 1, 2002, the Court required the Court Administrator to study the
matter. In compliance therewith, Court Administrator Presbitero J. Velasco, Jr. recommends that
the Muslim employees in the Judiciary be allowed to hold flexible office hours from 7:30 a.m. to
3:30 p.m. without break during the month ofRamadan. Further, that they be excused from work
from 10:00 a.m. to 2:00 p.m. every Friday to allow them to attend the Muslim Prayer Day.
However, to compensate for the lost hours, they should be required to observe flexible working
schedule which should start from 7:00 a.m. to 10:00 a.m. and from 2:00 p.m. to 7:00 p.m. every
Friday. In that way, the working hours mandated by the civil service rules is complied with.
The recommendation of the Court Administrator with respect to the matter of allowing the Muslim
employees in the Judiciary to hold flexible office hours from 7:30 a.m. to 3:30 p.m. without break
during the month of Ramadanis well taken. The same has statutory basis in Section 3 (a) of P.D.
No. 291, as amended by P.D. No. 322, which categorically states that "[d]uring the fasting season
in 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 ..."
The Court, however, is constrained to deny for lack of statutory basis the request of the Muslim
employees to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday to allow them to
attend the Muslim Prayer Day. As correctly observed by Atty. Edna Diño, Chief, Office of the Court
Attorney, in her Report dated May 13, 2005, the CSC exceeded its authority insofar as it declared
in Resolution No. 81-1277 and Resolution No. 00-0227 that Muslim employees are excused from
work from 10:00 a.m. to 2:00 p.m.
every Friday subject to certain conditions. CSC Resolution No. 81-1277 was purportedly issued
pursuant to Sections 2 and 5 of P.D. No. 291, as amended by P.D. No 322, but neither of the two
decrees mention "Friday, the Muslim Prayer Day" as one of the recognized holidays.
The Court is not unmindful that the subject requests are grounded on Section 5, Article III of the
Constitution:
No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The 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 and
political rights.
This provision contains two aspects: (1) the non-establishment clause; and (2) the free exercise
clause. The subject requests are based on the latter and in interpreting this clause (the free
exercise clause) embodied in the Constitution, the Court has consistently adhered to the doctrine
that:
The right to religious profession and worship has a two-fold aspect, viz., 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.6
Justice Isagani A. Cruz explained these two 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.7
The Court recognizes that the observance of Ramadan and the Friday Muslim Prayer Day is
integral to the Islamic faith. However, while the observance of Ramadan and allowing the Muslim
employees in the Judiciary to hold flexible office hours from 7:30 a.m. to 3:30 p.m. without any
break during the month of Ramadan finds support in Section 3 (a) of P.D. No. 291, as amended by
P.D. No. 322, there is no such basis to excuse them from work from 10:00 a.m. to 2:00 p.m. every
Friday, the Muslim Prayer Day, during the entire calendar year.
On the other hand, the need of the State to prescribe government office hours as well as to
enforce them uniformly to all civil servants, Christians and Muslims alike, cannot be disregarded.
Underlying Section 5,8 Rule XVII of the Omnibus Rules Implementing Book V of E.O. No. 292 is
the interest of the general public to be assured of continuous government service during office
hours every Monday through Friday. The said rule enjoins all civil servants, of whatever religious
denomination, to render public service of no less than eight hours a day or forty (40) hours a
week.
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.
In fine, the remedy of the Muslim employees, with respect to their request to be excused from
work from 10:00 a.m. to 2:00 p.m. every Friday during the entire calendar year, is legislative,
which is to ask Congress to enact a legislation expressly exempting them from compliance with
the prescribed government working hours.

ACCORDINGLY, the Court resolved to:

1. GRANT the request to allow the Muslim employees in the Judiciary to hold office hours from
7:30 a.m. to 3:30 p.m. without break during the month of Ramadan pursuant to Section 3 (a) of
Presidential Decree No. 291, as amended by Presidential Decree No. 322; and

2. DENY for lack of legal basis the request that the Muslim employees in the Judiciary be excused
from work from 10:00 a.m. to 2:00 p.m. every Friday, the Muslim Prayer Day, during the entire
calendar year.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

(Re: Office Hours), 477 SCRA 648, A.M. No. 02-2-10-SC December 14, 2005
G.R. No. L-14639 March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the one which this
application forhabeas corpus submits for decision. While hardly to be expected to be met with in
this modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if
there is kept in the forefront of our minds the basic principles of popular government, and if we
give expression to the paramount purpose for which the courts, as an independent power of such
a government, were constituted. The primary question is — Shall the judiciary permit a
government of the men instead of a government of laws to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but which might prove
profitable reading for other departments of the government, the facts are these: The Mayor of the
city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the
segregated district for women of ill repute, which had been permitted for a number of years in the
city of Manila, closed. Between October 16 and October 25, 1918, the women were kept confined
to their houses in the district by the police. Presumably, during this period, the city authorities
quietly perfected arrangements with the Bureau of Labor for sending the women to Davao,
Mindanao, as laborers; with some government office for the use of the coastguard
cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers. At any rate,
about midnight of October 25, the police, acting pursuant to orders from the chief of police, Anton
Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the houses, hustled
some 170 inmates into patrol wagons, and placed them aboard the steamers that awaited their
arrival. The women were given no opportunity to collect their belongings, and apparently were
under the impression that they were being taken to a police station for an investigation. They had
no knowledge that they were destined for a life in Mindanao. They had not been asked if they
wished to depart from that region and had neither directly nor indirectly given their consent to the
deportation. The involuntary guests were received on board the steamers by a representative of
the Bureau of Labor and a detachment of Constabulary soldiers. The two steamers with their
unwilling passengers sailed for Davao during the night of October 25.
The vessels reached their destination at Davao on October 29. The women were landed and
receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yñigo
and Rafael Castillo. The governor and the hacendero Yñigo, who appear as parties in the case,
had no previous notification that the women were prostitutes who had been expelled from the city
of Manila. The further happenings to these women and the serious charges growing out of alleged
ill-treatment are of public interest, but are not essential to the disposition of this case. Suffice it to
say, generally, that some of the women married, others assumed more or less clandestine
relations with men, others went to work in different capacities, others assumed a life unknown and
disappeared, and a goodly portion found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to
Davao, the attorney for the relatives and friends of a considerable number of the deportees
presented an application forhabeas corpus to a member of the Supreme Court. Subsequently, the
application, through stipulation of the parties, was made to include all of the women who were sent
away from Manila to Davao and, as the same questions concerned them all, the application will be
considered as including them. The application set forth the salient facts, which need not be
repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain
unknown parties. The writ was made returnable before the full court. The city fiscal appeared for
the respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and
deportation, and prayed that the writ should not be granted because the petitioners were not
proper parties, because the action should have been begun in the Court of First Instance for
Davao, Department of Mindanao and Sulu, because the respondents did not have any of the
women under their custody or control, and because their jurisdiction did not extend beyond the
boundaries of the city of Manila. According to an exhibit attached to the answer of the fiscal, the
170 women were destined to be laborers, at good salaries, on the haciendas of Yñigo and
Governor Sales. In open court, the fiscal admitted, in answer to question of a member of the court,
that these women had been sent out of Manila without their consent. The court awarded the writ,
in an order of November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton
Hohmann, chief of police of the city of Manila, Francisco Sales, governor of the province of Davao,
and Feliciano Yñigo, an hacendero of Davao, to bring before the court the persons therein named,
alleged to be deprived of their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at their own expense. On
motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme Court
sitting as commissioners. On the day named in the order, December 2nd, 1918, none of the
persons in whose behalf the writ was issued were produced in court by the respondents. It has
been shown that three of those who had been able to come back to Manila through their own
efforts, were notified by the police and the secret service to appear before the court. The fiscal
appeared, repeated the facts more comprehensively, reiterated the stand taken by him when
pleading to the original petition copied a telegram from the Mayor of the city of Manila to the
provincial governor of Davao and the answer thereto, and telegrams that had passed between the
Director of Labor and the attorney for that Bureau then in Davao, and offered certain affidavits
showing that the women were contained with their life in Mindanao and did not wish to return to
Manila. Respondents Sales answered alleging that it was not possible to fulfill the order of the
Supreme Court because the women had never been under his control, because they were at
liberty in the Province of Davao, and because they had married or signed contracts as laborers.
Respondent Yñigo answered alleging that he did not have any of the women under his control and
that therefore it was impossible for him to obey the mandate. The court, after due deliberation, on
December 10, 1918, promulgated a second order, which related that the respondents had not
complied with the original order to the satisfaction of the court nor explained their failure to do so,
and therefore directed that those of the women not in Manila be brought before the court by
respondents Lukban, Hohmann, Sales, and Yñigo on January 13, 1919, unless the women
should, in written statements voluntarily made before the judge of first instance of Davao or the
clerk of that court, renounce the right, or unless the respondents should demonstrate some other
legal motives that made compliance impossible. It was further stated that the question of whether
the respondents were in contempt of court would later be decided and the reasons for the order
announced in the final decision.
Before January 13, 1919, further testimony including that of a number of the women, of certain
detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of
the Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao
acting in the same capacity. On January 13, 1919, the respondents technically presented before
the Court the women who had returned to the city through their own efforts and eight others who
had been brought to Manila by the respondents. Attorneys for the respondents, by their returns,
once again recounted the facts and further endeavored to account for all of the persons involved
in the habeas corpus. In substance, it was stated that the respondents, through their
representatives and agents, had succeeded in bringing from Davao with their consent eight
women; that eighty-one women were found in Davao who, on notice that if they desired they could
return to Manila, transportation fee, renounced the right through sworn statements; that fifty-nine
had already returned to Manila by other means, and that despite all efforts to find them twenty-six
could not be located. Both counsel for petitioners and the city fiscal were permitted to submit
memoranda. The first formally asked the court to find Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and Fernando Ordax,
members of the police force of the city of Manila, Feliciano Yñigo, an hacendero of Davao,
Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the city of
Manila, in contempt of court. The city fiscal requested that the replica al memorandum de los
recurridos, (reply to respondents' memorandum) dated January 25, 1919, be struck from the
record.
In the second order, the court promised to give the reasons for granting the writ of habeas
corpus in the final decision. We will now proceed to do so.
One fact, and one fact only, need be recalled — these one hundred and seventy women were
isolated from society, and then at night, without their consent and without any opportunity to
consult with friends or to defend their rights, were forcibly hustled on board steamers for
transportation to regions unknown. Despite the feeble attempt to prove that the women left
voluntarily and gladly, that such was not the case is shown by the mere fact that the presence of
the police and the constabulary was deemed necessary and that these officers of the law chose
the shades of night to cloak their secret and stealthy acts. Indeed, this is a fact impossible to
refute and practically admitted by the respondents.
With this situation, a court would next expect to resolve the question — By authority of what law
did the Mayor and the Chief of Police presume to act in deporting by duress these persons from
Manila to another distant locality within the Philippine Islands? We turn to the statutes and we find
—
Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress.
The Governor-General can order the eviction of undesirable aliens after a hearing from the
Islands. Act No. 519 of the Philippine Commission and section 733 of the Revised Ordinances of
the city of Manila provide for the conviction and punishment by a court of justice of any person
who is a common prostitute. Act No. 899 authorizes the return of any citizen of the United States,
who may have been convicted of vagrancy, to the homeland. New York and other States have
statutes providing for the commitment to the House of Refuge of women convicted of being
common prostitutes. Always a law! Even when the health authorities compel vaccination, or
establish a quarantine, or place a leprous person in the Culion leper colony, it is done pursuant to
some law or order. But one can search in vain for any law, order, or regulation, which even hints at
the right of the Mayor of the city of Manila or the chief of police of that city to force citizens of the
Philippine Islands — and these women despite their being in a sense lepers of society are
nevertheless not chattels but Philippine citizens protected by the same constitutional guaranties as
are other citizens — to change their domicile from Manila to another locality. On the contrary,
Philippine penal law specifically punishes any public officer who, not being expressly authorized
by law or regulation, compels any person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to
be found in the Bill of Rights of the Constitution. Under the American constitutional system, liberty
of abode is a principle so deeply imbedded in jurisprudence and considered so elementary in
nature as not even to require a constitutional sanction. Even the Governor-General of the
Philippine Islands, even the President of the United States, who has often been said to exercise
more power than any king or potentate, has no such arbitrary prerogative, either inherent or
express. Much less, therefore, has the executive of a municipality, who acts within a sphere of
delegated powers. If the mayor and the chief of police could, at their mere behest or even for the
most praiseworthy of motives, render the liberty of the citizen so insecure, then the presidents and
chiefs of police of one thousand other municipalities of the Philippines have the same privilege. If
these officials can take to themselves such power, then any other official can do the same. And if
any official can exercise the power, then all persons would have just as much right to do so. And if
a prostitute could be sent against her wishes and under no law from one locality to another within
the country, then officialdom can hold the same club over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that — "No freeman shall be taken, or
imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled,
or any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment
of his peers or by the law of the land. We will sell to no man, we will not deny or defer to any man
either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No
official, no matter how high, is above the law. The courts are the forum which functionate to
safeguard individual liberty and to punish official transgressors. "The law," said Justice Miller,
delivering the opinion of the Supreme Court of the United States, "is the only supreme power in
our system of government, and every man who by accepting office participates in its functions is
only the more strongly bound to submit to that supremacy, and to observe the limitations which it
imposes upon the exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196,
220.) "The very idea," said Justice Matthews of the same high tribunal in another case, "that one
man may be compelled to hold his life, or the means of living, or any material right essential to the
enjoyment of life, at the mere will of another, seems to be intolerable in any country where
freedom prevails, as being the essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S.,
356, 370.) All this explains the motive in issuing the writ of habeas corpus, and makes clear why
we said in the very beginning that the primary question was whether the courts should permit a
government of men or a government of laws to be established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The remedies of the citizen
are three: (1) Civil action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may recoup money
damages. It may still rest with the parties in interest to pursue such an action, but it was never
intended effectively and promptly to meet any such situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:
Any public officer not thereunto authorized by law or by regulations of a general character
in force in the Philippines who shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall
be punished by a fine of not less than three hundred and twenty-five and not more than
three thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or by regulation of a general
character in force in the Philippines who shall compel any person to change his domicile
or residence shall suffer the penalty of destierro and a fine of not less than six hundred
and twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that
any public officer has violated this provision of law, these prosecutors will institute and press a
criminal prosecution just as vigorously as they have defended the same official in this action.
Nevertheless, that the act may be a crime and that the persons guilty thereof can be proceeded
against, is no bar to the instant proceedings. To quote the words of Judge Cooley in a case which
will later be referred to — "It would be a monstrous anomaly in the law if to an application by one
unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the
confinement was a crime, and therefore might be continued indefinitely until the guilty party was
tried and punished therefor by the slow process of criminal procedure." (In the matter of Jackson
[1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and
effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient
defense of personal freedom. Any further rights of the parties are left untouched by decision on
the writ, whose principal purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three specific
objections to its issuance in this instance. The fiscal has argued (l) that there is a defect in parties
petitioners, (2) that the Supreme Court should not a assume jurisdiction, and (3) that the person in
question are not restrained of their liberty by respondents. It was finally suggested that the
jurisdiction of the Mayor and the chief of police of the city of Manila only extends to the city limits
and that perforce they could not bring the women from Davao.
The first defense was not presented with any vigor by counsel. The petitioners were relatives and
friends of the deportees. The way the expulsion was conducted by the city officials made it
impossible for the women to sign a petition for habeas corpus. It was consequently proper for the
writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil
Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it the duty of
a court or judge to grant a writ of habeas corpus if there is evidence that within the court's
jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no application be
made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.
The fiscal next contended that the writ should have been asked for in the Court of First Instance of
Davao or should have been made returnable before that court. It is a general rule of good practice
that, to avoid unnecessary expense and inconvenience, petitions for habeas corpus should be
presented to the nearest judge of the court of first instance. But this is not a hard and fast rule.
The writ of habeas corpus may be granted by the Supreme Court or any judge thereof enforcible
anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure,
sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an
inferior court rests in the discretion of the Supreme Court and is dependent on the particular
circumstances. In this instance it was not shown that the Court of First Instance of Davao was in
session, or that the women had any means by which to advance their plea before that court. On
the other hand, it was shown that the petitioners with their attorneys, and the two original
respondents with their attorney, were in Manila; it was shown that the case involved parties
situated in different parts of the Islands; it was shown that the women might still be imprisoned or
restrained of their liberty; and it was shown that if the writ was to accomplish its purpose, it must
be taken cognizance of and decided immediately by the appellate court. The failure of the superior
court to consider the application and then to grant the writ would have amounted to a denial of the
benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to meet. When the writ was
prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the
women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police
did not extend beyond the city limits. At first blush, this is a tenable position. On closer
examination, acceptance of such dictum is found to be perversive of the first principles of the writ
of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint of liberty. The
essential object and purpose of the writ of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible
taking of these women from Manila by officials of that city, who handed them over to other parties,
who deposited them in a distant region, deprived these women of freedom of locomotion just as
effectively as if they had been imprisoned. Placed in Davao without either money or personal
belongings, they were prevented from exercising the liberty of going when and where they
pleased. The restraint of liberty which began in Manila continued until the aggrieved parties were
returned to Manila and released or until they freely and truly waived his right.
Consider for a moment what an agreement with such a defense would mean. The chief executive
of any municipality in the Philippines could forcibly and illegally take a private citizen and place
him beyond the boundaries of the municipality, and then, when called upon to defend his official
action, could calmly fold his hands and claim that the person was under no restraint and that he,
the official, had no jurisdiction over this other municipality. We believe the true principle should be
that, if the respondent is within the jurisdiction of the court and has it in his power to obey the order
of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so.
Even if the party to whom the writ is addressed has illegally parted with the custody of a person
before the application for the writ is no reason why the writ should not issue. If the mayor and the
chief of police, acting under no authority of law, could deport these women from the city of Manila
to Davao, the same officials must necessarily have the same means to return them from Davao to
Manila. The respondents, within the reach of process, may not be permitted to restrain a fellow
citizen of her liberty by forcing her to change her domicile and to avow the act with impunity in the
courts, while the person who has lost her birthright of liberty has no effective recourse. The great
writ of liberty may not thus be easily evaded.
It must be that some such question has heretofore been presented to the courts for decision.
Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any
analogous case. Certain decisions of respectable courts are however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early date as to whether
or not a writ ofhabeas corpus would issue from the Supreme Court to a person within the
jurisdiction of the State to bring into the State a minor child under guardianship in the State, who
has been and continues to be detained in another State. The membership of the Michigan
Supreme Court at this time was notable. It was composed of Martin, chief justice, and Cooley,
Campbell, and Christiancy, justices. On the question presented the court was equally divided.
Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed. Cooley, J.,
one of the most distinguished American judges and law-writers, with whom concurred Christiancy,
J., held that the writ should issue. Since the opinion of Justice Campbell was predicated to a large
extent on his conception of the English decisions, and since, as will hereafter appear, the English
courts have taken a contrary view, only the following eloquent passages from the opinion of
Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this court to issue the present
writ on the petition which was laid before us. . . .
It would be strange indeed if, at this late day, after the eulogiums of six centuries and a
half have been expended upon the Magna Charta, and rivers of blood shed for its
establishment; after its many confirmations, until Coke could declare in his speech on the
petition of right that "Magna Charta was such a fellow that he will have no sovereign," and
after the extension of its benefits and securities by the petition of right, bill of rights
and habeas corpus acts, it should now be discovered that evasion of that great clause for
the protection of personal liberty, which is the life and soul of the whole instrument, is so
easy as is claimed here. If it is so, it is important that it be determined without delay, that
the legislature may apply the proper remedy, as I can not doubt they would, on the
subject being brought to their notice. . . .
The second proposition — that the statutory provisions are confined to the case of
imprisonment within the state — seems to me to be based upon a misconception as to
the source of our jurisdiction. It was never the case in England that the court of king's
bench derived its jurisdiction to issue and enforce this writ from the statute. Statutes were
not passed to give the right, but to compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of procedure upon this writ is,
that it is directed to and served upon, not the person confined, but his jailor. It does not
reach the former except through the latter. The officer or person who serves it does not
unbar the prison doors, and set the prisoner free, but the court relieves him by compelling
the oppressor to release his constraint. The whole force of the writ is spent upon the
respondent, and if he fails to obey it, the means to be resorted to for the purposes of
compulsion are fine and imprisonment. This is the ordinary mode of affording relief, and if
any other means are resorted to, they are only auxiliary to those which are usual. The
place of confinement is, therefore, not important to the relief, if the guilty party is within
reach of process, so that by the power of the court he can be compelled to release his
grasp. The difficulty of affording redress is not increased by the confinement being
beyond the limits of the state, except as greater distance may affect it. The important
question is, where the power of control exercised? And I am aware of no other remedy.
(In the matter of Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep.,
1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a child had been taken
out of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench
Division upon the application of the mother and her husband directing the defendant to produce
the child. The judge at chambers gave defendant until a certain date to produce the child, but he
did not do so. His return stated that the child before the issuance of the writ had been handed over
by him to another; that it was no longer in his custody or control, and that it was impossible for him
to obey the writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M.
R., said:
A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ
commanded the defendant to have the body of the child before a judge in chambers at
the Royal Courts of Justice immediately after the receipt of the writ, together with the
cause of her being taken and detained. That is a command to bring the child before the
judge and must be obeyed, unless some lawful reason can be shown to excuse the
nonproduction of the child. If it could be shown that by reason of his having lawfully parted
with the possession of the child before the issuing of the writ, the defendant had no longer
power to produce the child, that might be an answer; but in the absence of any lawful
reason he is bound to produce the child, and, if he does not, he is in contempt of the
Court for not obeying the writ without lawful excuse. Many efforts have been made in
argument to shift the question of contempt to some anterior period for the purpose of
showing that what was done at some time prior to the writ cannot be a contempt. But the
question is not as to what was done before the issue of the writ. The question is whether
there has been a contempt in disobeying the writ it was issued by not producing the child
in obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See
also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.],
233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the
defendant to have before the circuit court of the District of Columbia three colored persons, with
the cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased
the negroes as slaves in the city of Washington; that, as he believed, they were removed beyond
the District of Columbia before the service of the writ of habeas corpus, and that they were then
beyond his control and out of his custody. The evidence tended to show that Davis had removed
the negroes because he suspected they would apply for a writ of habeas corpus. The court held
the return to be evasive and insufficient, and that Davis was bound to produce the negroes, and
Davis being present in court, and refusing to produce them, ordered that he be committed to the
custody of the marshall until he should produce the negroes, or be otherwise discharged in due
course of law. The court afterwards ordered that Davis be released upon the production of two of
the negroes, for one of the negroes had run away and been lodged in jail in Maryland. Davis
produced the two negroes on the last day of the term. (United States vs. Davis [1839], 5 Cranch
C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on
Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defense offered by the
respondents constituted a legitimate bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondent complied with the two orders of the
Supreme Court awarding the writ of habeas corpus, and if it be found that they did not, whether
the contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yñigo to present the persons named in the writ before the court on December 2, 1918.
The order was dated November 4, 1918. The respondents were thus given ample time, practically
one month, to comply with the writ. As far as the record discloses, the Mayor of the city of Manila
waited until the 21st of November before sending a telegram to the provincial governor of Davao.
According to the response of the attorney for the Bureau of Labor to the telegram of his chief,
there were then in Davao women who desired to return to Manila, but who should not be permitted
to do so because of having contracted debts. The half-hearted effort naturally resulted in none of
the parties in question being brought before the court on the day named.
For the respondents to have fulfilled the court's order, three optional courses were open: (1) They
could have produced the bodies of the persons according to the command of the writ; or (2) they
could have shown by affidavit that on account of sickness or infirmity those persons could not
safely be brought before the court; or (3) they could have presented affidavits to show that the
parties in question or their attorney waived the right to be present. (Code of Criminal Procedure,
sec. 87.) They did not produce the bodies of the persons in whose behalf the writ was granted;
they did not show impossibility of performance; and they did not present writings that waived the
right to be present by those interested. Instead a few stereotyped affidavits purporting to show that
the women were contended with their life in Davao, some of which have since been repudiated by
the signers, were appended to the return. That through ordinary diligence a considerable number
of the women, at least sixty, could have been brought back to Manila is demonstrated to be found
in the municipality of Davao, and that about this number either returned at their own expense or
were produced at the second hearing by the respondents.
The court, at the time the return to its first order was made, would have been warranted summarily
in finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed
the order. Their excuses for the non-production of the persons were far from sufficient. The,
authorities cited herein pertaining to somewhat similar facts all tend to indicate with what
exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's case, supra, the
Magistrate in referring to an earlier decision of the Court, said: "We thought that, having brought
about that state of things by his own illegal act, he must take the consequences; and we said that
he was bound to use every effort to get the child back; that he must do much more than write
letters for the purpose; that he must advertise in America, and even if necessary himself go after
the child, and do everything that mortal man could do in the matter; and that the court would only
accept clear proof of an absolute impossibility by way of excuse." In other words, the return did not
show that every possible effort to produce the women was made by the respondents. That the
court forebore at this time to take drastic action was because it did not wish to see presented to
the public gaze the spectacle of a clash between executive officials and the judiciary, and because
it desired to give the respondents another chance to demonstrate their good faith and to mitigate
their wrong.
In response to the second order of the court, the respondents appear to have become more
zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were
posted, the constabulary and the municipal police joined in rounding up the women, and a
steamer with free transportation to Manila was provided. While charges and counter-charges in
such a bitterly contested case are to be expected, and while a critical reading of the record might
reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a
substantial compliance with it. Our finding to this effect may be influenced somewhat by our
sincere desire to see this unhappy incident finally closed. If any wrong is now being perpetrated in
Davao, it should receive an executive investigation. If any particular individual is still restrained of
her liberty, it can be made the object of separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial compliance with it,
nothing further in this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando
Ordax, members of the police force of the city of Manila, Modesto Joaquin, the attorney for the
Bureau of Labor, Feliciano Yñigo, anhacendero of Davao, and Anacleto Diaz, Fiscal of the city of
Manila.
The power to punish for contempt of court should be exercised on the preservative and not on the
vindictive principle. Only occasionally should the court invoke its inherent power in order to retain
that respect without which the administration of justice must falter or fail. Nevertheless when one is
commanded to produce a certain person and does not do so, and does not offer a valid excuse, a
court must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must
order him either imprisoned or fined. An officer's failure to produce the body of a person in
obedience to a writ of habeas corpus when he has power to do so, is a contempt committed in the
face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for human imperfections, we
cannot say that any of the respondents, with the possible exception of the first named, has flatly
disobeyed the court by acting in opposition to its authority. Respondents Hohmann, Rodriguez,
Ordax, and Joaquin only followed the orders of their chiefs, and while, under the law of public
officers, this does not exonerate them entirely, it is nevertheless a powerful mitigating
circumstance. The hacendero Yñigo appears to have been drawn into the case through a
misconstruction by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would
seem to have done no more than to fulfill his duty as the legal representative of the city
government. Finding him innocent of any disrespect to the court, his counter-motion to strike from
the record the memorandum of attorney for the petitioners, which brings him into this undesirable
position, must be granted. When all is said and done, as far as this record discloses, the official
who was primarily responsible for the unlawful deportation, who ordered the police to accomplish
the same, who made arrangements for the steamers and the constabulary, who conducted the
negotiations with the Bureau of Labor, and who later, as the head of the city government, had it
within his power to facilitate the return of the unfortunate women to Manila, was Justo Lukban, the
Mayor of the city of Manila. His intention to suppress the social evil was commendable. His
methods were unlawful. His regard for the writ of habeas corpus issued by the court was only
tardily and reluctantly acknowledged.

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

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

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

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

Johnson, and Street, JJ., concur in the result.

Writ granted. Villavicencio vs. Lukban., 39 Phil., 778, No. 14639 March 25, 1919
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-62100 May 30, 1986
RICARDO L. MANOTOC, JR., petitioner,
vs.
THE COURT OF APPEALS, HONS. SERAFIN E. CAMILON and RICARDO L. PRONOVE, JR.,
as Judges of the Court of First Instance of Rizal, Pasig branches, THE PEOPLE OF THE
PHILIPPINES, the SECURITIES & EXCHANGE COMISSION, HON. EDMUNDO M. REYES, as
Commissioner of Immigration, and the Chief of the Aviation Security Command
(AVSECOM), respondents.
FERNAN, J.:
The issue posed for resolution in this petition for review may be stated thus: Does a person facing
a criminal indictment and provisionally released on bail have an unrestricted right to travel?
Petitioner Ricardo L. Manotoc, Jr., is one of the two principal stockholders of Trans-Insular
Management, Inc. and the Manotoc Securities, Inc., a stock brokerage house. Having transferred
the management of the latter into the hands of professional men, he holds no officer-position in
said business, but acts as president of the former corporation.
Following the "run" on stock brokerages caused by stock broker Santamaria's flight from this
jurisdiction, petitioner, who was then in the United States, came home, and together with his co-
stockholders, filed a petition with the Securities and Exchange Commission for the appointment of
a management committee, not only for Manotoc Securities, Inc., but likewise for Trans-Insular
Management, Inc. The petition relative to the Manotoc Securities, Inc., docketed as SEC Case No.
001826, entitled, "In the Matter of the Appointment of a Management Committee for Manotoc
Securities, Inc., Teodoro Kalaw, Jr., Ricardo Manotoc, Jr., Petitioners", was granted and a
management committee was organized and appointed.
Pending disposition of SEC Case No. 001826, the Securities and Exchange Commission
requested the then Commissioner of Immigration, Edmundo Reyes, not to clear petitioner for
departure and a memorandum to this effect was issued by the Commissioner on February 4, 1980
to the Chief of the Immigration Regulation Division.
When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected to be a
fake, six of its clients filed six separate criminal complaints against petitioner and one Raul
Leveriza, Jr., as president and vice-president, respectively, of Manotoc Securities, Inc. In due
course, corresponding criminal charges for estafa were filed by the investigating fiscal before the
then Court of First Instance of Rizal, docketed as Criminal Cases Nos. 45399 and 45400,
assigned to respondent Judge Camilon, and Criminal Cases Nos. 45542 to 45545, raffled off to
Judge Pronove. In all cases, petitioner has been admitted to bail in the total amount of
P105,000.00, with FGU Instance Corporation as surety.
On March 1, 1982, petitioner filed before each of the trial courts a motion entitled, "motion for
permission to leave the country," stating as ground therefor his desire to go to the United States,
"relative to his business transactions and opportunities."1 The prosecution opposed said motion
and after due hearing, both trial judges denied the same. The order of Judge Camilon dated
March 9, 1982, reads:
Accused Ricardo Manotoc Jr. desires to leave for the United States on the all
embracing ground that his trip is ... relative to his business transactions and
opportunities.
The Court sees no urgency from this statement. No matter of any magnitude is
discerned to warrant judicial imprimatur on the proposed trip.
In view thereof, permission to leave the country is denied Ricardo Manotoc, Jr.
now or in the future until these two (2) cases are terminated .2
On the other hand, the order of Judge Pronove dated March 26, 1982, reads in part:
6.-Finally, there is also merit in the prosecution's contention that if the Court
would allow the accused to leave the Philippines the surety companies that filed
the bail bonds in his behalf might claim that they could no longer be held liable in
their undertakings because it was the Court which allowed the accused to go
outside the territorial jurisdiction of the Philippine Court, should the accused fail
or decide not to return.
WHEREFORE, the motion of the accused is DENIED. 3
It appears that petitioner likewise wrote the Immigration Commissioner a letter requesting the
recall or withdrawal of the latter's memorandum dated February 4, 1980, but said request was also
denied in a letter dated May 27, 1982.
Petitioner thus filed a petition for certiorari and mandamus before the then Court of
Appeals 4 seeking to annul the orders dated March 9 and 26, 1982, of Judges Camilon and
Pronove, respectively, as well as the communication-request of the Securities and Exchange
Commission, denying his leave to travel abroad. He likewise prayed for the issuance of the
appropriate writ commanding the Immigration Commissioner and the Chief of the Aviation Security
Command (AVSECOM) to clear him for departure.
On October 5, 1982, the appellate court rendered a decision 5 dismissing the petition for lack of
merit.
Dissatisfied with the appellate court's ruling, petitioner filed the instant petition for review on
certiorari. Pending resolution of the petition to which we gave due course on April 14,
1983 6 petitioner filed on August 15, 1984 a motion for leave to go abroad pendente lite.7 In his
motion, petitioner stated that his presence in Louisiana, U.S.A. is needed in connection "with the
obtention of foreign investment in Manotoc Securities, Inc."8 He attached the letter dated August 9,
1984 of the chief executive officer of the Exploration Company of Louisiana, Inc., Mr. Marsden W.
Miller9 requesting his presence in the United States to "meet the people and companies who
would be involved in its investments." Petitioner, likewise manifested that on August 1, 1984,
Criminal Cases Nos. 4933 to 4936 of the Regional Trial Court of Makati (formerly Nos. 45542-
45545) had been dismissed as to him "on motion of the prosecution on the ground that after
verification of the records of the Securities and Exchange Commission ... (he) was not in any way
connected with the Manotoc Securities, Inc. as of the date of the commission of the offenses
imputed to him." 10 Criminal Cases Nos. 45399 and 45400 of the Regional Trial Court of Makati,
however, remained pending as Judge Camilon, when notified of the dismissal of the other cases
against petitioner, instead of dismissing the cases before him, ordered merely the informations
amended so as to delete the allegation that petitioner was president and to substitute that he was
"controlling/majority stockholder,''11 of Manotoc Securities, Inc. On September 20, 1984, the Court
in a resolution en banc denied petitioner's motion for leave to go abroad pendente lite. 12
Petitioner contends that having been admitted to bail as a matter of right, neither the courts which
granted him bail nor the Securities and Exchange Commission which has no jurisdiction over his
liberty, could prevent him from exercising his constitutional right to travel.
Petitioner's contention is untenable.
A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a
necessary consequence of the nature and function of a bail bond.
Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the
release of a person who is in the custody of the law, that he will appear before any court in which
his appearance may be required as stipulated in the bail bond or recognizance.
Its object is to relieve the accused of imprisonment and the state of the burden of
keeping him, pending the trial, and at the same time, to put the accused as much
under the power of the court as if he were in custody of the proper officer, and to
secure the appearance of the accused so as to answer the call of the court and
do what the law may require of him. 13
The condition imposed upon petitioner to make himself available at all times whenever the court
requires his presence operates as a valid restriction on his right to travel. As we have held in
People vs. Uy Tuising, 61 Phil. 404 (1935).
... the result of the obligation assumed by appellee (surety) to hold the accused
amenable at all times to the orders and processes of the lower court, was to
prohibit said accused from leaving the jurisdiction of the Philippines, because,
otherwise, said orders and processes will be nugatory, and inasmuch as the
jurisdiction of the courts from which they issued does not extend beyond that of
the Philippines they would have no binding force outside of said jurisdiction.
Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be
placed beyond the reach of the courts.
The effect of a recognizance or bail bond, when fully executed or filed of record,
and the prisoner released thereunder, is to transfer the custody of the accused
from the public officials who have him in their charge to keepers of his own
selection. Such custody has been regarded merely as a continuation of the
original imprisonment. The sureties become invested with full authority over the
person of the principal and have the right to prevent the principal from leaving the
state.14
If the sureties have the right to prevent the principal from leaving the state, more so then has the
court from which the sureties merely derive such right, and whose jurisdiction over the person of
the principal remains unaffected despite the grant of bail to the latter. In fact, this inherent right of
the court is recognized by petitioner himself, notwithstanding his allegation that he is at total liberty
to leave the country, for he would not have filed the motion for permission to leave the country in
the first place, if it were otherwise.
To support his contention, petitioner places reliance upon the then Court of Appeals' ruling
in People vs. Shepherd (C.A.-G.R. No. 23505-R, February 13, 1980) particularly citing the
following passage:
... The law obliges the bondsmen to produce the person of the appellants at the
pleasure of the Court. ... The law does not limit such undertaking of the
bondsmen as demandable only when the appellants are in the territorial confines
of the Philippines and not demandable if the appellants are out of the country.
Liberty, the most important consequence of bail, albeit provisional, is indivisible.
If granted at all, liberty operates as fully within as without the boundaries of the
granting state. This principle perhaps accounts for the absence of any law or
jurisprudence expressly declaring that liberty under bail does not transcend the
territorial boundaries of the country.
The faith reposed by petitioner on the above-quoted opinion of the appellate court is misplaced.
The rather broad and generalized statement suffers from a serious fallacy; for while there is,
indeed, neither law nor jurisprudence expressly declaring that liberty under bail does not
transcend the territorial boundaries of the country, it is not for the reason suggested by the
appellate court.
Also, petitioner's case is not on all fours with the Shepherd case. In the latter case, the accused
was able to show the urgent necessity for her travel abroad, the duration thereof and
the conforme of her sureties to the proposed travel thereby satisfying the court that she would
comply with the conditions of her bail bond. in contrast, petitioner in this case has not satisfactorily
shown any of the above. As aptly observed by the Solicitor General in his comment:
A perusal of petitioner's 'Motion for Permission to Leave the Country' will show
that it is solely predicated on petitioner's wish to travel to the United States where
he will, allegedly attend to some business transactions and search for business
 opportunities. From the tenor and import of petitioner's motion, no urgent or Teehankee, C.J., Abad Santos, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz
compelling reason can be discerned to justify the grant of judicial imprimatur and Paras, JJ., concur.
thereto. Petitioner has not sufficiently shown that there is absolute necessity for
him to travel abroad. Petitioner's motion bears no indication that the alleged Feria, J., took no part.
business transactions could not be undertaken by any other person in his behalf.
Neither is there any hint that petitioner's absence from the United States would
absolutely preclude him from taking advantage of business opportunities therein,
nor is there any showing that petitioner's non-presence in the United States
would cause him irreparable damage or prejudice. 15

Petitioner has not specified the duration of the proposed travel or shown that his surety has
agreed to it. Petitioner merely alleges that his surety has agreed to his plans as he had posted
cash indemnities. The court cannot allow the accused to leave the country without the assent of
the surety because in accepting a bail bond or recognizance, the government impliedly agrees
"that it will not take any proceedings with the principal that will increase the risks of the sureties or
affect their remedies against him. Under this rule, the surety on a bail bond or recognizance may
be discharged by a stipulation inconsistent with the conditions thereof, which is made without his
assent. This result has been reached as to a stipulation or agreement to postpone the trial until
after the final disposition of other cases, or to permit the principal to leave the state or
country." 16 Thus, although the order of March 26, 1982 issued by Judge Pronove has been
rendered moot and academic by the dismissal as to petitioner of the criminal cases pending
before said judge, We see the rationale behind said order.

As petitioner has failed to satisfy the trial courts and the appellate court of the urgency of his
travel, the duration thereof, as well as the consent of his surety to the proposed travel, We find no
abuse of judicial discretion in their having denied petitioner's motion for permission to leave the
country, in much the same way, albeit with contrary results, that We found no reversible error to
have been committed by the appellate court in allowing Shepherd to leave the country after it had
satisfied itself that she would comply with the conditions of her bail bond.

The constitutional right to travel being invoked by petitioner is not an absolute right. Section 5,
Article IV of the 1973 Constitution states:

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.

To our mind, the order of the trial court releasing petitioner on bail constitutes such lawful order as
contemplated by the above-quoted constitutional provision.

Finding the decision of the appellate court to be in accordance with law and jurisprudence, the
Court finds that no gainful purpose will be served in discussing the other issues raised by
petitioner.

WHEREFORE, the petition for review is hereby dismissed, with costs against petitioner.

SO ORDERED.

THIRD DIVISION
G.R. No. 141529 June 6, 2001
FRANCISCO YAP, JR., aka EDWIN YAP, petitioner,
vs.
COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.
GONZAGA-REYES, J.:
The right against excessive bail, and the liberty of abode and travel, are being invoked to set aside
two resolutions of the Court of Appeals which fixed bail at P5,500,000.00 and imposed conditions
on change of residence and travel abroad.
For misappropriating amounts equivalent to P5,500,000.00, petitioner was convicted of estafa by
the Regional Trial Court of Pasig City1 and was sentenced to four years and two months of prision
correctional, as minimum to eight years of prision mayor as maximum, "in addition to one (1) year
for each additional P10,000.00 in excess of P22,000.00 but in no case shall it exceed twenty (20)
years."2 He filed a notice of appeal, and moved to be allowed provisional liberty under the cash
bond he had filed earlier in the proceedings. The motion was denied by the trial court in an order
dated February 17,1999.
After the records of the case were transmitted to the Court of Appeals, petitioner filed with the said
court a Motion to Fix Bail For the Provisional Liberty of Accused Appellant Pending Appeal,
invoking the last paragraph of Section 5, Rule 114 of the 1997 Revised Rules of Court. Asked to
comment on this motion, the Solicitor General opined that petitioner may be allowed to post bail in
the amount of P5,500,000.00 and be required to secure "a certification/guaranty from the Mayor of
the place of his residence that he is a resident of the area and that he will remain to be so until
final judgment is rendered or in case he transfers residence, it must be with prior notice to the
court and private complainant."3 Petitioner filed a Reply, contending that the proposed bail
ofP5,500,000.00 was violative of his right against excessive bail.
The assailed resolution of the Court of Appeals4, issued on October 6, 1999, upheld the
recommendation of the Solicitor General; thus, its dispositive portion reads:
WHEREFORE, premises considered, the "Motion to Fix Bail For Provisional Liberty of
Accused-Appellant Pending Appeal" is hereby GRANTED. Accused-appellant Francisco
Yap, Jr., a.k.a. Edwin Yap is hereby ALLOWED TO POST BAIL in the amount of Five
Million Five Hundred Thousand (P5,500,000.00) Pesos, subject to the following
conditions, viz. :
(1) He (accused-appellant) secures a certification/guaranty from the Mayor of the
place of his residence that he is a resident of the area and that he will remain to
be a resident therein until final judgment is rendered or in case he transfers
residence, it must be with prior notice to the court;
(2) The Commission of lmmigration and Deportation (CID) is hereby directed to
issue a hold departure order against accused-appellant; and
(3) The accused-appellant shall forthwith surrender his passport to the Division
Clerk of Court for safekeeping until the court orders its return;
(4) Any violation of the aforesaid conditions shall cause the forfeiture of accused-
appellant's bail bond, the dismissal of appeal and his immediate arrest and
confinement in jail.
SO ORDERED.5
A motion for reconsideration was filed, seeking the reduction of the amount of bail fixed by
respondent court, but was denied in a resolution issued on November 25, 1999. Hence, this
petition.
Petitioner sets out the following assignments of error:
The respondent Court of Appeals committed grave abuse of discretion in fixing the bail of
the provisional liberty of petitioner pending appeal in the amount of P5 .5 million.
The respondent Court of Appeals committed grave abuse of discretion in basing the bail
for the provisional liberty of the petitioner on his civil liability.
The respondent Court of Appeals unduly restricted petitioner's constitutional liberty of
abode and travel in imposing the other conditions for the grant of bail.
Petitioner contends that the Court of Appeals, by setting bail at a prohibitory amount, effectively
denied him his right to bail. He challenges the legal basis of respondent court for fixing bail at
P5,500,000.00, which is equivalent to the amount of his civil liability to private complainant Manila
Mahogany Marketing Corporation, and argues that the Rules of Court never intended for the civil
liability of the accused to be a guideline or basis for determining the amount of bail. He prays that
bail be reduced to at least P40,000.00, citing the maximum amount of bail that can be posted for
the crime of estafa under the 1996 Bail Bond Guide, or P20,000.00, equivalent to the amount of
bail he posted during the trial of the case.6
On the other hand, the Solicitor General maintains that no grave abuse of discretion could be
ascribed to the Court of Appeals for fixing the amount of bail at P5,500,000.00 considering the
severity of the penalty imposed, the weight of the evidence against petitioner, and the gravity of
the offense of which petitioner was convicted by the RTC. He asserted that the P5,500,000.00 not
only corresponded to civil liability but also to the amount of fraud imputed to petitioner. The
Solicitor General further pointed out the probability of flight in case petitioner is released on bail, it
having been established that petitioner was in possession of a valid passport and visa and had in
fact left the country several times during the course of the proceedings in the lower court. It was
also shown that petitioner used different names in his business transactions and had several
abodes in different parts of the country.
As for the conditions imposed by the bail bond, the Solicitor General advanced that all that the
Court of Appeals requires is notice in case of change of address; it does not in any way impair
petitioner's right to change abode for as long as the court is apprised of his change of residence
during the pendency of the appeal.
Petitioner's case falls within the provisions of Section 5, Rule 114 of the 1997 Rules of Court which
states:
SEC. 5. Bail, when discretionary. -- Upon conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua or life imprisonment, the court, on
application, may admit the accused to bail.
The court, in its discretion, may allow the accused to continue on provisional liberty under
the same bail bond during the period to appeal subject to the consent of the bondsman.
If the court imposed a penalty of imprisonment exceeding six (6) years, but not more than
twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be
cancelled, upon a showing by the prosecution, with notice to the accused, of the following
or other similar circumstances:
(a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteration;
(b) That the accused is found to have previously escaped from legal confinement, evaded
sentence, or has violated the conditions of his bail without valid justification;
(c) That the accused committed the offense while on probation, parole, or under
conditional pardon;
(d) That the circumstances of the accused or his case indicate the probability of flight if
released on bail; or
(e) That there is undue risk that during the pendency of the appeal, the accused may
commit another crime.
The appellate court may review the resolution of the Regional Trial Court, on motion and
with notice to the adverse party.7
There is no question that in the present case the Court of Appeals exercised its discretion in favor
of allowing bail to petitioner on appeal. Respondent court stated that it was doing so for
"humanitarian reasons", and despite a perceived high risk of flight, as by petitioner's admission he
went out of the country several times during the pendency of the case, for which reason the court
deemed it necessary to peg the amount of bail at P5,500,000.00.
The prohibition against requiring excessive bail is enshrined in the Constitution. 8 The obvious
rationale, as declared in the leading case of De la Camara vs. Enage,9 is that imposing bail in an
excessive amount could render meaningless the right to bail. Thus, in Villaseñor vs. Abano,10 this
Court made the pronouncement that it will not hesitate to exercise its supervisory powers over
lower courts should the latter, after holding the accused entitled to bail, effectively deny the same
by imposing a prohibitory sum or exacting unreasonable conditions.
xxx There is grim irony in an accused being told that he has a right to bail but at the same
time being required to post such an exorbitant sum. What aggravates the situation is that
the lower court judge would apparently yield to the command of the fundamental law. In
reality, such a sanctimonious avowal of respect for a mandate of the Constitution was on
a purely verbal level. There is reason to believe that any person in the position of
petitioner would under the circumstances be unable to resist thoughts of escaping from
confinement, reduced as he must have been to a state of desperation. In the same breath
as he was told he could be bailed out, the excessive amount required could only mean
that provisional liberty would be beyond his reach. It would have been more forthright if he
were informed categorically that such a right could not be availed of. There would have
been no disappointment of expectations then. It does call to mind these words of Justice
Jackson, "a promise to the ear to be broken to the hope, a teasing illusion like a
munificent bequest in a pauper's will." XXX11
At the same time, Section 9, Rule 114 of the Revised Rules of Criminal Procedure advises courts
to consider the following factors in the setting of the amount of bail:
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
 (h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail.
must be denied bail, or his bail previously granted should be cancelled. 18 In the same vein, the
Court has held that the discretion to extend bail during the course of the appeal should be
exercised with grave caution and for strong reasons, considering that the accused had been in
fact convicted by the trial court.19 In an earlier case, the Court adopted Senator Vicente J.
Francisco's disquisition on why bail should be denied after judgment of conviction as a matter of
wise discretion; thus:

Thus, the court has wide latitude in fixing the amount of bail. Where it fears that the accused may
The importance attached to conviction is due to the underlying principle that bail should
jump bail, it is certainly not precluded from installing devices to ensure against the same. Options
be granted only where it is uncertain whether the accused is guilty or innocent, and
may include increasing the bail bond to an appropriate level, or requiring the person to report
therefore, where that uncertainty is removed by conviction it would, generally speaking,
periodically to the court and to make an accounting of his movements. 12 In the present case,
be absurd to admit to bail. After a person has been tried and convicted the presumption of
where petitioner was found to have left the country several times while the case was pending, the
innocence which may be relied upon in prior applications is rebutted, and the burden is
Court of Appeals required the confiscation of his passport and the issuance of a hold-departure
upon the accused to show error in the conviction. From another point of view it may be
order against him.
properly argued that the probability of ultimate punishment is so enhanced by the
conviction that the accused is much more likely to attempt to escape if liberated on bail
Under the circumstances of this case, we find that appropriate conditions have been imposed in than before conviction.xxx20
the bail bond to ensure against the risk of flight, particularly, the combination of the hold-departure
order and the requirement that petitioner inform the court of any change of residence and of his
Petitioner is seeking bail on appeal. He was in fact declared guilty beyond reasonable doubt by
whereabouts. Although an increase in the amount of bail while the case is on appeal may be
the RTC, and due to the serious amount of fraud involved, sentenced to imprisonment for twenty
meritorious, we find that the setting of the amount at P5,500,000.00 is unreasonable, excessive,
years --the maximum penalty for estafa by false pretenses or fraudulent acts allowed by the
and constitutes an effective denial of petitioner's right to bail.
Revised Penal Code. Although it cannot be controverted that the Court of Appeals, despite the
foregoing considerations and the possibility of flight still wielded its discretion to grant petitioner
The purpose for bail is to guarantee the appearance of the accused at the trial, 13 or whenever so bail, the setting of bail in the amount of P5,500,000.00 is unjustified as having no legal nor factual
required by the Court14. The amount should be high enough to assure the presence of the basis. Guided by the penalty imposed by the lower court and the weight of the evidence against
accused when required but no higher than is reasonably calculated to fulfill this purpose. 15 To fix petitioner, we believe that the amount of P200,000.00 is more reasonable.
bail at an amount equivalent to the civil liability of which petitioner is charged (in this case,
P5,500,000.00).is to permit the impression that the amount paid as bail is an exaction of the civil
Petitioner also contests the condition imposed by the Court of Appeals that he secure "a
liability that accused is charged of; this we cannot allow because bail is not intended as a
certification/guaranty from the Mayor of the place of his residence that he is a resident of the area
punishment, nor as a satisfaction of civil liability which should necessarily await the judgment of
and that he will remain to be a resident therein until final judgment is rendered or in case he
the appellate court.
transfers residence, it must be with prior notice to the court", claiming that the same violates his
liberty of abode and travel.
At the same time, we cannot yield to petitioner's submission that bail in the instant case be set at
P40,000.00 based on the 1996 Bail Bond Guide. (The current Bail Bond Guide, issued on August
Notably, petitioner does not question the hold-departure order which prevents him from leaving the
29, 2000, maintains recommended bail at P40,000.00 for estafa where the amount of fraud is
Philippines unless expressly permitted by the court which issued the order.21 In fact, the petition
P142,000.00 or over and the imposable penalty 20 years of reclusion temporal). True, the Court
submits that "the hold-departure order against petitioner is already sufficient guarantee that he will
has held that the Bail Bond Guide, a circular of the Department of Justice for the guidance of state
not escape. Thus, to require him to inform the court every time he changed his residence is
prosecutors, although technically not binding upon the courts, "merits attention, being in a sense already unnecessary."22
an expression of policy of the Executive Branch, through the Department of Justice, in the
enforcement of criminal laws."16 Thus, courts are advised that they must not only be aware but
should also consider the Bail Bond Guide due to its significance in the administration of criminal The right to change abode and travel within the Philippines, being invoked by petitioner, are not
justice.17 This notwithstanding, the Court is not precluded from imposing in petitioner's case an absolute rights. Section 6, Article III of the 1987 Constitution states:
amount higher than P40,000.00 (based on the Bail Bond Guide) where it perceives that an
appropriate increase is dictated by the circumstances. The liberty of abode and of changing the same within the limits prescribed by law shall not
be impaired except upon lawful order of the court. Neither shall the right to travel be
It militates emphasis that petitioner is seeking bail on appeal. Section 5, Rule 114 of the Revised impaired except in the interest of national security, public safety, or public health, as may
Rules of Criminal Procedure is clear that although the grant of bail on appeal is non-capital be provided by law.
offenses is discretionary, when the penalty imposed on the convicted accused exceeds six years
and circumstances exist that point to the probability of flight if released on bail, then the accused
The order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as
contemplated by the above provision.23 The condition imposed by the Court of Appeals is simply
consistent with the nature and function of a bail bond, which is to ensure that petitioner will make
himself available at all times whenever the Court requires his presence. Besides, a closer look at
the questioned condition will show that petitioner is not prevented from changing abode; he is
merely required to inform the court in case he does so.

WHEREFORE, the petition is PARTIALLY GRANTED. Petitioner's bail pending appeal is reduced
from P5,500,000.00 to P200,000.00. In all other respects, the resolutions of the Court of Appeals,
dated October 6, 1999 and November 25, 1999, respectively, are AFFIRMED. No pronouncement
as to costs.

SO ORDERED. 1âwphi1.nêt
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-72119 May 29, 1987
VALENTIN L. LEGASPI, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.
CORTES, J.:
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).
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 constitutional duty, not being discretionary, its performance
may be compelled by a writ of mandamus in a proper case.
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.
a. This question is first addressed to the government agency having custody of the desired
information. However, as already discussed, this does not give the agency concerned any
discretion to grant or deny access. In case of denial of access, the government agency has the
burden of showing that the information requested is not of public concern, or, if it is of public
concern, that the same has been exempted by law from the operation of the guarantee. To hold
otherwise will serve to dilute the constitutional 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.
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 in a case by
case basis whether the matter at issue is of interest or importance, as it relates to or affects the
public.
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 the statutory right was the
knowledge of those real estate transactions which some believed to have been registered in
violation of 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:
Appointments in the civil service shall be made only according to merit and
fitness to be determined, as far as practicable, and except as to positions which
are policy determining, primarily confidential or highly technical, by competitive
examination. (Art. IX, B, Sec. 2.[2]).
Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of citizens to
ensure that government positions 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.
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 must not be among the species exempted by law from the
operation of the constitutional guarantee.
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.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco,
Padilla, Bidin and Sarmiento, JJ., concur.

Feliciano, J., is on leave.

 Republic of the Philippines understand that OIC Mel Lopez of Manila was one of those aforesaid MPs. Likewise, may we be
SUPREME COURT furnished with the certified true copies of the documents evidencing their loan. Expenses in
Manila connection herewith shall be borne by us.

EN BANC If we could not secure the above documents could we have access to them?

G.R. No. 74930 February 13, 1989
RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO
BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY"
ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO FADUL, petitioners,
vs.
FELICIANO BELMONTE, JR., respondent.
Ricardo C. Valmonte for and in his own behalf and his co-petitioners.
We are premising the above request on the following provision of the Freedom Constitution of the
present regime.
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 limitation as may be provided by law. (Art. IV, Sec. 6).
We trust that within five (5) days from receipt hereof we will receive your favorable response on
the matter.

The Solicitor General for respondent. Very truly yours,

CORTES, J.: (Sgd.) RICARDO C. VALMONTE

Petitioners in this special civil action for mandamus with preliminary injunction invoke their right to [Rollo, p. 7.]
information and pray that respondent be directed:
To the aforesaid letter, the Deputy General Counsel of the GSIS replied:
(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 immediately before the February June 17, 1986
7 election thru the intercession/marginal note of the then First Lady Imelda Marcos; and/or
Atty. Ricardo C. Valmonte
(b) to furnish petitioners with certified true copies of the documents evidencing their respective 108 E. Benin Street
loans; and/or Caloocan City

(c) to allow petitioners access to the public records for the subject information. (Petition, pp. 4-5;
paragraphing supplied.]
The controversy arose when petitioner Valmonte wrote respondent Belmonte the following letter:
June 4, 1986
Dear Compañero:
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 requesting a list of the opposition members of Batasang Pambansa who were able
to secure a clean loan of P2 million each on guaranty of Mrs. Imelda Marcos.

Hon. Feliciano Belmonte My opinion in this regard is that a confidential relationship exists between the GSIS and all those
GSIS General Manager who borrow from it, whoever they may be; that the GSIS has a duty to its customers to preserve
Arroceros, Manila this confidentiality; and that it would not be proper for the GSIS to breach this confidentiality unless
so ordered by the courts.
Sir:
As a violation of this confidentiality may mar the image of the GSIS as a reputable financial
As a lawyer, member of the media and plain citizen of our Republic, I am requesting that I be institution, I regret very much that at this time we cannot respond positively to your request.
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 Very truly yours,
(Sgd.) MEYNARDO A. TIRO
Deputy General Counsel
[Rollo, p. 40.]
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
public interest." [Rollo, p. 8.]
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:
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. InLegaspi, 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:
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.

... The right to privacy as such is accorded recognition independently of its identification with It is argued that the records of the GSIS, a government corporation performing proprietary
liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is functions, are outside the coverage of the people's right of access to official records.
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 It is further contended that since the loan function of the GSIS is merely incidental to its insurance
indeed one of the basic distinctions between absolute and limited government. UItimate and function, then its loan transactions are not covered by the constitutional policy of full public
pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute. state, In disclosure and the right to information which is applicable only to "official" transactions.
contrast, a system of limited government safeguards a private sector, which belongs to the
First of all, the "constituent — ministrant" dichotomy characterizing government function has long
individual, firmly distinguishing it from the public sector, which the state can control. Protection of
been repudiated. In ACCFA v. Confederation of Unions and Government Corporations and
this private sector — protection, in other words, of the dignity and integrity of the individual — has
Offices (G.R. Nos. L-21484 and L-23605, November 29, 1969, 30 SCRA 6441, the Court said that
become increasingly important as modem society has developed. All the forces of technological
the government, whether carrying out its sovereign attributes or running some business,
age — industrialization, urbanization, and organization — operate to narrow the area of privacy
discharges the same function of service to the people.
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.]
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
When the information requested from the government intrudes into the privacy of a citizen, a
information.
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-
Moreover, the intent of the members of the Constitutional Commission of 1986, to include
quoted statement of the Court in Morfe is that the right to privacy belongs to the individual in his
government-owned and controlled corporations and transactions entered into by them within the
private capacity, and not to public and governmental agencies like the GSIS. Moreover, the right
coverage of the State policy of fun public disclosure is manifest from the records of the
cannot be invoked by juridical entities like the GSIS. As held in the case of Vassar College v.
proceedings:
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 xxx xxx xxx
corporation would have no such ground for relief.
THE PRESIDING OFFICER (Mr. Colayco).
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 Commissioner Suarez is recognized.
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 MR. SUAREZ. Thank you. May I ask the Gentleman a few question?
violated.
MR. OPLE. Very gladly.
It may be observed, however, that in the instant case, the concerned borrowers themselves may
MR. SUAREZ. Thank you.
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 When we declare a "policy of full public disclosure of all its transactions" — referring to the
of the interest they generate and their newsworthiness, public figures, most especially those transactions of the State — and when we say the "State" which I suppose would include all of the
holding responsible positions in government, enjoy a more limited right to privacy as compared to
various agencies, departments, ministries and instrumentalities of the government....
ordinary individuals, their actions being subject to closer public scrutiny [Cf.Ayer Productions Pty.
MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer. 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
MR. SUAREZ. Including government-owned and controlled corporations. 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
MR. OPLE. That is correct, Mr. Presiding Officer.
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
MR. SUAREZ. And when we say "transactions" which should be distinguished from contracts,
respondent to prepare the list requested.
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?
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
MR. OPLE. The "transactions" used here I suppose is generic and, therefore, it can cover both
and records evidencing loans granted to Members of the former Batasang Pambansa, as
steps leading to a contract, and already a consummated contract, Mr. Presiding Officer.
petitioners may specify, subject to reasonable regulations as to the time and manner of inspection,
MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the not incompatible with this decision, as the GSIS may deem necessary.
transaction.
SO ORDERED.
MR. OPLE. Yes, subject only to reasonable safeguards on the national interest.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla,
MR. SUAREZ. Thank you. [V Record of the Constitutional Commission 24-25.] (Emphasis Bidin, Sarmiento, Griño-Aquino, Medialdea and Regalado, JJ., concur.
supplied.)
Valmonte vs. Belmonte, Jr., 170 SCRA 256, G.R. No. 74930 February 13, 1989
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."

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.
 Republic of the Philippines
SUPREME COURT
Manila
G.R. No. 92541 November 13, 1991
MA. CARMEN G. AQUINO-SARMIENTO, petitioner,
vs.
MANUEL L. MORATO (in his capacity as Chairman of the MTRCB) and the MOVIE &
TELEVISION REVIEW AND CLASSIFICATION BOARD, respondents.
Araullo, Zambrano, Gruba, Chua Law Firm for petitioner.
Francisco Ma. Chanco for respondents.
BIDIN, J.:
At issue in this petition is the citizen's right of access to official records as guaranteed by the
constitution.
In February 1989, petitioner, herself a member of respondent Movie and Television Review and
Classification Board (MTRCB), wrote its records officer requesting that she be allowed to examine
the board's records pertaining to the voting slips accomplished by the individual board members
after a review of the movies and television productions. It is on the basis of said slips that films are
either banned, cut or classified accordingly.
Acting on the said request, the records officer informed petitioner that she has to secure prior
clearance from respondent Manuel Morato, as chairman of MTRCB, to gain access to the records
sought to be examined.
Petitioner's request was eventually denied by respondent Morato on the ground that whenever the
members of the board sit in judgment over a film, their decisions as reflected in the individual
voting slips partake the nature of conscience votes and as such, are purely and completely private
and personal. It is the submission of respondents that the individual voting slips is the exclusive
property of the member concerned and anybody who wants access thereto must first secure his
(the member's) consent, otherwise, a request therefor may be legally denied.
Petitioner argues, on the other hand, that the records she wishes to examine are public in
character and other than providing for reasonable conditions regulating the manner and hours of
examination, respondents Morato and the classification board have no authority to deny any
citizen seeking examination of the board's records.
On February 27, 1989, respondent Morato called an executive meeting of the MTRCB to discuss,
among others, the issue raised by petitioner. In said meeting, seventeen (17) members of the
board voted to declare their individual voting records as classified documents which rendered the
same inaccessible to the public without clearance from the chairman. Thereafter, respondent
Morato denied petitioner's request to examine the voting slips. However, it was only much
later, i.e., on July 27, 1989, that respondent Board issued Resolution No. 10-89 which declared as
confidential, private and personal, the decision of the reviewing committee and the voting slips of
the members.
Petitioner brought the matter to the attention of the Executive Secretary, which in turn, referred the
same to respondent Morato for appropriate comment.
Another incident which gave rise to this petition occurred in a board meeting held on June 22,
1989. In that meeting, respondent Morato told the board that he has ordered some deletions on
the movie "Mahirap ang Magmahal" notwithstanding the fact that said movie was earlier approved
for screening by the Board with classification "R-18 without cuts". He explained that his power to
unilaterally change the decision of the Review Committee is authorized by virtue of MTRCB
Resolution No. 88-1-25 (dated June 22,1988) which allows the chairman of the board "to
downgrade a film (already) reviewed especially those which are controversial."
Petitioner informed the Board, however, that respondent Morato possesses no authority to
unilaterally reverse a decision of the review committee under PD 1986 (Creating the Movie and
Television Review and Classification Board).
After the matter was referred by the Deputy Executive Secretary to the Justice Secretary, the latter
opined that PD 1896 does not vest respondent Morato any authority to unilaterally reverse the
decision of the review committee but declined to comment on the constitutionality of Res. No. 10-
89 on the ground that the resolution thereof is a judicial prerogative (Rollo, pp. 38-42).
The Justice Secretary's opinion to the contrary notwithstanding, respondent Morato opted to
ignore it.
Hence, this petition anchored on the following:
A. MORATO AND THE MTRCB BY APPROVING AND ENFORCING RESOLUTION NO. 10-89
ACTED WITH GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OF JURISDICTION
BECAUSE THE SAME VIOLATES ARTICLE III SECTION 7 OF THE 1987 CONSTITUTION.
B. MTRCB RESOLUTION NO. 88-1-25 HAS NO LEGAL BASIS AND CONSTITUTES AN
UNLAWFUL DELEGATION OF DISCRETIONARY POWERS.
C. MORATO AND THE MTRCB BY REFUSING TO ABIDE BY OPINION NO. 1 SERIES OF 1990
OF THE SECRETARY OF JUSTICE AND BY INSISTING ON THE VALIDITY OF RESOLUTION
NO. 88-1-25 ACTED CAPRICIOUSLY, ARBITRARILY, IN BAD FAITH, IN EXCESS OF THEIR
JURISDICTION, AND WITH GRAVE ABUSE OF DISCRETION.
Petitioner therefore seeks the nullification of 1) MTRCB Resolution No. 88-1-25 which allows the
Chairman of the Board to unilaterally downgrade a film (already) reviewed especially those which
are controversial and 2) MTRCB RESOLUTION No. 10-89 (dated July 27, 1989) declaring as
strictly confidential, private and personal a) the decision of a reviewing committee which previously
reviewed a certain film and b) the individual voting slips of the members of the committee that
reviewed the film.
Respondents argue at the outset that the instant petition should be dismissed outright for having
failed to comply with the doctrine of exhaustion of administrative remedies.
We disagree. The doctrine of exhaustion of administrate remedies simply provides that before a
party litigant is allowed resort to the courts, he is required to comply with all administrative
remedies available under the law (Rosales v. Court of Appeals, 165 SCRA 344 [1988]). The
rationale behind this salutory principle is that for reasons of practical considerations, comity and
convenience, the courts of law will not entertain a case until all the available administrative
remedies provided by law have been resorted to and the appropriate authorities have been given
ample opportunity to act and to correct the errors committed in the administrative level. If the error
is rectified, judicial intervention would then be unnecessary.
Nonetheless, the doctrine of exhaustion of administrative remedies is not absolute. The
applicability of the principle admits of certain exceptions, such as: 1) when no administrative
review is provided by law; 2) when the only question involved is one of law (Valmonte v. Valmonte,
170 SCRA 256 [1989], citing Aguilar v. Valencia, 40 SCRA 210 [1971]; Malabanan v. Ramento,
129 SCRA 359 [1984]; Bagatsing v. Ramirez, 74 SCRA 306; Del Mar v. Philippine Veterans
Administration, 51 SCRA 340 [1973]; Pascual v. Provincial Board, 106 Phil. 466 [1959]; 3) where
the party invoking the doctrine is guilty of estoppel (Vda. de Tan v. Veterans' Backpay
Commission [1969]; 4) where the challenged administrative action is patently illegal, arbitrary and
oppressive (Azur v. Provincial Board, 27 SCRA 50 [1969]; National Development Co. v. Collector
of Customs of Manila, 9 SCRA 429 [1963]; 5) where there is unreasonable delay or official
inaction that would greatly prejudice the complainant (Gravador v. Mamigo, 20 SCRA 742 [1967];
Azuelo v. Arnaldo, 108 Phil. 293 [1960]; 6) where to exhaust administrative review is impractical
and unreasonable (Cipriano v. Marcelino, 43 SCRA 291); and 7) where the rule of qualified
political agency applies (Demaisip v. Court of Appeals, 106 Phil. 237 [1906]).
The issue raised in the instant petition is one of law, hence the doctrine of non-exhaustion of
administrative remedy relied upon by respondents is inapplicable and cannot be given any effect.
At any rate, records are replete with events pointing to the fact that petitioner adhered to the
administrative processes in the disposition of the assailed resolutions of public respondents prior
to filing the instant petition by, among others, writing the Executive Secretary and bringing the
matter to the attention of the Office of the President (Rollo, pp. 145-147). Respondents' claim that
petitioner failed to exhaust administrative remedies must therefore fail.
Having disposed of the procedural objection raised by respondents, We now proceed to resolve
the issues raised by petitioner. In this regard, We find respondents' refusal to allow petitioner to
examine the records of respondent MTRCB, pertaining to the decisions of the review committee
as well as the individual voting slips of its members, as violative of petitioner's constitutional right
of access to public records. More specifically, Sec. 7, Art. III of the Constitution provides that:
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. (emphasis supplied)
As We held in Legaspi v. Civil Service Commission (150 SCRA 530 [1987]), this constitutional
provision is self-executory and supplies "the rules by means of which the right to information may
be enjoyed (Cooley, A Treatise on 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 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. II, Sec. 28)." (See also Tañada v. Tuvera, 136 SCRA 27
[1985]; Valmonte v. Belmonte, Jr., 170 SCRA 256 [1989]).
Respondents contend, however, that what is rendered by the members of the board in reviewing
films and reflected in their individual voting slip is their individual vote of conscience on the motion
picture or television program and as such, makes the individual voting slip purely private and
personal; an exclusive property of the member concerned.
The term private has been defined as "belonging to or concerning, an individual person, company,
or interest"; whereas, public means "pertaining to, or belonging to, or affecting a nation, state, or
community at large" (People v. Powell, 274 NW 372 [1937]). May the decisions of respondent
Board and the individual members concerned, arrived at in an official capacity, be considered
private? Certainly not. As may be gleaned from the decree (PD 1986) creating the respondent
classification board, there is no doubt that its very existence is public is character; it is an office
created to serve public interest. It being the case, respondents can lay no valid claim to privacy.
The right to privacy belongs to the individual acting in his private capacity and not to a
governmental agency or officers tasked with, and acting in, the discharge of public duties (See
Valmonte v. Belmonte, Jr., supra.) There can be no invasion of privacy in the case at bar since
what is sought to be divulged is a product of action undertaken in the course of performing official
functions. To declare otherwise would be to clothe every public official with an impregnable mantle
of protection against public scrutiny for their official acts.
Further, the decisions of the Board and the individual voting slips accomplished by the members
concerned are acts made pursuant to their official functions, and as such, are neither personal nor
private in nature but rather public in character. They are, therefore, public records access to which
is guaranteed to the citizenry by no less than the fundamental law of the land. Being a public right,
the exercise thereof cannot be made contingent on the discretion, nay, whim and caprice, of the
agency charged with the custody of the official records sought to be examined. The constitutional
recognition of the citizen's right of access to official records cannot be made dependent upon the
consent of the members of the board concerned, otherwise, the said right would be rendered
nugatory. As stated by this Court in Subido v. Ozaeta (80 Phil. 383 [1948]):
Except, perhaps when it is clear that the purpose of the examinations 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. (emphasis supplied)
It is significant to point out that this Court in the 1948 case of Subido v. Ozaeta, supra, upheld the
right to information based on the statutory right then provided in Sec. 56 of the Land Registration
Act (Act 496, as amended). Consequently, We see no cogent reason why said right, now
constitutionalized, should be given less efficacy and primacy than what the fundament law
mandates.
The Court is not unaware of RA 6713 (Code of Conduct and Ethical Standards for Public Officials
and Employees) which provides, among others, certain exceptions as regards the availability of
official records or documents to the requesting public, e.g., closed door Cabinet sessions and
deliberations of this Court. Suffice it to state, however, that the exceptions therein enumerated find
no application in the case at bar. Petitioner request is not concerned with the deliberations of
respondent Board but with its documents or records made after a decision or order has been
rendered. Neither will the examination involve disclosure of trade secrets or matters pertaining to
national security which would otherwise limit the right of access to official records (See Legaspi v.
Implementing Rules and Regulations
Civil Service Commission, supra).
We are likewise not impressed with the proposition advanced by respondents that respondent
Morato is empowered by PD 1986 to unilaterally downgrade or upgrade a film reviewed especially
those which are controversial. The pertinent provisions of said decree provides:
Sec 4. Decision. — The decision of the BOARD either approving or disapproving for
exhibition in the Philippines a motion picture, television program, still and other pictorial
advertisement submitted to it for examination and preview must be rendered within a
period of ten (10) days which shall be counted from the date of receipt by the BOARD of
an application for the purpose . . .
For each review session, the Chairman of the Board shall designate a sub-committee
composed of at least three BOARD members to undertake the work of review. Any
disapproval or deletion must be approved by a majority of the sub-committee members so
designated. After receipt of the written decision of the sub-committee, a motion for
reconsideration in writing may be made, upon which the Chairman of the Board shall
designate a sub-committee of five BOARD members to undertake a second review
session, whose decision on behalf of the Board shall be rendered through a majority of
the sub-committee members so designated and present at the second review session.
This second review session shall be presided over by the Chairman, or the Vice-
Chairman. The decision of the BOARD in the second review session shall be rendered
within five (5) days from the date of receipt of the motion for reconsideration.
Every decision of the BOARD disapproving a motion picture, television program or
publicity material for exhibition in the Philippines must be in writing, and shall state the
reasons or grounds for such disapproval. No film or motion picture intended for exhibition
at the moviehouses or theaters or on television shall be disapproved by reason of its
topic, theme or subject matter, but upon the merits of each picture or program considered
in its entirety.
The second decision of the BOARD shall be final, with the exception of a decision
disapproving or prohibiting a motion picture or television program in its entirety which
shall be appealable to the President of the Philippines, who may himself decide the
appeal, or be assisted either by an ad hoe committee he may create or by the Appeals
Committee herein created.
An Appeals Committee in the Office of the President of the Philippines is hereby created
composed of a Chairman and four (4) members to be appointed by the President of the
Philippines, which shall submit its recommendation to the President. The Office of the
Presidential Assistant for Legal Affairs shall serve as the Secretariat of the Appeals
Committee.
The decision of the President of the Philippines on any appealed matter shall be final.
Sec 11. Review by Sub-Committee of Three. — a) A proper application having been filed,
the Chairman of the Board shall, as the exigencies of the service may permit, designate a
Sub-Committee of at least three Board Members who shall meet, with notice to the
applicant, within ten days from receipt of the completed application. The Sub-Committee
shall then preview the motion picture subject of the application.
b) Immediately after the preview, the applicant or his representative shall withdraw to
await the results of the deliberation of the Sub-Committee. After reaching a decision, the
Sub-Committee shall summon the applicant or his representative and inform him of its
decision giving him an opportunity either to request reconsideration or to offer certain cuts
or deletions in exchange for a better classification. The decision shall be in writing,
stating, in case of disapproval of the film or denial of the classification rating desired or
both, the reason or reasons for such disapproval or denial and the classification
considered by the Sub-Committee member dissenting from the majority opinion may
express his dissent in writing.
c) The decision including the dissenting opinion, if any, shall immediately be submitted to
the Chairman of the Board for transmission to the applicant.
Sec 12. Review by Sub-Committee of Five. — Within five days from receipt of a copy of
the decision of the Sub-Committee referred to in the preceding section, the applicant may
file a motion for reconsideration in writing of that decision. On receipt of the motion, the
Chairman of the Board shall designate a Sub-Committee of Five Board Members which
shall consider the motion and, within five days of receipt of such motion, conduct a
second preview of the film. The review shall, to the extent applicable, follow the same
procedure provided in the preceding section.
 Sec 13. Reclassification. — An applicant desiring a change in the classification rating WHEREFORE, the instant petition is GRANTED. Resolution Nos. 10-89 and 88-1-25 issued by
given his film by either the Sub-Committee of Three? or Committee of Five mentioned in the respondent Board are hereby declared null and void.
the immediately preceeding two sections may re-edit such film and apply anew with the
Board for its review and reclassification. SO ORDERED.

Sec 14. Appeal. — The decision of the Committee of Five Board Members in the second Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla,
review shall be final, with the exception of a decision disapproving or prohibiting a motion Medialdea, Regalado and Davide, Jr., JJ., concur.
picture in its entirety which shall be appealable to the President of the Philippines who Griño-Aquino and Romero, JJ., took no part.
may himself decide the appeal or refer it to the Appeals Committee in the Office of the
President for adjudication.
Aquino-Sarmiento vs. Morato, 203 SCRA 515, G.R. No. 92541 November 13, 1991
On the other hand, the powers and functions of the MTRCB Chairman are found in Section 5 of
the same decree as follows:

Sec. 5. Executive Officer. — The Chairman of the BOARD shall be the Chief Executive
Officer of the BOARD. He shall exercise the following functions, powers and duties:

(a) Execute, implement and enforce the decisions, orders, awards, rules and regulations
issued by the BOARD;

(b) Direct and supervise the operations and the internal affairs of the BOARD;

(c) Establish the internal organization and administrative procedures of the BOARD, and
recommend to the BOARD the appointment of the necessary administrative and
subordinate personnel; and

(d) Exercise such other powers and functions and perform such duties as are not
specifically lodged in the BOARD.

It is at once apparent from a reading of the above provisions of PD 1986 that respondent Morato,
as Chairman of the MTRCB, is not vested with any authority to reverse or overrule by himself
alone a decision rendered by a committee which conducted a review of motion pictures or
television programs.

The power to classify motion pictures into categories such as "General Patronage" or "For Adults
Only" is vested with the respondent Board itself and not with the Chairman thereof (Sec. 3 [e], PD
1986). As Chief Executive Officer, respondent Morato's function as Chairman of the Board calls for
the implementation and execution, not modification or reversal, of the decisions or orders of the
latter (Sec. 5 [a], Ibid.). The power of classification having been reposed by law exclusively with
the respondent Board, it has no choice but to exercise the same as mandated by law, i.e., as a
collegial body, and not transfer it elsewhere or discharge said power through the intervening mind
of another. Delegata potestas non potest delegari — a delegated power cannot be delegated. And
since the act of classification involves an exercise of the Board's discretionary power with more
reason the Board cannot, by way of the assailed resolution, delegate said power for it is an
established rule in administrative law that discretionary authority cannot be a subject of delegation.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
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 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 ill-gotten
wealth involves an issue of "paramount public interest," since it has a "debilitating effect on the
country's economy" that would be greatly prejudicial to the national interest of the Filipino people.
Hence, the people in general have a right to know the transactions or deals being contrived and
effected by the government.
Respondents, on the other hand, do not deny forging a compromise agreement with the Marcos
heirs. They claim, though, that petitioner's action is premature, because there is no showing that
he has asked the PCGG to disclose the negotiations and the Agreements. And even if he has,
PCGG may not yet be compelled to make any disclosure, since the proposed terms and
conditions of the Agreements have not become effective and binding.
Respondents further aver that the Marcos heirs have submitted the subject Agreements to the
Sandiganbayan for its approval in Civil Case No. 141, entitled Republic v. Heirs of Ferdinand E.
Marcos, and that the Republic opposed such move on the principal grounds that (1) said
Agreements have not been ratified by or even submitted to the President for approval, pursuant to
Item No. 8 of the General Agreement; and (2) the Marcos heirs have failed to comply with their
undertakings therein, particularly the 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.
Furthermore, then President Fidel V. Ramos, in his May 4, 1998 Memorandum 5 to then PCGG
Chairman Magtanggol Gunigundo, categorically stated:
This is to reiterate my previous position embodied in the Palace Press Release of 6 April 1995 that
I have 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.
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.
The assailed principal Agreement 6 reads:
GENERAL AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Agreement entered into this 28th day of December, 1993, by and between —
The Republic of the Philippines, through the Presidential Commission on Good 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
referred to as FIRST PARTY,
— and —
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 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.
W I T N E S S E T H:
WHEREAS, the PRIVATE PARTY has been impelled by their sense of nationalism and love of
country and of the entire Filipino people, and their desire to set up a foundation and finance impact
projects like installation of power plants in selected rural areas and initiation of other community
projects for the empowerment of the people;
WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal Tribunal of
December 21, 1990, that the $356 million belongs in principle to the Republic of the Philippines
provided certain conditionalities are met, but even after 7 years, the FIRST PARTY has not been
able to procure a final judgment of conviction against the PRIVATE PARTY;
WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn out litigation which, as proven
by the past 7 years, is consuming money, time and effort, and is counter-productive and ties up
assets which the FIRST PARTY could otherwise utilize for its Comprehensive Agrarian Reform
Program, and other urgent needs;
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-first century;
WHEREAS, this Agreement settles all claims and counterclaims which the parties may have
against one another, whether past, present, or future, matured or inchoate.
NOW, THEREFORE, for and in consideration of the mutual covenants set forth herein, the parties
agree as follows:
1. The parties will collate all assets presumed to be owned by, or held by other parties for the
benefit of, the PRIVATE PARTY for purposes of determining the totality of the assets covered by
the settlement. The subject assets shall be 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) miscellaneous assets or assets which could not appropriately fall under any
of the preceding classification. The list shall be based on the full disclosure of the PRIVATE
PARTY to insure its accuracy.
2. Based on the inventory, the FIRST PARTY shall determine which shall be ceded to the FIRST
PARTY, and which shall 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, considering the unavailability of all pertinent and relevant documents and
information as to balances and ownership, the actual specification of assets to be retained by the
PRIVATE PARTY shall be covered by supplemental agreements which shall form part of this
Agreement.
3. Foreign assets which the PRIVATE PARTY shall fully disclose but which are held by trustees,
nominees, agents or foundations are hereby waived over by the PRIVATE PARTY in favor of the
FIRST PARTY. For this purpose, the parties shall cooperate in taking the appropriate action,
judicial and/or extrajudicial, to recover the same for the FIRST PARTY.
4. All disclosures of assets made by the PRIVATE PARTY shall not be used as evidence by the
FIRST PARTY in any criminal, civil, tax or administrative case, but shall be valid and binding
against said PARTY for use by the FIRST PARTY in withdrawing any account and/or recovering
any 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 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 release of any account
aforementioned by the FIRST PARTY shall be made in the presence of any authorized
representative of the PRIVATE PARTY.
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 informed
through this General Agreement to insure that it is fully implemented and this shall serve as
absolute authority from both parties for full disclosure to the FIRST PARTY of 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 PARTY/their trustees, etc., may discover.
6. Any asset which may be discovered in the future as belonging to the PRIVATE PARTY or is
being held by another for the benefit of the PRIVATE PARTY and which is not included in the list
per No. 1 for whatever reason shall automatically belong to the FIRST PARTY, and the PRIVATE
PARTY in accordance with No. 4 above, waives any right thereto.
7. This Agreement shall be binding on and inure to the benefit of, the parties and their respective
legal representatives, successors and assigns and shall supersede any other prior agreement.
8. The PARTIES shall submit this and any other implementing Agreements to the President of the
Philippines for approval. In 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 [Sgd.] ATTY. SIMEON M. MESINA, JR.
shed light on the cases being pursued by the FIRST PARTY against other parties. The FIRST
PARTY shall desist from instituting new suits already subject of this Agreement against the Counsel & Attorney-in-Fact
PRIVATE PARTY and cause the dismissal of all other cases pending in the Sandiganbayan and in
Petitioner also denounces this supplement to the above Agreement:8
other courts.
SUPPLEMENTAL AGREEMENT
9. In case of violation by the PRIVATE PARTY of any of the conditions herein contained, the
PARTIES shall be restored automatically to the status quo ante the signing of this Agreement.
This Agreement entered into this 28th day of December, 1993, by and between —
For purposes of this Agreement, the PRIVATE PARTY shall be represented by Atty. Simeon M.
The Republic of the Philippines, through the Presidential Commission on Good Government
Mesina, Jr., as their only Attorney-in-Fact.
(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
IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December,
Magtanggol C. Gunigundo, hereinafter referred to as the FIRST PARTY,
1993, in Makati, Metro Manila.
— and —
PRESIDENTIAL COMMISSION ON
Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and Ferdinand R.
GOOD GOVERNMENT
Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal St., Mandaluyong, Metro
By: Manila, and Imelda Romualdez Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos, Jr., and
Irene Marcos Araneta, hereinafter collectively referred to as the PRIVATE PARTY.
[Sgd.] MAGTANGGOL C. GUNIGUNDO
W I T N E S S E T H:
Chairman
The parties in this case entered into a General Agreement dated Dec. 28, 1993;
ESTATE OF FERDINAND E. MARCOS,
The PRIVATE PARTY expressly reserve their right to pursue their interest and/or sue over local
IMELDA R. MARCOS, MA. IMELDA assets located in the Philippines against parties other than the FIRST PARTY.

MARCOS-MANOTOC, FERDINAND R. 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 charges, traveling expenses
MARCOS, JR., & IRENE MARCOS- and all other expenses related thereto shall be for the account of the PRIVATE PARTY.

ARANETA In consideration of the foregoing, the parties hereby agree that the PRIVATE PARTY shall be
entitled to the equivalent of 25% of the amount that may be eventually withdrawn from said $356
By:
million Swiss deposits.
[Sgd.] IMELDA ROMUALDEZ-MARCOS
IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December,
1993, in Makati, Metro Manila.
[Sgd.] MA. IMELDA MARCOS-MANOTOC

FERDINAND R. MARCOS, JR.7 PRESIDENTIAL COMMISSION ON

GOOD GOVERNMENT
[Sgd.] IRENE MARCOS-ARANETA
By:
Assisted by:
[Sgd.] MAGTANGGOL C. GUNIGUNDO (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
Chairman
(2) Whether or not there exist any legal restraints against a compromise agreement between the
ESTATE OF FERDINAND E. MARCOS, Marcoses and the PCGG relative to the Marcoses' ill-gotten wealth. 11

IMELDA R. MARCOS, MA. IMELDA After their oral presentations, the parties filed their respective memoranda.

MARCOS-MANOTOC, FERDINAND R. 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
MARCOS, JR., & IRENE MARCOS-
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,
ARANETA
Maximo Hilao, et al., Class Plaintiffs No. 92-15526, U.S. Court of Appeals for the 9th Circuit US
By: 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
[Sgd.] IMELDA ROMUALDEZ-MARCOS 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
[Sgd.] MA. IMELDA MARCOS-MANOTOC 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
FERDINAND R. MARCOS, JR.9
against the main petition. 13
[Sgd.] IRENE MARCOS-ARANETA
The Court's Ruling
Assisted by:
The petition id imbued with merit.
[Sgd.] ATTY. SIMEON M. MESINA, JR.
First Procedural Issue:
Counsel & Attorney-in-Fact
Petitioner's Standing
10
Acting on a motion of petitioner, the Court issued a Temporary Restraining Order dated March
Petitioner, on the one hand, explains that as a taxpayer and citizen, he has the legal personality to
23, enjoining respondents, their agents and/or representatives from "entering into, or perfecting
file the instant petition. He submits that since ill-gotten wealth "belongs to the Filipino people and
and/or executing any agreement with the heirs of the late President Ferdinand E. Marcos relating
[is], in truth hand in fact, part of the public treasury," any compromise in relation to it would
to and concerning their ill-gotten wealth."
constitute a diminution of the public funds, which can be enjoined by a taxpayer whose interest is
Issues for a full, if not substantial, recovery of such assets.

The Oral Argument, held on March 16, 1998, focused on the following issues: 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
(a) Procedural: 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
(1) Whether or not the petitioner has the personality or legal standing to file the instant petition; affect the social, economic, and moral well-being of the people."
and
Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the
(2) Whether or not this Court is the proper court before which this action may be filed. 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
(b) Substantive: 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.
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:

Indeed, the arguments cited by petitioner constitute the controlling decisional rule as regards his The Court's Jurisdiction
legal standing to institute the instant petition. Access to public documents and records is a public
Petitioner asserts that because this petition is an original action for mandamus and one that is not
right, and the real parties in interest are the people themselves. 16
intended to delay any proceeding in the Sandiganbayan, its having been filed before this Court
In Tañada v. Tuvera, 17 the Court asserted that when the issue concerns a public a right and the was proper. He invokes Section 5, Article VIII of the Constitution, which confers upon the Supreme
object ofmandamus is to obtain the enforcement of a public duty, the people are regarded as the Court original jurisdiction over petitions for prohibition and mandamus.
real parties in interest; and because it is sufficient that petitioner is a citizen and as such is
The solicitor general, on the other hand, argues that the petition has been erroneously brought
interested in the execution of the laws, he need not show that he has any legal or special interest
before this Court, since there is neither a justiciable controversy nor a violation of petitioner's rights
in the result of the action. 18 In the aforesaid case, the petitioners sought to enforce their right to be
by the PCGG. He alleges that the assailed agreements are already the very lis mota in
informed on matters of public concern, a right then recognized in Section 6, Article IV of the 1973
Sandiganbayan Civil Case No. 0141, which has yet to dispose of the issue; thus, this petition is
Constitution, 19 in connection with the rule that laws in order to be valid and enforceable must be
premature. Furthermore, respondents themselves have opposed the Marcos heirs' motion, filed in
published in the Official Gazette or otherwise effectively promulgated. In ruling for the petitioners'
the graft court, for the approval of the subject Agreements. Such opposition belies petitioner's
legal standing, the Court declared that the right they sought to be enforced "is a public right
claim that the government, through respondents, has concluded a settlement with the Marcoses
recognized by no less than the fundamental law of the land."
as regards their alleged ill-gotten assets.
Legaspi v. Civil Service Commission, 20 while reiterating Tañada, further declared that "when
In Tañada and Legaspi, we upheld therein petitioners' resort to a mandamus proceeding, seeking
a mandamusproceeding involves the assertion of a public right, the requirement of personal
to enforce a public right as well as to compel performance of a public duty mandated by no less
interest is satisfied by the mere fact that petitioner is a citizen and, therefore, part of the general
than the fundamental law. 23Further, Section 5, Article VIII of the Constitution, expressly confers
'public' which possesses the right." 21
upon the Supreme Court original jurisdiction over petitions for certiorari, prohibition, mandamus,
Further, in Albano v. Reyes, 22 we said that while expenditure of public funds may not have been quo warranto and habeas corpus.
involved under the questioned contract for the development, the management and the operation of
Respondents argue that petitioner should have properly sought relief before the Sandiganbayan,
the Manila International Container Terminal, "public interest [was] definitely involved considering
particularly in Civil Case No. 0141, in which the enforcement of the compromise Agreements is
the important role [of the subject contract] . . . in the economic development of the country and the
pending resolution. There may seem to be some merit in such argument, if petitioner is merely
magnitude of the financial consideration involved." We concluded that, as a consequence, the
seeking to enjoin the enforcement of the compromise and/or to compel the PCGG to disclose to
disclosure provision in the Constitution would constitute sufficient authority for upholding the
the public the terms contained in said Agreements. However, petitioner is here seeking the public
petitioner's standing.
disclose of "all negotiations and agreement, be they ongoing or perfected, and documents related
Similarly, the instant petition is anchored on the right of the people to information and access to to or relating to such negotiations and agreement between the PCGG and the Marcos heirs."
official records, documents and papers — a right guaranteed under Section 7, Article III of the
In other words, this petition is not confined to the Agreements that have already been drawn, but
1987 Constitution. Petitioner, a former solicitor general, is a Filipino citizen. Because of the
likewise to any other ongoing or future undertaking towards any settlement on the alleged Marcos
satisfaction of the two basic requisites laid down by decisional law to sustain petitioner's legal
loot. Ineluctably, the core issue boils down to the precise interpretation, in terms of scope, of the
standing, i.e. (1) the enforcement of a public right (2) espoused by a Filipino citizen, we rule that
twin constitutional provisions on "public transactions." This broad and prospective relief sought by
the petition at bar should be allowed.
the instant petition brings it out of the realm of Civil Case No. 0141.
In any event, the question on the standing of Petitioner Chavez is rendered moot by the
First Substantive Issue:
intervention of the Jopsons, who are among the legitimate claimants to the Marcos wealth. The
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
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.
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 Rights. Any special grant of tax exemption in favor only of the Marcos heirs will constitute class
accused. legislation. It will also violate the constitutional rule that "taxation shall be uniform and equitable." 59

Thus, in the case of Jose Y. Campos, the grant of both civil and criminal immunity to him and his Neither can the stipulation be construed to fall within the power of the commissioner of internal
family was "[i]n consideration of the full cooperation of Mr. Jose Y. Campos [with] this revenue to compromise taxes. Such authority may be exercised only when (1) there is reasonable
Commission, his voluntary surrender of the properties and assets [—] disclosed and declared by doubt as to the validity of the claim against the taxpayer, and (2) the taxpayer's financial position
him to belong to deposed President Ferdinand E. Marcos [—] to the Government of the Republic demonstrates a clear inability to pay. 60Definitely, neither requisite is present in the case of the
of the Philippines[;] his full, complete and truthful disclosures[;] and his commitment to pay a sum Marcoses, because under the Agreement they are effectively conceding the validity of the claims
of money as determined by the Philippine Government." 56 Moreover, the grant of criminal against their properties, part of which they will be allowed to retain. Nor can the PCGG grant of tax
immunity to the Camposes and the Benedictos was limited to acts and omissions prior to February exemption fall within the power of the commissioner to abate or cancel a tax liability. This power
25, 1996. At the time such immunity was granted, no criminal cases have yet been filed against can be exercised only when (1) the tax appears to be unjustly or excessively assessed, or (2) the
them before the competent court. 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.
Validity of the PCGG-Marcos 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
Compromise Agreements
Third, the government binds itself to cause the dismissal of all cases against the Marcos heirs,
Going now to the subject General and Supplemental Agreements between the PCGG and the
pending before the Sandiganbayan and other court. 63 This is a direct encroachment on judicial
Marcos heirs, a cursory perusal thereof reveals serious legal flaws. First, the Agreements do not
powers, particularly in regard to criminal jurisdiction. Well-settled is the doctrine that once a case
conform to the above requirements of EO Nos. 14 and 14-A. We believe that criminal immunity
has been filed before a court of competent jurisdiction, the matter of its dismissal or pursuance lies
under Section 5 cannot be granted to the Marcoses, who are the principal defendants in the spate
within the full discretion and control of the judge. In a criminal case, the manner in which the
of ill-gotten wealth cases now pending before the Sandiganbayan. As stated earlier, the provision
prosecution is handled, including the matter of whom to present as witnesses, may lie within the
is applicable mainly to witnesses who provide information or testify against a respondent,
sound discretion of the government prosecution; 64 but the court decides, based on the evidence
defendant or accused in an ill-gotten wealth case.
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
While the General Agreement states that the Marcoses "shall provide the [government] assistance
dismiss the complaint.65 The prosecution's motion to withdraw or to dismiss is not the least binding
by way of testimony or deposition on any information [they] may have that could shed light on the
upon the court. On the contrary, decisional rules require the trial court to make its own evaluation
cases being pursued by the [government] against other parties," 57 the clause does not fully
of the merit of the case, because granting such motion is equivalent to effecting a disposition of
comply with the law. Its inclusion in the Agreement may have been only an afterthought,
the case itself. 66
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
Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases, cannot guarantee the
any respondent or defendant as to the manner in which the latter may have unlawfully acquired
dismissal of all such criminal cases against the Marcoses pending in the courts, for said dismissal
public property.
is not within its sole power and discretion.
Second, under Item No. 2 of the General Agreement, the PCGG commits to exempt from all forms
Fourth, the government also waives all claims and counterclaims, "whether past, present, or
of taxes the properties to be retained by the Marcos heirs. This is a clear violation of the
future, matured or inchoate," against the Marcoses. 67 Again, this ill-encompassing stipulation is
Construction. The power to tax and to grant tax exemptions is vested in the Congress and, to a
contrary to law. Under the Civil Code, an action for future fraud may not be waived. 68 The
certain extent, in the local legislative bodies. 58 Section 28 (4), Article VI of the Constitution,
stipulation in the Agreement does not specify the exact scope of future claims against the
specifically provides: "No law granting any tax exemption shall be passed without the concurrence
Marcoses that the government thereby relinquishes. Such vague and broad statement may well
of a majority of all the Member of the Congress." The PCGG has absolutely no power to grant tax
be interpreted to include all future illegal acts of any of the Marcos heirs, practically giving them a
exemptions, even under the cover of its authority to compromise ill-gotten wealth cases.
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
Even granting that Congress enacts a law exempting the Marcoses form paying taxes on their
ensconces the Marcoses beyond the reach of the law. It also sets a dangerous precedent for
properties, such law will definitely not pass the test of the equal protection clause under the Bill of
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.

SO ORDERED.

Davide, Jr., C.J., Melo and Quisumbing, JJ., concur.

Vitug, J., Please see separate opinion.

782 Chavez vs. Presidential Commission on Good Government, 299 SCRA 744, G.R. No.
130716 December 9, 1998

EN BANC
G.R. No. 133250 July 9, 2002
FRANCISCO I. CHAVEZ, petitioner,
vs.
PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY DEVELOPMENT
CORPORATION, respondents.
CARPIO, J.:
This is an original Petition for Mandamus with prayer for a writ of preliminary injunction and a
temporary restraining order. The petition seeks to compel the Public Estates Authority ("PEA" for
brevity) to disclose all facts on PEA's then on-going renegotiations with Amari Coastal Bay and
Development Corporation ("AMARI" for brevity) to reclaim portions of Manila Bay. The petition
further seeks to enjoin PEA from signing a new agreement with AMARI involving such
reclamation.
The Facts
On November 20, 1973, the government, through the Commissioner of Public Highways, signed a
contract with the Construction and Development Corporation of the Philippines ("CDCP" for
brevity) to reclaim certain foreshore and offshore areas of Manila Bay. The contract also included
the construction of Phases I and II of the Manila-Cavite Coastal Road. CDCP obligated itself to
carry out all the works in consideration of fifty percent of the total reclaimed land.
On February 4, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1084
creating PEA. PD No. 1084 tasked PEA "to reclaim land, including foreshore and submerged
areas," and "to develop, improve, acquire, x x x lease and sell any and all kinds of lands." 1 On the
same date, then President Marcos issued Presidential Decree No. 1085 transferring to PEA the
"lands reclaimed in the foreshore and offshore of the Manila Bay"2 under the Manila-Cavite
Coastal Road and Reclamation Project (MCCRRP).
On December 29, 1981, then President Marcos issued a memorandum directing PEA to amend its
contract with CDCP, so that "[A]ll future works in MCCRRP x x x shall be funded and owned by
PEA." Accordingly, PEA and CDCP executed a Memorandum of Agreement dated December 29,
1981, which stated:
"(i) CDCP shall undertake all reclamation, construction, and such other works in the
MCCRRP as may be agreed upon by the parties, to be paid according to progress of
works on a unit price/lump sum basis for items of work to be agreed upon, subject to price
escalation, retention and other terms and conditions provided for in Presidential Decree
No. 1594. All the financing required for such works shall be provided by PEA.
xxx
(iii) x x x CDCP shall give up all its development rights and hereby agrees to cede and
transfer in favor of PEA, all of the rights, title, interest and participation of CDCP in and to
all the areas of land reclaimed by CDCP in the MCCRRP as of December 30, 1981 which
have not yet been sold, transferred or otherwise disposed of by CDCP as of said date,
which areas consist of approximately Ninety-Nine Thousand Four Hundred Seventy
Three (99,473) square meters in the Financial Center Area covered by land pledge No. 5
and approximately Three Million Three Hundred Eighty Two Thousand Eight Hundred
Eighty Eight (3,382,888) square meters of reclaimed areas at varying elevations above
Mean Low Water Level located outside the Financial Center Area and the First
Neighborhood Unit."3
On January 19, 1988, then President Corazon C. Aquino issued Special Patent No. 3517, granting
and transferring to PEA "the parcels of land so reclaimed under the Manila-Cavite Coastal Road
and Reclamation Project (MCCRRP) containing a total area of one million nine hundred fifteen
thousand eight hundred ninety four (1,915,894) square meters." Subsequently, on April 9, 1988,
the Register of Deeds of the Municipality of Parañaque issued Transfer Certificates of Title Nos.
7309, 7311, and 7312, in the name of PEA, covering the three reclaimed islands known as the
"Freedom Islands" located at the southern portion of the Manila-Cavite Coastal Road, Parañaque
City. The Freedom Islands have a total land area of One Million Five Hundred Seventy Eight
Thousand Four Hundred and Forty One (1,578,441) square meters or 157.841 hectares.
On April 25, 1995, PEA entered into a Joint Venture Agreement ("JVA" for brevity) with AMARI, a
private corporation, to develop the Freedom Islands. The JVA also required the reclamation of an
additional 250 hectares of submerged areas surrounding these islands to complete the
configuration in the Master Development Plan of the Southern Reclamation Project-MCCRRP.
PEA and AMARI entered into the JVA through negotiation without public bidding.4 On April 28,
1995, the Board of Directors of PEA, in its Resolution No. 1245, confirmed the JVA. 5On June 8,
1995, then President Fidel V. Ramos, through then Executive Secretary Ruben Torres, approved
the JVA.6
On November 29, 1996, then Senate President Ernesto Maceda delivered a privilege speech in
the Senate and denounced the JVA as the "grandmother of all scams." As a result, the Senate
Committee on Government Corporations and Public Enterprises, and the Committee on
Accountability of Public Officers and Investigations, conducted a joint investigation. The Senate
Committees reported the results of their investigation in Senate Committee Report No. 560 dated
September 16, 1997.7 Among the conclusions of their report are: (1) the reclaimed lands PEA
seeks to transfer to AMARI under the JVA are lands of the public domain which the government
has not classified as alienable lands and therefore PEA cannot alienate these lands; (2) the
certificates of title covering the Freedom Islands are thus void, and (3) the JVA itself is illegal.
On December 5, 1997, then President Fidel V. Ramos issued Presid ential Administrative Order
No. 365 creating a Legal Task Force to conduct a study on the legality of the JVA in view of
Senate Committee Report No. 560. The members of the Legal Task Force were the Secretary of
Justice,8 the Chief Presidential Legal Counsel,9 and the Government Corporate Counsel.10 The
Legal Task Force upheld the legality of the JVA, contrary to the conclusions reached by the
Senate Committees.11
On April 4 and 5, 1998, the Philippine Daily Inquirer and Today published reports that there were
on-going renegotiations between PEA and AMARI under an order issued by then President Fidel
V. Ramos. According to these reports, PEA Director Nestor Kalaw, PEA Chairman Arsenio Yulo
and retired Navy Officer Sergio Cruz composed the negotiating panel of PEA.
On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition for Prohibition with
Application for the Issuance of a Temporary Restraining Order and Preliminary
Injunction docketed as G.R. No. 132994 seeking to nullify the JVA. The Court dismissed the
petition "for unwarranted disregard of judicial hierarchy, without prejudice to the refiling of the case
before the proper court."12
On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity) as a taxpayer, filed the
instant Petition for Mandamus with Prayer for the Issuance of a Writ of Preliminary Injunction and
Temporary Restraining Order. Petitioner contends the government stands to lose billions of pesos
in the sale by PEA of the reclaimed lands to AMARI. Petitioner prays that PEA publicly disclose
the terms of any renegotiation of the JVA, invoking Section 28, Article II, and Section 7, Article III,
of the 1987 Constitution on the right of the people to information on matters of public concern.
Petitioner assails the sale to AMARI of lands of the public domain as a blatant violation of Section
3, Article XII of the 1987 Constitution prohibiting the sale of alienable lands of the public domain to
private corporations. Finally, petitioner asserts that he seeks to enjoin the loss of billions of pesos
in properties of the State that are of public dominion.
After several motions for extension of time,13 PEA and AMARI filed their Comments on October
19, 1998 and June 25, 1998, respectively. Meanwhile, on December 28, 1998, petitioner filed an
Omnibus Motion: (a) to require PEA to submit the terms of the renegotiated PEA-AMARI contract;
(b) for issuance of a temporary restraining order; and (c) to set the case for hearing on oral
argument. Petitioner filed a Reiterative Motion for Issuance of a TRO dated May 26, 1999, which
the Court denied in a Resolution dated June 22, 1999.
In a Resolution dated March 23, 1999, the Court gave due course to the petition and required the
parties to file their respective memoranda.
On March 30, 1999, PEA and AMARI signed the Amended Joint Venture Agreement ("Amended
JVA," for brevity). On May 28, 1999, the Office of the President under the administration of then
President Joseph E. Estrada approved the Amended JVA.
Due to the approval of the Amended JVA by the Office of the President, petitioner now prays that
on "constitutional and statutory grounds the renegotiated contract be declared null and void."14
The Issues
The issues raised by petitioner, PEA15 and AMARI16 are as follows:
I. WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN THE PETITION ARE MOOT
AND ACADEMIC BECAUSE OF SUBSEQUENT EVENTS;
II. WHETHER THE PETITION MERITS DISMISSAL FOR FAILING TO OBSERVE THE
PRINCIPLE GOVERNING THE HIERARCHY OF COURTS;
III. WHETHER THE PETITION MERITS DISMISSAL FOR NON-EXHAUSTION OF
ADMINISTRATIVE REMEDIES;
IV. WHETHER PETITIONER HAS LOCUS STANDI TO BRING THIS SUIT;
V. WHETHER THE CONSTITUTIONAL RIGHT TO INFORMATION INCLUDES
OFFICIAL INFORMATION ON ON-GOING NEGOTIATIONS BEFORE A FINAL
AGREEMENT;
VI. WHETHER THE STIPULATIONS IN THE AMENDED JOINT VENTURE
AGREEMENT FOR THE TRANSFER TO AMARI OF CERTAIN LANDS, RECLAIMED
AND STILL TO BE RECLAIMED, VIOLATE THE 1987 CONSTITUTION; AND
VII. WHETHER THE COURT IS THE PROPER FORUM FOR RAISING THE ISSUE OF
WHETHER THE AMENDED JOINT VENTURE AGREEMENT IS GROSSLY
DISADVANTAGEOUS TO THE GOVERNMENT.
The Court's Ruling
First issue: whether the principal reliefs prayed for in the petition are moot and academic
because of subsequent events.
The petition prays that PEA publicly disclose the "terms and conditions of the on-going
negotiations for a new agreement." The petition also prays that the Court enjoin PEA from
"privately entering into, perfecting and/or executing any new agreement with AMARI."
PEA and AMARI claim the petition is now moot and academic because AMARI furnished petitioner
on June 21, 1999 a copy of the signed Amended JVA containing the terms and conditions agreed
upon in the renegotiations. Thus, PEA has satisfied petitioner's prayer for a public disclosure of
the renegotiations. Likewise, petitioner's prayer to enjoin the signing of the Amended JVA is now
moot because PEA and AMARI have already signed the Amended JVA on March 30, 1999.
Moreover, the Office of the President has approved the Amended JVA on May 28, 1999.
Petitioner counters that PEA and AMARI cannot avoid the constitutional issue by simply fast-
tracking the signing and approval of the Amended JVA before the Court could act on the issue.
Presidential approval does not resolve the constitutional issue or remove it from the ambit of
judicial review.
We rule that the signing of the Amended JVA by PEA and AMARI and its approval by the
President cannot operate to moot the petition and divest the Court of its jurisdiction. PEA and
AMARI have still to implement the Amended JVA. The prayer to enjoin the signing of the
Amended JVA on constitutional grounds necessarily includes preventing its implementation if in
the meantime PEA and AMARI have signed one in violation of the Constitution. Petitioner's
principal basis in assailing the renegotiation of the JVA is its violation of Section 3, Article XII of
the Constitution, which prohibits the government from alienating lands of the public domain to
private corporations. If the Amended JVA indeed violates the Constitution, it is the duty of the
Court to enjoin its implementation, and if already implemented, to annul the effects of such
unconstitutional contract.
The Amended JVA is not an ordinary commercial contract but one which seeks to transfer title
and ownership to 367.5 hectares of reclaimed lands and submerged areas of Manila Bay to
a single private corporation. It now becomes more compelling for the Court to resolve the issue
to insure the government itself does not violate a provision of the Constitution intended to
safeguard the national patrimony. Supervening events, whether intended or accidental, cannot
prevent the Court from rendering a decision if there is a grave violation of the Constitution. In the
instant case, if the Amended JVA runs counter to the Constitution, the Court can still prevent the
transfer of title and ownership of alienable lands of the public domain in the name of AMARI. Even
in cases where supervening events had made the cases moot, the Court did not hesitate to
resolve the legal or constitutional issues raised to formulate controlling principles to guide the
bench, bar, and the public.17
Also, the instant petition is a case of first impression. All previous decisions of the Court involving
Section 3, Article XII of the 1987 Constitution, or its counterpart provision in the 1973
Constitution,18 covered agricultural landssold to private corporations which acquired the lands
from private parties. The transferors of the private corporations claimed or could claim the right
to judicial confirmation of their imperfect titles19 under Title II of Commonwealth Act. 141 ("CA
No. 141" for brevity). In the instant case, AMARI seeks to acquire from PEA, a public corporation,
reclaimed lands and submerged areas for non-agricultural purposes by purchase under PD No.
1084 (charter of PEA) and Title III of CA No. 141. Certain undertakings by AMARI under the
Amended JVA constitute the consideration for the purchase. Neither AMARI nor PEA can claim
judicial confirmation of their titles because the lands covered by the Amended JVA are newly
reclaimed or still to be reclaimed. Judicial confirmation of imperfect title requires open, continuous,
exclusive and notorious occupation of agricultural lands of the public domain for at least thirty
years since June 12, 1945 or earlier. Besides, the deadline for filing applications for judicial
confirmation of imperfect title expired on December 31, 1987.20
Lastly, there is a need to resolve immediately the constitutional issue raised in this petition
because of the possible transfer at any time by PEA to AMARI of title and ownership to portions of
the reclaimed lands. Under the Amended JVA, PEA is obligated to transfer to AMARI the latter's
seventy percent proportionate share in the reclaimed areas as the reclamation progresses. The
Amended JVA even allows AMARI to mortgage at any time the entire reclaimed area to raise
financing for the reclamation project.21
Second issue: whether the petition merits dismissal for failing to observe the principle
governing the hierarchy of courts.
PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the
Court. The principle of hierarchy of courts applies generally to cases involving factual questions.
As it is not a trier of facts, the Court cannot entertain cases involving factual issues. The instant
case, however, raises constitutional issues of transcendental importance to the public.22 The Court
can resolve this case without determining any factual issue related to the case. Also, the instant
case is a petition for mandamus which falls under the original jurisdiction of the Court under
Section 5, Article VIII of the Constitution. We resolve to exercise primary jurisdiction over the
instant case.
Third issue: whether the petition merits dismissal for non-exhaustion of administrative
remedies.
PEA faults petitioner for seeking judicial intervention in compelling PEA to disclose publicly certain
information without first asking PEA the needed information. PEA claims petitioner's direct resort
to the Court violates the principle of exhaustion of administrative remedies. It also violates the rule
that mandamus may issue only if there is no other plain, speedy and adequate remedy in the
ordinary course of law.
PEA distinguishes the instant case from Tañada v. Tuvera23 where the Court granted the petition
for mandamus even if the petitioners there did not initially demand from the Office of the President
the publication of the presidential decrees. PEA points out that in Tañada, the Executive
Department had an affirmative statutory duty under Article 2 of the Civil Code24 and Section 1 of
Commonwealth Act No. 63825 to publish the presidential decrees. There was, therefore, no need
for the petitioners in Tañada to make an initial demand from the Office of the President. In the
instant case, PEA claims it has no affirmative statutory duty to disclose publicly information about
its renegotiation of the JVA. Thus, PEA asserts that the Court must apply the principle of
exhaustion of administrative remedies to the instant case in view of the failure of petitioner here to
demand initially from PEA the needed information.
The original JVA sought to dispose to AMARI public lands held by PEA, a government
corporation. Under Section 79 of the Government Auditing Code,26 the disposition of government
lands to private parties requires public bidding. PEA was under a positive legal duty to disclose
to the public the terms and conditions for the sale of its lands. The law obligated PEA to
make this public disclosure even without demand from petitioner or from anyone. PEA failed to
make this public disclosure because the original JVA, like the Amended JVA, was the result of
a negotiated contract, not of a public bidding. Considering that PEA had an affirmative statutory
duty to make the public disclosure, and was even in breach of this legal duty, petitioner had the
right to seek direct judicial intervention.
Moreover, and this alone is determinative of this issue, the principle of exhaustion of administrative
remedies does not apply when the issue involved is a purely legal or constitutional question. 27 The
principal issue in the instant case is the capacity of AMARI to acquire lands held by PEA in view of
the constitutional ban prohibiting the alienation of lands of the public domain to private
corporations. We rule that the principle of exhaustion of administrative remedies does not apply in
the instant case.
Fourth issue: whether petitioner has locus standi to bring this suit
PEA argues that petitioner has no standing to institute mandamus proceedings to enforce his
constitutional right to information without a showing that PEA refused to perform an affirmative
duty imposed on PEA by the Constitution. PEA also claims that petitioner has not shown that he
will suffer any concrete injury because of the signing or implementation of the Amended JVA.
Thus, there is no actual controversy requiring the exercise of the power of judicial review.
The petitioner has standing to bring this taxpayer's suit because the petition seeks to compel PEA
to comply with its constitutional duties. There are two constitutional issues involved here. First is
the right of citizens to information on matters of public concern. Second is the application of a
constitutional provision intended to insure the equitable distribution of alienable lands of the public
domain among Filipino citizens. The thrust of the first issue is to compel PEA to disclose publicly
information on the sale of government lands worth billions of pesos, information which the
Constitution and statutory law mandate PEA to disclose. The thrust of the second issue is to
prevent PEA from alienating hundreds of hectares of alienable lands of the public domain in
violation of the Constitution, compelling PEA to comply with a constitutional duty to the nation.
Moreover, the petition raises matters of transcendental importance to the public. In Chavez v.
PCGG,28 the Court upheld the right of a citizen to bring a taxpayer's suit on matters of
transcendental importance to the public, thus -
"Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the
Marcoses is an issue of 'transcendental importance to 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 'immediately 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, such as in this case. He
invokes several decisions of this Court which have set aside the procedural matter
of locus standi, when the subject of the case involved public interest.
xxx
In Tañada v. Tuvera, the Court asserted that when the issue concerns a public 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. 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, 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, 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.'
Further, in Albano v. Reyes, we said that while expenditure of public funds may not have
been involved under the questioned contract for the development, management and
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."
We rule that since the instant petition, brought by a citizen, involves the enforcement of
constitutional rights - to information and to the equitable diffusion of natural resources - matters of
transcendental public importance, the petitioner has the requisite locus standi.
Fifth issue: whether the constitutional right to information includes official information on
on-going negotiations before a final agreement.
Section 7, Article III of the Constitution explains the people's right to information on matters of
public concern in this manner:
"Sec. 7. 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." (Emphasis supplied)
The State policy of full transparency in all transactions involving public interest reinforces the
people's right to information on matters of public concern. This State policy is expressed in Section
28, Article II of the Constitution, thus:
"Sec. 28. 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." (Emphasis supplied)
These twin provisions of the Constitution seek to promote transparency in policy-making and in the
operations of the government, as well as provide the people sufficient information to exercise
effectively other constitutional rights. These twin provisions are essential to the exercise of
freedom of expression. If the government does not disclose its official acts, transactions and
decisions to citizens, whatever citizens say, even if expressed without any restraint, will be
speculative and amount to nothing. These twin provisions are also essential to hold public officials
"at all times x x x accountable to the people,"29 for unless citizens have the proper information,
they cannot hold public officials accountable for anything. Armed with the right information,
citizens can participate in public discussions leading to the formulation of government policies and
their effective implementation. An informed citizenry is essential to the existence and proper
functioning of any democracy. As explained by the Court in Valmonte v. Belmonte, Jr.30 –
"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."
PEA asserts, citing Chavez v. PCGG,31 that in cases of on-going negotiations the right to
information is limited to "definite propositions of the government." PEA maintains the right does not
include access to "intra-agency or inter-agency recommendations or communications during the
stage when common assertions are still in the process of being formulated or are in the
'exploratory stage'."
Also, AMARI contends that petitioner cannot invoke the right at the pre-decisional stage or before
the closing of the transaction. To support its contention, AMARI cites the following discussion in
the 1986 Constitutional Commission:
"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."32 (Emphasis supplied)
AMARI argues there must first be a consummated contract before petitioner can invoke the right.
Requiring government officials to reveal their deliberations at the pre-decisional stage will degrade
the quality of decision-making in government agencies. Government officials will hesitate to
express their real sentiments during deliberations if there is immediate public dissemination of
their discussions, putting them under all kinds of pressure before they decide.
We must first distinguish between information the law on public bidding requires PEA to disclose
publicly, and information the constitutional right to information requires PEA to release to the
public. Before the consummation of the contract, PEA must, on its own and without demand from
anyone, disclose to the public matters relating to the disposition of its property. These include the
size, location, technical description and nature of the property being disposed of, the terms and
conditions of the disposition, the parties qualified to bid, the minimum price and similar information.
PEA must prepare all these data and disclose them to the public at the start of the disposition
process, long before the consummation of the contract, because the Government Auditing Code
requires public bidding. If PEA fails to make this disclosure, any citizen can demand from PEA
this information at any time during the bidding process.
Information, however, on on-going evaluation or review of bids or proposals being undertaken
by the bidding or review committee is not immediately accessible under the right to information.
While the evaluation or review is still on-going, there are no "official acts, transactions, or
decisions" on the bids or proposals. However, once the committee makes its official
recommendation, there arises a "definite proposition" on the part of the government. From this
moment, the public's right to information attaches, and any citizen can access all the non-
proprietary information leading to such definite proposition. In Chavez v. PCGG,33 the Court ruled
as follows:
"Considering the intent of the framers 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 during the stage when
common assertions are still in the process of being formulated or are in the "exploratory"
stage. There is 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."
(Emphasis supplied)
Contrary to AMARI's contention, the commissioners of the 1986 Constitutional Commission
understood that the right to information "contemplates inclusion of negotiations leading to the
consummation of the transaction." Certainly, a consummated contract is not a requirement for
the exercise of the right to information. Otherwise, the people can never exercise the right if no
contract is consummated, and if one is consummated, it may be too late for the public to expose
its defects.1âwphi1.nêt
Requiring a consummated contract will keep the public in the dark until the contract, which may be
grossly disadvantageous to the government or even illegal, becomes a fait accompli. This negates
the State policy of full transparency on matters of public concern, a situation which the framers of
the Constitution could not have intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposedcontract, effectively truncating a basic right
enshrined in the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a
retreat by the State of its avowed "policy of full disclosure of all its transactions involving public
interest."
The right covers three categories of information which are "matters of public concern," namely: (1)
official records; (2) documents and papers pertaining to official acts, transactions and decisions;
and (3) government research data used in formulating policies. The first category refers to any
document that is part of the public records in the custody of government agencies or officials. The
second category refers to documents and papers recording, evidencing, establishing, confirming,
supporting, justifying or explaining official acts, transactions or decisions of government agencies
or officials. The third category refers to research data, whether raw, collated or processed, owned
by the government and used in formulating government policies.
The information that petitioner may access on the renegotiation of the JVA includes evaluation
reports, recommendations, legal and expert opinions, minutes of meetings, terms of reference and
other documents attached to such reports or minutes, all relating to the JVA. However, the right to
information does not compel PEA to prepare lists, abstracts, summaries and the like relating to the
renegotiation of the JVA.34 The right only affords access to records, documents and papers, which
means the opportunity to inspect and copy them. One who exercises the right must copy the
records, documents and papers at his expense. The exercise of the right is also subject to
reasonable regulations to protect the integrity of the public records and to minimize disruption to
government operations, like rules specifying when and how to conduct the inspection and
copying.35
The right to information, however, does not extend to matters recognized as privileged information
under the separation of powers.36 The right does not also apply to information on military and
diplomatic secrets, information affecting national security, and information on investigations of
crimes by law enforcement agencies before the prosecution of the accused, which courts have
long recognized as confidential.37 The right may also be subject to other limitations that Congress
may impose by law.
There is no claim by PEA that the information demanded by petitioner is privileged information
rooted in the separation of powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like internal
deliberations of the Supreme Court and other collegiate courts, or executive sessions of either
house of Congress,38 are recognized as confidential. This kind of information cannot be pried open
by a co-equal branch of government. 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.39This is not the situation in the instant case.
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.40 Congress has also prescribed other limitations on the right to information in several
legislations.41
Sixth issue: whether stipulations in the Amended JVA for the transfer to AMARI of lands,
reclaimed or to be reclaimed, violate the Constitution.
The Regalian Doctrine
The ownership of lands reclaimed from foreshore and submerged areas is rooted in the Regalian
doctrine which holds that the State owns all lands and waters of the public domain. Upon the
Spanish conquest of the Philippines, ownership of all "lands, territories and possessions" in the
Philippines passed to the Spanish Crown.42The King, as the sovereign ruler and representative of
the people, acquired and owned all lands and territories in the Philippines except those he
disposed of by grant or sale to private individuals.
The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine substituting, however, the
State, in lieu of the King, as the owner of all lands and waters of the public domain. The Regalian
doctrine is the foundation of the time-honored principle of land ownership that "all lands that were
not acquired from the Government, either by purchase or by grant, belong to the public
domain."43 Article 339 of the Civil Code of 1889, which is now Article 420 of the Civil Code of
1950, incorporated the Regalian doctrine.
Ownership and Disposition of Reclaimed Lands
The Spanish Law of Waters of 1866 was the first statutory law governing the ownership and
disposition of reclaimed lands in the Philippines. On May 18, 1907, the Philippine Commission
enacted Act No. 1654 which provided for the lease, but not the sale, of reclaimed lands of the
government to corporations and individuals. Later, on November 29, 1919, the Philippine
Legislature approved Act No. 2874, the Public Land Act, which authorized the lease, but not the
sale, of reclaimed lands of the government to corporations and individuals. On November 7,
1936, the National Assembly passed Commonwealth Act No. 141, also known as the Public Land
Act, which authorized the lease, but not the sale, of reclaimed lands of the government to
corporations and individuals. CA No. 141 continues to this day as the general law governing the
classification and disposition of lands of the public domain.
The Spanish Law of Waters of 1866 and the Civil Code of 1889
Under the Spanish Law of Waters of 1866, the shores, bays, coves, inlets and all waters within the
maritime zone of the Spanish territory belonged to the public domain for public use.44 The Spanish
Law of Waters of 1866 allowed the reclamation of the sea under Article 5, which provided as
follows:
"Article 5. Lands reclaimed from the sea in consequence of works constructed by the
State, or by the provinces, pueblos or private persons, with proper permission, shall
become the property of the party constructing such works, unless otherwise provided by
the terms of the grant of authority."
Under the Spanish Law of Waters, land reclaimed from the sea belonged to the party undertaking
the reclamation, provided the government issued the necessary permit and did not reserve
ownership of the reclaimed land to the State.
Article 339 of the Civil Code of 1889 defined property of public dominion as follows:
"Art. 339. Property of public dominion is –
1. That devoted to public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, riverbanks, shores, roadsteads, and that of a similar character;
2. That belonging exclusively to the State which, without being of general public use, is
employed in some public service, or in the development of the national wealth, such as
walls, fortresses, and other works for the defense of the territory, and mines, until granted
to private individuals."
Property devoted to public use referred to property open for use by the public. In contrast, property
devoted to public service referred to property used for some specific public service and open only
to those authorized to use the property.
Property of public dominion referred not only to property devoted to public use, but also to
property not so used but employed to develop the national wealth. This class of property
constituted property of public dominion although employed for some economic or commercial
activity to increase the national wealth.
Article 341 of the Civil Code of 1889 governed the re-classification of property of public dominion
into private property, to wit:
"Art. 341. Property of public dominion, when no longer devoted to public use or to the
defense of the territory, shall become a part of the private property of the State."
This provision, however, was not self-executing. The legislature, or the executive department
pursuant to law, must declare the property no longer needed for public use or territorial defense
before the government could lease or alienate the property to private parties.45
Act No. 1654 of the Philippine Commission
On May 8, 1907, the Philippine Commission enacted Act No. 1654 which regulated the lease of
reclaimed and foreshore lands. The salient provisions of this law were as follows:
"Section 1. The control and disposition of the foreshore as defined in existing law, and
the title to all Government or public lands made or reclaimed by the Government by
dredging or filling or otherwise throughout the Philippine Islands, shall be retained by
the Government without prejudice to vested rights and without prejudice to rights
conceded to the City of Manila in the Luneta Extension.
Section 2. (a) The Secretary of the Interior shall cause all Government or public lands
made or reclaimed by the Government by dredging or filling or otherwise to be divided
into lots or blocks, with the necessary streets and alleyways located thereon, and shall
cause plats and plans of such surveys to be prepared and filed with the Bureau of Lands.
(b) Upon completion of such plats and plans the Governor-General shall give notice to
the public that such parts of the lands so made or reclaimed as are not needed for
public purposes will be leased for commercial and business purposes, x x x.
xxx
(e) The leases above provided for shall be disposed of to the highest and best
bidder therefore, subject to such regulations and safeguards as the Governor-General
may by executive order prescribe." (Emphasis supplied)
Act No. 1654 mandated that the government should retain title to all lands reclaimed by the
government. The Act also vested in the government control and disposition of foreshore lands.
Private parties could lease lands reclaimed by the government only if these lands were no longer
needed for public purpose. Act No. 1654 mandated public bidding in the lease of government
reclaimed lands. Act No. 1654 made government reclaimed lands sui generis in that unlike other
public lands which the government could sell to private parties, these reclaimed lands were
available only for lease to private parties.
Act No. 1654, however, did not repeal Section 5 of the Spanish Law of Waters of 1866. Act No.
1654 did not prohibit private parties from reclaiming parts of the sea under Section 5 of the
Spanish Law of Waters. Lands reclaimed from the sea by private parties with government
permission remained private lands.
Act No. 2874 of the Philippine Legislature
On November 29, 1919, the Philippine Legislature enacted Act No. 2874, the Public Land
Act.46 The salient provisions of Act No. 2874, on reclaimed lands, were as follows:
"Sec. 6. The Governor-General, upon the recommendation of the Secretary of
Agriculture and Natural Resources, shall from time to time classify the lands of the
public domain into –
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands, x x x.
Sec. 7. For the purposes of the government and disposition of alienable or disposable
public lands, the Governor-General, upon recommendation by the Secretary of
 Agriculture and Natural Resources, shall from time to time declare what lands are
open to disposition or concession under this Act."
Sec. 8. Only those lands shall be declared open to disposition or concession which
have been officially delimited or classified x x x.
xxx
Sec. 55. Any tract of land of the public domain which, being neither timber nor mineral
land, shall be classified as suitable for residential purposes or for commercial,
industrial, or other productive purposes other than agricultural purposes, and shall
be open to disposition or concession, shall be disposed of under the provisions of this
chapter, and not otherwise.
Sec. 56. The lands disposable under this title shall be classified as follows:
(a) Lands reclaimed by the Government by dredging, filling, or other
means;
(b) Foreshore;
(c) Marshy lands or lands covered with water bordering upon the shores or
banks of navigable lakes or rivers;
(d) Lands not included in any of the foregoing classes.
x x x.
Sec. 58. The lands comprised in classes (a), (b), and (c) of section fifty-six shall be
disposed of to private parties by lease only and not otherwise, as soon as the
Governor-General, upon recommendation by the Secretary of Agriculture and
Natural Resources, shall declare that the same are not necessary for the public
service and are open to disposition under this chapter. The lands included in class
(d) may be disposed of by sale or lease under the provisions of this Act." (Emphasis
supplied)
Section 6 of Act No. 2874 authorized the Governor-General to "classify lands of the public domain
into x x x alienable or disposable"47 lands. Section 7 of the Act empowered the Governor-General
to "declare what lands are open to disposition or concession." Section 8 of the Act limited
alienable or disposable lands only to those lands which have been "officially delimited and
classified."
Section 56 of Act No. 2874 stated that lands "disposable under this title 48 shall be classified" as
government reclaimed, foreshore and marshy lands, as well as other lands. All these lands,
however, must be suitable for residential, commercial, industrial or other productive non-
agricultural purposes. These provisions vested upon the Governor-General the power to classify
inalienable lands of the public domain into disposable lands of the public domain. These
provisions also empowered the Governor-General to classify further such disposable lands of the
public domain into government reclaimed, foreshore or marshy lands of the public domain, as well
as other non-agricultural lands.
Section 58 of Act No. 2874 categorically mandated that disposable lands of the public domain
classified as government reclaimed, foreshore and marshy lands "shall be disposed of to
private parties by lease only and not otherwise." The Governor-General, before allowing the
lease of these lands to private parties, must formally declare that the lands were "not necessary
for the public service." Act No. 2874 reiterated the State policy to lease and not to sell government
reclaimed, foreshore and marshy lands of the public domain, a policy first enunciated in 1907 in
Act No. 1654. Government reclaimed, foreshore and marshy lands remained sui generis, as the
only alienable or disposable lands of the public domain that the government could not sell to
private parties.
The rationale behind this State policy is obvious. Government reclaimed, foreshore and marshy
public lands for non-agricultural purposes retain their inherent potential as areas for public service.
This is the reason the government prohibited the sale, and only allowed the lease, of these lands
to private parties. The State always reserved these lands for some future public service.
Act No. 2874 did not authorize the reclassification of government reclaimed, foreshore and marshy
lands into other non-agricultural lands under Section 56 (d). Lands falling under Section 56 (d)
were the only lands for non-agricultural purposes the government could sell to private parties.
Thus, under Act No. 2874, the government could not sell government reclaimed, foreshore and
marshy lands to private parties, unless the legislature passed a law allowing their sale.49
Act No. 2874 did not prohibit private parties from reclaiming parts of the sea pursuant to Section 5
of the Spanish Law of Waters of 1866. Lands reclaimed from the sea by private parties with
government permission remained private lands.
Dispositions under the 1935 Constitution
On May 14, 1935, the 1935 Constitution took effect upon its ratification by the Filipino people. The
1935 Constitution, in adopting the Regalian doctrine, declared in Section 1, Article XIII, that –
"Section 1. All agricultural, timber, and mineral lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential energy and other
natural resources of the Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the Philippines or to corporations
or associations at least sixty per centum of the capital of which is owned by such citizens,
subject to any existing right, grant, lease, or concession at the time of the inauguration of
the Government established under this Constitution. Natural resources, with the
exception of public agricultural land, shall not be alienated, and no license,
concession, or lease for the exploitation, development, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-five years, renewable for
another twenty-five years, except as to water rights for irrigation, water supply, fisheries,
 or industrial uses other than the development of water power, in which cases beneficial
use may be the measure and limit of the grant." (Emphasis supplied)
The 1935 Constitution barred the alienation of all natural resources except public agricultural
lands, which were the only natural resources the State could alienate. Thus, foreshore lands,
considered part of the State's natural resources, became inalienable by constitutional fiat,
available only for lease for 25 years, renewable for another 25 years. The government could
alienate foreshore lands only after these lands were reclaimed and classified as alienable
agricultural lands of the public domain. Government reclaimed and marshy lands of the public
domain, being neither timber nor mineral lands, fell under the classification of public agricultural
lands.50 However, government reclaimed and marshy lands, although subject to classification as
disposable public agricultural lands, could only be leased and not sold to private parties because
of Act No. 2874.
The prohibition on private parties from acquiring ownership of government reclaimed and marshy
lands of the public domain was only a statutory prohibition and the legislature could therefore
remove such prohibition. The 1935 Constitution did not prohibit individuals and corporations from
acquiring government reclaimed and marshy lands of the public domain that were classified as
agricultural lands under existing public land laws. Section 2, Article XIII of the 1935 Constitution
provided as follows:
"Section 2. No private corporation or association may acquire, lease, or hold public
agricultural lands in excess of one thousand and twenty four hectares, nor may any
individual acquire such lands by purchase in excess of one hundred and forty
hectares, or by lease in excess of one thousand and twenty-four hectares, or by
homestead in excess of twenty-four hectares. Lands adapted to grazing, not exceeding
two thousand hectares, may be leased to an individual, private corporation, or
association." (Emphasis supplied)
Still, after the effectivity of the 1935 Constitution, the legislature did not repeal Section 58 of Act
No. 2874 to open for sale to private parties government reclaimed and marshy lands of the public
domain. On the contrary, the legislature continued the long established State policy of retaining for
the government title and ownership of government reclaimed and marshy lands of the public
domain.
Commonwealth Act No. 141 of the Philippine National Assembly
On November 7, 1936, the National Assembly approved Commonwealth Act No. 141, also known
as the Public Land Act, which compiled the then existing laws on lands of the public domain. CA
No. 141, as amended, remains to this day the existing general law governing the classification
and disposition of lands of the public domain other than timber and mineral lands.51
Section 6 of CA No. 141 empowers the President to classify lands of the public domain into
"alienable or disposable"52 lands of the public domain, which prior to such classification are
inalienable and outside the commerce of man. Section 7 of CA No. 141 authorizes the President
to "declare what lands are open to disposition or concession." Section 8 of CA No. 141 states that
the government can declare open for disposition or concession only lands that are "officially
delimited and classified." Sections 6, 7 and 8 of CA No. 141 read as follows:
"Sec. 6. The President, upon the recommendation of the Secretary of Agriculture
and Commerce, shall from time to time classify the lands of the public domain
into –
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands,
and may at any time and in like manner transfer such lands from one class to
another,53 for the purpose of their administration and disposition.
Sec. 7. For the purposes of the administration and disposition of alienable or disposable
public lands, the President, upon recommendation by the Secretary of Agriculture
and Commerce, shall from time to time declare what lands are open to disposition
or concession under this Act.
Sec. 8. Only those lands shall be declared open to disposition or concession which
have been officially delimited and classified and, when practicable, surveyed, and
which have not been reserved for public or quasi-public uses, nor appropriated by
the Government, nor in any manner become private property, nor those on which a
private right authorized and recognized by this Act or any other valid law may be claimed,
or which, having been reserved or appropriated, have ceased to be so. x x x."
Thus, before the government could alienate or dispose of lands of the public domain, the
President must first officially classify these lands as alienable or disposable, and then declare
them open to disposition or concession. There must be no law reserving these lands for public or
quasi-public uses.
The salient provisions of CA No. 141, on government reclaimed, foreshore and marshy lands of
the public domain, are as follows:
"Sec. 58. Any tract of land of the public domain which, being neither timber nor
mineral land, is intended to be used for residential purposes or for commercial,
industrial, or other productive purposes other than agricultural, and is open to
disposition or concession, shall be disposed of under the provisions of this
chapter and not otherwise.
Sec. 59. The lands disposable under this title shall be classified as follows:
(a) Lands reclaimed by the Government by dredging, filling, or other
means;
 (b) Foreshore;
(c) Marshy lands or lands covered with water bordering upon the shores or
banks of navigable lakes or rivers;
(d) Lands not included in any of the foregoing classes.
Sec. 60. Any tract of land comprised under this title may be leased or sold, as the case
may be, to any person, corporation, or association authorized to purchase or lease public
lands for agricultural purposes. x x x.
Sec. 61. The lands comprised in classes (a), (b), and (c) of section fifty-nine shall be
disposed of to private parties by lease only and not otherwise, as soon as the
President, upon recommendation by the Secretary of Agriculture, shall declare that the
same are not necessary for the public service and are open to disposition under this
chapter. The lands included in class (d) may be disposed of by sale or lease under
the provisions of this Act." (Emphasis supplied)
Section 61 of CA No. 141 readopted, after the effectivity of the 1935 Constitution, Section 58 of
Act No. 2874 prohibiting the sale of government reclaimed, foreshore and marshy disposable
lands of the public domain. All these lands are intended for residential, commercial, industrial or
other non-agricultural purposes. As before, Section 61 allowed only the lease of such lands to
private parties. The government could sell to private parties only lands falling under Section 59 (d)
of CA No. 141, or those lands for non-agricultural purposes not classified as government
reclaimed, foreshore and marshy disposable lands of the public domain. Foreshore lands,
however, became inalienable under the 1935 Constitution which only allowed the lease of these
lands to qualified private parties.
Section 58 of CA No. 141 expressly states that disposable lands of the public domain intended for
residential, commercial, industrial or other productive purposes other than agricultural "shall be
disposed of under the provisions of this chapter and not otherwise." Under Section 10 of CA
No. 141, the term "disposition" includes lease of the land. Any disposition of government
reclaimed, foreshore and marshy disposable lands for non-agricultural purposes must comply with
Chapter IX, Title III of CA No. 141,54 unless a subsequent law amended or repealed these
provisions.
In his concurring opinion in the landmark case of Republic Real Estate Corporation v. Court of
Appeals,55Justice Reynato S. Puno summarized succinctly the law on this matter, as follows:
"Foreshore lands are lands of public dominion intended for public use. So too are lands
reclaimed by the government by dredging, filling, or other means. Act 1654 mandated that
the control and disposition of the foreshore and lands under water remained in the
national government. Said law allowed only the 'leasing' of reclaimed land. The Public
Land Acts of 1919 and 1936 also declared that the foreshore and lands reclaimed by the
government were to be "disposed of to private parties by lease only and not otherwise."
Before leasing, however, the Governor-General, upon recommendation of the Secretary
of Agriculture and Natural Resources, had first to determine that the land reclaimed was
not necessary for the public service. This requisite must have been met before the land
could be disposed of. But even then, the foreshore and lands under water were not to
be alienated and sold to private parties. The disposition of the reclaimed land was
only by lease. The land remained property of the State." (Emphasis supplied)
As observed by Justice Puno in his concurring opinion, "Commonwealth Act No. 141 has
remained in effect at present."
The State policy prohibiting the sale to private parties of government reclaimed, foreshore and
marshy alienable lands of the public domain, first implemented in 1907 was thus reaffirmed in CA
No. 141 after the 1935 Constitution took effect. The prohibition on the sale of foreshore lands,
however, became a constitutional edict under the 1935 Constitution. Foreshore lands became
inalienable as natural resources of the State, unless reclaimed by the government and classified
as agricultural lands of the public domain, in which case they would fall under the classification of
government reclaimed lands.
After the effectivity of the 1935 Constitution, government reclaimed and marshy disposable lands
of the public domain continued to be only leased and not sold to private parties.56 These lands
remained sui generis, as the only alienable or disposable lands of the public domain the
government could not sell to private parties.
Since then and until now, the only way the government can sell to private parties government
reclaimed and marshy disposable lands of the public domain is for the legislature to pass a law
authorizing such sale. CA No. 141 does not authorize the President to reclassify government
reclaimed and marshy lands into other non-agricultural lands under Section 59 (d). Lands
classified under Section 59 (d) are the only alienable or disposable lands for non-agricultural
purposes that the government could sell to private parties.
Moreover, Section 60 of CA No. 141 expressly requires congressional authority before lands
under Section 59 that the government previously transferred to government units or entities could
be sold to private parties. Section 60 of CA No. 141 declares that –
"Sec. 60. x x x The area so leased or sold shall be such as shall, in the judgment of the
Secretary of Agriculture and Natural Resources, be reasonably necessary for the
purposes for which such sale or lease is requested, and shall not exceed one hundred
and forty-four hectares: Provided, however, That this limitation shall not apply to grants,
donations, or transfers made to a province, municipality or branch or subdivision of the
Government for the purposes deemed by said entities conducive to the public interest;but
the land so granted, donated, or transferred to a province, municipality or branch
or subdivision of the Government shall not be alienated, encumbered, or otherwise
disposed of in a manner affecting its title, except when authorized by Congress: x x
x." (Emphasis supplied)
The congressional authority required in Section 60 of CA No. 141 mirrors the legislative authority
required in Section 56 of Act No. 2874.
One reason for the congressional authority is that Section 60 of CA No. 141 exempted
government units and entities from the maximum area of public lands that could be acquired from
the State. These government units and entities should not just turn around and sell these lands to
private parties in violation of constitutional or statutory limitations. Otherwise, the transfer of lands
for non-agricultural purposes to government units and entities could be used to circumvent
constitutional limitations on ownership of alienable or disposable lands of the public domain. In the
same manner, such transfers could also be used to evade the statutory prohibition in CA No. 141
on the sale of government reclaimed and marshy lands of the public domain to private parties.
Section 60 of CA No. 141 constitutes by operation of law a lien on these lands. 57
In case of sale or lease of disposable lands of the public domain falling under Section 59 of CA
No. 141, Sections 63 and 67 require a public bidding. Sections 63 and 67 of CA No. 141 provide
as follows:
"Sec. 63. Whenever it is decided that lands covered by this chapter are not needed for
public purposes, the Director of Lands shall ask the Secretary of Agriculture and
Commerce (now the Secretary of Natural Resources) for authority to dispose of the same.
Upon receipt of such authority, the Director of Lands shall give notice by public
advertisement in the same manner as in the case of leases or sales of agricultural public
land, x x x.
Sec. 67. The lease or sale shall be made by oral bidding; and adjudication shall be
made to the highest bidder. x x x." (Emphasis supplied)
Thus, CA No. 141 mandates the Government to put to public auction all leases or sales of
alienable or disposable lands of the public domain.58
Like Act No. 1654 and Act No. 2874 before it, CA No. 141 did not repeal Section 5 of the Spanish
Law of Waters of 1866. Private parties could still reclaim portions of the sea with government
permission. However, thereclaimed land could become private land only if classified as
alienable agricultural land of the public domain open to disposition under CA No. 141. The
1935 Constitution prohibited the alienation of all natural resources except public agricultural lands.
The Civil Code of 1950
The Civil Code of 1950 readopted substantially the definition of property of public dominion found
in the Civil Code of 1889. Articles 420 and 422 of the Civil Code of 1950 state that –
"Art. 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks, shores, roadsteads, and others of similar
character;
(2) Those which belong to the State, without being for public use, and are intended for
some public service or for the development of the national wealth.
x x x.
Art. 422. Property of public dominion, when no longer intended for public use or for public
service, shall form part of the patrimonial property of the State."
Again, the government must formally declare that the property of public dominion is no longer
needed for public use or public service, before the same could be classified as patrimonial
property of the State.59 In the case of government reclaimed and marshy lands of the public
domain, the declaration of their being disposable, as well as the manner of their disposition, is
governed by the applicable provisions of CA No. 141.
Like the Civil Code of 1889, the Civil Code of 1950 included as property of public dominion those
properties of the State which, without being for public use, are intended for public service or the
"development of the national wealth." Thus, government reclaimed and marshy lands of the
State, even if not employed for public use or public service, if developed to enhance the national
wealth, are classified as property of public dominion.
Dispositions under the 1973 Constitution
The 1973 Constitution, which took effect on January 17, 1973, likewise adopted the Regalian
doctrine. Section 8, Article XIV of the 1973 Constitution stated that –
"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other
mineral oils, all forces of potential energy, fisheries, wildlife, and other natural resources
of the Philippines belong to the State. With the exception of agricultural, industrial or
commercial, residential, and resettlement lands of the public domain, natural
resources shall not be alienated, and no license, concession, or lease for the
exploration, development, exploitation, or utilization of any of the natural resources shall
be granted for a period exceeding twenty-five years, renewable for not more than twenty-
five years, except as to water rights for irrigation, water supply, fisheries, or industrial
uses other than the development of water power, in which cases, beneficial use may be
the measure and the limit of the grant." (Emphasis supplied)
The 1973 Constitution prohibited the alienation of all natural resources with the exception of
"agricultural, industrial or commercial, residential, and resettlement lands of the public domain." In
contrast, the 1935 Constitution barred the alienation of all natural resources except "public
agricultural lands." However, the term "public agricultural lands" in the 1935 Constitution
encompassed industrial, commercial, residential and resettlement lands of the public domain. 60 If
the land of public domain were neither timber nor mineral land, it would fall under the classification
of agricultural land of the public domain. Both the 1935 and 1973 Constitutions, therefore,
prohibited the alienation of all natural resources except agricultural lands of the public
domain.
The 1973 Constitution, however, limited the alienation of lands of the public domain to individuals
who were citizens of the Philippines. Private corporations, even if wholly owned by Philippine
citizens, were no longer allowed to acquire alienable lands of the public domain unlike in the 1935
Constitution. Section 11, Article XIV of the 1973 Constitution declared that –
 "Sec. 11. The Batasang Pambansa, taking into account conservation, ecological, and
development requirements of the natural resources, shall determine by law the size of
land of the public domain which may be developed, held or acquired by, or leased to, any
qualified individual, corporation, or association, and the conditions therefor. No private
corporation or association may hold alienable lands of the public domain except by
lease not to exceed one thousand hectares in area nor may any citizen hold such lands
by lease in excess of five hundred hectares or acquire by purchase, homestead or grant,
in excess of twenty-four hectares. No private corporation or association may hold by
lease, concession, license or permit, timber or forest lands and other timber or forest
resources in excess of one hundred thousand hectares. However, such area may be
increased by the Batasang Pambansa upon recommendation of the National Economic
and Development Authority." (Emphasis supplied)
Thus, under the 1973 Constitution, private corporations could hold alienable lands of the public
domain only through lease. Only individuals could now acquire alienable lands of the public
domain, and private corporations became absolutely barred from acquiring any kind of
alienable land of the public domain. The constitutional ban extended to all kinds of alienable
lands of the public domain, while the statutory ban under CA No. 141 applied only to government
reclaimed, foreshore and marshy alienable lands of the public domain.
PD No. 1084 Creating the Public Estates Authority
On February 4, 1977, then President Ferdinand Marcos issued Presidential Decree No. 1084
creating PEA, a wholly government owned and controlled corporation with a special charter.
Sections 4 and 8 of PD No. 1084, vests PEA with the following purposes and powers:
"Sec. 4. Purpose. The Authority is hereby created for the following purposes:
(a) To reclaim land, including foreshore and submerged areas, by dredging, filling
or other means, or to acquire reclaimed land;
(b) To develop, improve, acquire, administer, deal in, subdivide, dispose, lease and sell
any and all kinds of lands, buildings, estates and other forms of real property, owned,
managed, controlled and/or operated by the government;
(c) To provide for, operate or administer such service as may be necessary for the
efficient, economical and beneficial utilization of the above properties.
Sec. 5. Powers and functions of the Authority. The Authority shall, in carrying out the
purposes for which it is created, have the following powers and functions:
(a)To prescribe its by-laws.
xxx
(i) To hold lands of the public domain in excess of the area permitted to private
corporations by statute.
(j) To reclaim lands and to construct work across, or otherwise, any stream,
watercourse, canal, ditch, flume x x x.
xxx
(o) To perform such acts and exercise such functions as may be necessary for the
attainment of the purposes and objectives herein specified." (Emphasis supplied)
PD No. 1084 authorizes PEA to reclaim both foreshore and submerged areas of the public
domain. Foreshore areas are those covered and uncovered by the ebb and flow of the
tide.61 Submerged areas are those permanently under water regardless of the ebb and flow of the
tide.62 Foreshore and submerged areas indisputably belong to the public domain63 and are
inalienable unless reclaimed, classified as alienable lands open to disposition, and further
declared no longer needed for public service.
The ban in the 1973 Constitution on private corporations from acquiring alienable lands of the
public domain did not apply to PEA since it was then, and until today, a fully owned government
corporation. The constitutional ban applied then, as it still applies now, only to "private
corporations and associations." PD No. 1084 expressly empowers PEA "to hold lands of the
public domain" even "in excess of the area permitted to private corporations by statute." Thus,
PEA can hold title to private lands, as well as title to lands of the public domain.
In order for PEA to sell its reclaimed foreshore and submerged alienable lands of the public
domain, there must be legislative authority empowering PEA to sell these lands. This legislative
authority is necessary in view of Section 60 of CA No.141, which states –
"Sec. 60. x x x; but the land so granted, donated or transferred to a province, municipality,
or branch or subdivision of the Government shall not be alienated, encumbered or
otherwise disposed of in a manner affecting its title, except when authorized by
Congress; x x x." (Emphasis supplied)
Without such legislative authority, PEA could not sell but only lease its reclaimed foreshore and
submerged alienable lands of the public domain. Nevertheless, any legislative authority granted to
PEA to sell its reclaimed alienable lands of the public domain would be subject to the
constitutional ban on private corporations from acquiring alienable lands of the public domain.
Hence, such legislative authority could only benefit private individuals.
Dispositions under the 1987 Constitution
The 1987 Constitution, like the 1935 and 1973 Constitutions before it, has adopted the Regalian
doctrine. The 1987 Constitution declares that all natural resources are "owned by the State," and
except for alienable agricultural lands of the public domain, natural resources cannot be alienated.
Sections 2 and 3, Article XII of the 1987 Constitution state that –
 "Section 2. All lands of the public domain, waters, minerals, coal, petroleum and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full control and
supervision of the State. x x x.
Section 3. Lands of the public domain are classified into agricultural, forest or timber,
mineral lands, and national parks. Agricultural lands of the public domain may be further
classified by law according to the uses which they may be devoted. Alienable lands of
the public domain shall be limited to agricultural lands. Private corporations or
associations may not hold such alienable lands of the public domain except by
lease, for a period not exceeding twenty-five years, renewable for not more than
twenty-five years, and not to exceed one thousand hectares in area. Citizens of the
Philippines may lease not more than five hundred hectares, or acquire not more than
twelve hectares thereof by purchase, homestead, or grant.
Taking into account the requirements of conservation, ecology, and development, and
subject to the requirements of agrarian reform, the Congress shall determine, by law, the
size of lands of the public domain which may be acquired, developed, held, or leased and
the conditions therefor." (Emphasis supplied)
The 1987 Constitution continues the State policy in the 1973 Constitution banning private
corporations fromacquiring any kind of alienable land of the public domain. Like the 1973
Constitution, the 1987 Constitution allows private corporations to hold alienable lands of the public
domain only through lease. As in the 1935 and 1973 Constitutions, the general law governing
the lease to private corporations of reclaimed, foreshore and marshy alienable lands of the public
domain is still CA No. 141.
The Rationale behind the Constitutional Ban
The rationale behind the constitutional ban on corporations from acquiring, except through lease,
alienable lands of the public domain is not well understood. During the deliberations of the 1986
Constitutional Commission, the commissioners probed the rationale behind this ban, thus:
"FR. BERNAS: Mr. Vice-President, my questions have reference to page 3, line 5 which
says:
`No private corporation or association may hold alienable lands of the public domain
except by lease, not to exceed one thousand hectares in area.'
If we recall, this provision did not exist under the 1935 Constitution, but this was
introduced in the 1973 Constitution. In effect, it prohibits private corporations from
acquiring alienable public lands. But it has not been very clear in jurisprudence what
the reason for this is. In some of the cases decided in 1982 and 1983, it was indicated
that the purpose of this is to prevent large landholdings. Is that the intent of this
provision?
MR. VILLEGAS: I think that is the spirit of the provision.
FR. BERNAS: In existing decisions involving the Iglesia ni Cristo, there were instances
where the Iglesia ni Cristo was not allowed to acquire a mere 313-square meter land
where a chapel stood because the Supreme Court said it would be in violation of this."
(Emphasis supplied)
In Ayog v. Cusi,64 the Court explained the rationale behind this constitutional ban in this way:
"Indeed, one purpose of the constitutional prohibition against purchases of public
agricultural lands by private corporations is to equitably diffuse land ownership or to
encourage 'owner-cultivatorship and the economic family-size farm' and to prevent a
recurrence of cases like the instant case. Huge landholdings by corporations or private
persons had spawned social unrest."
However, if the constitutional intent is to prevent huge landholdings, the Constitution could have
simply limited the size of alienable lands of the public domain that corporations could acquire. The
Constitution could have followed the limitations on individuals, who could acquire not more than 24
hectares of alienable lands of the public domain under the 1973 Constitution, and not more than
12 hectares under the 1987 Constitution.
If the constitutional intent is to encourage economic family-size farms, placing the land in the name
of a corporation would be more effective in preventing the break-up of farmlands. If the farmland is
registered in the name of a corporation, upon the death of the owner, his heirs would inherit
shares in the corporation instead of subdivided parcels of the farmland. This would prevent the
continuing break-up of farmlands into smaller and smaller plots from one generation to the next.
In actual practice, the constitutional ban strengthens the constitutional limitation on individuals
from acquiring more than the allowed area of alienable lands of the public domain. Without the
constitutional ban, individuals who already acquired the maximum area of alienable lands of the
public domain could easily set up corporations to acquire more alienable public lands. An
individual could own as many corporations as his means would allow him. An individual could
even hide his ownership of a corporation by putting his nominees as stockholders of the
corporation. The corporation is a convenient vehicle to circumvent the constitutional limitation on
acquisition by individuals of alienable lands of the public domain.
The constitutional intent, under the 1973 and 1987 Constitutions, is to transfer ownership of only a
limited area of alienable land of the public domain to a qualified individual. This constitutional
intent is safeguarded by the provision prohibiting corporations from acquiring alienable lands of
the public domain, since the vehicle to circumvent the constitutional intent is removed. The
available alienable public lands are gradually decreasing in the face of an ever-growing
population. The most effective way to insure faithful adherence to this constitutional intent is to
grant or sell alienable lands of the public domain only to individuals. This, it would seem, is the
practical benefit arising from the constitutional ban.
The Amended Joint Venture Agreement
The subject matter of the Amended JVA, as stated in its second Whereas clause, consists of three
properties, namely:
1. "[T]hree partially reclaimed and substantially eroded islands along Emilio Aguinaldo
Boulevard in Paranaque and Las Pinas, Metro Manila, with a combined titled area of
1,578,441 square meters;"
2. "[A]nother area of 2,421,559 square meters contiguous to the three islands;" and
3. "[A]t AMARI's option as approved by PEA, an additional 350 hectares more or less to
regularize the configuration of the reclaimed area."65
PEA confirms that the Amended JVA involves "the development of the Freedom Islands and
further reclamation of about 250 hectares x x x," plus an option "granted to AMARI to
subsequently reclaim another 350 hectares x x x."66
In short, the Amended JVA covers a reclamation area of 750 hectares. Only 157.84 hectares of
the 750-hectare reclamation project have been reclaimed, and the rest of the 592.15
hectares are still submerged areas forming part of Manila Bay.
Under the Amended JVA, AMARI will reimburse PEA the sum of P1,894,129,200.00 for PEA's
"actual cost" in partially reclaiming the Freedom Islands. AMARI will also complete, at its own
expense, the reclamation of the Freedom Islands. AMARI will further shoulder all the reclamation
costs of all the other areas, totaling 592.15 hectares, still to be reclaimed. AMARI and PEA will
share, in the proportion of 70 percent and 30 percent, respectively, the total net usable area which
is defined in the Amended JVA as the total reclaimed area less 30 percent earmarked for common
areas. Title to AMARI's share in the net usable area, totaling 367.5 hectares, will be issued in the
name of AMARI. Section 5.2 (c) of the Amended JVA provides that –
"x x x, PEA shall have the duty to execute without delay the necessary deed of transfer or
conveyance of the title pertaining to AMARI's Land share based on the Land Allocation
Plan. PEA, when requested in writing by AMARI, shall then cause the issuance and
delivery of the proper certificates of title covering AMARI's Land Share in the name
of AMARI, x x x; provided, that if more than seventy percent (70%) of the titled area at
any given time pertains to AMARI, PEA shall deliver to AMARI only seventy percent
(70%) of the titles pertaining to AMARI, until such time when a corresponding
proportionate area of additional land pertaining to PEA has been titled." (Emphasis
supplied)
Indisputably, under the Amended JVA AMARI will acquire and own a maximum of 367.5
hectares of reclaimed land which will be titled in its name.
To implement the Amended JVA, PEA delegated to the unincorporated PEA-AMARI joint venture
PEA's statutory authority, rights and privileges to reclaim foreshore and submerged areas in
Manila Bay. Section 3.2.a of the Amended JVA states that –
"PEA hereby contributes to the joint venture its rights and privileges to perform Rawland
Reclamation and Horizontal Development as well as own the Reclamation Area, thereby
granting the Joint Venture the full and exclusive right, authority and privilege to undertake
the Project in accordance with the Master Development Plan."
The Amended JVA is the product of a renegotiation of the original JVA dated April 25, 1995 and its
supplemental agreement dated August 9, 1995.
The Threshold Issue
The threshold issue is whether AMARI, a private corporation, can acquire and own under the
Amended JVA 367.5 hectares of reclaimed foreshore and submerged areas in Manila Bay in view
of Sections 2 and 3, Article XII of the 1987 Constitution which state that:
"Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. x x x.
xxx
Section 3. x x x Alienable lands of the public domain shall be limited to agricultural
lands. Private corporations or associations may not hold such alienable lands of
the public domain except by lease, x x x."(Emphasis supplied)
Classification of Reclaimed Foreshore and Submerged Areas
PEA readily concedes that lands reclaimed from foreshore or submerged areas of Manila Bay are
alienable or disposable lands of the public domain. In its Memorandum,67 PEA admits that –
"Under the Public Land Act (CA 141, as amended), reclaimed lands are classified as
alienable and disposable lands of the public domain:
'Sec. 59. The lands disposable under this title shall be classified as follows:
(a) Lands reclaimed by the government by dredging, filling, or other means;
x x x.'" (Emphasis supplied)
Likewise, the Legal Task Force68 constituted under Presidential Administrative Order No. 365
admitted in its Report and Recommendation to then President Fidel V. Ramos, "[R]eclaimed
lands are classified as alienable and disposable lands of the public domain."69 The Legal
Task Force concluded that –
"D. Conclusion
 Reclaimed lands are lands of the public domain. However, by statutory authority, the
rights of ownership and disposition over reclaimed lands have been transferred to PEA,
by virtue of which PEA, as owner, may validly convey the same to any qualified person
without violating the Constitution or any statute.
The constitutional provision prohibiting private corporations from holding public land,
except by lease (Sec. 3, Art. XVII,70 1987 Constitution), does not apply to reclaimed lands
whose ownership has passed on to PEA by statutory grant."
Under Section 2, Article XII of the 1987 Constitution, the foreshore and submerged areas of
Manila Bay are part of the "lands of the public domain, waters x x x and other natural resources"
and consequently "owned by the State." As such, foreshore and submerged areas "shall not be
alienated," unless they are classified as "agricultural lands" of the public domain. The mere
reclamation of these areas by PEA does not convert these inalienable natural resources of the
State into alienable or disposable lands of the public domain. There must be a law or presidential
proclamation officially classifying these reclaimed lands as alienable or disposable and open to
disposition or concession. Moreover, these reclaimed lands cannot be classified as alienable or
disposable if the law has reserved them for some public or quasi-public use.71
Section 8 of CA No. 141 provides that "only those lands shall be declared open to disposition or
concession which have been officially delimited and classified."72 The President has the
authority to classify inalienable lands of the public domain into alienable or disposable lands of the
public domain, pursuant to Section 6 of CA No. 141. In Laurel vs. Garcia, 73 the Executive
Department attempted to sell the Roppongi property in Tokyo, Japan, which was acquired by the
Philippine Government for use as the Chancery of the Philippine Embassy. Although the Chancery
had transferred to another location thirteen years earlier, the Court still ruled that, under Article
42274of the Civil Code, a property of public dominion retains such character until formally declared
otherwise. The Court ruled that –
"The fact that the Roppongi site has not been used for a long time for actual Embassy
service does not automatically convert it to patrimonial property. Any such conversion
happens only if the property is withdrawn from public use (Cebu Oxygen and Acetylene
Co. v. Bercilles, 66 SCRA 481 [1975]. A property continues to be part of the public
domain, not available for private appropriation or ownership 'until there is a formal
declaration on the part of the government to withdraw it from being such'(Ignacio v.
Director of Lands, 108 Phil. 335 [1960]." (Emphasis supplied)
PD No. 1085, issued on February 4, 1977, authorized the issuance of special land patents for
lands reclaimed by PEA from the foreshore or submerged areas of Manila Bay. On January 19,
1988 then President Corazon C. Aquino issued Special Patent No. 3517 in the name of PEA for
the 157.84 hectares comprising the partially reclaimed Freedom Islands. Subsequently, on April 9,
1999 the Register of Deeds of the Municipality of Paranaque issued TCT Nos. 7309, 7311 and
7312 in the name of PEA pursuant to Section 103 of PD No. 1529 authorizing the issuance of
certificates of title corresponding to land patents. To this day, these certificates of title are still in
the name of PEA.
PD No. 1085, coupled with President Aquino's actual issuance of a special patent covering the
Freedom Islands, is equivalent to an official proclamation classifying the Freedom Islands as
alienable or disposable lands of the public domain. PD No. 1085 and President Aquino's issuance
of a land patent also constitute a declaration that the Freedom Islands are no longer needed for
public service. The Freedom Islands are thus alienable or disposable lands of the public
domain, open to disposition or concession to qualified parties.
At the time then President Aquino issued Special Patent No. 3517, PEA had already reclaimed the
Freedom Islands although subsequently there were partial erosions on some areas. The
government had also completed the necessary surveys on these islands. Thus, the Freedom
Islands were no longer part of Manila Bay but part of the land mass. Section 3, Article XII of the
1987 Constitution classifies lands of the public domain into "agricultural, forest or timber, mineral
lands, and national parks." Being neither timber, mineral, nor national park lands, the reclaimed
Freedom Islands necessarily fall under the classification of agricultural lands of the public domain.
Under the 1987 Constitution, agricultural lands of the public domain are the only natural resources
that the State may alienate to qualified private parties. All other natural resources, such as the
seas or bays, are "waters x x x owned by the State" forming part of the public domain, and are
inalienable pursuant to Section 2, Article XII of the 1987 Constitution.
AMARI claims that the Freedom Islands are private lands because CDCP, then a private
corporation, reclaimed the islands under a contract dated November 20, 1973 with the
Commissioner of Public Highways. AMARI, citing Article 5 of the Spanish Law of Waters of 1866,
argues that "if the ownership of reclaimed lands may be given to the party constructing the works,
then it cannot be said that reclaimed lands are lands of the public domain which the State may not
alienate."75 Article 5 of the Spanish Law of Waters reads as follows:
"Article 5. Lands reclaimed from the sea in consequence of works constructed by the
State, or by the provinces, pueblos or private persons, with proper permission, shall
become the property of the party constructing such works, unless otherwise provided
by the terms of the grant of authority." (Emphasis supplied)
Under Article 5 of the Spanish Law of Waters of 1866, private parties could reclaim from the sea
only with "proper permission" from the State. Private parties could own the reclaimed land only if
not "otherwise provided by the terms of the grant of authority." This clearly meant that no one
could reclaim from the sea without permission from the State because the sea is property of public
dominion. It also meant that the State could grant or withhold ownership of the reclaimed land
because any reclaimed land, like the sea from which it emerged, belonged to the State. Thus, a
private person reclaiming from the sea without permission from the State could not acquire
ownership of the reclaimed land which would remain property of public dominion like the sea it
replaced.76 Article 5 of the Spanish Law of Waters of 1866 adopted the time-honored principle of
land ownership that "all lands that were not acquired from the government, either by purchase or
by grant, belong to the public domain."77
Article 5 of the Spanish Law of Waters must be read together with laws subsequently enacted on
the disposition of public lands. In particular, CA No. 141 requires that lands of the public domain
must first be classified as alienable or disposable before the government can alienate them. These
lands must not be reserved for public or quasi-public purposes.78 Moreover, the contract between
CDCP and the government was executed after the effectivity of the 1973 Constitution which
barred private corporations from acquiring any kind of alienable land of the public domain. This
contract could not have converted the Freedom Islands into private lands of a private corporation.
Presidential Decree No. 3-A, issued on January 11, 1973, revoked all laws authorizing the
reclamation of areas under water and revested solely in the National Government the power to
reclaim lands. Section 1 of PD No. 3-A declared that –
"The provisions of any law to the contrary notwithstanding, the reclamation of areas
under water, whether foreshore or inland, shall be limited to the National Government
or any person authorized by it under a proper contract. (Emphasis supplied)
x x x."
PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866 because reclamation of
areas under water could now be undertaken only by the National Government or by a person
contracted by the National Government. Private parties may reclaim from the sea only under a
contract with the National Government, and no longer by grant or permission as provided in
Section 5 of the Spanish Law of Waters of 1866.
Executive Order No. 525, issued on February 14, 1979, designated PEA as the National
Government's implementing arm to undertake "all reclamation projects of the government," which
"shall be undertaken by the PEA or through a proper contract executed by it with any
person or entity." Under such contract, a private party receives compensation for reclamation
services rendered to PEA. Payment to the contractor may be in cash, or in kind consisting of
portions of the reclaimed land, subject to the constitutional ban on private corporations from
acquiring alienable lands of the public domain. The reclaimed land can be used as payment in
kind only if the reclaimed land is first classified as alienable or disposable land open to disposition,
and then declared no longer needed for public service.
The Amended JVA covers not only the Freedom Islands, but also an additional 592.15 hectares
which are still submerged and forming part of Manila Bay. There is no legislative or Presidential
act classifying these submerged areas as alienable or disposable lands of the public
domain open to disposition. These submerged areas are not covered by any patent or
certificate of title. There can be no dispute that these submerged areas form part of the public
domain, and in their present state are inalienable and outside the commerce of man. Until
reclaimed from the sea, these submerged areas are, under the Constitution, "waters x x x owned
by the State," forming part of the public domain and consequently inalienable. Only when actually
reclaimed from the sea can these submerged areas be classified as public agricultural lands,
which under the Constitution are the only natural resources that the State may alienate. Once
reclaimed and transformed into public agricultural lands, the government may then officially
classify these lands as alienable or disposable lands open to disposition. Thereafter, the
government may declare these lands no longer needed for public service. Only then can these
reclaimed lands be considered alienable or disposable lands of the public domain and within the
commerce of man.
The classification of PEA's reclaimed foreshore and submerged lands into alienable or disposable
lands open to disposition is necessary because PEA is tasked under its charter to undertake
public services that require the use of lands of the public domain. Under Section 5 of PD No.
1084, the functions of PEA include the following: "[T]o own or operate railroads, tramways and
other kinds of land transportation, x x x; [T]o construct, maintain and operate such systems of
sanitary sewers as may be necessary; [T]o construct, maintain and operate such storm drains as
may be necessary." PEA is empowered to issue "rules and regulations as may be necessary for
the proper use by private parties of any or all of the highways, roads, utilities, buildings
and/or any of its properties and to impose or collect fees or tolls for their use." Thus, part of the
reclaimed foreshore and submerged lands held by the PEA would actually be needed for public
use or service since many of the functions imposed on PEA by its charter constitute essential
public services.
Moreover, Section 1 of Executive Order No. 525 provides that PEA "shall be primarily responsible
for integrating, directing, and coordinating all reclamation projects for and on behalf of the National
Government." The same section also states that "[A]ll reclamation projects shall be approved by
the President upon recommendation of the PEA, and shall be undertaken by the PEA or through a
proper contract executed by it with any person or entity; x x x." Thus, under EO No. 525, in relation
to PD No. 3-A and PD No.1084, PEA became the primary implementing agency of the National
Government to reclaim foreshore and submerged lands of the public domain. EO No. 525
recognized PEA as the government entity "to undertake the reclamation of lands and ensure their
maximum utilization in promoting public welfare and interests."79 Since large portions of these
reclaimed lands would obviously be needed for public service, there must be a formal declaration
segregating reclaimed lands no longer needed for public service from those still needed for public
service.1âwphi1.nêt
Section 3 of EO No. 525, by declaring that all lands reclaimed by PEA "shall belong to or be
owned by the PEA," could not automatically operate to classify inalienable lands into alienable or
disposable lands of the public domain. Otherwise, reclaimed foreshore and submerged lands of
the public domain would automatically become alienable once reclaimed by PEA, whether or not
classified as alienable or disposable.
The Revised Administrative Code of 1987, a later law than either PD No. 1084 or EO No. 525,
vests in the Department of Environment and Natural Resources ("DENR" for brevity) the following
powers and functions:
"Sec. 4. Powers and Functions. The Department shall:
(1) x x x
xxx
(4) Exercise supervision and control over forest lands, alienable and disposable
public lands, mineral resources and, in the process of exercising such control, impose
appropriate taxes, fees, charges, rentals and any such form of levy and collect such
revenues for the exploration, development, utilization or gathering of such resources;
xxx
 (14) Promulgate rules, regulations and guidelines on the issuance of licenses,
permits, concessions, lease agreements and such other privileges concerning the
development, exploration and utilization of the country's marine, freshwater, and
brackish water and over all aquatic resources of the country and shall continue to
oversee, supervise and police our natural resources; cancel or cause to cancel such
privileges upon failure, non-compliance or violations of any regulation, order, and for all
other causes which are in furtherance of the conservation of natural resources and
supportive of the national interest;
(15) Exercise exclusive jurisdiction on the management and disposition of all lands
of the public domain and serve as the sole agency responsible for classification,
sub-classification, surveying and titling of lands in consultation with appropriate
agencies."80 (Emphasis supplied)
As manager, conservator and overseer of the natural resources of the State, DENR exercises
"supervision and control over alienable and disposable public lands." DENR also exercises
"exclusive jurisdiction on the management and disposition of all lands of the public domain." Thus,
DENR decides whether areas under water, like foreshore or submerged areas of Manila Bay,
should be reclaimed or not. This means that PEA needs authorization from DENR before PEA can
undertake reclamation projects in Manila Bay, or in any part of the country.
DENR also exercises exclusive jurisdiction over the disposition of all lands of the public domain.
Hence, DENR decides whether reclaimed lands of PEA should be classified as alienable under
Sections 681 and 782 of CA No. 141. Once DENR decides that the reclaimed lands should be so
classified, it then recommends to the President the issuance of a proclamation classifying the
lands as alienable or disposable lands of the public domain open to disposition. We note that then
DENR Secretary Fulgencio S. Factoran, Jr. countersigned Special Patent No. 3517 in compliance
with the Revised Administrative Code and Sections 6 and 7 of CA No. 141.
In short, DENR is vested with the power to authorize the reclamation of areas under water, while
PEA is vested with the power to undertake the physical reclamation of areas under water, whether
directly or through private contractors. DENR is also empowered to classify lands of the public
domain into alienable or disposable lands subject to the approval of the President. On the other
hand, PEA is tasked to develop, sell or lease the reclaimed alienable lands of the public domain.
Clearly, the mere physical act of reclamation by PEA of foreshore or submerged areas does not
make the reclaimed lands alienable or disposable lands of the public domain, much less
patrimonial lands of PEA. Likewise, the mere transfer by the National Government of lands of the
public domain to PEA does not make the lands alienable or disposable lands of the public domain,
much less patrimonial lands of PEA.
Absent two official acts – a classification that these lands are alienable or disposable and open to
disposition and a declaration that these lands are not needed for public service, lands reclaimed
by PEA remain inalienable lands of the public domain. Only such an official classification and
formal declaration can convert reclaimed lands into alienable or disposable lands of the public
domain, open to disposition under the Constitution, Title I and Title III 83of CA No. 141 and other
applicable laws.84
PEA's Authority to Sell Reclaimed Lands
PEA, like the Legal Task Force, argues that as alienable or disposable lands of the public domain,
the reclaimed lands shall be disposed of in accordance with CA No. 141, the Public Land Act.
PEA, citing Section 60 of CA No. 141, admits that reclaimed lands transferred to a branch or
subdivision of the government "shall not be alienated, encumbered, or otherwise disposed of in a
manner affecting its title, except when authorized by Congress: x x x."85 (Emphasis by PEA)
In Laurel vs. Garcia,86 the Court cited Section 48 of the Revised Administrative Code of 1987,
which states that –
"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following: x x x."
Thus, the Court concluded that a law is needed to convey any real property belonging to the
Government. The Court declared that -
"It is not for the President to convey real property of the government on his or her own
sole will. Any such conveyance must be authorized and approved by a law enacted
by the Congress. It requires executive and legislative concurrence." (Emphasis supplied)
PEA contends that PD No. 1085 and EO No. 525 constitute the legislative authority allowing PEA
to sell its reclaimed lands. PD No. 1085, issued on February 4, 1977, provides that –
"The land reclaimed in the foreshore and offshore area of Manila Bay pursuant to the
contract for the reclamation and construction of the Manila-Cavite Coastal Road Project
between the Republic of the Philippines and the Construction and Development
Corporation of the Philippines dated November 20, 1973 and/or any other contract or
reclamation covering the same area is hereby transferred, conveyed and assigned to
the ownership and administration of the Public Estates Authority established
pursuant to PD No. 1084; Provided, however, That the rights and interests of the
Construction and Development Corporation of the Philippines pursuant to the aforesaid
contract shall be recognized and respected.
Henceforth, the Public Estates Authority shall exercise the rights and assume the
obligations of the Republic of the Philippines (Department of Public Highways) arising
from, or incident to, the aforesaid contract between the Republic of the Philippines and
the Construction and Development Corporation of the Philippines.
In consideration of the foregoing transfer and assignment, the Public Estates Authority
shall issue in favor of the Republic of the Philippines the corresponding shares of stock in
said entity with an issued value of said shares of stock (which) shall be deemed fully paid
and non-assessable.
 The Secretary of Public Highways and the General Manager of the Public Estates
Authority shall execute such contracts or agreements, including appropriate agreements
with the Construction and Development Corporation of the Philippines, as may be
necessary to implement the above.
Special land patent/patents shall be issued by the Secretary of Natural Resources
in favor of the Public Estates Authority without prejudice to the subsequent
transfer to the contractor or his assignees of such portion or portions of the land
reclaimed or to be reclaimed as provided for in the above-mentioned contract. On
the basis of such patents, the Land Registration Commission shall issue the
corresponding certificate of title." (Emphasis supplied)
On the other hand, Section 3 of EO No. 525, issued on February 14, 1979, provides that -
"Sec. 3. All lands reclaimed by PEA shall belong to or be owned by the PEA which
shall be responsible for its administration, development, utilization or disposition in
accordance with the provisions of Presidential Decree No. 1084. Any and all income that
the PEA may derive from the sale, lease or use of reclaimed lands shall be used in
accordance with the provisions of Presidential Decree No. 1084."
There is no express authority under either PD No. 1085 or EO No. 525 for PEA to sell its
reclaimed lands. PD No. 1085 merely transferred "ownership and administration" of lands
reclaimed from Manila Bay to PEA, while EO No. 525 declared that lands reclaimed by PEA "shall
belong to or be owned by PEA." EO No. 525 expressly states that PEA should dispose of its
reclaimed lands "in accordance with the provisions of Presidential Decree No. 1084," the charter
of PEA.
PEA's charter, however, expressly tasks PEA "to develop, improve, acquire, administer, deal in,
subdivide, dispose, lease and sell any and all kinds of lands x x x owned, managed, controlled
and/or operated by the government."87 (Emphasis supplied) There is, therefore, legislative
authority granted to PEA to sell its lands, whether patrimonial or alienable lands of the
public domain. PEA may sell to private parties itspatrimonial properties in accordance with the
PEA charter free from constitutional limitations. The constitutional ban on private corporations from
acquiring alienable lands of the public domain does not apply to the sale of PEA's patrimonial
lands.
PEA may also sell its alienable or disposable lands of the public domain to private individuals
since, with the legislative authority, there is no longer any statutory prohibition against such sales
and the constitutional ban does not apply to individuals. PEA, however, cannot sell any of its
alienable or disposable lands of the public domain to private corporations since Section 3, Article
XII of the 1987 Constitution expressly prohibits such sales. The legislative authority benefits only
individuals. Private corporations remain barred from acquiring any kind of alienable land of the
public domain, including government reclaimed lands.
The provision in PD No. 1085 stating that portions of the reclaimed lands could be transferred by
PEA to the "contractor or his assignees" (Emphasis supplied) would not apply to private
corporations but only to individuals because of the constitutional ban. Otherwise, the provisions of
PD No. 1085 would violate both the 1973 and 1987 Constitutions.
The requirement of public auction in the sale of reclaimed lands
Assuming the reclaimed lands of PEA are classified as alienable or disposable lands open to
disposition, and further declared no longer needed for public service, PEA would have to conduct
a public bidding in selling or leasing these lands. PEA must observe the provisions of Sections 63
and 67 of CA No. 141 requiring public auction, in the absence of a law exempting PEA from
holding a public auction.88 Special Patent No. 3517 expressly states that the patent is issued by
authority of the Constitution and PD No. 1084, "supplemented by Commonwealth Act No. 141, as
amended." This is an acknowledgment that the provisions of CA No. 141 apply to the disposition
of reclaimed alienable lands of the public domain unless otherwise provided by law. Executive
Order No. 654,89 which authorizes PEA "to determine the kind and manner of payment for the
transfer" of its assets and properties, does not exempt PEA from the requirement of public auction.
EO No. 654 merely authorizes PEA to decide the mode of payment, whether in kind and in
installment, but does not authorize PEA to dispense with public auction.
Moreover, under Section 79 of PD No. 1445, otherwise known as the Government Auditing Code,
the government is required to sell valuable government property through public bidding. Section
79 of PD No. 1445 mandates that –
"Section 79. When government property has become unserviceable for any cause, or is
no longer needed, it shall, upon application of the officer accountable therefor, be
inspected by the head of the agency or his duly authorized representative in the presence
of the auditor concerned and, if found to be valueless or unsaleable, it may be destroyed
in their presence. If found to be valuable, it may be sold at public auction to the
highest bidder under the supervision of the proper committee on award or similar body
in the presence of the auditor concerned or other authorized representative of the
Commission, after advertising by printed notice in the Official Gazette, or for not
less than three consecutive days in any newspaper of general circulation, or where
the value of the property does not warrant the expense of publication, by notices posted
for a like period in at least three public places in the locality where the property is to be
sold. In the event that the public auction fails, the property may be sold at a private
sale at such price as may be fixed by the same committee or body concerned and
approved by the Commission."
It is only when the public auction fails that a negotiated sale is allowed, in which case the
Commission on Audit must approve the selling price.90 The Commission on Audit implements
Section 79 of the Government Auditing Code through Circular No. 89-29691 dated January 27,
1989. This circular emphasizes that government assets must be disposed of only through public
auction, and a negotiated sale can be resorted to only in case of "failure of public auction."
At the public auction sale, only Philippine citizens are qualified to bid for PEA's reclaimed
foreshore and submerged alienable lands of the public domain. Private corporations are barred
from bidding at the auction sale of any kind of alienable land of the public domain.
PEA originally scheduled a public bidding for the Freedom Islands on December 10, 1991. PEA
imposed a condition that the winning bidder should reclaim another 250 hectares of submerged
areas to regularize the shape of the Freedom Islands, under a 60-40 sharing of the additional
reclaimed areas in favor of the winning bidder.92 No one, however, submitted a bid. On December
23, 1994, the Government Corporate Counsel advised PEA it could sell the Freedom Islands
through negotiation, without need of another public bidding, because of the failure of the public
bidding on December 10, 1991.93
However, the original JVA dated April 25, 1995 covered not only the Freedom Islands and the
additional 250 hectares still to be reclaimed, it also granted an option to AMARI to reclaim another
350 hectares. The original JVA, a negotiated contract, enlarged the reclamation area to 750
hectares.94 The failure of public bidding on December 10, 1991, involving only 407.84
hectares,95 is not a valid justification for a negotiated sale of 750 hectares, almost double the area
publicly auctioned. Besides, the failure of public bidding happened on December 10, 1991, more
than three years before the signing of the original JVA on April 25, 1995. The economic situation
in the country had greatly improved during the intervening period.
Reclamation under the BOT Law and the Local Government Code
The constitutional prohibition in Section 3, Article XII of the 1987 Constitution is absolute and
clear: "Private corporations or associations may not hold such alienable lands of the public domain
except by lease, x x x." Even Republic Act No. 6957 ("BOT Law," for brevity), cited by PEA and
AMARI as legislative authority to sell reclaimed lands to private parties, recognizes the
constitutional ban. Section 6 of RA No. 6957 states –
"Sec. 6. Repayment Scheme. - For the financing, construction, operation and
maintenance of any infrastructure projects undertaken through the build-operate-and-
transfer arrangement or any of its variations pursuant to the provisions of this Act, the
project proponent x x x may likewise be repaid in the form of a share in the revenue of the
project or other non-monetary payments, such as, but not limited to, the grant of a portion
or percentage of the reclaimed land, subject to the constitutional requirements with
respect to the ownership of the land: x x x." (Emphasis supplied)
A private corporation, even one that undertakes the physical reclamation of a government BOT
project, cannot acquire reclaimed alienable lands of the public domain in view of the constitutional
ban.
Section 302 of the Local Government Code, also mentioned by PEA and AMARI, authorizes local
governments in land reclamation projects to pay the contractor or developer in kind consisting of a
percentage of the reclaimed land, to wit:
"Section 302. Financing, Construction, Maintenance, Operation, and Management of
Infrastructure Projects by the Private Sector. x x x
xxx
In case of land reclamation or construction of industrial estates, the repayment plan may
consist of the grant of a portion or percentage of the reclaimed land or the industrial
estate constructed."
Although Section 302 of the Local Government Code does not contain a proviso similar to that of
the BOT Law, the constitutional restrictions on land ownership automatically apply even though
not expressly mentioned in the Local Government Code.
Thus, under either the BOT Law or the Local Government Code, the contractor or developer, if a
corporate entity, can only be paid with leaseholds on portions of the reclaimed land. If the
contractor or developer is an individual, portions of the reclaimed land, not exceeding 12
hectares96 of non-agricultural lands, may be conveyed to him in ownership in view of the legislative
authority allowing such conveyance. This is the only way these provisions of the BOT Law and the
Local Government Code can avoid a direct collision with Section 3, Article XII of the 1987
Constitution.
Registration of lands of the public domain
Finally, PEA theorizes that the "act of conveying the ownership of the reclaimed lands to public
respondent PEA transformed such lands of the public domain to private lands." This theory is
echoed by AMARI which maintains that the "issuance of the special patent leading to the eventual
issuance of title takes the subject land away from the land of public domain and converts the
property into patrimonial or private property." In short, PEA and AMARI contend that with the
issuance of Special Patent No. 3517 and the corresponding certificates of titles, the 157.84
hectares comprising the Freedom Islands have become private lands of PEA. In support of their
theory, PEA and AMARI cite the following rulings of the Court:
1. Sumail v. Judge of CFI of Cotabato,97 where the Court held –
"Once the patent was granted and the corresponding certificate of title was issued, the
land ceased to be part of the public domain and became private property over which the
Director of Lands has neither control nor jurisdiction."
2. Lee Hong Hok v. David,98 where the Court declared -
"After the registration and issuance of the certificate and duplicate certificate of title based
on a public land patent, the land covered thereby automatically comes under the
operation of Republic Act 496 subject to all the safeguards provided therein."3. Heirs of
Gregorio Tengco v. Heirs of Jose Aliwalas,99 where the Court ruled -
"While the Director of Lands has the power to review homestead patents, he may do so
only so long as the land remains part of the public domain and continues to be under his
exclusive control; but once the patent is registered and a certificate of title is issued, the
land ceases to be part of the public domain and becomes private property over which the
Director of Lands has neither control nor jurisdiction."
 4. Manalo v. Intermediate Appellate Court,100 where the Court held –
"When the lots in dispute were certified as disposable on May 19, 1971, and free patents
were issued covering the same in favor of the private respondents, the said lots ceased to
be part of the public domain and, therefore, the Director of Lands lost jurisdiction over the
same."
5.Republic v. Court of Appeals,101 where the Court stated –
"Proclamation No. 350, dated October 9, 1956, of President Magsaysay legally effected a
land grant to the Mindanao Medical Center, Bureau of Medical Services, Department of
Health, of the whole lot, validly sufficient for initial registration under the Land Registration
Act. Such land grant is constitutive of a 'fee simple' title or absolute title in favor of
petitioner Mindanao Medical Center. Thus, Section 122 of the Act, which governs the
registration of grants or patents involving public lands, provides that 'Whenever public
lands in the Philippine Islands belonging to the Government of the United States or to the
Government of the Philippines are alienated, granted or conveyed to persons or to public
or private corporations, the same shall be brought forthwith under the operation of this Act
(Land Registration Act, Act 496) and shall become registered lands.'"
The first four cases cited involve petitions to cancel the land patents and the corresponding
certificates of titlesissued to private parties. These four cases uniformly hold that the Director of
Lands has no jurisdiction over private lands or that upon issuance of the certificate of title the land
automatically comes under the Torrens System. The fifth case cited involves the registration under
the Torrens System of a 12.8-hectare public land granted by the National Government to
Mindanao Medical Center, a government unit under the Department of Health. The National
Government transferred the 12.8-hectare public land to serve as the site for the hospital buildings
and other facilities of Mindanao Medical Center, which performed a public service. The Court
affirmed the registration of the 12.8-hectare public land in the name of Mindanao Medical Center
under Section 122 of Act No. 496. This fifth case is an example of a public land being registered
under Act No. 496 without the land losing its character as a property of public dominion.
In the instant case, the only patent and certificates of title issued are those in the name of PEA, a
wholly government owned corporation performing public as well as proprietary functions. No
patent or certificate of title has been issued to any private party. No one is asking the Director of
Lands to cancel PEA's patent or certificates of title. In fact, the thrust of the instant petition is that
PEA's certificates of title should remain with PEA, and the land covered by these certificates,
being alienable lands of the public domain, should not be sold to a private corporation.
Registration of land under Act No. 496 or PD No. 1529 does not vest in the registrant private or
public ownership of the land. Registration is not a mode of acquiring ownership but is merely
evidence of ownership previously conferred by any of the recognized modes of acquiring
ownership. Registration does not give the registrant a better right than what the registrant had
prior to the registration.102 The registration of lands of the public domain under the Torrens system,
by itself, cannot convert public lands into private lands.103
Jurisprudence holding that upon the grant of the patent or issuance of the certificate of title the
alienable land of the public domain automatically becomes private land cannot apply to
government units and entities like PEA. The transfer of the Freedom Islands to PEA was made
subject to the provisions of CA No. 141 as expressly stated in Special Patent No. 3517 issued by
then President Aquino, to wit:
"NOW, THEREFORE, KNOW YE, that by authority of the Constitution of the Philippines
and in conformity with the provisions of Presidential Decree No. 1084, supplemented by
Commonwealth Act No. 141, as amended, there are hereby granted and conveyed
unto the Public Estates Authority the aforesaid tracts of land containing a total area of one
million nine hundred fifteen thousand eight hundred ninety four (1,915,894) square
meters; the technical description of which are hereto attached and made an integral part
hereof." (Emphasis supplied)
Thus, the provisions of CA No. 141 apply to the Freedom Islands on matters not covered by PD
No. 1084. Section 60 of CA No. 141 prohibits, "except when authorized by Congress," the sale of
alienable lands of the public domain that are transferred to government units or entities. Section
60 of CA No. 141 constitutes, under Section 44 of PD No. 1529, a "statutory lien affecting title" of
the registered land even if not annotated on the certificate of title.104 Alienable lands of the public
domain held by government entities under Section 60 of CA No. 141 remain public lands because
they cannot be alienated or encumbered unless Congress passes a law authorizing their
disposition. Congress, however, cannot authorize the sale to private corporations of reclaimed
alienable lands of the public domain because of the constitutional ban. Only individuals can benefit
from such law.
The grant of legislative authority to sell public lands in accordance with Section 60 of CA No. 141
does not automatically convert alienable lands of the public domain into private or patrimonial
lands. The alienable lands of the public domain must be transferred to qualified private parties, or
to government entities not tasked to dispose of public lands, before these lands can become
private or patrimonial lands. Otherwise, the constitutional ban will become illusory if Congress can
declare lands of the public domain as private or patrimonial lands in the hands of a government
agency tasked to dispose of public lands. This will allow private corporations to acquire directly
from government agencies limitless areas of lands which, prior to such law, are concededly public
lands.
Under EO No. 525, PEA became the central implementing agency of the National Government
to reclaim foreshore and submerged areas of the public domain. Thus, EO No. 525 declares that –
"EXECUTIVE ORDER NO. 525
Designating the Public Estates Authority as the Agency Primarily Responsible for all
Reclamation Projects
Whereas, there are several reclamation projects which are ongoing or being proposed to
be undertaken in various parts of the country which need to be evaluated for consistency
with national programs;
 Whereas, there is a need to give further institutional support to the Government's
declared policy to provide for a coordinated, economical and efficient reclamation of
lands;
Whereas, Presidential Decree No. 3-A requires that all reclamation of areas shall be
limited to the National Government or any person authorized by it under proper contract;
Whereas, a central authority is needed to act on behalf of the National Government
which shall ensure a coordinated and integrated approach in the reclamation of
lands;
Whereas, Presidential Decree No. 1084 creates the Public Estates Authority as a
government corporation to undertake reclamation of lands and ensure their
maximum utilization in promoting public welfare and interests; and
Whereas, Presidential Decree No. 1416 provides the President with continuing authority
to reorganize the national government including the transfer, abolition, or merger of
functions and offices.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue
of the powers vested in me by the Constitution and pursuant to Presidential Decree No.
1416, do hereby order and direct the following:
Section 1. The Public Estates Authority (PEA) shall be primarily responsible for
integrating, directing, and coordinating all reclamation projects for and on behalf of
the National Government. All reclamation projects shall be approved by the President
upon recommendation of the PEA, and shall be undertaken by the PEA or through a
proper contract executed by it with any person or entity; Provided, that, reclamation
projects of any national government agency or entity authorized under its charter shall be
undertaken in consultation with the PEA upon approval of the President.
x x x ."
As the central implementing agency tasked to undertake reclamation projects nationwide, with
authority to sell reclaimed lands, PEA took the place of DENR as the government agency charged
with leasing or selling reclaimed lands of the public domain. The reclaimed lands being leased or
sold by PEA are not private lands, in the same manner that DENR, when it disposes of other
alienable lands, does not dispose of private lands but alienable lands of the public domain. Only
when qualified private parties acquire these lands will the lands become private lands. In the
hands of the government agency tasked and authorized to dispose of alienable of
disposable lands of the public domain, these lands are still public, not private lands.
Furthermore, PEA's charter expressly states that PEA "shall hold lands of the public domain"
as well as "any and all kinds of lands." PEA can hold both lands of the public domain and private
lands. Thus, the mere fact that alienable lands of the public domain like the Freedom Islands are
transferred to PEA and issued land patents or certificates of title in PEA's name does not
automatically make such lands private.
To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as private
lands will sanction a gross violation of the constitutional ban on private corporations from acquiring
any kind of alienable land of the public domain. PEA will simply turn around, as PEA has now
done under the Amended JVA, and transfer several hundreds of hectares of these reclaimed
and still to be reclaimed lands to a single private corporation in only one transaction. This scheme
will effectively nullify the constitutional ban in Section 3, Article XII of the 1987 Constitution which
was intended to diffuse equitably the ownership of alienable lands of the public domain among
Filipinos, now numbering over 80 million strong.
This scheme, if allowed, can even be applied to alienable agricultural lands of the public domain
since PEA can "acquire x x x any and all kinds of lands." This will open the floodgates to
corporations and even individuals acquiring hundreds of hectares of alienable lands of the public
domain under the guise that in the hands of PEA these lands are private lands. This will result in
corporations amassing huge landholdings never before seen in this country - creating the very evil
that the constitutional ban was designed to prevent. This will completely reverse the clear direction
of constitutional development in this country. The 1935 Constitution allowed private corporations
to acquire not more than 1,024 hectares of public lands.105 The 1973 Constitution prohibited
private corporations from acquiring any kind of public land, and the 1987 Constitution has
unequivocally reiterated this prohibition.
The contention of PEA and AMARI that public lands, once registered under Act No. 496 or PD No.
1529, automatically become private lands is contrary to existing laws. Several laws authorize
lands of the public domain to be registered under the Torrens System or Act No. 496, now PD No.
1529, without losing their character as public lands. Section 122 of Act No. 496, and Section 103
of PD No. 1529, respectively, provide as follows:
Act No. 496
"Sec. 122. Whenever public lands in the Philippine Islands belonging to the x x x
Government of the Philippine Islands are alienated, granted, or conveyed to persons or
the public or private corporations, the same shall be brought forthwith under the
operation of this Act and shall become registered lands."
PD No. 1529
"Sec. 103. Certificate of Title to Patents. Whenever public land is by the Government
alienated, granted or conveyed to any person, the same shall be brought forthwith under
the operation of this Decree." (Emphasis supplied)
Based on its legislative history, the phrase "conveyed to any person" in Section 103 of PD No.
1529 includes conveyances of public lands to public corporations.
Alienable lands of the public domain "granted, donated, or transferred to a province, municipality,
or branch or subdivision of the Government," as provided in Section 60 of CA No. 141, may be
registered under the Torrens System pursuant to Section 103 of PD No. 1529. Such registration,
however, is expressly subject to the condition in Section 60 of CA No. 141 that the land "shall not
be alienated, encumbered or otherwise disposed of in a manner affecting its title, except when
authorized by Congress." This provision refers to government reclaimed, foreshore and marshy
lands of the public domain that have been titled but still cannot be alienated or encumbered unless
expressly authorized by Congress. The need for legislative authority prevents the registered land
of the public domain from becoming private land that can be disposed of to qualified private
parties.
The Revised Administrative Code of 1987 also recognizes that lands of the public domain may be
registered under the Torrens System. Section 48, Chapter 12, Book I of the Code states –
"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:
(1) x x x
(2) For property belonging to the Republic of the Philippines, but titled in the name
of any political subdivision or of any corporate agency or instrumentality, by the
executive head of the agency or instrumentality." (Emphasis supplied)
Thus, private property purchased by the National Government for expansion of a public wharf may
be titled in the name of a government corporation regulating port operations in the country. Private
property purchased by the National Government for expansion of an airport may also be titled in
the name of the government agency tasked to administer the airport. Private property donated to a
municipality for use as a town plaza or public school site may likewise be titled in the name of the
municipality.106 All these properties become properties of the public domain, and if already
registered under Act No. 496 or PD No. 1529, remain registered land. There is no requirement or
provision in any existing law for the de-registration of land from the Torrens System.
Private lands taken by the Government for public use under its power of eminent domain become
unquestionably part of the public domain. Nevertheless, Section 85 of PD No. 1529 authorizes the
Register of Deeds to issue in the name of the National Government new certificates of title
covering such expropriated lands. Section 85 of PD No. 1529 states –
"Sec. 85. Land taken by eminent domain. Whenever any registered land, or interest
therein, is expropriated or taken by eminent domain, the National Government, province,
city or municipality, or any other agency or instrumentality exercising such right shall file
for registration in the proper Registry a certified copy of the judgment which shall state
definitely by an adequate description, the particular property or interest expropriated, the
number of the certificate of title, and the nature of the public use. A memorandum of the
right or interest taken shall be made on each certificate of title by the Register of Deeds,
and where the fee simple is taken, a new certificate shall be issued in favor of the
National Government, province, city, municipality, or any other agency or
instrumentality exercising such right for the land so taken. The legal expenses incident to
the memorandum of registration or issuance of a new certificate of title shall be for the
account of the authority taking the land or interest therein." (Emphasis supplied)
Consequently, lands registered under Act No. 496 or PD No. 1529 are not exclusively private or
patrimonial lands. Lands of the public domain may also be registered pursuant to existing laws.
AMARI makes a parting shot that the Amended JVA is not a sale to AMARI of the Freedom
Islands or of the lands to be reclaimed from submerged areas of Manila Bay. In the words of
AMARI, the Amended JVA "is not a sale but a joint venture with a stipulation for reimbursement of
the original cost incurred by PEA for the earlier reclamation and construction works performed by
the CDCP under its 1973 contract with the Republic." Whether the Amended JVA is a sale or a
joint venture, the fact remains that the Amended JVA requires PEA to "cause the issuance and
delivery of the certificates of title conveying AMARI's Land Share in the name of AMARI."107
This stipulation still contravenes Section 3, Article XII of the 1987 Constitution which provides that
private corporations "shall not hold such alienable lands of the public domain except by lease."
The transfer of title and ownership to AMARI clearly means that AMARI will "hold" the reclaimed
lands other than by lease. The transfer of title and ownership is a "disposition" of the reclaimed
lands, a transaction considered a sale or alienation under CA No. 141,108 the Government Auditing
Code,109 and Section 3, Article XII of the 1987 Constitution.
The Regalian doctrine is deeply implanted in our legal system. Foreshore and submerged areas
form part of the public domain and are inalienable. Lands reclaimed from foreshore and
submerged areas also form part of the public domain and are also inalienable, unless converted
pursuant to law into alienable or disposable lands of the public domain. Historically, lands
reclaimed by the government are sui generis, not available for sale to private parties unlike other
alienable public lands. Reclaimed lands retain their inherent potential as areas for public use or
public service. Alienable lands of the public domain, increasingly becoming scarce natural
resources, are to be distributed equitably among our ever-growing population. To insure such
equitable distribution, the 1973 and 1987 Constitutions have barred private corporations from
acquiring any kind of alienable land of the public domain. Those who attempt to dispose of
inalienable natural resources of the State, or seek to circumvent the constitutional ban on
alienation of lands of the public domain to private corporations, do so at their own risk.
We can now summarize our conclusions as follows:
1. The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered
by certificates of title in the name of PEA, are alienable lands of the public domain.
PEA may lease these lands to private corporations but may not sell or transfer ownership
of these lands to private corporations. PEA may only sell these lands to Philippine
citizens, subject to the ownership limitations in the 1987 Constitution and existing laws.
2. The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural
resources of the public domain until classified as alienable or disposable lands open to
disposition and declared no longer needed for public service. The government can make
such classification and declaration only after PEA has reclaimed these submerged areas.
 Only then can these lands qualify as agricultural lands of the public domain, which are the
only natural resources the government can alienate. In their present state, the 592.15
hectares of submerged areas are inalienable and outside the commerce of man.

3. Since the Amended JVA seeks to transfer to AMARI, a private corporation, ownership
of 77.34 hectares110 of the Freedom Islands, such transfer is void for being contrary to
Section 3, Article XII of the 1987 Constitution which prohibits private corporations from
acquiring any kind of alienable land of the public domain.

4. Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156
hectares111 of still submerged areas of Manila Bay, such transfer is void for being contrary
to Section 2, Article XII of the 1987 Constitution which prohibits the alienation of natural
resources other than agricultural lands of the public domain. PEA may reclaim these
submerged areas. Thereafter, the government can classify the reclaimed lands as
alienable or disposable, and further declare them no longer needed for public service.
Still, the transfer of such reclaimed alienable lands of the public domain to AMARI will be
void in view of Section 3, Article XII of the 1987 Constitution which prohibits private
corporations from acquiring any kind of alienable land of the public domain.

Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article XII of the 1987 Constitution.
Under Article 1409112 of the Civil Code, contracts whose "object or purpose is contrary to law," or
whose "object is outside the commerce of men," are "inexistent and void from the beginning." The
Court must perform its duty to defend and uphold the Constitution, and therefore declares the
Amended JVA null and void ab initio.

Seventh issue: whether the Court is the proper forum to raise the issue of whether the
Amended JVA is grossly disadvantageous to the government.

Considering that the Amended JVA is null and void ab initio, there is no necessity to rule on this
last issue. Besides, the Court is not a trier of facts, and this last issue involves a determination of
factual matters.

WHEREFORE, the petition is GRANTED. The Public Estates Authority and Amari Coastal Bay
Development Corporation are PERMANENTLY ENJOINED from implementing the Amended Joint
Venture Agreement which is hereby declared NULL and VOID ab initio.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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 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, 2006,6respondents 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
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 concern 13 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. Ermita20where 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 trustAmerican Delegations in another
conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284.)."
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 thatPMPF v. Manglapus involved the Military Bases Agreement which necessarily
pertained to matters affectingnational 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 x 31 (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=-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 Treasury37enlightens 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 taxtreaty 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 Representative38 – 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 ofCIEL than those of Fulbright.
Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle
articulated in Fulbrightthat 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 indeedsupported 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 inPMPF 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.
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."43They 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 andChavez 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 negotiationsbefore a final contract. The information, however, must constitute definite
propositions by the governmentand 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.
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 powersgranted 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.
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.
On the other hand, We hold that this is one occasion where the following ruling in Agan v.
PIATCO63 – and in other cases both before and since – should be applied:
This Court has long and consistently adhered to the legal maxim that those that cannot be
done directly cannot be done indirectly. To declare the PIATCO contracts valid despite the
clear statutory prohibition against a direct government guarantee 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
a monetary obligation resulting from a contract of loan between the project proponent and its
lenders and to which the Government 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 private sector in the
"financing, operation and maintenance of infrastructure and development projects" which are
necessary for national growth and development but which the government, unfortunately, could ill-
afford to finance at this point in time.64
Similarly, while herein petitioners-members of the House of Representatives may not have been
aiming to participate in the negotiations directly, opening the JPEPA negotiations to their scrutiny
– even to the point of giving them access to the offers exchanged between the Japanese and
Philippine delegations – would have made a mockery of what the Constitution sought to prevent
and rendered it useless for what it sought to achieve when it vested the power of direct negotiation
solely with the President.
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 of Representatives from the treaty-
making process:
x x x The fluctuating, and taking its future increase into account, the multitudinous composition of
that body, forbid us to expect 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 and dispatch; are incompatible with a body so variable and so numerous. The
very complication of the business by introducing a necessity of the concurrence of so many
different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the
house of representatives, and the greater length of time which it would often be necessary to keep
them together when convened, to obtain their sanction in the progressive stages of a treaty, would
be source of so great inconvenience and expense, as alone ought to condemn the project.65
These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike
that of the U.S., does not even 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 the validity of the treaty after
negotiations have been concluded.66 Much less, therefore, should it be inferred that the House of
Representatives has this power.
Since allowing petitioner-members of the House of Representatives access to the subject JPEPA
documents would set a precedent for future negotiations, leading to the contravention of the public
interests articulated above which the Constitution sought to protect, the subject documents should
not be disclosed.
2. The dissent also asserts that respondents can no longer claim the diplomatic secrets privilege
over the subject JPEPA documents now that negotiations have been concluded, since their
reasons for nondisclosure cited in the June 23, 2005 letter of Sec. Ermita, and later in their
Comment, necessarily apply only for as long as the negotiations were still pending;
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-agencyrecommendations. 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
3. The dissent claims that petitioner-members of the House of Representatives have sufficiently
shown their need for the same documents to overcome the privilege. Again, We disagree.
The House Committee that initiated the investigations on the JPEPA did not pursue its earlier
intention to subpoena the documents. This strongly undermines the assertion that access to the
same documents by the House Committee is critical to the performance of its legislative functions.
If the documents were indeed critical, the House Committee should have, at the very least, issued
a subpoena duces tecum or, like what the Senate did in Senate v. Ermita, filed the present
petition as a legislative body, rather than leaving it to the discretion of individual Congressmen
whether to pursue an action or not. Such acts would have served as strong indicia that Congress
itself finds the subject information to be critical to its legislative functions.
Further, given that respondents have claimed executive privilege, petitioner-members of the
House of Representatives should have, at least, shown how its lack of access to the Philippine
and Japanese offers would hinder the intelligent crafting of legislation. Mere assertion that the
JPEPA covers a subject matter over which Congress has the power to legislate would not suffice.
As Senate Select Committee v. Nixon68 held, the showing required to overcome the presumption
favoring confidentiality turns, not only on 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.
Furthermore, from the time the final text of the JPEPA including its annexes and attachments was
published, petitioner-members 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 even less apparent.
In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents, the
dissent contends that the Executive has failed to show how disclosing them after the conclusion of
negotiations would impair the performance of its functions. The contention, with due respect,
misplaces the onus probandi. While, in keeping with the general presumption of transparency, the
burden is initially on the Executive to provide precise and certain reasons for upholding its claim of
privilege, once the Executive is able to show that the documents being sought are covered by a
recognized privilege, the burden shifts to the party seeking information to overcome the privilege
by a strong showing of need.
When it was thus established that the JPEPA documents are covered by the privilege for
diplomatic negotiations pursuant to PMPF v. Manglapus, the presumption arose that their
disclosure would impair the performance of executive functions. It was then incumbent on
petitioner- requesting parties to show that they have a strong need for the information sufficient to
overcome the privilege. They have not, however.
4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming the
privilege "by order of the President," the same may not be strictly applied to the privilege claim
subject of this case.
When the Court in Senate v. Ermita limited the power of invoking the privilege to the President
alone, it was laying down a new rule for which there is no counterpart even in the United States
from which the concept of executive privilege was adopted. As 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 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. Ermitabecame 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 Work73since 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 againstcongressional demands for information – in the course of laying down a ruling
on the public right to informationonly 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 claimedunder 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. PCGG75 also involved the public’s right to information, yet the Court recognized as a
valid limitation to that right the 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.
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 inPMPF 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 thisponencia 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 ofpublic 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 theirright 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 To recapitulate, petitioners’ demand to be furnished with a copy of the full text of the JPEPA has
participate in decision-making is, to Us, simply a recognition of the qualified nature of the public’s become moot and academic, it having been made accessible to the public since September 11,
right to information. It is beyond dispute that the right to information is not absolute and that the 2006. As for their demand for copies of the Philippine and Japanese offers submitted during the
doctrine of executive privilege is a recognized limitation on that right. JPEPA negotiations, the same must be denied, respondents’ claim of executive privilege being
valid.
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 Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v. Manglapus
discussion on the issue of the JPEPA, and they have been able to articulate their different on September 13, 1988, been recognized as privileged in this jurisdiction and the reasons
opinions without need of access to the JPEPA negotiation documents. proffered by petitioners against the application of the ruling therein to the present case have not
persuaded the Court. Moreover, petitioners – both private citizens and members of the House of
Thus, we hold that the balance in this case tilts in favor of executive privilege. Representatives – have failed to present a "sufficient showing of need" to overcome the claim of
privilege in this case.
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 That the privilege was asserted for the first time in respondents’ Comment to the present petition,
dissent cites the caveat in the Nixon case that the U.S. Court was there addressing only the and not during the hearings of the House Special Committee on Globalization, is of no moment,
President’s assertion of privilege in the context of a criminal trial, not a civil litigation nor a since it cannot be interpreted as a waiver of the privilege on the part of the Executive branch.
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 For reasons already explained, this Decision shall not be interpreted as departing from the ruling
mean that the principles applied in that case may never be applied in such contexts. in Senate v. Ermita that executive privilege should be invoked by the President or through the
Executive Secretary "by order of the President."
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 WHEREFORE, the petition is DISMISSED.
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 SO ORDERED.
above-mentioned In re Sealed Case which involved a claim of privilege against a subpoena duces
tecum issued in a grand jury investigation.
CONCHITA CARPIO MORALES
Associate Justice
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 Accountability 82 – 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 Nixoncase 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

SECOND DIVISION
G.R. No. 170132 December 6, 2006
GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA, in his
capacity as GSIS President & General Manager, petitioners,
vs.
KAPISANAN NG MGA MANGGAGAWA SA GSIS, respondents.
DECISION
GARCIA, J.:
In this petition for review on certiorari under Rule 45 of the Rules of Court, the Government
Service Insurance System (GSIS) and its President and General Manager Winston F. Garcia
(Garcia, for short) assail and seek to nullify the Decision 1 dated June 16, 2005 of the Court of
Appeals (CA) in CA-G.R. SP No. 87220, as reiterated in its Resolution2 of October 18, 2005
denying Garcia's motion for reconsideration.
The recourse is cast against the following setting:
A four-day October 2004 concerted demonstration, rallies and en masse walkout waged/held in
front of the GSIS main office in Roxas Boulevard, Pasay City, started it all. Forming a huge part of
the October 4 to October 7, 2004 mass action participants were GSIS personnel, among them
members of the herein respondent Kapisanan Ng Mga Manggagawa sa GSIS ("KMG" or the
"Union"), a public sector union of GSIS rank-and-file employees. Contingents from other
government agencies joined causes with the GSIS group. The mass action's target appeared to
have been herein petitioner Garcia and his management style. While the Mayor of Pasay City
allegedly issued a rally permit, the absence of the participating GSIS employees was not covered
by a prior approved leave.3
On or about October 10, 2004, the manager of the GSIS Investigating Unit issued a memorandum
directing 131 union and non-union members to show cause why they should not be charged
administratively for their participation in said rally. In reaction, KMG's counsel, Atty. Manuel
Molina, sought reconsideration of said directive on the ground, among others, that the subject
employees resumed work on October 8, 2004 in obedience to the return-to-work order thus
issued. The plea for reconsideration was, however, effectively denied by the filing, on October 25,
2004, of administrative charges against some 110 KMG members for grave misconduct and
conduct prejudicial to the best interest of the service.4
What happened next is summarized by the CA in its challenged decision of June 16, 2005, albeit
the herein petitioners would except from some of the details of the appellate court's narration:
Ignoring said formal charges, KMG, thru its President, Albert Velasco, commenced the
instant suit on November 2, 2004, with the filing of the Petition for Prohibition at bench.
On the ground that its members should not be made to explain why they supported their
union's cause, petitioner [KMG] faulted respondent [Garcia] with blatant disregard of Civil
Service Resolution No. 021316, otherwise known as the Guidelines for Prohibited Mass
Action, Section 10 of which exhorts government agencies to "harness all means within
their capacity to accord due regard and attention to employees' grievances and facilitate
their speedy and amicable disposition through the use of grievance machinery or any
other modes of settlement sanctioned by law and existing civil service rules." Two
supplements to the foregoing petition were eventually filed by KMG. The first, … apprised
[the CA] of the supposed fact that its Speaker, Atty. Molina, had been placed under
preventive suspension for 90 days and that the formal charges thus filed will not only
deprive its members of the privileges and benefits due them but will also disqualify them
from promotion, step increment adjustments and receipt of monetary benefits, including
their 13th month pay and Christmas bonuses. The second, xxx manifested that, on
December 17, 2004, respondent [Garcia] served a spate of additional formal charges
against 230 of KMG's members for their participation in the aforesaid grievance
demonstrations.
In his December 14, 2004 comment to the foregoing petition, respondent [Garcia] averred
that the case at bench was filed by an unauthorized representative in view of the fact that
Albert Velasco had already been dropped from the GSIS rolls and, by said token, had
ceased to be a member – much less the President – of KMG. Invoking the rule against
forum shopping, respondent [Garcia] called [the CA's] attention to the supposed fact that
the allegations in the subject petition merely duplicated those already set forth in two
petitions for certiorari and prohibition earlier filed by Albert Velasco …. Because said
petitions are, in point of fact, pending before this court as CA-G.R. SP Nos. 86130 and
86365, respondent [Garcia] prayed for the dismissal of the petition at bench …. 5 (Words
in bracket added.)
It appears that pending resolution by the CA of the KMG petition for prohibition in this case, the
GSIS management proceeded with the investigation of the administrative cases filed. As
represented in a pleading before the CA, as of May 18, 2005, two hundred seven (207) out of the
two hundred seventy eight (278) cases filed had been resolved, resulting in the exoneration of
twenty (20) respondent-employees, the reprimand of one hundred eighty two (182) and the
suspension for one month of five (5).6
On June 16, 2005, the CA rendered the herein assailed decision7 holding that Garcia's "filing of
administrative charges against 361 of [KMG's] members is tantamount to grave abuse of
discretion which may be the proper subject of the writ of prohibition." Dispositively, the decision
reads:
 WHEREFORE, premises considered, the petition [of KMG] is GRANTED and respondent
[Winston F. Garcia] is hereby PERPETUALLY ENJOINED from implementing the issued
formal charges and from issuing other formal charges arising from the same facts and
events.
SO ORDERED. (Emphasis in the original)
Unable to accept the above ruling and the purported speculative factual and erroneous legal
premises holding it together, petitioner Garcia sought reconsideration. In its equally assailed
Resolution8 of October 18, 2005, however, the appellate court denied reconsideration of its
decision.
Hence, this recourse by the petitioners ascribing serious errors on the appellate court in granting
the petition for prohibition absent an instance of grave abuse of authority on their part.
We resolve to GRANT the petition.
It should be stressed right off that the civil service encompasses all branches and agencies of the
Government, including government-owned or controlled corporations (GOCCs) with original
charters, like the GSIS,9 or those created by special law.10 As such, employees of covered GOCCs
are part of the civil service system and are subject to circulars, rules and regulations issued by the
Civil Service Commission (CSC) on discipline, attendance and general terms/conditions of
employment, inclusive of matters involving self-organization, strikes, demonstrations and like
concerted actions. In fact, policies established on public sector unionism and rules issued on mass
action have been noted and cited by the Court in at least a case. 11 Among these issuances is
Executive Order (EO) No. 180, series of 1987, providing guidelines for the exercise of the right to
organize of government employees. Relevant also is CSC Resolution No. 021316 which provides
rules on prohibited concerted mass actions in the public sector.
There is hardly any dispute about the formal charges against the 278 affected GSIS employees –
a mix of KMG union and non-union members - having arose from their having gone on
unauthorized leave of absence (AWOL) for at least a day or two in the October 4 to 7, 2004
stretch to join the ranks of the demonstrators /rallyists at that time. As stated in each of the formal
charges, the employee's act of attending, joining, participating and taking part in the strike/rally is a
transgression of the rules on strike in the public sector. The question that immediately comes to
the fore, therefore, is whether or not the mass action staged by or participated in by said GSIS
employees partook of a strike or prohibited concerted mass action. If in the affirmative, then the
denounced filing of the administrative charges would be prima facie tenable, inasmuch as
engaging in mass actions resulting in work stoppage or service disruption constitutes, in the
minimum, the punishable offense of acting prejudicial to the best interest of the service.12 If in the
negative, then such filing would indeed smack of arbitrariness and justify the issuance of a
corrective or preventive writ.
Petitioners assert that the filing of the formal charges are but a natural consequence of the
service-disrupting rallies and demonstrations staged during office hours by the absenting GSIS
employees, there being appropriate issuances outlawing such kinds of mass action. On the other
hand, the CA, agreeing with the respondent's argument, assumed the view and held that the
organized demonstrating employees did nothing more than air their grievances in the exercise of
their "broader rights of free expression"13 and are, therefore, not amenable to administrative
sanctions. For perspective, following is what the CA said:
Although the filing of administrative charges against [respondent KMG's] members is well
within [petitioner Garcia's] official [disciplinary] prerogatives, [his] exercise of the power
vested under Section 45 of Republic Act No. 8291 was tainted with arbitrariness and
vindictiveness against which prohibition was sought by [respondent]. xxx the fact that the
subject mass demonstrations were directed against [Garcia's] supposed mismanagement
of the financial resources of the GSIS, by and of itself, renders the filing of administrative
charges against [KMG's] member suspect. More significantly, we find the gravity of the
offenses and the sheer number of persons … charged administratively to be, at the very
least, antithetical to the best interest of the service….
It matters little that, instead of the 361 alleged by petitioner, only 278 charges were
actually filed [and] in the meantime, disposed of and of the said number, 20 resulted to
exoneration, 182 to reprimand and 5 to the imposition of a penalty of one month
suspension. Irrespective of their outcome, the severe penalties prescribed for the offense
with which petitioner's members were charged, to our mind, bespeak of bellicose and
castigatory reaction …. The fact that most of the employees [Garcia] administratively
charged were eventually meted with what appears to be a virtual slap on the wrist even
makes us wonder why respondent even bothered to file said charges at all. xxx.
Alongside the consequences of the right of government employees to form, join or assist
employees organization, we have already mentioned how the broader rights of free
expression cast its long shadow over the case. xxx we find [petitioner Garcia's] assailed
acts, on the whole, anathema to said right which has been aptly characterized as
preferred, one which stands on a higher level than substantive economic and other
liberties, the matrix of other important rights of our people. xxx.14 (Underscoring and
words in bracket added; citations omitted.)
While its decision and resolution do not explicitly say so, the CA equated the right to form
associations with the right to engage in strike and similar activities available to workers in the
private sector. In the concrete, the appellate court concluded that inasmuch as GSIS employees
are not barred from forming, joining or assisting employees' organization, petitioner Garcia could
not validly initiate charges against GSIS employees waging or joining rallies and demonstrations
notwithstanding the service-disruptive effect of such mass action. Citing what Justice Isagani Cruz
said in Manila Public School Teachers Association [MPSTA] v. Laguio, Jr.,15 the appellate court
declared:
It is already evident from the aforesaid provisions of Resolution No. 021316 that
employees of the GSIS are not among those specifically barred from forming, joining or
assisting employees organization such as [KMG]. If only for this ineluctable fact, the merit
of the petition at bench is readily discernible.16
We are unable to lend concurrence to the above CA posture. For, let alone the fact that it ignores
what the Court has uniformly held all along, the appellate court's position is contrary to what
Section 4 in relation to Section 5 of CSC Resolution No. 021316 17 provides. Besides, the appellate
court's invocation of Justice Cruz's opinion inMPSTA is clearly off-tangent, the good Justice's
opinion thereat being a dissent. It may be, as the appellate court urged¸ that the freedom of
expression and assembly and the right to petition the government for a redress of grievances
stand on a level higher than economic and other liberties. Any suggestion, however, about these
rights as including the right on the part of government personnel to strike ought to be, as it has
been, trashed. We have made this abundantly clear in our past determinations. For instance,
in Alliance of Government Workers v. Minister of Labor and Employment,18 a case decided under
the aegis of the 1973 Constitution, an en banc Court declared that it would be unfair to allow
employees of government corporations to resort to concerted activity with the ever present threat
of a strike to wring benefits from Government. Then came the 1987 Constitution expressly
guaranteeing, for the first time, the right of government personnel to self-organization19 to
complement the provision according workers the right to engage in "peaceful concerted activities,
including the right to strike in accordance with law."20
It was against the backdrop of the aforesaid provisions of the 1987 Constitution that the Court
resolvedBangalisan v. Court of Appeals.21 In it, we held, citing MPSTA v. Laguio, Jr.,22 that
employees in the public service may not engage in strikes or in concerted and unauthorized
stoppage of work; that the right of government employees to organize is limited to the formation of
unions or associations, without including the right to strike.
Jacinto v. Court of Appeals23 came next and there we explained:
Specifically, the right of civil servants to organize themselves was positively recognized in
Association of Court of Appeals Employees vs. Ferrer-Caleja. But, as in the exercise of
the rights of free expression and of assembly, there are standards for allowable
limitations such as the legitimacy of the purpose of the association, [and] the overriding
considerations of national security . . . .
As regards the right to strike, the Constitution itself qualifies its exercise with the provision
"in accordance with law." This is a clear manifestation that the state may, by law, regulate
the use of this right, or even deny certain sectors such right. Executive Order 180 which
provides guidelines for the exercise of the right of government workers to organize, for
instance, implicitly endorsed an earlier CSC circular which "enjoins under pain of
administrative sanctions, all government officers and employees from staging strikes,
demonstrations, mass leaves, walkouts and other forms of mass action which will result in
temporary stoppage or disruption of public service" by stating that the Civil Service law
and rules governing concerted activities and strikes in government service shall be
observed. (Emphasis and words in bracket added; citations omitted)
And in the fairly recent case of Gesite v. Court of Appeals,24 the Court defined the limits of the right
of government employees to organize in the following wise:
It is relevant to state at this point that the settled rule in this jurisdiction is that employees
in the public service may not engage in strikes, mass leaves, walkouts, and other forms of
mass action that will lead in the temporary stoppage or disruption of public service. The
right of government employees to organize is limited to the formation of unions or
associations only, without including the right to strike,
adding that public employees going on disruptive unauthorized absences to join concerted mass
actions may be held liable for conduct prejudicial to the best interest of the service.
Significantly, 1986 Constitutional Commission member Eulogio Lerum, answering in the negative
the poser of whether or not the right of government employees to self-organization also includes
the right to strike, stated:
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 have also
the right to strike. That is a different matter. xxx25
With the view we take of the events that transpired on October 4-7, 2004, what respondent's
members launched or participated in during that time partook of a strike or, what contextually
amounts to the same thing, a prohibited concerted activity. The phrase "prohibited concerted
activity" refers to any collective activity undertaken by government employees, by themselves or
through their employees' organization, with the intent of effecting work stoppage or service
disruption in order to realize their demands or force concessions, economic or otherwise; it
includes mass leaves, walkouts, pickets and acts of similar nature. 26 Indeed, for four straight days,
participating KMG members and other GSIS employees staged a walk out and waged or
participated in a mass protest or demonstration right at the very doorstep of the GSIS main office
building. The record of attendance27 for the period material shows that, on the first day of the
protest, 851 employees, or forty eight per cent (48%) of the total number of employees in the main
office (1,756) took to the streets during office hours, from 6 a.m. to 2 p.m., 28leaving the other
employees to fend for themselves in an office where a host of transactions take place every
business day. On the second day, 707 employees left their respective work stations, while 538
participated in the mass action on the third day. A smaller number, i.e., 306 employees, but by no
means an insignificant few, joined the fourth day activity.
To say that there was no work disruption or that the delivery of services remained at the usual
level of efficiency at the GSIS main office during those four (4) days of massive walkouts and
wholesale absences would be to understate things. And to place the erring employees beyond the
reach of administrative accountability would be to trivialize the civil service rules, not to mention
the compelling spirit of professionalism exacted of civil servants by the Code of Conduct and
Ethical Standards for Public Officials and Employees. 29
The appellate court made specific reference to the "parliament of the streets," obviously to lend
concurrence to respondent's pretension that the gathering of GSIS employees on October 4-7,
2004 was an "assembly of citizens" out only to air grievances, not a striking crowd. According to
the respondent, a strike presupposes a mass action undertaken to press for some economic
demands or secure additional material employment benefits.
We are not convinced.
In whatever name respondent desires to call the four-day mass action in October 2004, the
stubborn fact remains that the erring employees, instead of exploring non-crippling activities
during their free time, had taken a disruptive approach to attain whatever it was they were
specifically after. As events evolved, they assembled in front of the GSIS main office building
during office hours and staged rallies and protests, and even tried to convince others to join their
cause, thus provoking work stoppage and service-delivery disruption, the very evil sought to be
forestalled by the prohibition against strikes by government personnel.30
The Court can concede hypothetically that the protest rally and gathering in question did not
involve some specific material demand. But then the absence of such economic-related demand,
even if true, did not, under the premises, make such mass action less of a prohibited concerted
activity. For, as articulated earlier, any collective activity undertaken by government employees
with the intent of effecting work stoppage or service disruption in order to realize their demands or
force concessions, economic or otherwise, is a prohibited concerted mass action 31 and doubtless
actionable administratively. Bangalisan even went further to say the following: "[i]n the absence of
statute, public employees do not have the right to engage in concerted work stoppages for any
purpose."
To petitioner Garcia, as President and General Manager of GSIS, rests the authority and
responsibility, under Section 45 of Republic Act No. 8291, the GSIS Act of 1997, to remove,
suspend or otherwise discipline GSIS personnel for cause. 32 At bottom then, petitioner Garcia, by
filing or causing the filing of administrative charges against the absenting participants of the
October 4-7, 2004 mass action, merely performed a duty expected of him and enjoined by law.
Regardless of the mood petitioner Garcia was in when he signed the charge sheet, his act can
easily be sustained as legally correct and doubtless within his jurisdiction.
It bears to reiterate at this point that the GSIS employees concerned were proceeded against -
and eventually either exonerated, reprimanded or meted a one-month suspension, as the case
may be - not for the exercise of their right to assemble peacefully and to petition for redress of
grievance, but for engaging in what appeared to be a prohibited concerted activity. Respondent no
less admitted that its members and other GSIS employees might have disrupted public service. 33
To be sure, arbitrariness and whimsical exercise of power or, in fine, grave abuse of discretion on
the part of petitioner Garcia cannot be simplistically inferred from the sheer number of those
charged as well as the gravity or the dire consequences of the charge of grave misconduct and
conduct prejudicial to the best interest of the service, as the appellate court made it to appear. The
principle of accountability demands that every erring government employee be made answerable
for any malfeasance or misfeasance committed. And lest it be overlooked, the mere filing of formal
administrative case, regardless of the gravity of the offense charged, does not overcome the
presumptive innocence of the persons complained of nor does it shift the burden of evidence to
prove guilt of an administrative offense from the complainant.
Moreover, the Court invites attention to its holding in MPSTA v. Laguio, Jr., a case involving over
800 public school teachers who took part in mass actions for which the then Secretary of
Education filed administrative complaints on assorted charges, such as gross misconduct. Of
those charged, 650 were dismissed and 195 suspended for at least six (6) months The Court,
however, did not consider the element of number of respondents thereat and/or the dire
consequences of the charge/s as fatally vitiating or beclouding the bona fidesof the Secretary of
Education's challenged action. Then as now, the Court finds the filing of charges against a large
number of persons and/or the likelihood that they will be suspended or, worse, dismissed from the
service for the offense as indicating a strong and clear case of grave abuse of authority to justify
the issuance of a writ of prohibition.
The appellate court faulted petitioner Garcia for not first taping existing grievance machinery and
other modes of settlement agreed upon in the GSIS-KMG Collective Negotiations Agreement
(CAN) before going full steam ahead with his formal charges.34
The Court can plausibly accord cogency to the CA's angle on grievance procedure but for the fact
that it conveniently disregarded what appears to be the more relevant provision of the CNA. We
refer to Article VI which reads:
The GSIS Management and the KMG have mutually agreed to promote the principle of
shared responsibility … on all matters and decisions affecting the rights, benefits and
interests of all GSIS employees …. Accordingly, … the parties also mutually agree
that the KMG shall not declare a strike nor stage any concerted action which will disrupt
public service and the GSIS management shall not lockoutemployees who are members
of the KMG during the term of this agreement. GSIS Management shall also respect the
rights of the employees to air their sentiments through peaceful concerted activities during
allowable hours, subject to reasonable office rules ....35 (Underscoring added)
If the finger of blame, therefore, is to be pointed at someone for non-exhaustion of less
confrontational remedies, it should be at the respondent union for spearheading a concerted mass
action without resorting to available settlement mechanism. As it were, it was KMG, under Atty.
Alberto Velasco, which opened fire first. That none of the parties bothered to avail of the grievance
procedures under the GSIS-KMG CNA should not be taken against the GSIS. At best, both GSIS
management and the Union should be considered as in pari delicto.
With the foregoing disquisitions, the Court finds it unnecessary to discuss at length the legal
standing of Alberto Velasco to represent the herein respondent union and to initiate the underlying
petition for prohibition. Suffice it to state that Velasco, per Joint Resolution No. 04-10-01 approved
on October 5, 2004 by the KMG Joint Executive-Legislative Assembly, had ceased to be member,
let alone president, of the KMG, having previously been dropped from the rolls of GSIS
employees.36 While the dropping from the rolls is alleged to have been the subject of a CA-issued
temporary restraining order (TRO), the injunction came after Atty. Velasco had in fact been
separated from the service and it appears that the TRO had already expired.
As a final consideration, the Court notes or reiterates the following relevant incidents surrounding
the disposition of the case below:
1. The CA had invoked as part of its ratio decidendi a dissenting opinion in MPSTA, even
going to the extent of describing as "instructive and timely" a portion, when the majority
opinion thereat, which the appellate court ignored, is the controlling jurisprudence.
2. The CA gave prominence to dispositions and rattled off holdings 37 of the Court, which
appropriately apply only to strikes in the private industry labor sector, and utilized the
 same as springboard to justify an inference of grave abuse of discretion. On the other
hand, it only gave perfunctory treatment if not totally ignored jurisprudence that squarely
dealt with strikes in the public sector, as if the right to strike given to unions in private
corporations/entities is necessarily applicable to civil service employees.

3. As couched, the assailed CA decision perpetually bars respondent Garcia – and

necessarily whoever succeeds him as GSIS President – not only from implementing the
formal charges against GSIS employees who participated in the October 4 - 7, 2004 mass
action but also from issuing other formal charges arising from the same events. The
injunction was predicated on a finding that grave abuse of discretion attended the
exercise of petitioner Garcia's disciplinary power vested him under Section 45 of RA
8291.38 At bottom then, the assailed decision struck down as a nullity, owing to the
alleged attendant arbitrariness, not only acts that have already been done, but those yet
to be done. In net effect, any formal charge arising from the October 4-7, 2004 incident is,
under any and all circumstances, prejudged as necessarily tainted with arbitrariness to be
slain at sight.

The absurdities and ironies easily deducible from the foregoing situations are not lost on the
Court.

We close with the observation that the assailed decision and resolution, if allowed to remain
undisturbed, would likely pave the way to the legitimization of mass actions undertaken by civil
servants, regardless of their deleterious effects on the interest of the public they have sworn to
serve with loyalty and efficiency. Worse still, it would permit the emergence of a system where
public sector workers are, as the petitioners aptly put it, "immune from the minimum reckoning for
acts that [under settled jurisprudence] are concededly unlawful." This aberration would be
intolerable.

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals

are REVERSED and SET ASIDE and the writ of prohibition issued by that court is NULLIFIED.

No Cost.

SO ORDERED.

Puno, J., Chairperson, Sandoval-Gutierrez, and Azcuna, JJ., concur.

Corona, J., On Leave.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-20620 August 15, 1974
REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,
vs.
CARMEN M. VDA. DE CASTELLVI, ET AL., defendants-appellees.
Office of the Solicitor General for plaintiff-appellant.
C.A. Mendoza & A. V. Raquiza and Alberto Cacnio & Associates for defendant-appellees.
ZALDIVAR, J.:p
Appeal from the decision of the Court of First Instance of Pampanga in its Civil Case No. 1623, an
expropriation proceeding.
Plaintiff-appellant, the Republic of the Philippines, (hereinafter referred to as the Republic) filed, on
June 26, 1959, a complaint for eminent domain against defendant-appellee, Carmen M. Vda. de
Castellvi, judicial administratrix of the estate of the late Alfonso de Castellvi (hereinafter referred to
as Castellvi), over a parcel of land situated in the barrio of San Jose, Floridablanca, Pampanga,
described as follows:
A parcel of land, Lot No. 199-B Bureau of Lands Plan Swo 23666. Bounded on
the NE by Maria Nieves Toledo-Gozun; on the SE by national road; on the SW
by AFP reservation, and on the NW by AFP reservation. Containing an area of
759,299 square meters, more or less, and registered in the name of Alfonso
Castellvi under TCT No. 13631 of the Register of Pampanga ...;
and against defendant-appellee Maria Nieves Toledo Gozun (hereinafter referred to as Toledo-
Gozun over two parcels of land described as follows:
A parcel of land (Portion Lot Blk-1, Bureau of Lands Plan Psd, 26254. Bounded
on the NE by Lot 3, on the SE by Lot 3; on the SW by Lot 1-B, Blk. 2 (equivalent
to Lot 199-B Swo 23666; on the NW by AFP military reservation. Containing an
area of 450,273 square meters, more or less and registered in the name of Maria
Nieves Toledo-Gozun under TCT No. 8708 of the Register of Deeds of
Pampanga. ..., and
A parcel of land (Portion of lot 3, Blk-1, Bureau of Lands Plan Psd 26254.
Bounded on the NE by Lot No. 3, on the SE by school lot and national road, on
the SW by Lot 1-B Blk 2 (equivalent to Lot 199-B Swo 23666), on the NW by Lot
1-B, Blk-1. Containing an area of 88,772 square meters, more or less, and
registered in the name of Maria Nieves Toledo Gozun under TCT No. 8708 of the
Register of Deeds of Pampanga, ....
In its complaint, the Republic alleged, among other things, that the fair market value of the above-
mentioned lands, according to the Committee on Appraisal for the Province of Pampanga, was not
more than P2,000 per hectare, or a total market value of P259,669.10; and prayed, that the
provisional value of the lands be fixed at P259.669.10, that the court authorizes plaintiff to take
immediate possession of the lands upon deposit of that amount with the Provincial Treasurer of
Pampanga; that the court appoints three commissioners to ascertain and report to the court the
just compensation for the property sought to be expropriated, and that the court issues thereafter
a final order of condemnation.
On June 29, 1959 the trial court issued an order fixing the provisional value of the lands at
P259,669.10.
In her "motion to dismiss" filed on July 14, 1959, Castellvi alleged, among other things, that the
land under her administration, being a residential land, had a fair market value of P15.00 per
square meter, so it had a total market value of P11,389,485.00; that the Republic, through the
Armed Forces of the Philippines, particularly the Philippine Air Force, had been, despite repeated
demands, illegally occupying her property since July 1, 1956, thereby preventing her from using
and disposing of it, thus causing her damages by way of unrealized profits. This defendant prayed
that the complaint be dismissed, or that the Republic be ordered to pay her P15.00 per square
meter, or a total of P11,389,485.00, plus interest thereon at 6% per annum from July 1, 1956; that
the Republic be ordered to pay her P5,000,000.00 as unrealized profits, and the costs of the suit.
By order of the trial court, dated August, 1959, Amparo C. Diaz, Dolores G. viuda de Gil, Paloma
Castellvi, Carmen Castellvi, Rafael Castellvi, Luis Castellvi, Natividad Castellvi de Raquiza, Jose
Castellvi and Consuelo Castellvi were allowed to intervene as parties defendants. Subsequently,
Joaquin V. Gozun, Jr., husband of defendant Nieves Toledo Gozun, was also allowed by the court
to intervene as a party defendant.
After the Republic had deposited with the Provincial Treasurer of Pampanga the amount of
P259,669.10, the trial court ordered that the Republic be placed in possession of the lands. The
Republic was actually placed in possession of the lands on August 10,
1959.1
In her "motion to dismiss", dated October 22, 1959, Toledo-Gozun alleged, among other things,
that her two parcels of land were residential lands, in fact a portion with an area of 343,303 square
meters had already been subdivided into different lots for sale to the general public, and the
remaining portion had already been set aside for expansion sites of the already completed
subdivisions; that the fair market value of said lands was P15.00 per square meter, so they had a
total market value of P8,085,675.00; and she prayed that the complaint be dismissed, or that she
be paid the amount of P8,085,675.00, plus interest thereon at the rate of 6% per annum from
October 13, 1959, and attorney's fees in the amount of P50,000.00.
Intervenors Jose Castellvi and Consuelo Castellvi in their answer, filed on February 11, 1960, and
also intervenor Joaquin Gozun, Jr., husband of defendant Maria Nieves Toledo-Gozun, in his
motion to dismiss, dated May 27, 1960, all alleged that the value of the lands sought to be
expropriated was at the rate of P15.00 per square meter.
On November 4, 1959, the trial court authorized the Provincial Treasurer of Pampanga to pay
defendant Toledo-Gozun the sum of P107,609.00 as provisional value of her lands. 2 On May 16,
1960 the trial Court authorized the Provincial Treasurer of Pampanga to pay defendant Castellvi
the amount of P151,859.80 as provisional value of the land under her administration, and ordered
said defendant to deposit the amount with the Philippine National Bank under the supervision of
the Deputy Clerk of Court. In another order of May 16, 1960 the trial Court entered an order of
condemnation.3
The trial Court appointed three commissioners: Atty. Amadeo Yuzon, Clerk of Court, as
commissioner for the court; Atty. Felicisimo G. Pamandanan, counsel of the Philippine National
Bank Branch at Floridablanca, for the plaintiff; and Atty. Leonardo F. Lansangan, Filipino legal
counsel at Clark Air Base, for the defendants. The Commissioners, after having qualified
themselves, proceeded to the performance of their duties.
On March 15,1961 the Commissioners submitted their report and recommendation, wherein, after
having determined that the lands sought to be expropriated were residential lands, they
recommended unanimously that the lowest price that should be paid was P10.00 per square
meter, for both the lands of Castellvi and Toledo-Gozun; that an additional P5,000.00 be paid to
Toledo-Gozun for improvements found on her land; that legal interest on the compensation,
computed from August 10, 1959, be paid after deducting the amounts already paid to the owners,
and that no consequential damages be awarded.4 The Commissioners' report was objected to by
all the parties in the case — by defendants Castellvi and Toledo-Gozun, who insisted that the fair
market value of their lands should be fixed at P15.00 per square meter; and by the Republic,
which insisted that the price to be paid for the lands should be fixed at P0.20 per square meter. 5
After the parties-defendants and intervenors had filed their respective memoranda, and the
Republic, after several extensions of time, had adopted as its memorandum its objections to the
report of the Commissioners, the trial court, on May 26, 1961, rendered its decision6 the
dispositive portion of which reads as follows:
WHEREFORE, taking into account all the foregoing circumstances, and that the
lands are titled, ... the rising trend of land values ..., and the lowered purchasing
power of the Philippine peso, the court finds that the unanimous recommendation
of the commissioners of ten (P10.00) pesos per square meter for the three lots of
the defendants subject of this action is fair and just.
xxx xxx xxx
The plaintiff will pay 6% interest per annum on the total value of the lands of
defendant Toledo-Gozun since (sic) the amount deposited as provisional value
from August 10, 1959 until full payment is made to said defendant or deposit
therefor is made in court.
In respect to the defendant Castellvi, interest at 6% per annum will also be paid
by the plaintiff to defendant Castellvi from July 1, 1956 when plaintiff commenced
its illegal possession of the Castellvi land when the instant action had not yet
been commenced to July 10, 1959 when the provisional value thereof was
actually deposited in court, on the total value of the said (Castellvi) land as herein
adjudged. The same rate of interest shall be paid from July 11, 1959 on the total
value of the land herein adjudged minus the amount deposited as provisional
value, or P151,859.80, such interest to run until full payment is made to said
defendant or deposit therefor is made in court. All the intervenors having failed to
produce evidence in support of their respective interventions, said interventions
are ordered dismissed.
The costs shall be charged to the plaintiff.
On June 21, 1961 the Republic filed a motion for a new trial and/or reconsideration, upon the
grounds of newly-discovered evidence, that the decision was not supported by the evidence, and
that the decision was against the law, against which motion defendants Castellvi and Toledo-
Gozun filed their respective oppositions. On July 8, 1961 when the motion of the Republic for new
trial and/or reconsideration was called for hearing, the Republic filed a supplemental motion for
new trial upon the ground of additional newly-discovered evidence. This motion for new trial and/or
reconsideration was denied by the court on July 12, 1961.
On July 17, 1961 the Republic gave notice of its intention to appeal from the decision of May 26,
1961 and the order of July 12, 1961. Defendant Castellvi also filed, on July 17, 1961, her notice of
appeal from the decision of the trial court.
The Republic filed various ex-parte motions for extension of time within which to file its record on
appeal. The Republic's record on appeal was finally submitted on December 6, 1961.
Defendants Castellvi and Toledo-Gozun filed not only a joint opposition to the approval of the
Republic's record on appeal, but also a joint memorandum in support of their opposition. The
Republic also filed a memorandum in support of its prayer for the approval of its record on appeal.
On December 27, 1961 the trial court issued an order declaring both the record on appeal filed by
the Republic, and the record on appeal filed by defendant Castellvi as having been filed out of
time, thereby dismissing both appeals.
On January 11, 1962 the Republic filed a "motion to strike out the order of December 27, 1961
and for reconsideration", and subsequently an amended record on appeal, against which motion
the defendants Castellvi and Toledo-Gozun filed their opposition. On July 26, 1962 the trial court
issued an order, stating that "in the interest of expediency, the questions raised may be properly
and finally determined by the Supreme Court," and at the same time it ordered the Solicitor
General to submit a record on appeal containing copies of orders and pleadings specified therein.
In an order dated November 19, 1962, the trial court approved the Republic's record on appeal as
amended.
Defendant Castellvi did not insist on her appeal. Defendant Toledo-Gozun did not appeal.
The motion to dismiss the Republic's appeal was reiterated by appellees Castellvi and Toledo-
Gozun before this Court, but this Court denied the motion.
In her motion of August 11, 1964, appellee Castellvi sought to increase the provisional value of
her land. The Republic, in its comment on Castellvi's motion, opposed the same. This Court
denied Castellvi's motion in a resolution dated October 2,1964.
The motion of appellees, Castellvi and Toledo-Gozun, dated October 6, 1969, praying that they be
authorized to mortgage the lands subject of expropriation, was denied by this Court or October 14,
1969.
On February 14, 1972, Attys. Alberto Cacnio, and Associates, counsel for the estate of the late
Don Alfonso de Castellvi in the expropriation proceedings, filed a notice of attorney's lien, stating
that as per agreement with the administrator of the estate of Don Alfonso de Castellvi they shall
receive by way of attorney's fees, "the sum equivalent to ten per centum of whatever the court
may finally decide as the expropriated price of the property subject matter of the case."
---------
Before this Court, the Republic contends that the lower court erred:
1. In finding the price of P10 per square meter of the lands subject of the instant
proceedings as just compensation;
2. In holding that the "taking" of the properties under expropriation commenced
with the filing of this action;
3. In ordering plaintiff-appellant to pay 6% interest on the adjudged value of the
Castellvi property to start from July of 1956;
4. In denying plaintiff-appellant's motion for new trial based on newly discovered
evidence.
In its brief, the Republic discusses the second error assigned as the first issue to be considered.
We shall follow the sequence of the Republic's discussion.
1. In support of the assigned error that the lower court erred in holding that the "taking" of the
properties under expropriation commenced with the filing of the complaint in this case, the
Republic argues that the "taking" should be reckoned from the year 1947 when by virtue of a
special lease agreement between the Republic and appellee Castellvi, the former was granted the
"right and privilege" to buy the property should the lessor wish to terminate the lease, and that in
the event of such sale, it was stipulated that the fair market value should be as of the time of
occupancy; and that the permanent improvements amounting to more that half a million pesos
constructed during a period of twelve years on the land, subject of expropriation, were indicative of
an agreed pattern of permanency and stability of occupancy by the Philippine Air Force in the
interest of national Security.7
Appellee Castellvi, on the other hand, maintains that the "taking" of property under the power of
eminent domain requires two essential elements, to wit: (1) entrance and occupation by condemn
or upon the private property for more than a momentary or limited period, and (2) devoting it to a
public use in such a way as to oust the owner and deprive him of all beneficial enjoyment of the
property. This appellee argues that in the instant case the first element is wanting, for the contract
of lease relied upon provides for a lease from year to year; that the second element is also
wanting, because the Republic was paying the lessor Castellvi a monthly rental of P445.58; and
that the contract of lease does not grant the Republic the "right and privilege" to buy the premises
"at the value at the time of occupancy."8
Appellee Toledo-Gozun did not comment on the Republic's argument in support of the second
error assigned, because as far as she was concerned the Republic had not taken possession of
her lands prior to August 10, 1959.9
In order to better comprehend the issues raised in the appeal, in so far as the Castellvi property is
concerned, it should be noted that the Castellvi property had been occupied by the Philippine Air
Force since 1947 under a contract of lease, typified by the contract marked Exh. 4-Castellvi, the
pertinent portions of which read:
CONTRACT OF LEASE
This AGREEMENT OF LEASE MADE AND ENTERED into by and between
INTESTATE ESTATE OF ALFONSO DE CASTELLVI, represented by CARMEN
M. DE CASTELLVI, Judicial Administratrix ... hereinafter called the LESSOR and
THE REPUBLIC OF THE PHILIPPINES represented by MAJ. GEN. CALIXTO
DUQUE, Chief of Staff of the ARMED FORCES OF THE PHILIPPINES,
hereinafter called the LESSEE,
WITNESSETH:
1. For and in consideration of the rentals hereinafter reserved and the mutual
terms, covenants and conditions of the parties, the LESSOR has, and by these
presents does, lease and let unto the LESSEE the following described land
together with the improvements thereon and appurtenances thereof, viz:
Un Terreno, Lote No. 27 del Plano de subdivision Psu 34752, parte de la
hacienda de Campauit, situado en el Barrio de San Jose, Municipio de
Floridablanca Pampanga. ... midiendo una extension superficial de cuatro
milliones once mil cuatro cientos trienta y cinco (4,001,435) [sic] metros
cuadrados, mas o menos.
 Out of the above described property, 75.93 hectares thereof are actually
occupied and covered by this contract. .
Above lot is more particularly described in TCT No. 1016, province of
Pampanga ...
of which premises, the LESSOR warrants that he/she/they/is/are the registered owner(s) and with
full authority to execute a contract of this nature.
2. The term of this lease shall be for the period beginning July 1, 1952 the date
the premises were occupied by the PHILIPPINE AIR FORCE, AFP until June 30,
1953, subject to renewal for another year at the option of the LESSEE or unless
sooner terminated by the LESSEE as hereinafter provided.
3. The LESSOR hereby warrants that the LESSEE shall have quiet, peaceful and
undisturbed possession of the demised premises throughout the full term or
period of this lease and the LESSOR undertakes without cost to the LESSEE to
eject all trespassers, but should the LESSOR fail to do so, the LESSEE at its
option may proceed to do so at the expense of the LESSOR. The LESSOR
further agrees that should he/she/they sell or encumber all or any part of the
herein described premises during the period of this lease, any conveyance will be
conditioned on the right of the LESSEE hereunder.
4. The LESSEE shall pay to the LESSOR as monthly rentals under this lease the
sum of FOUR HUNDRED FIFTY-FIVE PESOS & 58/100 (P455.58) ...
5. The LESSEE may, at any time prior to the termination of this lease, use the
property for any purpose or purposes and, at its own costs and expense make
alteration, install facilities and fixtures and errect additions ... which facilities or
fixtures ... so placed in, upon or attached to the said premises shall be and
remain property of the LESSEE and may be removed therefrom by the LESSEE
prior to the termination of this lease. The LESSEE shall surrender possession of
the premises upon the expiration or termination of this lease and if so required by
the LESSOR, shall return the premises in substantially the same condition as
that existing at the time same were first occupied by the AFP, reasonable and
ordinary wear and tear and damages by the elements or by circumstances over
which the LESSEE has no control excepted: PROVIDED, that if the LESSOR so
requires the return of the premises in such condition, the LESSOR shall give
written notice thereof to the LESSEE at least twenty (20) days before the
termination of the lease and provided, further, that should the LESSOR give
notice within the time specified above, the LESSEE shall have the right and
privilege to compensate the LESSOR at the fair value or the equivalent, in lieu of
performance of its obligation, if any, to restore the premises. Fair value is to be
determined as the value at the time of occupancy less fair wear and tear and
depreciation during the period of this lease.
6. The LESSEE may terminate this lease at any time during the term hereof by
giving written notice to the LESSOR at least thirty (30) days in advance ...
7. The LESSEE should not be responsible, except under special legislation for
any damages to the premises by reason of combat operations, acts of GOD, the
elements or other acts and deeds not due to the negligence on the part of the
LESSEE.
8. This LEASE AGREEMENT supersedes and voids any and all agreements and
undertakings, oral or written, previously entered into between the parties
covering the property herein leased, the same having been merged herein. This
AGREEMENT may not be modified or altered except by instrument in writing only
duly signed by the parties. 10
It was stipulated by the parties, that "the foregoing contract of lease (Exh. 4, Castellvi) is 'similar in
terms and conditions, including the date', with the annual contracts entered into from year to year
between defendant Castellvi and the Republic of the Philippines (p. 17, t.s.n., Vol. III)". 11 It is
undisputed, therefore, that the Republic occupied Castellvi's land from July 1, 1947, by virtue of
the above-mentioned contract, on a year to year basis (from July 1 of each year to June 30 of the
succeeding year) under the terms and conditions therein stated.
Before the expiration of the contract of lease on June 30, 1956 the Republic sought to renew the
same but Castellvi refused. When the AFP refused to vacate the leased premises after the
termination of the contract, on July 11, 1956, Castellvi wrote to the Chief of Staff, AFP, informing
the latter that the heirs of the property had decided not to continue leasing the property in question
because they had decided to subdivide the land for sale to the general public, demanding that the
property be vacated within 30 days from receipt of the letter, and that the premises be returned in
substantially the same condition as before occupancy (Exh. 5 — Castellvi). A follow-up letter was
sent on January 12, 1957, demanding the delivery and return of the property within one month
from said date (Exh. 6 Castellvi). On January 30, 1957, Lieutenant General Alfonso Arellano,
Chief of Staff, answered the letter of Castellvi, saying that it was difficult for the army to vacate the
premises in view of the permanent installations and other facilities worth almost P500,000.00 that
were erected and already established on the property, and that, there being no other recourse, the
acquisition of the property by means of expropriation proceedings would be recommended to the
President (Exhibit "7" — Castellvi).
Defendant Castellvi then brought suit in the Court of First Instance of Pampanga, in Civil Case No.
1458, to eject the Philippine Air Force from the land. While this ejectment case was pending, the
Republic instituted these expropriation proceedings, and, as stated earlier in this opinion, the
Republic was placed in possession of the lands on August 10, 1959, On November 21, 1959, the
Court of First Instance of Pampanga, dismissed Civil Case No. 1458, upon petition of the parties,
in an order which, in part, reads as follows:
1. Plaintiff has agreed, as a matter of fact has already signed an agreement with
defendants, whereby she has agreed to receive the rent of the lands, subject
matter of the instant case from June 30, 1966 up to 1959 when the Philippine Air
Force was placed in possession by virtue of an order of the Court upon
 depositing the provisional amount as fixed by the Provincial Appraisal Committee
with the Provincial Treasurer of Pampanga;
2. That because of the above-cited agreement wherein the administratrix decided
to get the rent corresponding to the rent from 1956 up to 1959 and considering
that this action is one of illegal detainer and/or to recover the possession of said
land by virtue of non-payment of rents, the instant case now has become moot
and academic and/or by virtue of the agreement signed by plaintiff, she has
waived her cause of action in the above-entitled case. 12
The Republic urges that the "taking " of Castellvi's property should be deemed as of the year 1947
by virtue of afore-quoted lease agreement. In American Jurisprudence, Vol. 26, 2nd edition,
Section 157, on the subject of "Eminent Domain, we read the definition of "taking" (in eminent
domain) as follows:
Taking' under the power of eminent domain may be defined generally as entering
upon private property for more than a momentary period, and, under the warrant
or color of legal authority, devoting it to a public use, or otherwise informally
appropriating or injuriously affecting it in such a way as substantially to oust the
owner and deprive him of all beneficial enjoyment thereof. 13
Pursuant to the aforecited authority, a number of circumstances must be present in the "taking" of
property for purposes of eminent domain.
First, the expropriator must enter a private property. This circumstance is present in the instant
case, when by virtue of the lease agreement the Republic, through the AFP, took possession of
the property of Castellvi.
Second, the entrance into private property must be for more than a momentary period.
"Momentary" means, "lasting but a moment; of but a moment's duration" (The Oxford English
Dictionary, Volume VI, page 596); "lasting a very short time; transitory; having a very brief life;
operative or recurring at every moment" (Webster's Third International Dictionary, 1963 edition.)
The word "momentary" when applied to possession or occupancy of (real) property should be
construed to mean "a limited period" — not indefinite or permanent. The aforecited lease contract
was for a period of one year, renewable from year to year. The entry on the property, under the
lease, is temporary, and considered transitory. The fact that the Republic, through the AFP,
constructed some installations of a permanent nature does not alter the fact that the entry into the
land was transitory, or intended to last a year, although renewable from year to year by consent of
'The owner of the land. By express provision of the lease agreement the Republic, as lessee,
undertook to return the premises in substantially the same condition as at the time the property
was first occupied by the AFP. It is claimed that the intention of the lessee was to occupy the land
permanently, as may be inferred from the construction of permanent improvements. But this
"intention" cannot prevail over the clear and express terms of the lease contract. Intent is to be
deduced from the language employed by the parties, and the terms 'of the contract, when
unambiguous, as in the instant case, are conclusive in the absence of averment and proof of
mistake or fraud — the question being not what the intention was, but what is expressed in the
language used. (City of Manila v. Rizal Park Co., Inc., 53 Phil. 515, 525); Magdalena Estate, Inc.
v. Myrick, 71 Phil. 344, 348). Moreover, in order to judge the intention of the contracting parties,
their contemporaneous and subsequent acts shall be principally considered (Art. 1371, Civil
Code). If the intention of the lessee (Republic) in 1947 was really to occupy permanently
Castellvi's property, why was the contract of lease entered into on year to year basis? Why was
the lease agreement renewed from year to year? Why did not the Republic expropriate this land of
Castellvi in 1949 when, according to the Republic itself, it expropriated the other parcels of land
that it occupied at the same time as the Castellvi land, for the purpose of converting them into a jet
air base? 14 It might really have been the intention of the Republic to expropriate the lands in
question at some future time, but certainly mere notice - much less an implied notice — of such
intention on the part of the Republic to expropriate the lands in the future did not, and could not,
bind the landowner, nor bind the land itself. The expropriation must be actually commenced in
court (Republic vs. Baylosis, et al., 96 Phil. 461, 484).
Third, the entry into the property should be under warrant or color of legal authority. This
circumstance in the "taking" may be considered as present in the instant case, because the
Republic entered the Castellvi property as lessee.
Fourth, the property must be devoted to a public use or otherwise informally appropriated or
injuriously affected. It may be conceded that the circumstance of the property being devoted to
public use is present because the property was used by the air force of the AFP.
Fifth, the utilization of the property for public use must be in such a way as to oust the owner and
deprive him of all beneficial enjoyment of the property. In the instant case, the entry of the
Republic into the property and its utilization of the same for public use did not oust Castellvi and
deprive her of all beneficial enjoyment of the property. Castellvi remained as owner, and was
continuously recognized as owner by the Republic, as shown by the renewal of the lease contract
from year to year, and by the provision in the lease contract whereby the Republic undertook to
return the property to Castellvi when the lease was terminated. Neither was Castellvi deprived of
all the beneficial enjoyment of the property, because the Republic was bound to pay, and had
been paying, Castellvi the agreed monthly rentals until the time when it filed the complaint for
eminent domain on June 26, 1959.
It is clear, therefore, that the "taking" of Catellvi's property for purposes of eminent domain cannot
be considered to have taken place in 1947 when the Republic commenced to occupy the property
as lessee thereof. We find merit in the contention of Castellvi that two essential elements in the
"taking" of property under the power of eminent domain, namely: (1) that the entrance and
occupation by the condemnor must be for a permanent, or indefinite period, and (2) that in
devoting the property to public use the owner was ousted from the property and deprived of its
beneficial use, were not present when the Republic entered and occupied the Castellvi property in
1947.
Untenable also is the Republic's contention that although the contract between the parties was
one of lease on a year to year basis, it was "in reality a more or less permanent right to occupy the
premises under the guise of lease with the 'right and privilege' to buy the property should the
lessor wish to terminate the lease," and "the right to buy the property is merged as an integral part
of the lease relationship ... so much so that the fair market value has been agreed upon, not, as of
the time of purchase, but as of the time of occupancy" 15 We cannot accept the Republic's
contention that a lease on a year to year basis can give rise to a permanent right to occupy, since
by express legal provision a lease made for a determinate time, as was the lease of Castellvi's
land in the instant case, ceases upon the day fixed, without need of a demand (Article 1669, Civil
Code). Neither can it be said that the right of eminent domain may be exercised by simply leasing
the premises to be expropriated (Rule 67, Section 1, Rules of Court). Nor can it be accepted that
the Republic would enter into a contract of lease where its real intention was to buy, or why the
Republic should enter into a simulated contract of lease ("under the guise of lease", as expressed
by counsel for the Republic) when all the time the Republic had the right of eminent domain, and
could expropriate Castellvi's land if it wanted to without resorting to any guise whatsoever. Neither
can we see how a right to buy could be merged in a contract of lease in the absence of any
agreement between the parties to that effect. To sustain the contention of the Republic is to
sanction a practice whereby in order to secure a low price for a land which the government intends
to expropriate (or would eventually expropriate) it would first negotiate with the owner of the land
to lease the land (for say ten or twenty years) then expropriate the same when the lease is about
to terminate, then claim that the "taking" of the property for the purposes of the expropriation be
reckoned as of the date when the Government started to occupy the property under the lease, and
then assert that the value of the property being expropriated be reckoned as of the start of the
lease, in spite of the fact that the value of the property, for many good reasons, had in the
meantime increased during the period of the lease. This would be sanctioning what obviously is a
deceptive scheme, which would have the effect of depriving the owner of the property of its true
and fair market value at the time when the expropriation proceedings were actually instituted in
court. The Republic's claim that it had the "right and privilege" to buy the property at the value that
it had at the time when it first occupied the property as lessee nowhere appears in the lease
contract. What was agreed expressly in paragraph No. 5 of the lease agreement was that, should
the lessor require the lessee to return the premises in the same condition as at the time the same
was first occupied by the AFP, the lessee would have the "right and privilege" (or option) of paying
the lessor what it would fairly cost to put the premises in the same condition as it was at the
commencement of the lease, in lieu of the lessee's performance of the undertaking to put the land
in said condition. The "fair value" at the time of occupancy, mentioned in the lease agreement,
does not refer to the value of the property if bought by the lessee, but refers to the cost of
restoring the property in the same condition as of the time when the lessee took possession of the
property. Such fair value cannot refer to the purchase price, for purchase was never intended by
the parties to the lease contract. It is a rule in the interpretation of contracts that "However general
the terms of a contract may be, they shall not be understood to comprehend things that are
distinct and cases that are different from those upon which the parties intended to agree" (Art.
1372, Civil Code).
We hold, therefore, that the "taking" of the Castellvi property should not be reckoned as of the year
1947 when the Republic first occupied the same pursuant to the contract of lease, and that the just
compensation to be paid for the Castellvi property should not be determined on the basis of the
value of the property as of that year. The lower court did not commit an error when it held that the
"taking" of the property under expropriation commenced with the filing of the complaint in this
case.
Under Section 4 of Rule 67 of the Rules of Court, 16 the "just compensation" is to be determined as
of the date of the filing of the complaint. This Court has ruled that when the taking of the property
sought to be expropriated coincides with the commencement of the expropriation proceedings, or
takes place subsequent to the filing of the complaint for eminent domain, the just compensation
should be determined as of the date of the filing of the complaint. (Republic vs. Philippine National
Bank, L-14158, April 12, 1961, 1 SCRA 957, 961-962). In the instant case, it is undisputed that the
Republic was placed in possession of the Castellvi property, by authority of the court, on August
10, 1959. The "taking" of the Castellvi property for the purposes of determining the just
compensation to be paid must, therefore, be reckoned as of June 26, 1959 when the complaint for
eminent domain was filed.
Regarding the two parcels of land of Toledo-Gozun, also sought to be expropriated, which had
never been under lease to the Republic, the Republic was placed in possession of said lands, also
by authority of the court, on August 10, 1959, The taking of those lands, therefore, must also be
reckoned as of June 26, 1959, the date of the filing of the complaint for eminent domain.
2. Regarding the first assigned error — discussed as the second issue — the Republic maintains
that, even assuming that the value of the expropriated lands is to be determined as of June 26,
1959, the price of P10.00 per square meter fixed by the lower court "is not only exhorbitant but
also unconscionable, and almost fantastic". On the other hand, both Castellvi and Toledo-Gozun
maintain that their lands are residential lands with a fair market value of not less than P15.00 per
square meter.
The lower court found, and declared, that the lands of Castellvi and Toledo-Gozun are residential
lands. The finding of the lower court is in consonance with the unanimous opinion of the three
commissioners who, in their report to the court, declared that the lands are residential lands.
The Republic assails the finding that the lands are residential, contending that the plans of the
appellees to convert the lands into subdivision for residential purposes were only on paper, there
being no overt acts on the part of the appellees which indicated that the subdivision project had
been commenced, so that any compensation to be awarded on the basis of the plans would be
speculative. The Republic's contention is not well taken. We find evidence showing that the lands
in question had ceased to be devoted to the production of agricultural crops, that they had become
adaptable for residential purposes, and that the appellees had actually taken steps to convert their
lands into residential subdivisions even before the Republic filed the complaint for eminent
domain. In the case of City of Manila vs. Corrales (32 Phil. 82, 98) this Court laid down basic
guidelines in determining the value of the property expropriated for public purposes. This Court
said:
In determining the value of land appropriated for public purposes, the same
consideration are to be regarded as in a sale of property between private parties.
The inquiry, in such cases, must be what is the property worth in the market,
viewed not merely with reference to the uses to which it is at the time applied, but
with reference to the uses to which it is plainly adapted, that is to say, What is it
worth from its availability for valuable uses?
So many and varied are the circumstances to be taken into account in
determining the value of property condemned for public purposes, that it is
practically impossible to formulate a rule to govern its appraisement in all cases.
Exceptional circumstances will modify the most carefully guarded rule, but, as a
general thing, we should say that the compensation of the owner is to be
estimated by reference to the use for which the property is suitable, having
 regard to the existing business or wants of the community, or such as may be
reasonably expected in the immediate future. (Miss. and Rum River Boom Co.
vs. Patterson, 98 U.S., 403).
In expropriation proceedings, therefore, the owner of the land has the right to its value for the use
for which it would bring the most in the market. 17 The owner may thus show every advantage that
his property possesses, present and prospective, in order that the price it could be sold for in the
market may be satisfactorily determined.18 The owner may also show that the property is suitable
for division into village or town lots. 19
The trial court, therefore, correctly considered, among other circumstances, the proposed
subdivision plans of the lands sought to be expropriated in finding that those lands are residential
lots. This finding of the lower court is supported not only by the unanimous opinion of the
commissioners, as embodied in their report, but also by the Provincial Appraisal Committee of the
province of Pampanga composed of the Provincial Treasurer, the Provincial Auditor and the
District Engineer. In the minutes of the meeting of the Provincial Appraisal Committee, held on
May 14, 1959 (Exh. 13-Castellvi) We read in its Resolution No. 10 the following:
3. Since 1957 the land has been classified as residential in view of its proximity
to the air base and due to the fact that it was not being devoted to agriculture. In
fact, there is a plan to convert it into a subdivision for residential purposes. The
taxes due on the property have been paid based on its classification as
residential land;
The evidence shows that Castellvi broached the idea of subdividing her land into residential lots
as early as July 11, 1956 in her letter to the Chief of Staff of the Armed Forces of the Philippines.
(Exh. 5-Castellvi) As a matter of fact, the layout of the subdivision plan was tentatively approved
by the National Planning Commission on September 7, 1956. (Exh. 8-Castellvi). The land of
Castellvi had not been devoted to agriculture since 1947 when it was leased to the Philippine
Army. In 1957 said land was classified as residential, and taxes based on its classification as
residential had been paid since then (Exh. 13-Castellvi). The location of the Castellvi land justifies
its suitability for a residential subdivision. As found by the trial court, "It is at the left side of the
entrance of the Basa Air Base and bounded on two sides by roads (Exh. 13-Castellvi), paragraphs
1 and 2, Exh. 12-Castellvi), the poblacion, (of Floridablanca) the municipal building, and the
Pampanga Sugar Mills are closed by. The barrio schoolhouse and chapel are also near (T.S.N.
November 23,1960, p. 68)." 20
The lands of Toledo-Gozun (Lot 1-B and Lot 3) are practically of the same condition as the land of
Castellvi. The lands of Toledo-Gozun adjoin the land of Castellvi. They are also contiguous to the
Basa Air Base, and are along the road. These lands are near the barrio schoolhouse, the barrio
chapel, the Pampanga Sugar Mills, and the poblacion of Floridablanca (Exhs. 1, 3 and 4-Toledo-
Gozun). As a matter of fact, regarding lot 1-B it had already been surveyed and subdivided, and its
conversion into a residential subdivision was tentatively approved by the National Planning
Commission on July 8, 1959 (Exhs. 5 and 6 Toledo-Gozun). As early as June, 1958, no less than
32 man connected with the Philippine Air Force among them commissioned officers, non-
commission officers, and enlisted men had requested Mr. and Mrs. Joaquin D. Gozun to open a
subdivision on their lands in question (Exhs. 8, 8-A to 8-ZZ-Toledo-Gozun). 21
We agree with the findings, and the conclusions, of the lower court that the lands that are the
subject of expropriation in the present case, as of August 10, 1959 when the same were taken
possession of by the Republic, were residential lands and were adaptable for use as residential
subdivisions. Indeed, the owners of these lands have the right to their value for the use for which
they would bring the most in the market at the time the same were taken from them. The most
important issue to be resolved in the present case relates to the question of what is the just
compensation that should be paid to the appellees.
The Republic asserts that the fair market value of the lands of the appellees is P.20 per square
meter. The Republic cites the case of Republic vs. Narciso, et al., L-6594, which this Court
decided on May 18, 1956. The Narciso case involved lands that belonged to Castellvi and Toledo-
Gozun, and to one Donata Montemayor, which were expropriated by the Republic in 1949 and
which are now the site of the Basa Air Base. In the Narciso case this Court fixed the fair market
value at P.20 per square meter. The lands that are sought to be expropriated in the present case
being contiguous to the lands involved in the Narciso case, it is the stand of the Republic that the
price that should be fixed for the lands now in question should also be at P.20 per square meter.
We can not sustain the stand of the Republic. We find that the price of P.20 per square meter, as
fixed by this Court in the Narciso case, was based on the allegation of the defendants (owners) in
their answer to the complaint for eminent domain in that case that the price of their lands was
P2,000.00 per hectare and that was the price that they asked the court to pay them. This Court
said, then, that the owners of the land could not be given more than what they had asked,
notwithstanding the recommendation of the majority of the Commission on Appraisal — which was
adopted by the trial court — that the fair market value of the lands was P3,000.00 per hectare. We
also find that the price of P.20 per square meter in the Narciso case was considered the fair
market value of the lands as of the year 1949 when the expropriation proceedings were instituted,
and at that time the lands were classified as sugar lands, and assessed for taxation purposes at
around P400.00 per hectare, or P.04 per square meter. 22 While the lands involved in the present
case, like the lands involved in the Narciso case, might have a fair market value of P.20 per
square meter in 1949, it can not be denied that ten years later, in 1959, when the present
proceedings were instituted, the value of those lands had increased considerably. The evidence
shows that since 1949 those lands were no longer cultivated as sugar lands, and in 1959 those
lands were already classified, and assessed for taxation purposes, as residential lands. In 1959
the land of Castellvi was assessed at P1.00 per square meter. 23
The Republic also points out that the Provincial Appraisal Committee of Pampanga, in its
resolution No. 5 of February 15, 1957 (Exhibit D), recommended the sum of P.20 per square
meter as the fair valuation of the Castellvi property. We find that this resolution was made by the
Republic the basis in asking the court to fix the provisional value of the lands sought to be
expropriated at P259,669.10, which was approved by the court. 24 It must be considered, however,
that the amount fixed as the provisional value of the lands that are being expropriated does not
necessarily represent the true and correct value of the land. The value is only "provisional" or
"tentative", to serve as the basis for the immediate occupancy of the property being expropriated
by the condemnor. The records show that this resolution No. 5 was repealed by the same
Provincial Committee on Appraisal in its resolution No. 10 of May 14, 1959 (Exhibit 13-Castellvi).
In that resolution No. 10, the appraisal committee stated that "The Committee has observed that
the value of the land in this locality has increased since 1957 ...", and recommended the price of
P1.50 per square meter. It follows, therefore, that, contrary to the stand of the Republic, that
resolution No. 5 of the Provincial Appraisal Committee can not be made the basis for fixing the fair
market value of the lands of Castellvi and Toledo-Gozun.
The Republic further relied on the certification of the Acting Assistant Provincial Assessor of
Pampanga, dated February 8, 1961 (Exhibit K), to the effect that in 1950 the lands of Toledo-
Gozun were classified partly as sugar land and partly as urban land, and that the sugar land was
assessed at P.40 per square meter, while part of the urban land was assessed at P.40 per square
meter and part at P.20 per square meter; and that in 1956 the Castellvi land was classified as
sugar land and was assessed at P450.00 per hectare, or P.045 per square meter. We can not
also consider this certification of the Acting Assistant Provincial Assessor as a basis for fixing the
fair market value of the lands of Castellvi and Toledo-Gozun because, as the evidence shows, the
lands in question, in 1957, were already classified and assessed for taxation purposes as
residential lands. The certification of the assessor refers to the year 1950 as far as the lands of
Toledo-Gozun are concerned, and to the year 1956 as far as the land of Castellvi is concerned.
Moreover, this Court has held that the valuation fixed for the purposes of the assessment of the
land for taxation purposes can not bind the landowner where the latter did not intervene in fixing
it. 25
On the other hand, the Commissioners, appointed by the court to appraise the lands that were
being expropriated, recommended to the court that the price of P10.00 per square meter would be
the fair market value of the lands. The commissioners made their recommendation on the basis of
their observation after several ocular inspections of the lands, of their own personal knowledge of
land values in the province of Pampanga, of the testimonies of the owners of the land, and other
witnesses, and of documentary evidence presented by the appellees. Both Castellvi and Toledo-
Gozun testified that the fair market value of their respective land was at P15.00 per square meter.
The documentary evidence considered by the commissioners consisted of deeds of sale of
residential lands in the town of San Fernando and in Angeles City, in the province of Pampanga,
which were sold at prices ranging from P8.00 to P20.00 per square meter (Exhibits 15, 16, 17, 18,
19, 20, 21, 22, 23-Castellvi). The commissioners also considered the decision in Civil Case No.
1531 of the Court of First Instance of Pampanga, entitled Republic vs. Sabina Tablante, which
was expropriation case filed on January 13, 1959, involving a parcel of land adjacent to the Clark
Air Base in Angeles City, where the court fixed the price at P18.00 per square meter (Exhibit 14-
Castellvi). In their report, the commissioners, among other things, said:
... This expropriation case is specially pointed out, because the circumstances
and factors involved therein are similar in many respects to the defendants' lands
in this case. The land in Civil Case No. 1531 of this Court and the lands in the
present case (Civil Case No. 1623) are both near the air bases, the Clark Air
Base and the Basa Air Base respectively. There is a national road fronting them
and are situated in a first-class municipality. As added advantage it may be said
that the Basa Air Base land is very near the sugar mill at Del Carmen,
Floridablanca, Pampanga, owned by the Pampanga Sugar Mills. Also just stone's
throw away from the same lands is a beautiful vacation spot at Palacol, a sitio of
the town of Floridablanca, which counts with a natural swimming pool for
vacationists on weekends. These advantages are not found in the case of the
Clark Air Base. The defendants' lands are nearer to the poblacion of
Floridablanca then Clark Air Base is nearer (sic) to the poblacion of Angeles,
Pampanga.
The deeds of absolute sale, according to the undersigned commissioners, as
well as the land in Civil Case No. 1531 are competent evidence, because they
were executed during the year 1959 and before August 10 of the same year.
More specifically so the land at Clark Air Base which coincidentally is the subject
matter in the complaint in said Civil Case No. 1531, it having been filed on
January 13, 1959 and the taking of the land involved therein was ordered by the
Court of First Instance of Pampanga on January 15, 1959, several months before
the lands in this case were taken by the plaintiffs ....
From the above and considering further that the lowest as well as the highest
price per square meter obtainable in the market of Pampanga relative to
subdivision lots within its jurisdiction in the year 1959 is very well known by the
Commissioners, the Commission finds that the lowest price that can be awarded
to the lands in question is P10.00 per square meter. 26
The lower court did not altogether accept the findings of the Commissioners based on the
documentary evidence, but it considered the documentary evidence as basis for comparison in
determining land values. The lower court arrived at the conclusion that "the unanimous
recommendation of the commissioners of ten (P10.00) pesos per square meter for the three lots of
the defendants subject of this action is fair and just". 27 In arriving at its conclusion, the lower court
took into consideration, among other circumstances, that the lands are titled, that there is a rising
trend of land values, and the lowered purchasing power of the Philippine peso.
In the case of Manila Railroad Co. vs. Caligsihan, 40 Phil. 326, 328, this Court said:
A court of first instance or, on appeal, the Supreme Court, may change or modify
the report of the commissioners by increasing or reducing the amount of the
award if the facts of the case so justify. While great weight is attached to the
report of the commissioners, yet a court may substitute therefor its estimate of
the value of the property as gathered from the record in certain cases, as, where
the commissioners have applied illegal principles to the evidence submitted to
them, or where they have disregarded a clear preponderance of evidence, or
where the amount allowed is either palpably inadequate or excessive. 28
The report of the commissioners of appraisal in condemnation proceedings are not binding, but
merely advisory in character, as far as the court is concerned. 29 In our analysis of the report of the
commissioners, We find points that merit serious consideration in the determination of the just
compensation that should be paid to Castellvi and Toledo-Gozun for their lands. It should be noted
that the commissioners had made ocular inspections of the lands and had considered the nature
and similarities of said lands in relation to the lands in other places in the province of Pampanga,
like San Fernando and Angeles City. We cannot disregard the observations of the commissioners
regarding the circumstances that make the lands in question suited for residential purposes —
their location near the Basa Air Base, just like the lands in Angeles City that are near the Clark Air
Base, and the facilities that obtain because of their nearness to the big sugar central of the
Pampanga Sugar mills, and to the flourishing first class town of Floridablanca. It is true that the
lands in question are not in the territory of San Fernando and Angeles City, but, considering the
facilities of modern communications, the town of Floridablanca may be considered practically
adjacent to San Fernando and Angeles City. It is not out of place, therefore, to compare the land
values in Floridablanca to the land values in San Fernando and Angeles City, and form an idea of
the value of the lands in Floridablanca with reference to the land values in those two other
communities.
The important factor in expropriation proceeding is that the owner is awarded the just
compensation for his property. We have carefully studied the record, and the evidence, in this
case, and after considering the circumstances attending the lands in question We have arrived at
the conclusion that the price of P10.00 per square meter, as recommended by the commissioners
and adopted by the lower court, is quite high. It is Our considered view that the price of P5.00 per
square meter would be a fair valuation of the lands in question and would constitute a just
compensation to the owners thereof. In arriving at this conclusion We have particularly taken into
consideration the resolution of the Provincial Committee on Appraisal of the province of
Pampanga informing, among others, that in the year 1959 the land of Castellvi could be sold for
from P3.00 to P4.00 per square meter, while the land of Toledo-Gozun could be sold for from
P2.50 to P3.00 per square meter. The Court has weighed all the circumstances relating to this
expropriations proceedings, and in fixing the price of the lands that are being expropriated the
Court arrived at a happy medium between the price as recommended by the commissioners and
approved by the court, and the price advocated by the Republic. This Court has also taken judicial
notice of the fact that the value of the Philippine peso has considerably gone down since the year
1959. 30Considering that the lands of Castellvi and Toledo-Gozun are adjoining each other, and
are of the same nature, the Court has deemed it proper to fix the same price for all these lands.
3. The third issue raised by the Republic relates to the payment of interest. The
Republic maintains that the lower court erred when it ordered the Republic to pay
Castellvi interest at the rate of 6% per annum on the total amount adjudged as
the value of the land of Castellvi, from July 1, 1956 to July 10, 1959. We find
merit in this assignment of error.
In ordering the Republic to pay 6% interest on the total value of the land of Castellvi from July 1,
1956 to July 10, 1959, the lower court held that the Republic had illegally possessed the land of
Castellvi from July 1, 1956, after its lease of the land had expired on June 30, 1956, until August
10, 1959 when the Republic was placed in possession of the land pursuant to the writ of
possession issued by the court. What really happened was that the Republic continued to occupy
the land of Castellvi after the expiration of its lease on June 30, 1956, so much so that Castellvi
filed an ejectment case against the Republic in the Court of First Instance of
Pampanga. 31 However, while that ejectment case was pending, the Republic filed the complaint
for eminent domain in the present case and was placed in possession of the land on August 10,
1959, and because of the institution of the expropriation proceedings the ejectment case was later
dismissed. In the order dismissing the ejectment case, the Court of First Instance of Pampanga
said:
Plaintiff has agreed, as a matter of fact has already signed an agreement with
defendants, whereby she had agreed to receive the rent of the lands, subject
matter of the instant case from June 30, 1956 up to 1959 when the Philippine Air
Force was placed in possession by virtue of an order of the Court upon
depositing the provisional amount as fixed by the Provincial Appraisal Committee
with the Provincial Treasurer of
Pampanga; ...
If Castellvi had agreed to receive the rentals from June 30, 1956 to August 10, 1959, she should
be considered as having allowed her land to be leased to the Republic until August 10, 1959, and
she could not at the same time be entitled to the payment of interest during the same period on
the amount awarded her as the just compensation of her land. The Republic, therefore, should
pay Castellvi interest at the rate of 6% per annum on the value of her land, minus the provisional
value that was deposited, only from July 10, 1959 when it deposited in court the provisional value
of the land.
4. The fourth error assigned by the Republic relates to the denial by the lower court of its motion
for a new trial based on nearly discovered evidence. We do not find merit in this assignment of
error.
After the lower court had decided this case on May 26, 1961, the Republic filed a motion for a new
trial, supplemented by another motion, both based upon the ground of newly discovered evidence.
The alleged newly discovered evidence in the motion filed on June 21, 1961 was a deed of
absolute sale-executed on January 25, 1961, showing that a certain Serafin Francisco had sold to
Pablo L. Narciso a parcel of sugar land having an area of 100,000 square meters with a sugar
quota of 100 piculs, covered by P.A. No. 1701, situated in Barrio Fortuna, Floridablanca, for
P14,000, or P.14 per square meter.
In the supplemental motion, the alleged newly discovered evidence were: (1) a deed of sale of
some 35,000 square meters of land situated at Floridablanca for P7,500.00 (or about P.21 per
square meter) executed in July, 1959, by the spouses Evelyn D. Laird and Cornelio G. Laird in
favor of spouses Bienvenido S. Aguas and Josefina Q. Aguas; and (2) a deed of absolute sale of
a parcel of land having an area of 4,120,101 square meters, including the sugar quota covered by
Plantation Audit No. 161 1345, situated at Floridablanca, Pampanga, for P860.00 per hectare (a
little less than P.09 per square meter) executed on October 22, 1957 by Jesus Toledo y Mendoza
in favor of the Land Tenure Administration.
We find that the lower court acted correctly when it denied the motions for a new trial.
To warrant the granting of a new trial based on the ground of newly discovered evidence, it must
appear that the evidence was discovered after the trial; that even with the exercise of due
diligence, the evidence could not have been discovered and produced at the trial; and that the
evidence is of such a nature as to alter the result of the case if admitted. 32 The lower court
correctly ruled that these requisites were not complied with.
The lower court, in a well-reasoned order, found that the sales made by Serafin Francisco to Pablo
Narciso and that made by Jesus Toledo to the Land Tenure Administration were immaterial and
irrelevant, because those sales covered sugarlands with sugar quotas, while the lands sought to
be expropriated in the instant case are residential lands. The lower court also concluded that the
land sold by the spouses Laird to the spouses Aguas was a sugar land.
We agree with the trial court. In eminent domain proceedings, in order that evidence as to the sale
price of other lands may be admitted in evidence to prove the fair market value of the land sought
to be expropriated, the lands must, among other things, be shown to be similar.
But even assuming, gratia argumenti, that the lands mentioned in those deeds of sale were
residential, the evidence would still not warrant the grant of a new trial, for said evidence could
have been discovered and produced at the trial, and they cannot be considered newly discovered
evidence as contemplated in Section 1(b) of Rule 37 of the Rules of Court. Regarding this point,
the trial court said:
The Court will now show that there was no reasonable diligence employed.
The land described in the deed of sale executed by Serafin Francisco, copy of
which is attached to the original motion, is covered by a Certificate of Title issued
by the Office of the Register of Deeds of Pampanga. There is no question in the
mind of the court but this document passed through the Office of the Register of
Deeds for the purpose of transferring the title or annotating the sale on the
certificate of title. It is true that Fiscal Lagman went to the Office of the Register
of Deeds to check conveyances which may be presented in the evidence in this
case as it is now sought to be done by virtue of the motions at bar, Fiscal
Lagman, one of the lawyers of the plaintiff, did not exercise reasonable diligence
as required by the rules. The assertion that he only went to the office of the
Register of Deeds 'now and then' to check the records in that office only shows
the half-hazard [sic] manner by which the plaintiff looked for evidence to be
presented during the hearing before the Commissioners, if it is at all true that
Fiscal Lagman did what he is supposed to have done according to Solicitor
Padua. It would have been the easiest matter for plaintiff to move for the
issuance of a subpoena duces tecum directing the Register of Deeds of
Pampanga to come to testify and to bring with him all documents found in his
office pertaining to sales of land in Floridablanca adjacent to or near the lands in
question executed or recorded from 1958 to the present. Even this elementary
precaution was not done by plaintiff's numerous attorneys.
The same can be said of the deeds of sale attached to the supplementary
motion. They refer to lands covered by certificate of title issued by the Register of
Deeds of Pampanga. For the same reason they could have been easily
discovered if reasonable diligence has been exerted by the numerous lawyers of
the plaintiff in this case. It is noteworthy that all these deeds of sale could be
found in several government offices, namely, in the Office of the Register of
Deeds of Pampanga, the Office of the Provincial Assessor of Pampanga, the
Office of the Clerk of Court as a part of notarial reports of notaries public that
acknowledged these documents, or in the archives of the National Library. In
respect to Annex 'B' of the supplementary motion copy of the document could
also be found in the Office of the Land Tenure Administration, another
government entity. Any lawyer with a modicum of ability handling this
expropriation case would have right away though [sic] of digging up documents
diligently showing conveyances of lands near or around the parcels of land
sought to be expropriated in this case in the offices that would have naturally
come to his mind such as the offices mentioned above, and had counsel for the
movant really exercised the reasonable diligence required by the Rule'
undoubtedly they would have been able to find these documents and/or caused
the issuance of subpoena duces tecum. ...
It is also recalled that during the hearing before the Court of the Report and
Recommendation of the Commissioners and objection thereto, Solicitor Padua
made the observation:
I understand, Your Honor, that there was a sale that took place in this place of
land recently where the land was sold for P0.20 which is contiguous to this land.
The Court gave him permission to submit said document subject to the approval
of the Court. ... This was before the decision was rendered, and later
promulgated on May 26, 1961 or more than one month after Solicitor Padua
made the above observation. He could have, therefore, checked up the alleged
sale and moved for a reopening to adduce further evidence. He did not do so. He
forgot to present the evidence at a more propitious time. Now, he seeks to
introduce said evidence under the guise of newly-discovered evidence.
Unfortunately the Court cannot classify it as newly-discovered evidence, because
tinder the circumstances, the correct qualification that can be given is 'forgotten
evidence'. Forgotten however, is not newly-discovered
evidence. 33
The granting or denial of a motion for new trial is, as a general rule, discretionary with the trial
court, whose judgment should not be disturbed unless there is a clear showing of abuse of
discretion. 34 We do not see any abuse of discretion on the part of the lower court when it denied
the motions for a new trial.
WHEREFORE, the decision appealed from is modified, as follows:
(a) the lands of appellees Carmen Vda. de Castellvi and Maria Nieves Toledo-
Gozun, as described in the complaint, are declared expropriated for public use;
(b) the fair market value of the lands of the appellees is fixed at P5.00 per square
meter;
(c) the Republic must pay appellee Castellvi the sum of P3,796,495.00 as just
compensation for her one parcel of land that has an area of 759,299 square
meters, minus the sum of P151,859.80 that she withdrew out of the amount that
was deposited in court as the provisional value of the land, with interest at the
rate of 6% per annum from July 10, 1959 until the day full payment is made or
deposited in court;
(d) the Republic must pay appellee Toledo-Gozun the sum of P2,695,225.00 as
the just compensation for her two parcels of land that have a total area of
539,045 square meters, minus the sum of P107,809.00 that she withdrew out of
the amount that was deposited in court as the provisional value of her lands, with
interest at the rate of 6%, per annum from July 10, 1959 until the day full
payment is made or deposited in court; (e) the attorney's lien of Atty. Alberto
Cacnio is enforced; and
 (f) the costs should be paid by appellant Republic of the Philippines, as provided
in Section 12, Rule 67, and in Section 13, Rule 141, of the Rules of Court.

IT IS SO ORDERED.

Makalintal, C.J., Barredo, Antonio, Esguerra, Fernandez, Muñoz Palma and Aquino, JJ., concur.

Castro, Fernando, Teehankee and Makasiar, JJ., took no part.

Republic vs, Vda. de Castellvi, 58 SCRA 336, No. L-20620 August 15, 1974
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-59603 April 29, 1987
EXPORT PROCESSING ZONE AUTHORITY, petitioner,
vs.
HON. CEFERINO E. DULAY, in his capacity as the Presiding Judge, Court of First Instance
of Cebu, Branch XVI, Lapu-Lapu City, and SAN ANTONIO DEVELOPMENT
CORPORATION, respondents.
Elena M. Cuevas for respondents.
GUTIERREZ, JR., J.:
The question raised in this petition is whether or not Presidential Decrees Numbered 76, 464, 794
and 1533 have repealed and superseded Sections 5 to 8 of Rule 67 of the Revised Rules of
Court, such that in determining the just compensation of property in an expropriation case, the
only basis should be its market value as declared by the owner or as determined by the assessor,
whichever is lower.
On January 15, 1979, the President of the Philippines, issued Proclamation No. 1811, reserving a
certain parcel of land of the public domain situated in the City of Lapu-Lapu, Island of Mactan,
Cebu and covering a total area of 1,193,669 square meters, more or less, for the establishment of
an export processing zone by petitioner Export Processing Zone Authority (EPZA).
Not all the reserved area, however, was public land. The proclamation included, among others,
four (4) parcels of land with an aggregate area of 22,328 square meters owned and registered in
the name of the private respondent. The petitioner, therefore, offered to purchase the parcels of
land from the respondent in acccordance with the valuation set forth in Section 92, Presidential
Decree (P.D.) No. 464, as amended. The parties failed to reach an agreement regarding the sale
of the property.
The petitioner filed with the then Court of First Instance of Cebu, Branch XVI, Lapu-Lapu City, a
complaint for expropriation with a prayer for the issuance of a writ of possession against the
private respondent, to expropriate the aforesaid parcels of land pursuant to P.D. No. 66, as
amended, which empowers the petitioner to acquire by condemnation proceedings any property
for the establishment of export processing zones, in relation to Proclamation No. 1811, for the
purpose of establishing the Mactan Export Processing Zone.
On October 21, 1980, the respondent judge issued a writ of possession authorizing the petitioner
to take immediate possession of the premises. On December 23, 1980, the private respondent
flied its answer.
At the pre-trial conference on February 13, 1981, the respondent judge issued an order stating
that the parties have agreed that the only issue to be resolved is the just compensation for the
properties and that the pre-trial is thereby terminated and the hearing on the merits is set on April
2, 1981.
On February 17, 1981, the respondent judge issued the order of condemnation declaring the
petitioner as having the lawful right to take the properties sought to be condemned, upon the
payment of just compensation to be determined as of the filing of the complaint. The respondent
judge also issued a second order, subject of this petition, appointing certain persons as
commissioners to ascertain and report to the court the just compensation for the properties sought
to be expropriated.
On June 19, 1981, the three commissioners submitted their consolidated report recommending
the amount of P15.00 per square meter as the fair and reasonable value of just compensation for
the properties.
On July 29, 1981, the petitioner Med a Motion for Reconsideration of the order of February 19,
1981 and Objection to Commissioner's Report on the grounds that P.D. No. 1533 has superseded
Sections 5 to 8 of Rule 67 of the Rules of Court on the ascertainment of just compensation
through commissioners; and that the compensation must not exceed the maximum amount set by
P.D. No. 1533.
On November 14, 1981, the trial court denied the petitioner's motion for reconsideration and gave
the latter ten (10) days within which to file its objection to the Commissioner's Report.
On February 9, 1982, the petitioner flied this present petition for certiorari and mandamus with
preliminary restraining order, enjoining the trial court from enforcing the order dated February 17,
1981 and from further proceeding with the hearing of the expropriation case.
The only issue raised in this petition is whether or not Sections 5 to 8, Rule 67 of the Revised
Rules of Court had been repealed or deemed amended by P.D. No. 1533 insofar as the
appointment of commissioners to determine the just compensation is concerned. Stated in another
way, is the exclusive and mandatory mode of determining just compensation in P.D. No. 1533
valid and constitutional?
The petitioner maintains that the respondent judge acted in excess of his jurisdiction and with
grave abuse of discretion in denying the petitioner's motion for reconsideration and in setting the
commissioner's report for hearing because under P.D. No. 1533, which is the applicable law
herein, the basis of just compensation shall be the fair and current market value declared by the
owner of the property sought to be expropriated or such market value as determined by the
assessor, whichever is lower. Therefore, there is no more need to appoint commissioners as
prescribed by Rule 67 of the Revised Rules of Court and for said commissioners to consider other
highly variable factors in order to determine just compensation. The petitioner further maintains
that P.D. No. 1533 has vested on the assessors and the property owners themselves the power or
duty to fix the market value of the properties and that said property owners are given the full
opportunity to be heard before the Local Board of Assessment Appeals and the Central Board of
Assessment Appeals. Thus, the vesting on the assessor or the property owner of the right to
determine the just compensation in expropriation proceedings, with appropriate procedure for
appeal to higher administrative boards, is valid and constitutional.
Prior to the promulgation of P.D. Nos. 76, 464, 794 and 1533, this Court has interpreted the
eminent domain provisions of the Constitution and established the meaning, under the fundametal
law, of just compensation and who has the power to determine it. Thus, in the following cases,
wherein the filing of the expropriation proceedings were all commenced prior to the promulgation
of the aforementioned decrees, we laid down the doctrine onjust compensation:
Municipality of Daet v. Court of Appeals (93 SCRA 503, 516),
xxx xxx xxx
"And in the case of J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, the
Court, speaking thru now Chief Justice Fernando, reiterated the 'well-settled (rule) that just
compensation means the equivalent for the value of the property at the time of its taking. Anything
beyond that is more and anything short of that is less, than just compensation. It means a fair and
full equivalent for the loss sustained, which is the measure of the indemnity, not whatever gain
would accrue to the expropriating entity."
Garcia v. Court ofappeals (102 SCRA 597, 608),
xxx xxx xxx
"Hence, in estimating the market value, all the capabilities of the property and all the uses
to which it may be applied or for which it is adapted are to be considered and not merely
the condition it is in the time and the use to which it is then applied by the owner. All the
facts as to the condition of the property and its surroundings, its improvements and
capabilities may be shown and considered in estimating its value."
Republic v. Santos (141 SCRA 30, 35-36),
"According to section 8 of Rule 67, the court is not bound by the commissioners' report. It
may make such order or render such judgment as shall secure to the plaintiff the property
essential to the exercise of his right of condemnation, and to the defendant just
compensation for the property expropriated. This Court may substitute its own estimate of
the value as gathered from the record (Manila Railroad Company v. Velasquez, 32 Phil.
286)."
However, the promulgation of the aforementioned decrees practically set aside the above and
many other precedents hammered out in the course of evidence-laden, well argued, fully heard,
studiously deliberated, and judiciously considered court proceedings. The decrees categorically
and peremptorily limited the definition of just compensation thus:
P.D. No. 76:
xxx xxx xxx
"For purposes of just compensation in cases of private property acquired by the
government for public use, the basis shall be the current and fair market value declared
by the owner or administrator, or such market value as determined by the Assessor,
whichever is lower."
P.D. No. 464:
"Section 92. Basis for payment of just compensation in expropriation proceedings. — In
determining just compensation which private property is acquired by the government for
public use, the basis shall be the market value declared by the owner or administrator or
anyone having legal interest in the property, or such market value as determined by the
assessor, whichever is lower."
P.D. No. 794:
"Section 92. Basis for payment of just compensation in expropriation proceedings. — In
determining just compensation when private property is acquired by the government for
public use, the same shall not exceed the market value declared by the owner or
administrator or anyone having legal interest in the property, or such market value as
determined by the assessor, whichever is lower."
P.D. No. 1533:
"Section 1. In determining just compensation for private property acquired through
eminent domain proceedings, the compensation to be paid shall not exceed the value
declared by the owner or administrator or anyone having legal interest in the property or
determined by the assessor, pursuant to the Real Property Tax Code, whichever value is
lower, prior to the recommendation or decision of the appropriate Government office to
acquire the property."
We are constrained to declare the provisions of the Decrees on just compensation unconstitutional
and void and accordingly dismiss the instant petition for lack of merit.
The method of ascertaining just compensation under the aforecited decrees constitutes
impermissible encroachment on judicial prerogatives. It tends to render this Court inutile in a
matter which under the Constitution is reserved to it for final determination.
Thus, although in an expropriation proceeding the court technically would still have the power to
determine the just compensation for the property, following the applicable decrees, its task would
be relegated to simply stating the lower value of the property as declared either by the owner or
the assessor. As a necessary consequence, it would be useless for the court to appoint
commissioners under Rule 67 of the Rules of Court. Moreover, the need to satisfy the due process
clause in the taking of private property is seemingly fulfilled since it cannot be said that a judicial
proceeding was not had before the actual taking. However, the strict application of the decrees
during the proceedings would be nothing short of a mere formality or charade as the court has
only to choose between the valuation of the owner and that of the assessor, and its choice is
always limited to the lower of the two. The court cannot exercise its discretion or independence in
determining what is just or fair. Even a grade school pupil could substitute for the judge insofar as
the determination of constitutional just compensation is concerned.
In the case of National Housing Authority v. Reyes (123 SCRA 245), this Court upheld P.D. No.
464, as further amended by P.D. Nos. 794, 1224 and 1259. In this case, the petitioner National
Housing Authority contended that the owner's declaration at P1,400.00 which happened to be
lower than the assessor's assessment, is the just compensation for the respondent's property
under section 92 of P.D. No. 464. On the other hand, the private respondent stressed that while
there may be basis for the allegation that the respondent judge did not follow the decree, the
matter is still subject to his final disposition, he having been vested with the original and competent
authority to exercise his judicial discretion in the light of the constitutional clauses on due process
and equal protection.
To these opposing arguments, this Court ruled ihat under the conceded facts, there should be a
recognition that the law as it stands must be applied; that the decree having spoken so clearly and
unequivocably calls for obedience; and that on a matter where the applicable law speaks in no
uncertain language, the Court has no choice except to yield to its command. We further stated that
"the courts should recognize that the rule introduced by P.D. No. 76 and reiterated in subsequent
decrees does not upset the established concepts of justice or the constitutional provision on just
compensation for, precisely, the owner is allowed to make his own valuation of his property."
While the Court yielded to executive prerogative exercised in the form of absolute law-making
power, its members, nonetheless, remained uncomfortable with the implications of the decision
and the abuse and unfairness which might follow in its wake. For one thing, the President himself
did not seem assured or confident with his own enactment. It was not enough to lay down the law
on determination of just compensation in P.D. 76. It had to be repeated and reiterated in P.D. 464,
P.D. 794, and P.D. 1533. The provision is also found in P.D. 1224, P.D. 1259 and P.D. 1313.
Inspite of its effectivity as general law and the wide publicity given to it, the questioned provision or
an even stricter version had to be embodied in cases of specific expropriations by decree as in
P.D. 1669 expropriating the Tambunting Estate and P.D. 1670 expropriating the Sunog Apog area
in Tondo, Manila.
In the present petition, we are once again confronted with the same question of whether the courts
under P.D. 1533, which contains the same provision on just compensation as its predecessor
decrees, still have the power and authority to determine just compensation, independent of what is
stated by the decree and to this effect, to appoint commissioners for such purpose.
This time, we answer in the affirmative.
In overruling the petitioner's motion for reconsideration and objection to the commissioner's report,
the trial court said:
"Another consideration why the Court is empowered to appoint commissioners to assess
the just compensation of these properties under eminent domain proceedings, is the well-
entrenched ruling that 'the owner of property expropriated is entitled to recover from
expropriating authority the fair and full value of the lot, as of the time when possession
thereof was actually taken by the province, plus consequential damages — including
attorney's fees — from which the consequential benefits, if any should be deducted, with
interest at the legal rate, on the aggregate sum due to the owner from and after the date
of actual taking.' (Capitol Subdivision, Inc. v. Province of Negros Occidental, 7 SCRA 60).
In fine, the decree only establishes a uniform basis for determining just compensation
which the Court may consider as one of the factors in arriving at 'just compensation,' as
envisage in the Constitution. In the words of Justice Barredo, "Respondent court's
invocation of General Order No. 3 of September 21, 1972 is nothing short of an
unwarranted abdication of judicial authority, which no judge duly imbued with the
implications of the paramount principle of independence of the judiciary should ever think
of doing." (Lina v. Purisima, 82 SCRA 344, 351; Cf. Prov. of Pangasinan v. CFI Judge of
Pangasinan, Br. VIII, 80 SCRA 117) Indeed, where this Court simply follows PD 1533,
thereby limiting the determination of just compensation on the value declared by the
owner or administrator or as determined by the Assessor, whichever is lower, it may
result in the deprivation of the landowner's right of due process to enable it to prove its
claim to just compensation, as mandated by the Constitution. (Uy v. Genato, 57 SCRA
123). The tax declaration under the Real Property Tax Code is, undoubtedly, for purposes
of taxation."
We are convinced and so rule that the trial court correctly stated that the valuation in the decree
may only serve as a guiding principle or one of the factors in determining just compensation but it
may not substitute the court's own judgment as to what amount should be awarded and how to
arrive at such amount. A return to the earlier well-established doctrine, to our mind, is more in
keeping with the principle that the judiciary should live up to its mission "by vitalizing and not
denigrating constitutional rights." (See Salonga v. Cruz Paño, 134 SCRA 438, 462; citing Mercado
v. Court of First Instance of Rizal, 116 SCRA 93.) The doctrine we enunciated in National Housing
Authority v. Reyes, supra, therefore, must necessarily be abandoned if we are to uphold this
Court's role as the guardian of the fundamental rights guaranteed by the due process and equal
protection clauses and as the final arbiter over transgressions committed against constitutional
rights.
The basic unfairness of the decrees is readily apparent.
Just compensation means the value of the property at the time of the taking. It means a fair and
full equivalent for the loss sustained. All the facts as to the condition of the property and its
surroundings, its improvements and capabilities, should be considered.
In this particular case, the tax declarations presented by the petitioner as basis for just
compensation were made by the Lapu-Lapu municipal, later city assessor long before martial law,
when land was not only much cheaper but when assessed values of properties were stated in
figures constituting only a fraction of their true market value. The private respondent was not even
the owner of the properties at the time. It purchased the lots for development purposes. To peg
the value of the lots on the basis of documents which are out of date and at prices below the
acquisition cost of present owners would be arbitrary and confiscatory.
Various factors can come into play in the valuation of specific properties singled out for We, therefore, hold that P.D. No. 1533, which eliminates the court's discretion to appoint
expropriation. The values given by provincial assessors are usually uniform for very wide areas commissioners pursuant to Rule 67 of the Rules of Court, is unconstitutional and void. To hold
covering several barrios or even an entire town with the exception of the poblacion. Individual otherwise would be to undermine the very purpose why this Court exists in the first place.
differences are never taken into account. The value of land is based on such generalities as its
possible cultivation for rice, corn, coconuts, or other crops. Very often land described as "cogonal" WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DISMISSED. The
has been cultivated for generations. Buildings are described in terms of only two or three classes temporary restraining order issued on February 16, 1982 is LIFTED and SET ASIDE.
of building materials and estimates of areas are more often inaccurate than correct. Tax values
can serve as guides but cannot be absolute substitutes for just compensation.
SO ORDERED.
To say that the owners are estopped to question the valuations made by assessors since they had
Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento
the opportunity to protest is illusory. The overwhelming mass of land owners accept
and Cortes, JJ.,concur.
unquestioningly what is found in the tax declarations prepared by local assessors or municipal
Teehankee, C.J., in the result.
clerks for them. They do not even look at, much less analyze, the statements. The Idea of
Yap, J., on leave.
expropriation simply never occurs until a demand is made or a case filed by an agency authorized
Petition dismissed. Order lifted and set aside.
to do so.

Petition dismissed. Order lifted and set aside. Export Processing Zone Authority vs. Dulay, 149
It is violative of due process to deny to the owner the opportunity to prove that the valuation in the
tax documents is unfair or wrong. And it is repulsive to basic concepts of justice and fairness to SCRA 305, No. L-59603 April 29, 1987
allow the haphazard work of a minor bureaucrat or clerk to absolutely prevail over the judgment of
a court promulgated only after expert commissioners have actually viewed the property, after
evidence and arguments pro and con have been presented, and after all factors and
considerations essential to a fair and just determination have been judiciously evaluated.

As was held in the case of Gideon v. Wainwright (93 ALR 2d,733,742):

"In the light of these and many other prior decisions of this Court, it is not surprising that the Betts
Court, when faced with the contention that 'one charged with crime, who is unable to obtain
counsel must be furnished counsel by the State,' conceded that '[E]xpressions in the opinions of
this court lend color to the argument. . .' 316 U.S., at 462, 463, 86 L ed. 1602, 62 S Ct. 1252. The
fact is that in deciding as it did-that "appointment of counsel is not a fundamental right, essential to
a fair trial" — the Court in Betts v. Brady made an ubrupt brake with its own well-considered
precedents. In returning to these old precedents, sounder we believe than the new, we but restore
constitutional principles established to achieve a fair system of justice. . ."

We return to older and more sound precedents. This Court has the duty to formulate guiding and
controlling constitutional principles, precepts, doctrines, or rules. (See Salonga v. Cruz
Pano, supra).

The determination of "just compensation" in eminent domain cases is a judicial function. The
executive department or the legislature may make the initial determinations but when a party
claims a violation of the guarantee in the Bill of Rights that private property may not be taken for
public use without just compensation, no statute, decree, or executive order can mandate that its
own determination shall prevail over the court's findings. Much less can the courts be precluded
from looking into the "just-ness" of the decreed compensation.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-48685 September 30, 1987
LORENZO SUMULONG and EMILIA VIDANES-BALAOING, petitioners,
vs.
HON. BUENAVENTURA GUERRERO and NATIONAL HOUSING AUTHORITY, respondents.
CORTES, J.:
On December 5, 1977 the National Housing Authority (NIIA) filed a complaint for expropriation of
parcels of land covering approximately twenty five (25) hectares, (in Antipolo, Rizal) including the
lots of petitioners Lorenzo Sumulong and Emilia Vidanes-Balaoing with an area of 6,667 square
meters and 3,333 square meters respectively. The land sought to be expropriated were valued by
the NHA at one peso (P1.00) per square meter adopting the market value fixed by the provincial
assessor in accordance with presidential decrees prescribing the valuation of property in
expropriation proceedings.
Together with the complaint was a motion for immediate possession of the properties. The NHA
deposited the amount of P158,980.00 with the Philippine National Bank, representing the "total
market value" of the subject twenty five hectares of land, pursuant to Presidential Decree No.
1224 which defines "the policy on the expropriation of private property for socialized housing upon
payment of just compensation."
On January 17, 1978, respondent Judge issued the following Order:
Plaintiff having deposited with the Philippine National Bank, Heart Center Extension Office,
Diliman, Quezon City, Metro Manila, the amount of P158,980.00 representing the total market
value of the subject parcels of land, let a writ of possession be issued.
SO ORDERED.
Pasig, Metro Manila, January 17, 1978.
(SGD) BUENAVENTURA S. GUERRERO
Judge
Petitioners filed a motion for reconsideration on the ground that they had been deprived of the
possession of their property without due process of law. This was however, denied.
Hence, this petition challenging the orders of respondent Judge and assailing the constitutionality
of Pres. Decree No. 1224, as amended. Petitioners argue that:
1) Respondent Judge acted without or in excess of his jurisdiction or with grave abuse of
discretion by issuing the Order of January 17, 1978 without notice and without hearing and in
issuing the Order dated June 28, 1978 denying the motion for reconsideration.
2) Pres. Decree l224, as amended, is unconstitutional for being violative of the due process
clause, specifically:
a) The Decree would allow the taking of property regardless of size and no matter how small the
area to be expropriated;
b) "Socialized housing" for the purpose of condemnation proceeding, as defined in said Decree, is
not really for a public purpose;
c) The Decree violates procedural due process as it allows immediate taking of possession,
control and disposition of property without giving the owner his day in court;
d) The Decree would allow the taking of private property upon payment of unjust and unfair
valuations arbitrarily fixed by government assessors;
e) The Decree would deprive the courts of their judicial discretion to determine what would be the
"just compensation" in each and every raise of expropriation.
Indeed, the exercise of the power of eminent domain is subject to certain limitations imposed by
the constitution, to wit:
Private property shall not be taken for public use without just compensation (Art. IV, Sec. 9);
No person shall be deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws (Art. IV, sec. 1).
Nevertheless, a clear case of constitutional infirmity has to be established for this Court to nullify
legislative or executive measures adopted to implement specific constitutional provisions aimed at
promoting the general welfare.
Petitioners' objections to the taking of their property subsumed under the headings of public use,
just compensation, and due process have to be balanced against competing interests of the public
recognized and sought to be served under declared policies of the constitution as implemented by
legislation.
1. Public use
a) Socialized Housing
Petitioners contend that "socialized housing" as defined in Pres. Decree No. 1224, as amended,
for the purpose of condemnation proceedings is not "public use" since it will benefit only "a handful
of people, bereft of public character."
"Socialized housing" is defined as, "the construction of dwelling units for the middle and lower
class members of our society, including the construction of the supporting infrastructure and other
facilities" (Pres. Decree No. 1224, par. 1). This definition was later expanded to include among
others:
a) The construction and/or improvement of dwelling units for the middle and lower income groups
of the society, including the construction of the supporting infrastructure and other facilities;
b) Slum clearance, relocation and resettlement of squatters and slum dwellers as well as the
provision of related facilities and services;
c) Slum improvement which consists basically of allocating homelots to the dwellers in the area or
property involved, rearrangemeant and re-alignment of existing houses and other dwelling
structures and the construction and provision of basic community facilities and services, where
there are none, such as roads, footpaths, drainage, sewerage, water and power system schools,
barangay centers, community centers, clinics, open spaces, parks, playgrounds and other
recreational facilities;
d) The provision of economic opportunities, including the development of commercial and
industrial estates and such other facilities to enhance the total community growth; and
e) Such other activities undertaken in pursuance of the objective to provide and maintain housing
for the greatest number of people under Presidential Decree No, 757, (Pres. Decree No. 1259,
sec. 1)
The "public use" requirement for a and exercise of the power of eminent domain is a flexible and
evolving concept influenced by changing conditions. In this jurisdiction, the statutory and judicial
trend has been summarized as follows:
The taking to be valid must be for public use. There was a time when it was felt that a literal
meaning should be attached to such a requirement. Whatever project is undertaken must be for
the public to enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable. It
is not anymore. As long as the purpose of the taking is public, then the power of eminent domain
comes into play. As just noted, the constitution in at least two cases, to remove any doubt,
determines what is public use. One is the expropriation of lands to be subdivided into small lots for
resale at cost to individuals. The other is in the transfer, through the exercise of this power, of
utilities and other private enterprise to the government. It is accurate to state then that at present
whatever may be beneficially employed for the general welfare satisfies the requirement of public
use [Heirs of Juancho Ardona v. Reyes, G.R. Nos. 60549, 60553-60555 October 26, 1983, 125
SCRA 220 (1983) at 234-5 quoting E. FERNANDO, THE CONSTITUTION OF THE PHILIPPINES
523-4, (2nd ed., 1977) Emphasis supplied].
The term "public use" has acquired a more comprehensive coverage. To the literal import of the
term signifying strict use or employment by the public has been added the broader notion of
indirect public benefit or advantage. As discussed in the above cited case of Heirs of Juancho
Ardona:
The restrictive view of public use may be appropriate for a nation which circumscribes the scope of
government activities and public concerns and which possesses big and correctly located public
lands that obviate the need to take private property for public purposes. Neither circumstance
applies to the Philippines. We have never been a laissez faire State. And the necessities which
impel the exertion of sovereign power are all too often found in areas of scarce public land or
limited government resources. (p. 231)
Specifically, urban renewal or redevelopment and the construction of low-cost housing is
recognized as a public purpose, not only because of the expanded concept of public use but also
because of specific provisions in the Constitution. The 1973 Constitution made it incumbent upon
the State to establish, maintain and ensure adequate social services including housing [Art. 11,
sec. 7]. The 1987 Constitution goes even further by providing that:
The State shall promote a just and dynamic social order that will ensure the prosperity and
independence of the nation and free the people from poverty through policies that provide
adequate social services, promote full employment, a rising standard of living and an improved
quality of life for all. [Art. II, sec. 9]
The state shall by law, and for the common good, undertake, in cooperation with the private
sector, a continuing program of urban land reform and housing which will make available at
affordable cost decent housing and basic services to underprivileged and homeless citizens in
urban centers and resettlement areas. It shall also promote adequate employment opportunities to
such citizens. In the implementation of such program the State shall respect the rights of small
property owners. (Art. XIII, sec. 9, Emphaisis supplied)
Housing is a basic human need. Shortage in housing is a matter of state concern since it directly
and significantly affects public health, safety, the environment and in sum, the general welfare.
The public character of housing measures does not change because units in housing projects
cannot be occupied by all but only by those who satisfy prescribed qualifications. A beginning has
to be made, for it is not possible to provide housing for are who need it, all at once.
Population growth, the migration to urban areas and the mushrooming of crowded makeshift
dwellings is a worldwide development particularly in developing countries. So basic and urgent are
housing problems that the United Nations General Assembly proclaimed 1987 as the
"International Year of Shelter for the Homeless" "to focus the attention of the international
community on those problems". The General Assembly is Seriously concerned that, despite the
efforts of Governments at the national and local levels and of international organizations, the
driving conditions of the majority of the people in slums and squatter areas and rural settlements,
especially in developing countries, continue to deteriorate in both relative and absolute terms."
[G.A. Res. 37/221, Yearbook of the United Nations 1982, Vol. 36, p. 1043-4]
In the light of the foregoing, this Court is satisfied that "socialized housing" fans within the confines
of "public use". It is, particularly important to draw attention to paragraph (d) of Pres. Dec. No.
1224 which opportunities inextricably linked with low-cost housing, or slum clearance, relocation
and resettlement, or slum improvement emphasize the public purpose of the project.
In the case at bar, the use to which it is proposed to put the subject parcels of land meets the
requisites of "public use". The lands in question are being expropriated by the NHA for the
expansion of Bagong Nayon Housing Project to provide housing facilities to low-salaried
government employees. Quoting respondents:
1. The Bagong Nayong Project is a housing and community development undertaking of the
National Housing Authority. Phase I covers about 60 hectares of GSIS property in Antipolo, Rizal;
Phase II includes about 30 hectares for industrial development and the rest are for residential
housing development.
It is intended for low-salaried government employees and aims to provide housing and community
services for about 2,000 families in Phase I and about 4,000 families in Phase II.
It is situated on rugged terrain 7.5 kms. from Marikina Town proper; 22 Kms. east of Manila; and is
within the Lungs Silangan Townsite Reservation (created by Presidential Proclamation No. 1637
on April 18, 1977).
The lands involved in the present petitions are parts of the expanded/additional areas for the
Bagong Nayon Project totalling 25.9725 hectares. They likewise include raw, rolling hills. (Rollo,
pp. 266-7)
The acute shortage of housing units in the country is of public knowledge. Official data indicate
that more than one third of the households nationwide do not own their dwelling places. A
significant number live in dwellings of unacceptable standards, such as shanties, natural shelters,
and structures intended for commercial, industrial, or agricultural purposes. Of these unacceptable
dwelling units, more than one third is located within the National Capital Region (NCR) alone
which lies proximate to and is expected to be the most benefited by the housing project involved in
the case at bar [See, National Census and Statistics Office, 1980 Census of Population and
Housing].
According to the National Economic and Development Authority at the time of the expropriation in
question, about "50 per cent of urban families, cannot afford adequate shelter even at reduced
rates and will need government support to provide them with social housing, subsidized either
partially or totally" [NEDA, FOUR YEAR DEVELOPMENT PLAN For 1974-1977, p. 357]. Up to the
present, housing some remains to be out of the reach of a sizable proportion of the population"
[NEDA, MEDIUM-TERM PHILIPPINE DEVELOPMENT PLAN 1987-1992, p. 240].
The mushrooming of squatter colonies in the Metropolitan Manila area as well as in other cities
and centers of population throughout the country, and, the efforts of the government to initiate
housing and other projects are matters of public knowledge [See NEDA, FOUR YEAR
DEVELOPMENT PLAN For 1974-1977, pp. 357-361; NEDA, FIVE-YEAR PHILIPPINE
DEVELOPMENT PLAN 1978-1982, pp. 215-228 NEDA, FIVE YEAR PHILIPPINE
DEVELOPMENT PLAN 1983-1987, pp. 109-117; NEDA, MEDIUM TERM PHILIPPINE
DEVELOPMENT PLAN 1987-1992, pp. 240-254].
b) Size of Property
Petitioners further contend that Pres. Decree 1224, as amended, would allow the taking of "any
private land" regardless of the size and no matter how small the area of the land to be
expropriated. Petitioners claim that "there are vast areas of lands in Mayamot, Cupang, and San
Isidro, Antipolo, Rizal hundred of hectares of which are owned by a few landowners only. It is
surprising [therefore] why respondent National Housing Authority [would] include [their] two man
lots ..."
In J.M. Tuason Co., Inc. vs. Land Tenure Administration [G. R. No. L-21064, February 18, 1970,
31 SCRA 413 (1970) at 428] this Court earlier ruled that expropriation is not confined to landed
estates. This Court, quoting the dissenting opinion of Justice J.B.L. Reyes in Republic vs.
Baylosis, [96 Phil. 461 (1955)], held that:
The propriety of exercising the power of eminent domain under Article XIII, section 4 of our
Constitution cannot be determined on a purely quantitative or area basis. Not only does the
constitutional provision speak of lands instead of landed estates, but I see no cogent reason why
the government, in its quest for social justice and peace, should exclusively devote attention to
conflicts of large proportions, involving a considerable number of individuals, and eschew small
controversies and wait until they grow into a major problem before taking remedial action.
The said case of J.M. Tuason Co., Inc. departed from the ruling in Guido vs. Rural Progress
Administration [84 Phil. 847 (1949)] which held that the test to be applied for a valid expropriation
of private lands was the area of the land and not the number of people who stood to be benefited.
Since then "there has evolved a clear pattern of adherence to the "number of people to be
benefited test" " [Mataas na Lupa Tenants Association, Inc. v. Dimayuga, G.R. No. 32049, June
25,1984, 130 SCRA 30 (1984) at 39]. Thus, in Pulido vs. Court of Appeals [G.R. No. 57625, May
3, 1983, 122 SCRA 63 (1983) at 73], this Court stated that, "[i]t is unfortunate that the petitioner
would be deprived of his landholdings, but his interest and that of his family should not stand in the
way of progress and the benefit of the greater may only of the inhabitants of the country."
The State acting through the NHA is vested with broad discretion to designate the particular
property/properties to be taken for socialized housing purposes and how much thereof may be
expropriated. Absent a clear showing of fraud, bad faith, or gross abuse of discretion, which
petitioners herein failed to demonstrate, the Court will give due weight to and leave undisturbed
the NHA's choice and the size of the site for the project. The property owner may not interpose
objections merely because in their judgment some other property would have been more suitable,
or just as suitable, for the purpose. The right to the use, enjoyment and disposal of private
property is tempered by and has to yield to the demands of the common good. The Constitutional
provisions on the subject are clear:
The State shall promote social justice in all phases of national development. (Art. II, sec. 10)
The Congress shall give highest priority to the enactment of measures that protect and enhance
the right of all the people to human dignity, reduce social, economic, and political inequalities, and
remove cultural inequities by equitably diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use and disposition of property
and its increments. (Art, XIII, sec. 1)
Indeed, the foregoing provisions, which are restatements of the provisions in the 1935 and 1973
Constitutions, emphasize:
...the stewardship concept, under which private property is supposed to be held by the individual
only as a trustee for the people in general, who are its real owners. As a mere steward, the
individual must exercise his rights to the property not for his own exclusive and selfish benefit but
for the good of the entire community or nation [Mataas na Lupa Tenants Association, Inc. supra at
42-3 citing I. CRUZ, PHILIPPINE POLITICAL LAW, 70 (1983 ed.)].
2. Just Compensation
Petitioners maintain that Pres. Decree No. 1224, as amended, would allow the taking of private
property upon payment of unjust and unfair valuations arbitrarily fixed by government assessors.
In addition, they assert that the Decree would deprive the courts of their judicial discretion to
determine what would be "just compensation".
The foregoing contentions have already been ruled upon by this Court in the case of Ignacio vs.
Guerrero (G.R. No. L-49088, May 29, 1987) which, incidentally, arose from the same expropriation
complaint that led to this instant petition. The provisions on just compensation found in
Presidential Decree Nos. 1224, 1259 and 1313 are the same provisions found in Presidential
Decree Nos. 76, 464, 794 and 1533 which were declared unconstitutional in Export Processing
Zone All thirty vs. Dulay (G.R. No. 5960 April 29, 1987) for being encroachments on prerogatives.
This Court abandoned the ruling in National Housing Authority vs. Reyes [G.R. No. 49439, June
29,1983, 123 SCRA 245 (1983)] which upheld Pres. Decree No. 464, as amended by -
Presidential Decree Nos. 794, 1224 and 1259.
In said case of Export Processing Zone Authority, this Court pointed out that:
The basic unfairness of the decrees is readily apparent.
Just compensation means the value of the property at the time of the taking. It means a fair and
full equivalent for the loss sustained. ALL the facts as to the condition of the property and its
surroundings, its improvements and capabilities, should be considered.
xxx xxx xxx
Various factors can come into play in the valuation of specific properties singled out for
expropriation. The values given by provincial assessors are usually uniform for very wide areas
covering several barrios or even an entire total with the exception of the poblacion. Individual
differences are never taken into account. The value of land is based on such generalities as its
possible cultivation for rice, corn, coconuts, or other crops. Very often land described as directional
has been cultivated for generations. Buildings are described in terms of only two or three classes
of building materials and estimates of areas are more often inaccurate than correct. Tax values
can serve as guides but cannot be absolute substitutes for just compensation.
To say that the owners are estopped to question the valuations made by assessors since they had
the opportunity to protest is illusory. The overwhelming mass of landowners accept
unquestioningly what is found in the tax declarations prepared by local assessors or municipal
clerks for them. They do not even look at, much less analyze, the statements. The Idea of
expropriation simply never occurs until a demand is made or a case filed by an agency authorized
to do so. (pp. 12-3)
3. Due Process
Petitioners assert that Pres. Decree 1224, as amended, violates procedural due process as it
allows immediate taking of possession, control and disposition of property without giving the
owner his day in court. Respondent Judge ordered the issuance of a writ of possession without
notice and without hearing.
The constitutionality of this procedure has also been ruled upon in the Export Processing Zone
Authority case, viz:
It is violative of due process to deny to the owner the opportunity to prove that the valuation in the
tax documents is unfair or wrong. And it is repulsive to basic concepts of justice and fairness to
allow the haphazard work of minor bureaucrat or clerk to absolutely prevail over the judgment of a
court promulgated only after expert commissioners have actually viewed the property, after
evidence and arguments pro and con have been presented, and after all factors and
considerations essential to a fair and just determination have been judiciously evaluated. (p. 13)
On the matter of the issuance of a writ of possession, the ruling in the Ignacio case is reiterated,
thus:
[I]t is imperative that before a writ of possession is issued by the Court in expropriation
proceedings, the following requisites must be met: (1) There must be a Complaint for expropriation
sufficient in form and in substance; (2) A provisional determination of just compensation for the
properties sought to be expropriated must be made by the trial court on the basis of judicial (not
legislative or executive) discretion; and (3) The deposit requirement under Section 2, Rule 67 must
be complied with. (p. 14)

This Court holds that "socialized housing" defined in Pres. Decree No. 1224, as amended by Pres.
Decree Nos. 1259 and 1313, constitutes "public use" for purposes of expropriation. However, as
previously held by this Court, the provisions of such decrees on just compensation are
unconstitutional; and in the instant case the Court finds that the Orders issued pursuant to the
corollary provisions of those decrees authorizing immediate taking without notice and hearing are
violative of due process.

WHEREFORE, the Orders of the lower court dated January 17, 1978 and June 28, 1978 issuing
the writ of possession on the basis of the market value appearing therein are annulled for having
been issued in excess of jurisdiction. Let this case be remanded to the court of origin for further
proceedings to determine the compensation the petitioners are entitled to be paid. No costs.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.

Sumulong vs. Guerrero, 154 SCRA 461, No. L-48685 September 30, 1987
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-55166 May 2l, 1987
TIONGSON, married to CAYETANO TIONGSON, PACITA L. GO married to EDUARDO GO,
ROBERTO LAPERAL III, MIGUEL SISON, PHILIP L. MANOTOK, MARIA TERESA L.
MANOTOK, JOSE CLEMENTE MANOTOK, RAMON SEVERINO MANOTOK, JOSE MARIA
MANOTOK and JESUS JUDE MANOTOK, JR., assisted by their father and judicial guardian,
JESUS MANOTOK, MILAGROS V. MANOTOK, IGNACIO V. MANOTOK, JR., FELISA V.
MANOTOK, MARY-ANN V. MANOTOK, MICHAEL V. MANOTOK, FAUSTO C. MANOTOK,
SEVERINO MANOTOK III, and JESUS MANOTOK, petitioners,
vs.
NATIONAL HOUSING AUTHORITY and the REPUBLIC OF THE PHILIPPINES, respondents.
No. L-55167 May 21,1987
PATRICIA L. TIONGSON, PATRICIA L. GO, assisted by her husband EDWARD GO,
ROBERTO LAPERAL III, ELISA R. MANOTOK, JESUS R. MANOTOK, MIGUEL A. B. SISON,
SEVERINO MANOTOK III, JOSE MARIA MANOTOK and JESUS MANOTOK, represented
herein by their father and judicial guardian JESUS MANOTOK, JR., IGNACIO R. MANOTOK.,
and FAUSTO C. MANOTOK, petitioners,
vs.
NATIONAL HOUSING AUTHORITY and the REPUBLIC OF THE PHILIPPINES, respondents
GUTIERREZ, JR., J.:
Before us are two petitions. The first one challenges the constitutionality of Presidential
Decree No. 1669 which provides for the expropriation of the property known as the
"Tambunting Estate" and the second challenges the constitutionality of Presidential Decree
No.1670 which provides for the expropriation of the property along the Estero de Sunog-
Apog. In both cases, the petitioners maintain that the two decrees are unconstitutional and
should be declared null and void because:
(1) They deprived the petitioners of their properties without due process of
law.
(2) The petitioners were denied to their right to just compensation
(3) The petitioners' right to equal protection of the law was violated.
(4) The decrees are vague, defective, and patently erroneous.
(5) The petitioners' properties are not proper subjects for expropriation
considering their location and other relevant circumstances.
On June 11, 1977, the President of the Philippines issued Letter of Instruction (LOI) No. 555
instituting a nationwide slum improvement and resettlement program (SIR). On the same
date, the President also issued LOI No. 557, adopting slum improvement as a national
housing policy.
In compliance with LOI No. 555, the Governor of Metro Manila issued, on July 21, 1977,
Executive Order No.6-77 adopting the Metropolitan Manila Zonal Improvement Program
which included the properties known as the Tambunting Estate and the Sunog-Apog area
in its priority list for a zonal improvement program (ZIP) because the findings of the
representative of the City of Manila and the National Housing Authority (NHA) described
these as blighted communities.
On March 18, 1978, a fire razed almost the entire Tambunting Estate. Following this
calamity, the President and the Metro Manila Governor made public announcement that the
national government would acquire the property for the fire victims. The President also
designated the NHA to negotiate with the owners of the property for the acquisition of the
same. This, however, did not materialize as the negotiations for the purchase of the
property failed.
On December 22, 1978, the President issued Proclamation No. 1810 declaring all sites
Identified by the Metro Manila local governments and approved by the Ministry of Human
Settlements to be included in the ZIP upon proclamation of the President. The Tambunting
Estate and the Sunog-Apog area were among the sites included.
On January 28, 1980, the President issued the challenged Presidential Decrees Nos. 1669
and 1670 which respectively declared the Tambunting Estate and the Sunog-Apog area
expropriated.
Presidential Decree No. 1669, provides, among others:
Section 1. The real properties known as the "Tambunting Estate" and
covered by TCT Nos. 119059, 122450, 122459, 122452 and Lots Nos. 1- A, 1-
C, 1-D, l-E, 1-F and 1-H of (LRC) Psd-230517 (Previously covered by TCT
No. 119058) of the Register of Deeds of Manila with an area of 52,688.70
square meters, more or less are hereby declared expropriated. The National
Housing Authority hereinafter referred to as the "Authority" is designated
administrator of the National Government with authority to immediately
take possession, control, disposition, with the power of demolition of the
expropriated properties and their improvements and shall evolve and
implement a comprehensive development plan for the condemned
properties.
 xxx xxx xxx
Section 6. Notwithstanding any provision of law or decree to the contrary
and for the purpose of expropriating this property pegged at the -.market
value determined by the City Assessor pursuant to Presidential Decree No.
76, as amended, particularly by Presidential Decree No. 1533 which is in
force and in effect at the time of the issuance of this decree. In assessing
the market value, the City Assessor pursuant consider existing conditions
in the area notably, that no improvement has been undertaken on the land
and that the land is squatted upon by resident families which should
considerably depress the expropriation cost. Subject to the foregoing, the
just compensation for the above property should not exceed a maximum of
SEVENTEEN MILLION PESOS (Pl7,000,000.00) which shall be payable to
the owners within a period of five (5) years in five (5) equal installments.
Presidential Decree No. 1670, on the other hand, provides:
Section 1. The real property along the Estero de Sunog-Apog in Tondo,
Manila formerly consisting of Lots Nos 55-A, 55-B and 55-C, Block 2918 of
the subdivision plan Psd-1 1746, covered by TCT Nos. 49286, 49287 and
49288, respectively, of the Registry of Deeds of Manila, and formerly owned
by the Manotok Realty, Inc., with an area of 72,428.6 square meters, more
or less, is hereby declared expropriated. The National Housing Authority
hereinafter referred to as the 'Authority' is designated administrator of the
National Government with authority to immediately take possession,
control and disposition, with the power of demolition of the expropriated
properties and their improvements and shall evolve and imagine implement
a comprehensive development plan for the condemned properties.
xxx xxx xxx
Section 6. Notwithstanding any provision of law or decree to the contrary
and for the purpose of expropriating this property pegged at the market
value determined by the City Assessor pursuant to Presidential Decree No.
76, as amended, particularly by Presidential Decree No. 1533 which is in
force and in effect at the time of the issuance of this decree. In assessing
the market value, the City Assessor shall consider existing conditions in
the area notably, that no improvement has been undertaken on the land
and that the land is squatted upon by resident families which should
considerably depress the expropriation cost. Subject to the foregoing, the
just compensation for the above property should not exceed a maximum of
EIGHT MILLION PESOS (P8,000,000.00), which shall be payable to the
owners within a period of five (5) years in five equal installment.
On April 4, 1980, the National Housing Authority, through its general-manager, wrote the
Register of Deeds of Manila, furnishing it with a certified copy of P.D. Nos. 1669 and 1670
for registration, with the request that the certificates of title covering the properties in
question be cancelled and new certificates of title be issued in the name of the Republic of
the Philippines.
However, the Register of Deeds in her letter to NHA's general-manager, requested the
submission of the owner's copy of the certificates of title of the properties in question to
enable her to implement the aforementioned decrees.
Subsequently, petitioner Elisa R. Manotok, one of the owners of the properties to be
expropriated, received from the NHA a letter informing her that the latter had deposited, on
July 16, 1980, with the Philippine National Bank the total amount of P5,000,000.00 which
included the amount of P3,400,000.00 representing the first annual installment for the
Tambunting Estate pursuant to P.D. No. 1669; and another P5,000,000.00 which also
included the amount of P1,600,000.00 representing the first annual installment for the
Sunog-Apog area under P.D. No. 1670. The petitioner was also informed that she was free
to withdraw her share in the properties upon surrender by her of the titles pertaining to
said properties and that if petitioner failed to avail herself of the said offer, the NHA would
be constrained to take the necessary legal steps to implement the decrees.
On August 19, 1980, petitioner Elisa R. Manotok wrote a letter to the NHA alleging, inter
alia, that the amounts of compensation for the expropriation of the properties of the
petitioners as fixed in the decrees do not constitute the "just compensation" envisioned in
the Constitution. She expressed veritable doubts about the constitutionality of the said
decrees and informed the NHA that she did not believe that she was obliged to withdraw
the amount of P5,000,000.00 or surrender her titles over the properties.
In the meantime, some officials of the NHA circulated instructions to the tenants-occupants
of the properties in dispute not to pay their rentals to the petitioners for their lease-
occupancy of the properties in view of the passage of P.D. Nos. 1669 and 1670. Hence, the
owners of the Tambunting Estate filed a petition to declare P.D. No. 1669 unconstitutional.
The owners of the Sunog-Apog area also filed a similar petition attacking the
constitutionality of P.D. No. 1670.
On September 27, 1982, the lessees of the Tambunting Estate and the Sunog-Apog area
filed a motion for leave to intervene together with their petition for intervention alleging that
they are themselves owners of the buildings and houses built on the properties to be
expropriated and as such, they are real parties-in-interest to the present petitions.
The petitioners maintain that the Presidential Decrees providing for the direct expropriation
of the properties in question violate their constitutional right to due process and equal
protection of the law because by the mere passage of the said decrees their properties
were automatically expropriated and they were immediately deprived of the ownership and
possession thereof without being given the chance to oppose such expropriation or to
contest the just compensation to which they are entitled.
The petitioners argue that the government must first have filed a complaint with the proper
court under Rule 67 of the Revised Rules of Court in order to fulfill the requirements of due
process. 'They contend that the determination of just compensation should not have been
vested solely with the City Assessor and that a maximum or fixed amount of compensation
should not have been imposed by the said decrees. Petitioners likewise state that by
providing for the maximum amount of just compensation and by directing the City
Assessor to take into consideration the alleged existing conditions of the properties in
question, namely: that no "improvement has been undertaken on the land and that the land
is squatted upon by resident families which should considerably depress the expropriation
costs," the City Assessor is forced to accept, as actual and existing conditions of the
property, the foregoing statements in the decrees when in fact the Sunog-Apog area has
been subdivided into subdivision lots and leased to the occupants thereof under contracts
of lease, making them lessees and not squatters as assumed by Presidential Decree No.
1670. Moreover, each subdivision lot is surrounded by adobe walls constructed by the
particular owner of the property: the houses were required to have septic tanks by the City
Hall and the, owners themselves: there is a drainage system; and there are adequate water
facilities.
As far as the Tambunting Estate is concerned, the petitioners maintain that aside from the
residential houses in the area, there are buildings and structures of strong materials on the
lots fronting Rizal Avenue Extension, most of which are leased to proprietors of business
establishments under long term contracts of lease which use the same for their furniture
business from which they secure substantial income.
The Government as represented by the Solicitor-General and the NHA, on the other hand,
contends that the power of eminent domain is inherent in the State and when the
legislature itself or the President through his law-making prerogatives exercises this
power, the public use and public necessity of the expropriation, and the fixing of the just
compensation become political in nature, and the courts must respect the decision of the
law-making body, unless the legislative decision is clearly and evidently arbitrary,
unreasonable, and devoid of logic and reason; and that all that is required is that just
compensation be determined with due process of law which does not necessarily entail
judicial process.
The public respondents, further argue that since the Constitution lays down no procedure
by which the authority to expropriate may be carried into effect, Rule 67 of the Revised
Rules of Court which is invoked by the petitioners may be said to have been superseded by
the challenged decrees insofar as they are applicable to the properties in question and,
therefore, there is no need to follow the said rule for due process to be observed.
Moreover, the public respondents maintain that it cannot be fairly said that the petitioners'
valuations were ignored in fixing the ceiling amount of the properties in question because
the only reason why the determination appeared unilateral was because said petitioners
did not actually state any valuation in their sworn declaration of true market value of their
respective properties, and as far as payment in installments is concerned, the same can be
justified by the fact that the properties in question are only two of the four hundred and
fifteen (415) slums and blighted areas in Metro Manila and two of the two hundred and fifty
one (251) sites for ungrading under the ZIP and that to immediately acquire and upgrade all
those sites would obviously entail millions and millions of pesos. The financial constraints,
therefore, require a system of payment of just compensation. Thus, the respondent states
that the payment of just compensation in installments did not arise out of ill will or the
desire to discriminate.
We start with fundamentals.
The power of eminent domain is inherent in every state and the provisions in the
Constitution pertaining to such power only serve to limit its exercise in order to protect the
individual against whose property the power is sought to be enforced. We pointed out the
constitutional limitations in the case of Republic vs. Juan (92 SCRA 26, 40):
To begin with, it must be emphasized that plaintiff-appellee in this instant
case is the Republic of the Philippines which is exercising its right of
eminent domain inherent in it as a body sovereign. In the exercise of its
sovereign right the State is not subject to any limitation other than those
imposed by the Constitution which are: first, the taking must be for a public
use; secondly, the payment of just compensation must be made: and
thirdly, due process must be observed in the taking...
The challenged decrees are uniquely unfair in the procedures adopted and the powers
given to the respondent NHA.
The Tambunting subdivision is summarily proclaimed a blighted area and directly
expropriated by decree without the slightest semblance of a hearing or any proceeding
whatsoever. The expropriation is instant and automatic to take effect immediately upon the
signing of the decree. No deposit before taking is required under the decree. The
P3,400,000.00 appropriated from the general fund is not a deposit but constitutes an
installment payment for the property, the maximum price of which is fixed so as not to
exceed P17,000,000.00. There is no provision for any interests to be paid on the unpaid
installments spread out over a period of five years. Not only are the owners given
absolutely no opportunity to contest the expropriation, plead their side, or question the
amount of payments fixed by decree, but the decisions, rulings, orders, or resolutions of
the NHA are expressly declared as beyond the reach of judicial review. An appeal may be
made to the Office of the President but the courts are completely enjoined from any inquiry
or participation whatsoever in the expropriation of the subdivision or its incidents.
In some decisions promulgated before the February, 1986 political upheaval, this Court
presumed the validity of the beautiful "whereases" in presidential decrees governing
expropriations and legitimated takings of private property which, in normal times, would
have been constitutionally suspect. There were then the avowed twin purposes of martial
law to first quell the Communist rebellion and second to reform society. Thus, in Haguisan
v. Emilia (131 SCRA 517) the Court sustained the contention that prior hearing is no longer
necessary under P.D. No. 42 in ascertaining the value of the property to be expropriated
and before the government may take possession. There was a disregard in the decree for
Section 2 of Rule 67 which requires the court having jurisdiction over the proceedings to
promptly ascertain and fix the provisional value of the property for purposes of the initial
taking or entry by the Government into the premises. In National Housing Authority v.
Reyes (123 SCRA 245) the Court upheld the decrees which state that the basis for just
compensation shall be the market value declared by the owner for tax purposes or such
market value as determined by the government assessor, whichever is lower.
Subsequent developments have shown that a disregard for basic liberties and the shortcut
methods embodied in the decrees on expropriation do not achieve the desired results. Far
from disappearing, squatter colonies and blighted areas have multiplied and proliferated. It
appears that constitutionally suspect methods or authoritarian procedures cannot, be the
basis for social justice. A program to alleviate problems of the urban poor which is well
studied, adequately funded, genuinely sincere, and more solidly grounded on basic rights
and democratic procedures is needed.
We re-examine the decisions validating expropriations under martial law and apply
established principles of justice and fairness which have been with us since the advent of
constitutional government. We return to older and more sound precedents.
The due process clause cannot be rendered nugatory everytime a specific decree or law
orders the expropriation of somebody's property and provides its own peculiar manner of
taking the same. Neither should the courts adopt a hands-off policy just because the public
use has been ordained as existing by the decree or the just compensation has been fixed
and determined beforehand by a statute.
The case of Dohany v. Rogers, (74 L.ed. 904.'912, 281. U.S. 362-370) underscores the extent
by which the due process clause guarantees protection from arbitrary exercise of the
power of eminent domain.
The due process clause does not guarantee to the citizen of a state any
particular form or method of state procedure. Under it he may neither claim
a right to trial by jury nor a right of appeal. Its requirements are satisfied if
he has reasonable opportunity to be heard and to present his claim or
defense, due regard being had to the nature of the proceeding and the
character of the rights which may be affected by it. Reetz v. Michigan, 188
U.S. 505, 508, 47 L.ed. 563, 566, 23 Sup. Ct. Rep. 390; Missouri ex rel.
Hurwitz v. North, 271 U.S. 40, 70 L.ed. 818, 46 Sup. Ct. Rep. 384: Bauman v.
Ross, 167 U.S. 548, 593, 42 L.ed. 270, 289, 17 Sup. Ct. Rep. 966; A. Backus
Jr. & Sons v. Fort Street Union Depot Co. 169 U.S. 569, 42 L. ed. 859, 18
Sup. Ct. Rep. 445.
In other words, although due process does not always necessarily demand that a
proceeding be had before a court of law, it still mandates some form of proceeding wherein
notice and reasonable opportunity to be heard are given to the owner to protect his
property rights. We agree with the public respondents that there are exceptional situations
when, in the exercise of the power of eminent domain, the requirement of due process may
not necessarily entail judicial process. But where it is alleged that in the taking of a
person's property, his right to due process of law has been violated, the courts will have to
step in and probe into such an alleged violation.
Thus, certain portions of the decision in De Knecht v. Bautista, (100 SCRA 660, 666-667)
state:
There is no question as to the right of the Republic of the Philippines to
take private property for public use upon the payment of just
compensation. Section 2, Article IV of the Constitution of the Philippines
provides: 'Private property shall not be taken for public use without just
compensation.
It is recognized, however, that the government may not capriciously or
arbitrarily choose what private property should be taken. In J.M. Tuazon &
Co., Inc. v. Land tenure Administration, 31 SCRA 413, 433, the Supreme
Court said:
xxx xxx xxx
It is obvious then that a land-owner is covered by the mantle of protection
due process affords. It is a mandate of reason. It frowns on arbitrariness, it
is the antithesis of any governmental act that smacks of whim or caprice. It
negates state power to act in an oppressive manner. It is, as had been
stressed so often, the embodiment of the sporting Idea of fair play. In that
sense, it stands as a guaranty of justice. 'That is the standard that must be
met by any governmental agency in the exercise of whatever competence
is entrusted to it As was so emphatically stressed by the present Chief
Justice, 'Acts of Congress, as well as those of the Executive, can deny due
process only under pain of nullity...
In the same case the Supreme Court concluded:
With due recognition then of the power of Congress to designate the
particular property to be taken and how much thereof may be condemned
in the exercise of the power of expropriation, it is still a judicial question
whether in the exercise of such competence, the party adversely affected is
the victim of partiality and prejudice, That the equal protection clause will
not allow. (p. 436)
The basis for the exercise of the power of eminent domain is necessity. This Court stated
in City of Manila v. Chinese Community of Manila (40 Phil. 349) that "(t)he very foundation
of the right to exercise eminent domain is a genuine necessity and that necessity must be
of a public character.
In City of Manila v. Arellano Law Colleges (85 Phil. 663), we reiterated that a necessity must
exist for the taking of private property for the proposed uses and purposes but accepted
the fact that modern decisions do not call for absolute necessity. It is enough if the
condemnor can show a reasonable or practical necessity, which of course, varies with the
time and peculiar circumstances of each case.
In the instant petitions, there is no showing whatsoever as to why the properties involved
were singled out for expropriation through decrees or what necessity impelled the
particular choices or selections. In expropriations through legislation, there are, at least,
debates in Congress open to the public, scrutiny by individual members of the legislature,
and very often, public hearings before the statute is enacted. Congressional records can be
examined. In these petitions, the decrees show no reasons whatsoever for the choice of the
properties as housing projects. The anonymous adviser who drafted the decrees for the
President's signature cannot be questioned as to any possible error or partiality, act of
vengeance, or other personal motivations which may have led him to propose the direct
expropriation with its onerous provisions.
The Tambunting estate or at least the western half of the subdivision fronting Rizal Avenue
Extension is valuable commercial property. It is located at the junction where three main
city streets converge — Rizal Avenue from downtown Manila, Jose Abad Santos Street
from Binondo, and Aurora Boulevard leading to Retiro Street and other points in Quezon
City. The Libiran Furniture Company, alone, which fronts the entrance to Jose Abad Santos
Street is clearly a multi-million peso enterprise. It is a foregone conclusion that the favored
squatters allowed to buy these choice lots would lose no time, once it is possible to do so,
to either lease out or sell their lots to wealthy merchants even as they seek other places
where they can set up new squatter colonies. The public use and social justice ends stated
in the whereas clauses of P.D. 1669 and P.D. 1670 would not be served thereby.
The provision of P.D. 1669 which allows NHA, at its sole option, to put portions of the
expropriated area to commercial use in order to defray the development costs of its
housing projects cannot stand constitutional scrutiny. The Government, for instance,
cannot expropriate the flourishing Makati commercial area in order to earn money that
would finance housing projects all over the country. The leading case of Guido v. Rural
Progress Administration (84 Phil. 847) may have been modified in some ways by the
provisions of the new Constitution on agrarian and urban land reform and on housing. The
principle of non-appropriation of private property for private purposes, however, remains.
The legislature, according to the Guido case, may not take the property of one citizen and
transfer it to another, even for a full compensation, when the public interest is not thereby
promoted. The Government still has to prove that expropriation of commercial properties in
order to lease them out also for commercial purposes would be "public use" under the
Constitution.
P.D. No. 1670 suffers from a similar infirmity. There is no showing how the President
arrived at the conclusion that the Sunog-Apog area is a blighted community. The many
pictures submitted as exhibits by the petitioners show a well-developed area subdivided
into residential lots with either middle-income or upper class homes. There are no
squatters. The provisions of the decree on the relocation of qualified squatter families and
on the re-blocking and re-alignment of existing structures to allow the introduction of basic
facilities and services have no basis in fact The area is well-developed with roads, drainage
and sewer facilities, water connection to the Metropolitan Waterworks and Sewerage
System electric connections to Manila Electric Company, and telephone connections to the
Philippine Long Distance Telephone Company. There are many squatter colonies in Metro
Manila in need of upgrading. The Government should have attended to them first. There is
no showing for a need to demolish the existing valuable improvements in order to upgrade
Sunog-Apog.
After a careful examination of the questioned decrees, we find P.D. Nos. 1669 and 1670 to
be violative of the petitioners' right to due process of law and, therefore, they must fail the
test of constitutionality.
The decrees, do not by themselves, provide for any form of hearing or procedure by which
the petitioners can question the propriety of the expropriation of their properties or the
reasonableness of the just compensation. Having failed to provide for a hearing, the
Government should have filed an expropriation case under Rule 67 of the Revised Rules of
Court but it did not do so. Obviously, it did not deem it necessary because of the
enactment of the questioned decrees which rendered, by their very passage, any questions
with regard to the expropriation of the properties, moot and academic. In effect, the
properties, under the decrees were "automatically expropriated." This became more
evident when the NHA wrote the Register of Deeds and requested her to cancel the
certificate of titles of the petitioners, furnishing said Register of Deeds only with copies of
the decrees to support its request.
This is hardly the due process of law which the state is expected to observe when it
exercises the power of eminent domain.
The government states that there is no arbitrary determination of the fair market value of
the property by the government assessors because if the owner is not satisfied with the
assessor's action, he may within sixty (60) days appeal to the Board of Assessment
Appeals of the province or city as the case may be and if said owner is still unsatisfied, he
may appeal further to the Central Board of Assessment Appeals pursuant to P.D. No. 464.
The Government argues that with this procedure, the due process requirement is fulfilled.
We cannot sustain this argument.
Presidential Decree No. 464, as amended, otherwise known as the Real Property Tax Code,
provides for the procedure on how to contest assessments but does not deal with
questions as to the propriety of the expropriation and the manner of payment of just
compensation in the exercise of the power of eminent domain. We find this wholly
unsatisfactory. It cannot in anyway substitute for the expropriation proceeding under Rule
67 of the Revised Rules of Court.
Another infirmity from which the questioned decrees suffer is the determination of just
compensation.
Pursuant to P.D. 1533, the basis of the just compensation is the market value of the
property "prior to the recommendation or decision of the appropriate Government Office to
acquire the property." (see also Republic v. Santos, (1 41 SCRA 30, 35).
In these petitions, a maximum amount of compensation was imposed by the decrees and
these amounts were only a little more than the assessed value of the properties in 1978
when, according to the government, it decided to acquire said properties.
The fixing of the maximum amounts of compensation and the bases thereof which are the
assessed values of the properties in 1978 deprive the petitioner of the opportunity to prove
a higher value because, the actual or symbolic taking of such properties occurred only in
1980 when the questioned decrees were promulgated.
According to the government, the cut-off year must be 1978 because it was in this year that
the government decided to acquire the properties and in the case of the Tambunting
Estate, the President even made a public announcement that the government shall acquire
the estate for the fire victims.
The decision of the government to acquire a property through eminent domain should be
made known to the property owner through a formal notice wherein a hearing or a judicial
proceeding is contemplated as provided for in Rule 67 of the Rules of Court. This shall be
the time of reckoning the value of the property for the purpose of just compensation. A
television or news announcement or the mere fact of the property's inclusion in the Zonal
Improvement Program (ZIP) cannot suffice because for the compensation to be just, it must
approximate the value of the property at the time of its taking and the government can be
said to have decided to acquire or take the property only after it has, at the least,
commenced a proceeding, judicial or otherwise, for this purpose.
In the following cases, we have upheld the determination of just compensation and the
rationale behind it either at the time of the actual taking of the government or at the time of
the judgment by the court, whichever came first.
Municipality of Daet v. Court of Appeals, (93 SCRA 503, 506, 519):
...And in the case of J.M. Tuason & Co., Inc. v. Land Tenure Administration,
31 SCRA 413, the Court, speaking thru now Chief Justice Fernando,
reiterated the 'wen-settled (rule) that just compensation means the
equivalent for the value of the property at the time of its taking. Anything
beyond that is more and anything short of that is less, than just
compensation. It means a fair and full equivalent for the loss sustained,
which is the measure of the indemnity, not whatever gain would accrue to
the expropriating entity.
xxx xxx xxx
We hold that the decision of the Court of Appeals fixing the market value of
the property to be that obtaining, at least, as of the date of the rendition of
the judgment on December 2, 1969 as prayed by private respondent, which
the Court fixed at P200.00 per square meter is in conformity with doctrinal
rulings hereinabove cited that the value should be fixed as of the time of
the taking of the possession of the property because firstly, at the time
judgment was rendered on December 2, 1969, petitioner had not actually
taken possession of the property sought to be expropriated and secondly,
We find the valuation determined by the Court of Appeals to be just, fair
and reasonable.
National Power Corporation v. Court of Appeals, (1 29 SCRA 665, 673):
xxx xxx xxx
(5) And most importantly,on the issue of just compensation, it is now
settled doctrine, following the leading case of Alfonso v. Pasay City, (1,06
PhiL 1017 (1960)), that no determine due compensation for lands
appropriated by the Government, the basis should be the price or value at
the time it was taken from the owner and appropriated by the Government.
The owner of property expropriated by the State is entitled to how much it
was worth at the time of the taking. This has been clarified in Republic v.
PNB (1 SCRA 957) thus: 'It is apparent from the foregoing that, when
plaintiff takes possession before the institution of the condemnation
proceedings, the value should be fixed as of the time of the taking of said
possession, not of filing of the complainant, and that the latter should be
the basis for the determination of the value, when the of the property
involved coincides with or is subsequent to, the commencement of the
proceedings. Indeed, otherwise, the provision of Rule 619, section 3,
directing that compensation "be determined as of the date of the filing of
the complaints" would never be operative. municipality of La Carlota v. The
Spouses Baltazar, et al., 45 SCRA 235 (1972)).
Furthermore, the so-called "conditions" of the properties should not be determined
through a decree but must be shown in an appropriate proceeding in order to arrive at a
just valuation of the property. In the case of Garcia v. Court of Appeals, (102 SCRA 597,
608) we ruled:
...Hence, in estimating the market value, all the capabilities of the property
and all the uses to which it may be applied or for which it is adapted are to
be considered and not merely the condition it is in at the time and the use
to which it is then applied by the owner. All the facts as to the condition of
the property and its surroundings, its improvements and capabilities may
be shown and considered in estimating its value.
In P.D. No. 76, P.D. No. 464, P.D. No. 794, and P.D. No. 1533, the basis for determining just
compensation was fixed at the market value declared by the owner or the market value
determined by the assessor, whichever is lower.
P.D.s 1669 and 1670 go further. There is no mention of any market value declared by the
owner. Sections 6 of the two decrees peg just compensation at the market value
determined by the City Assessor. The City Assessor is warned by the decrees to "consider
existing conditions in the area notably, that no improvement has been undertaken on the
land and that the land is squatted upon by resident families which should considerably
depress the expropriation costs."
In other cases involving expropriations under P.D. Nos. 76, 464, 794, and 1533, this Court
has decided to invalidate the mode of fixing just compensation under said decrees. (See
Export Processing Zone Authority v. Hon. Ceferino E. Dulay, et al. G.R. No. 59603) With
more reason should the method in P.D.s 1669 and 1670 be declared infirm.

The market value stated by the city assessor alone cannot substitute for the court's
judgment in expropriation proceedings. It is violative of the due process and the eminent
domain provisions of the Constitution to deny to a property owner the opportunity to prove
that the valuation made by a local assessor is wrong or prejudiced. The statements made in
tax documents by the assessor may serve as one of the factors to be considered but they
cannot exclude or prevail over a court determination made after expert commissioners
have examined the property and all pertinent circumstances are taken into account and
after the parties have had the opportunity to fully plead their cases before a competent and
unbiased tribunal. To enjoin this Court by decree from looking into alleged violations of the
due process, equal protection, and eminent domain clauses of the Constitution is
impermissible encroachment on its independence and prerogatives.

The maximum amounts, therefore, which were provided for in the questioned decrees
cannot adequately reflect the value of the property and, in any case, should not be binding
on the property owners for, as stated in the above cases, there are other factors to be taken
into consideration. We, thus, find the questioned decrees to likewise transgress the
petitioners' right to just compensation. Having violated the due process and just
compensation guarantees, P. D. Nos. 1669 and 1670 are unconstitutional and void.

WHEREFORE, the petitions in G.R. No. 55166 and G.R. No. 55167 are hereby GRANTED.
Presidential Decree Numbers 1669 and 1670 which respectively proclaimed the Tambunting
Estate and the Estero de Sunog-Apog area expropriated, are declared unconstitutional and,
therefore, null and void ab initio.

SO ORDERED.

Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,

Sarmiento and Cortes, JJ., concur.

Yap, J., is on leave.

113 Manotok vs. National Housing Authority, 150 SCRA 89, No. L-55166, No. L-55167 May 21,
1987
 Republic of the Philippines
SUPREME COURT
SPECIAL SECOND DIVISION
G.R. No. 156273. August 9, 2005
HEIRS OF TIMOTEO MORENO and MARIA ROTEA, namely, ESPERANZA R. EDJEC,
BERNARDA R. SUELA, RUBY C. ROTEA, BERNARDA R. ROTEA, ELIA R. VDA. DE
LIMBAGA, VIRGINIA R. ARBON, ROSALINDA R. ARQUISOLA, CORAZON ROTEA, FE R.
EBORA, CARIDAD ROTEA, ANGELES VDA. DE RENACIA, JORGE ROTEA, MARIA LUISA
ROTEA-VILLEGAS, ALFREDO R. ROTEA, represented by his heirs, namely, LIZBETH
ROTEA and ELEPETH ROTEA; LUIS ROTEA, represented by his heir JENNIFER
ROTEA; and ROLANDO R. ROTEA, represented by his heir ROLANDO R. ROTEA,
JR., Petitioners,
vs.
MACTAN-CEBU INTERNATIONAL AIRPORT AUTHORITY, Respondent.
RESOLUTION
CALLEJO, SR., J.:
This is a Motion for Reconsideration dated November 10, 2003 filed by respondent Mactan-Cebu
International Airport Authority (MCIAA), through the Office of the Solicitor General (OSG), seeking
the reversal of the Decision1dated October 15, 2003,2 the dispositive portion of which reads:
WHEREFORE, the instant Petition for Review is GRANTED. The Decision of the Court of Appeals
in CA-G.R. CV No. 64456 dated 20 December 2001 and its Resolution of 28 November 2002,
denying reconsideration of the Decision are REVERSED and SET ASIDE.
The Decision of RTC-Br. 19 of Cebu City dated 12 April 1999 in Civil Case No. CEB 20015
is MODIFIED IN PARTby –
(a) ORDERING respondent Mactan-Cebu International Airport Authority (MCIAA) TO
RECONVEY to petitioner Heirs of Timoteo Moreno and Maria Rotea, namely: Esperanza R. Edjec,
Bernarda R. Suela, Ruby C. Rotea, Bernarda R. Rotea, Elia R. Vda. de Limbaga, Virginia R.
Arbon, Rosalinda R. Arquisola, Corazon Rotea, Fe R. Ebora, Caridad Rotea, Angeles Vda. de
Renacia, Jorge Rotea, Maria Luisa Rotea-Villegas, Alfredo R. Rotea, represented by his heirs,
namely: Lizbeth Rotea and Elepeth Rotea; Luis Rotea, represented by his heir Jennifer Rotea;
and Rolando R. Rotea, represented by his heir Rolando R. Rotea, Jr., Lot No. 916 with an area of
2,355 square meters and Lot No. 920 consisting of 3,097 square meters in Lahug, Cebu City, with
all the improvements thereon evolving through nature or time, but excluding those that were
introduced by third parties, i.e., DPWH, which shall be governed by existing contracts and relevant
provisions of law;
(b) ORDERING petitioner Heirs of Timoteo Moreno and Maria Rotea TO PAY respondent MCIAA
what the former received as just compensation for the expropriation of Lot Nos. 916 and 920 in
Civil Case No. R-1881, i.e., ₱7,065.00 for Lot No. 916 and ₱9,291.00 for Lot No. 920 with
consequential damages by way of legal interest from 16 November 1947. Petitioners must
likewise PAY respondent MCIAA the necessary expenses that the latter may have incurred in
sustaining the properties and the monetary value of its services in managing the properties to the
extent that petitioners will secure a benefit from such acts. Respondent MCIAA however may keep
whatever income or fruits it may have obtained from the parcels of land, in the same way that
petitioners need not account for the interests that the amounts they received as just compensation
may have earned in the meantime;
(c) ORDERING respondent MCIAA TO CONVEY to petitioners the improvements it may have built
on Lot Nos. 916 and 920, if any, in which case petitioners SHALL PAY for these improvements at
the prevailing free market price, otherwise, if petitioners do not want to appropriate such
improvements, or if respondent does not choose to sell them, respondent MCIAA SHALL
REMOVE these improvements WITHOUT ANY OBLIGATION on the part of petitioners to pay any
compensation to respondent MCIAA from them;
(d) ORDERING petitioners TO PAY the amount so determined under letter (b) of this dispositive
portion as consideration for the reconveyance of Lot Nos. 916 and 920, as well as the prevailing
free market price of the improvements built thereon by respondent MCIAA, if any and desired to
be bought and sold by the parties, in ready money or cash PAYABLE within a period of three
hundred sixty-five (365) days from the date that the amount under letter (b) above is determined
with finality, unless the parties herein stipulate a different scheme or schedule of payment,
otherwise, after the period of three hundred sixty-five (365) days or the lapse of the compromise
scheme or schedule of payment and the amount so payable is not settled, the right of repurchase
of petitioners and the obligation of respondent MCIAA to so reconvey Lot Nos. 916 and 920 and/or
the improvements shall be DEEMED FORFEITED and the ownership of those parcels of land
shall VEST ABSOLUTELY upon the respondent MCIAA;
(e) REMANDING the instant case to RTC-Br. 19 of Cebu City for purposes of determining the
amount of compensation for Lot Nos. 916 and 920 to be paid by petitioners as mandated in letter
(b) hereof, and the value of the prevailing free market price of the improvements built thereon by
respondent MCIAA, if any and desired to be bought and sold by the parties, and in general,
securing the immediate execution of this Decision under the premises;
(f) ORDERING petitioners to respect the right of the Department of Public Works and Highways to
its lease contract until the expiration of the lease period; and
(g) DELETING the award of ₱60,000.00 for attorney’s fees and ₱15,000.00 for litigation expenses
against respondent MCIAA and in favor of petitioners.
This Decision is without prejudice to the claim of intervenor one Richard E. Enchuan on his
allegation that he acquired through deeds of assignment the rights of some of herein petitioners
over Lot Nos. 916 and 920.
No costs.
SO ORDERED.3
A review of the factual milieu of the case reveals that in 1949, the National Airport Corporation
(NAC), as the predecessor of herein respondent MCIAA, sought to acquire Lot No. 916, having a
total area of 2,355 square meters under Transfer Certificate of Title (TCT) No. RT-7543 (106) T-
13694, and Lot No. 920 containing an area of 3,097 square meters covered by TCT No. RT-7544
(107) T-13695 for the proposed expansion of the Lahug Airport. The two parcels of land located in
Lahug, Cebu City were owned by the spouses Timoteo Moreno and Maria Rotea. 4 The spouses
refused to sell their properties because the proposed price was unacceptably way below the
market value of the lands at that time. As an incentive for the other owners to cede their lots
adjoining the then existing Lahug Airport, NAC guaranteed them or their successors-in-interest the
right to repurchase their properties for the same price paid by the government in the event that
these properties were no longer used for purposes of the airport.5 Some landowners executed
deeds of conveyance while others who refused to cede their properties became defendants in an
action for expropriation filed by the Republic of the Philippines before the Court of First Instance
(CFI) of Cebu, docketed as Civil Case No. R-1881.6 Lot Nos. 916 and 920 were among those
included in the expropriation case.
In a Decision7 rendered by the trial court on December 29, 1961, Lot Nos. 916 and 920, along with
the other adjoining lands, were condemned for public use after payment of just
compensation.8 The trial court fixed the price at ₱3.00 per square meter for the two lots and
ordered the payment thereof to the owners in the sum of ₱7,065.00 for Lot No. 916 and ₱9,291.00
for Lot No. 920, with payment of consequential damages by way of legal interest from November
16, 1947.9 Thereafter, the subject lands were transferred in the name of the Republic of the
Philippines under TCT No. 5869110 for Lot No. 916 and TCT No. 5869211 for Lot No. 920 and
subsequently turned over to MCIAA under Republic Act (Rep. Act) No. 6958 in 1990.12
Subsequently, the Lahug Airport was abandoned and all its functions and operations were
transferred to the Mactan Airport. In two various letters sent on different dates, the heirs of
Timoteo Moreno and Maria Rotea, the petitioners herein, wrote then President Fidel V.
Ramos13 and the MCIAA General Manager,14 requesting for the exercise of their supposed right to
repurchase Lot Nos. 916 and 920 considering that the said lots intended for the expansion of the
Lahug Airport were not utilized. Their written and verbal demands were ignored by the respondent.
Consequently, the petitioners filed a complaint for reconveyance and damages with the Regional
Trial Court of Cebu City docketed as Civil Case No. CEB-20015, against the respondent asserting
their right to reacquire the subject properties. In the complaint, the petitioners claimed that
assurances were given by the NAC officials regarding the entitlement of the landowners to
repurchase their properties for the same price paid by NAC in the event that the lots were no
longer used for airport purposes.15 The petitioners further added that the guaranty of right to
repurchase was the propelling factor that persuaded the registered owners to continue with the
expropriation proceedings. The same reason was given by the petitioners for not opposing and
appealing the case later on.16
During the pendency of the case, one Richard E. Unchuan filed a Motion for Transfer of
Interest,17 alleging that some of the petitioners had already assigned to him their respective rights,
interests, participation, and ownership over the subject properties. Thereafter, the Department of
Public Works and Highways (DPWH), likewise, sought to intervene alleging that it is the lessee of
Lot No. 920 and would be adversely affected by the outcome of the litigation.18
At the start of the trial, the petitioners presented two witnesses to support their allegations in the
complaint. The first witness was Esperanza Rotea Edjec, who testified that when she was just 22
years old, the airport authority representatives called for a meeting with the landowners affected
by the expropriation. The witness was present during the gathering and attested that the
registered owners of the lots were assured of the return of the expropriated lands should the same
be no longer utilized as an airport.19
The next witness was Asterio Uy, a retired government employee of the Civil Aeronautics
Administration (CAA), who attested that in 1957, he was sent as part of the legal team to Mactan,
Cebu City, tasked to acquire certain lots for the extension of the Lahug Airport. He added that
when the negotiations broke down, the legal contingent resorted to expropriation proceedings.
Upon instructions from the central office of CAA in Manila, Atty. Ocampo, the head of the legal
corps which undertook the procurement of the subject lands, gave the assurance to the
landowners that if the airport is transferred to Mactan, the lots will be returned to their previous
owners.20
The respondent, on the other hand, presented on the witness stand Michael M. Bacarisas, a legal
assistant of the MCIAA. The witness testified that as a consequence of the expropriation
proceedings, the TCTs of Lot Nos. 916 and 920 were cancelled and in lieu thereof, new ones were
issued in the name of the Republic of the Philippines in 1962. He pronounced that the decision in
Civil Case No. R-1881 did not expressly impart that the landowners were guaranteed the
reconveyance of the lots to them if the lands expropriated would not be used for the purpose. On
cross-examination, the witness admitted that he had no personal knowledge of any agreement
between the airport officials and the previous registered owners of the disputed properties. His
research likewise revealed that a total of 65 lots were expropriated by the government; 19 lots
were the subject of court litigations concerning their reconveyance; and that out of the 19 lots, 15
lots were already returned to their former owners. Moreover, Bacarisas alleged that some of the
expropriated lots were recovered by their previous landowners because they were acquired
through negotiated sale wherein the standard contract had an express provision that should the
proposed expansion of the Lahug Airport not materialize, the landowners may recover their
properties.21
On April 12, 1999, the trial court rendered judgment22 in favor of the petitioners, granting them the
right to repurchase the properties at the amount originally paid by the respondent in Civil Case No.
R-1881, including consequential damages. The trial court ruled that the public purpose for which
the lands were expropriated had ceased to exist, therefore, it is but logical and in the higher
interest of substantial justice to give back the right of ownership of the subject lots to the former
owners.
Aggrieved, the respondent appealed the decision to the Court of Appeals (CA). On December 20,
2001, the CA reversed the trial court’s decision on the premise that the judgment affirming the
state’s right to exercise its power of eminent domain was unconditional. In maintaining a contrary
view, the CA cited Fery v. Municipality of Cabanatuan,23 which held that when a land has been
acquired for public use unconditionally and in fee simple, the previous owner retains no right in the
land and the title obtained will not, in any way, be impaired. Another case relied upon by the
appellate court was Mactan-Cebu International Airport Authority v. Court of Appeals24 which is
allegedly stare decisis to the case to prevent the exercise of the right of repurchase as the former
dealt with a parcel of land similarly expropriated under Civil Case No. R-1881; hence, the same
questions relating to the same event have already been previously litigated and decided by a
competent court.
On February 11, 2002, the petitioners filed a motion for reconsideration before the CA, which was
denied in a Resolution dated November 28, 2002.
Expectedly, the petitioners filed before this Court a petition for review of the decision of the CA.
In reversing the decision of the CA, the Court ratiocinated that the attendance in the case at bar of
standing admissible evidence validating the claim of the petitioners’ right to repurchase the
expropriated properties took away the instant case from the ambit of Mactan-Cebu International
Airport Authority v. Court of Appeals, but still within the principles enunciated in
the Fery case.25 This Court moreover added:
Mactan-Cebu International Airport Authority is correct in stating that one would not find an express
statement in the Decision in Civil Case No. R-1881 to the effect that "the [condemned] lot would
return to [the landowner] or that [the landowner] had a right to repurchase the same if the purpose
for which it was expropriated is ended or abandoned or if the property was to be used other than
as the Lahug Airport." This omission notwithstanding, and while the inclusion of this
pronouncement in the judgment of condemnation would have been ideal, such precision is not
absolutely necessary nor is it fatal to the cause of petitioners herein. No doubt, the return or
repurchase of the condemned properties of petitioners could be readily justified as the manifest
legal effect or consequence of the trial court’s underlying presumption that "Lahug Airport will
continue to be in operation" when it granted the complaint for eminent domain and the airport
discontinued its activities.
The predicament of petitioners involves a constructive trust, one that is akin to the implied trust
referred to in Art. 1454 of the Civil Code, "If an absolute conveyance of property is made in order
to secure the performance of an obligation of the grantor toward the grantee, a trust by virtue of
law is established. If the fulfillment of the obligation is offered by the grantor when it becomes due,
he may demand the reconveyance of the property to him." In the case at bar, petitioners conveyed
Lot Nos. 916 and 920 to the government with the latter obliging itself to use the realties for the
expansion of Lahug Airport; failing to keep its bargain, the government can be compelled by
petitioners to reconvey the parcels of land to them, otherwise, petitioners would be denied the use
of their properties upon a state of affairs that was not conceived nor contemplated when the
expropriation was authorized.26
Respondent MCIAA filed a Motion for Reconsideration27 dated November 10, 2003 praying that
the Court’s decision be reconsidered and set aside. In the said motion, the respondent reiterated
its earlier claim that: (a) the decision of the trial court in Civil Case No. R-1881, which granted to
MCIAA the titles to Lot Nos. 916 and 920 in fee simple, has long become final and executory; (b)
this Court’s October 15, 2003 Decision, granting the petitioners’ right of repurchase, effectively
overturns the rulings in Fery v. Municipality of Cabanatuan,28 MCIAA v. Court of
Appeals,29 and Reyes v. National Housing Authority;30 (c) the petitioners are not entitled to
reconveyance or repurchase of the questioned lots after the closure of the Lahug Airport; (d) Lot
Nos. 916 and 920, which were expropriated in Civil Case No. R-1881, should not be treated like
those lots sold through negotiated sale with a stipulation for reconveyance or repurchase; and (e)
granting arguendo that petitioners have a right to repurchase Lot Nos. 916 and 920, the
repurchase price should be the fair market value of the lands.
Additionally, MCIAA filed a Motion to Resolve the Motion for Reconsideration by the Honorable
Court En Bancdated November 11, 2003, alleging that the present case involves novel questions
of law.
On November 20, 2003, the petitioners filed an Opposition to the respondent’s Motion for
Reconsideration stating that no new arguments have been proffered by the respondent to warrant
the reversal of the Court’s decision.
We remain unpersuaded by the respondent’s assertions. The merits of the case have already
been discussed at length in the challenged decision and to linger further on them herein would be
inordinate. Suffice it to say that the Court considered the rulings in Fery v. Municipality of
Cabanatuan and Mactan-Cebu International Airport Authority v. Court of Appeals which defined
the rights and obligations of landowners, whose properties were expropriated, "when
the public purpose for which the eminent domain was exercised no longer subsists."31
The respondent insists that the decision effectively overturned the ruling in the Fery case which
requires that for an expropriation to be conditional, the judgment must clearly spell out said
condition. The respondent is mistaken. We reiterate what we stated in our decision, to wit:
… In Fery, which was cited in the recent case of Reyes v. National Housing Authority, we declared
that the government acquires only such rights in expropriated parcels of land as may be allowed
by the character of its title over the properties –
If x x x land is expropriated for a particular purpose, with the condition that when that purpose is
ended or abandoned the property shall return to its former owner, then, of course, when the
purpose is terminated or abandoned the former owner reacquires the property so expropriated. If x
x x land is expropriated for a public street and the expropriation is granted upon condition that the
city can only use it for a public street, it returns to the former owner, unless there is some statutory
provision to the contrary x x x x If, upon the contrary, however, the decree of expropriation gives to
the entity a fee simple title, then, of course, the land becomes the absolute property of the
expropriator, whether it be the State, a province, or municipality, and in that case the non-user
does not have the effect of defeating the title acquired by the expropriation proceedings x x x x
When land has been acquired for public use in fee simple, unconditionally, either by the exercise
of eminent domain or by purchase, the former owner retains no rights in the land, and the public
use may be abandoned, or the land may be devoted to a different use, without any impairment of
the estate or title acquired, or any reversion to the former owner x x x x32
It must be pointed out that nothing in the Fery case bespeaks that there should foremost be
an expresscondition in the dispositive portion of the decision before the condemned property can
be returned to its former owner after the purpose for its taking has been abandoned or ended. The
indisputable certainty in the present case is that there was a prior promise by the predecessor of
the respondent that the expropriated properties may be recovered by the former owners once the a former employee of the respondent’s predecessor-in-interest and was merely recalling and
airport is transferred to Mactan, Cebu. In fact, the witness for the respondent testified that 15 lots informing the court of the events that transpired during the negotiations for the expropriations of
were already reconveyed to their previous owners. Intervenor DPWH, likewise, manifested that Lot the lots. Part of Uy’s testimony is as follows:
No. 920 is the subject of a memorandum of agreement 33 with the respondent’s predecessor-in-
interest wherein the property was leased to DPWH. This belated news further bolsters the fact that Atty. Jacinto
the purpose for which the properties were condemned has been abandoned.
Q: Lahug Airport. In what capacity or what position were you holding at the time when you were
A more pressing discovery unearthed by this Court is that a significant portion of the subject assigned to Cebu for the purpose of conducting negotiations with the landowners?
properties had been purchased by the Cebu Property Ventures, Inc. for the development of a
commercial complex.34 The respondent, in its answer, did not deny this allegation in the
Witness
petitioners’ complaint. Section 10, Rule 8 of the Revised Rules of Court provides:

A: I was a member of the CAA Legal Team.

Specific denial. – A defendant must specify each material allegation of fact the truth of which he
does not admit and, whenever practicable, shall set forth the substance of the matters upon which
he relies to support his denial. Where a defendant desires to deny only a part of an averment, he Q: I see, CAA Legal Team. Can you tell the court who were the members, if you still remember, of
shall specify so much of it as is true and material and shall deny only the remainder. Where a that team?
defendant is without knowledge or information sufficient to form a belief as to the truth of a
material averment made in the complaint, he shall so state, and this shall have the effect of a A: I will mention Atty. Ocampo, Atty. Lansang, Atty. Sarigumba and myself.
denial.
Q: You stated that you were sent to Cebu as a member of the CAA Legal Team to negotiate with
Section 11 of the same Rule likewise states that "[m]aterial averment in the complaint, … shall be the landowners for the acquisition of lots for purposes, for airport purposes, you are referring of
deemed admitted when not specifically denied." The predominant precept is that upon course to the acquisition of lot in Mactan?
abandonment of real property condemned for public purpose, the party who originally condemned
the property recovers control of the land if the condemning party continues to use the property for A: Yes, sir.
public purpose; however, if the condemning authority ceases to use the property for a public
purpose, property reverts to the owner in fee simple.35 The government’s taking of private property,
and then transferring it to private persons under the guise of public use or purpose is the …
despotism found in the immense power of eminent domain.36 Moreover, the direct and
unconstitutional state’s power to oblige a landowner to renounce his productive and invaluable Q: Now what was the purpose of your negotiations also in Lahug, what was the purpose of those
possession to another citizen, who will use it predominantly for his own private gain, is offensive to negotiations?
our laws.37
A: The purpose there was to purchase or buy the property affected by the Lahug extension.
Next, the respondent asseverates that the Court departed from the ruling enunciated in Mactan-
Cebu International Airport Authority v. Court of Appeals. We are not convinced. Clearly, the Q: When you say affected, did you have any specific instructions as to what Lahug airport would
respondent’s contention can prevail only if the facts of the present case are accurately in point be devoted to? I will reform Your Honor. Since Lahug airport was already in existence, why did
with those in the other case. We recapitulate our rulings that in MCIAA v. CA, respondent Virginia you still have to negotiate with the adjacent landowners?
Chiongbian proffered "inadmissible and inconclusive evidence, while in the present case we have
preponderant proof as found by the trial court of the existence of the right of repurchase in favor of
A: For the Lahug airport expansion.
the petitioners." No less than Asterio Uy, one of the members of the CAA Mactan Legal Team,
which interceded for the acquisition of the lots for the Lahug Airport’s expansion, affirmed that
persistent assurances were given to the landowners to the effect that as soon as the Lahug Airport Q: Now, how did you conduct the negotiations, in what manner?
is abandoned or transferred to Mactan, the lot owners would be able to reacquire their properties.
Unlike in the case of MCIAA v. CA, where respondent Chiongbian offered inadmissible evidence A: We convinced the landowners affected by the expansion to sell their properties and if they
for being hearsay in nature, the petitioners in this case presented a witness whose testimony was refuse, there is another right of eminent domain of the government to acquire the properties
based on his own personal knowledge. Surely, Uy is a credible witness inasmuch as he was through expropriation. And with theassurance that these properties, I am referring to the properties
even tasked by the negotiating panel to directly communicate to the landowners the instructions in Lahug, as soon as Lahug airport will be transferred to Mactan, that will be the time that these
from the CAA main office that the properties will be returned to the original owners once the Lahug properties will be returned to the landowners at the same price.
Airport is transferred to Mactan. Likewise, he cannot be considered as a biased witness as he was
Q: Why do you say that there was an assurance given, how did you come to know about this? the proposed improvement may not be considered in determining the market value. Thus,
reconveyance to the original owner shall be for whatever amount he was paid by the government,
A: The assurance was from the Chief of the team, Atty. Ocampo, through him and accordingly per plus legal interest, whether or not the consideration was based on the land’s highest and best use
instruction from the Central Office in Manila. when the sale to the State occurred.41

Q: As a member of the legal team, did you gave [sic] the assurance to the landowners or was it WHEREFORE, the motion for reconsideration is DENIED.
Atty. Ocampo?
SO ORDERED.
A: We, because I was made as the spokesman considering that I am a Boholano who knows
the dialect, Cebuano, and my companions were Tagalogs, they don’t know Cebuano so I Quisumbing, (Chairman), Austria-Martinez, and Tinga, JJ., concur.
participated in the negotiations.
Corona, J., on official leave.
Q: In short, you were the one who conducted the negotiations?

A: Together with the members of the team, I was there assisting.38

Moreover, we do not subscribe to the respondent’s contention that since the possibility of the
Lahug Airport’s closure was actually considered by the trial court, a stipulation on reversion or
repurchase was so material that it should not have been discounted by the court a quo in its
decision in Civil Case No. R-1881, if, in fact, there was one. We find it proper to cite, once more,
this Court’s ruling that the fallo of the decision in Civil Case No. R-1881 must be read in reference
to the other portions of the decision in which it forms a part. A reading of the Court’s judgment
must not be confined to the dispositive portion alone; rather, it should be meaningfully construed in
unanimity with the ratio decidendi thereof to grasp the true intent and meaning of a decision.39

On the other hand, we agree with the respondent in asserting that Lot Nos. 916 and 920 should
not be treated like those lands acquired through negotiated sale with a proviso in their contracts
for reconveyance or repurchase. Be that as it may, we however find that there is historic as well as
rational bases for affording the petitioners the right of repurchase. We are cognizant of the
incontestable fact that some landowners immediately sold their properties upon the assurance that
they could repurchase them at the cessation of the Lahug Airport’s operations. And, indeed, these
landowners who chose to cede their properties were fortunate to have a stipulation in their
contract of sale vouching for their right of repurchase. Meanwhile, the landowners who found it
burdensomely difficult to part with their cherished lands underwent the costly expropriation
proceedings which lasted for a number of years. Inevitably, justice and equity dictates the
reconveyance of the expropriated lots to their previous owners. One must never fail to overlook
the reality that the power to condemn property is an awesome power of the State 40 and that to
compel a citizen to forcibly surrender his precious property to the enormous governmental power
is too much a sacrifice which deserves more consideration than those landowners, who, from the
very beginning voluntarily relinquished their ownership.

We now come to the discussion of the amount of repurchase price. The respondent maintains that
the sum to be paid by the petitioners for Lot Nos. 916 and 920 should be their prevailing market
price, and not the expropriation price which would be grossly unfair considering that the petitioners
were paid just compensation and the lots are now millions of pesos in value. Our stand on the
amount of repurchase price remains unperturbed. When the State reconveys land, it should not
profit from sudden appreciations in land values. Any increase or decrease in market value due to
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 106440 January 29, 1996
ALEJANDRO MANOSCA, ASUNCION MANOSCA and LEONICA MANOSCA, petitioners,
vs.
HON. COURT OF APPEALS, HON. BENJAMIN V. PELAYO, Presiding Judge, RTC-Pasig,
Metro Manila, Branch 168, HON. GRADUACION A. REYES CLARAVAL, Presiding Judge,
RTC-Pasig, Metro Manila, Branch 71, and REPUBLIC OF THE PHILIPPINES, respondents.
DECISION
VITUG, J.:
In this appeal, via a petition for review on certiorari, from the decision1 of the Court of Appeals,
dated 15 January 1992, in CA-G.R. SP No. 24969 (entitled "Alejandro Manosca, et al. v. Hon.
Benjamin V. Pelayo, et al."), this Court is asked to resolve whether or not the "public use"
requirement of Eminent Domain is extant in the attempted expropriation by the Republic of a 492-
square-meter parcel of land so declared by the National Historical Institute ("NHI") as a national
historical landmark.
The facts of the case are not in dispute.
Petitioners inherited a piece of land located at P. Burgos Street, Calzada, Taguig. Metro Manila,
with an area of about four hundred ninety-two (492) square meters. When the parcel was
ascertained by the NHI to have been the birthsite of Felix Y. Manalo, the founder of Iglesia Ni
Cristo, it passed Resolution No. 1, Series of 1986, pursuant to Section 4 2 of Presidential Decree
No. 260, declaring the land to be a national historical landmark. The resolution was, on 06 January
1986, approved by the Minister of Education, Culture and Sports. Later, the opinion of the
Secretary of Justice was asked on the legality of the measure. In his Opinion No. 133, Series of
1987, the Secretary of Justice replied in the affirmative; he explained:
According to your guidelines, national landmarks are places or objects that are associated
with an event, achievement, characteristic, or modification that makes a turning point or
stage in Philippine history. Thus, the birthsite of the founder of the Iglesia ni Cristo, the
late Felix Y. Manalo, who, admittedly, had made contributions to Philippine history and
culture has been declared as a national landmark. It has been held that places invested
with unusual historical interest is a public use for which the power of eminent domain may
be authorized . . . .
In view thereof, it is believed that the National Historical Institute as an agency of the
Government charged with the maintenance and care of national shrines, monuments and
landmarks and the development of historical sites that may be declared as national
shrines, monuments and/or landmarks, may initiate the institution of condemnation
proceedings for the purpose of acquiring the lot in question in accordance with the
procedure provided for in Rule 67 of the Revised Rules of Court. The proceedings should
be instituted by the Office of the Solicitor General in behalf of the Republic.
Accordingly, on 29 May 1989, the Republic, through the Office of the Solicitor-General, instituted a
complaint for expropriation3 before the Regional Trial Court of Pasig for and in behalf of the NHI
alleging, inter alia, that:
Pursuant to Section 4 of Presidential Decree No. 260, the National Historical Institute
issued Resolution No. 1, Series of 1986, which was approved on January, 1986 by the
then Minister of Education, Culture and Sports, declaring the above described parcel of
land which is the birthsite of Felix Y. Manalo, founder of the "Iglesia ni Cristo," as a
National Historical Landrnark. The plaintiff perforce needs the land as such national
historical landmark which is a public purpose.
At the same time, respondent Republic filed an urgent motion for the issuance of an order to
permit it to take immediate possession of the property. The motion was opposed by petitioners.
After a hearing, the trial court issued, on 03 August 1989,4 an order fixing the provisional market
(P54,120.00) and assessed (P16,236.00) values of the property and authorizing the Republic to
take over the property once the required sum would have been deposited with the Municipal
Treasurer of Taguig, Metro Manila.
Petitioners moved to dismiss the complaint on the main thesis that the intended expropriation was
not for a public purpose and, incidentally, that the act would constitute an application of public
funds, directly or indirectly, for the use, benefit, or support of Iglesia ni Cristo, a religious entity,
contrary to the provision of Section 29(2), Article VI, of the 1987 Constitution. 5 Petitioners sought,
in the meanwhile, a suspension in the implementation of the 03rd August 1989 order of the trial
court.
On 15 February 1990, following the filing by respondent Republic of its reply to petitioners' motion
seeking the dismissal of the case, the trial court issued its denial of said motion to dismiss. 6 Five
(5) days later, or on 20 February 1990,7 another order was issued by the trial court, declaring moot
and academic the motion for reconsideration and/or suspension of the order of 03 August 1989
with the rejection of petitioners' motion to dismiss. Petitioners' motion for the reconsideration of the
20th February 1990 order was likewise denied by the trial court in its 16th April 1991 order.8
Petitioners then lodged a petition for certiorari and prohibition with the Court of Appeals. In its now
disputed 15th January 1992 decision, the appellate court dismissed the petition on the ground that
the remedy of appeal in the ordinary course of law was an adequate remedy and that the petition
itself, in any case, had failed to show any grave abuse of discretion or lack of jurisdictional
competence on the part of the trial court. A motion for the reconsideration of the decision was
denied in the 23rd July 1992 resolution of the appellate court.
We begin, in this present recourse of petitioners, with a few known postulates.
Eminent domain, also often referred to as expropriation and, with less frequency, as
condemnation, is, like police power and taxation, an inherent power of sovereignty. It need not be
clothed with any constitutional gear to exist; instead, provisions in our Constitution on the subject
are meant more to regulate, rather than to grant, the exercise of the power. Eminent domain is
generally so described as "the highest and most exact idea of property remaining in the
government" that may be acquired for some public purpose through a method in the nature of a
forced purchase by the State.9 It is a right to take or reassert dominion over property within the
state for public use or to meet a public exigency. It is said to be an essential part of governance
even in its most primitive form and thus inseparable from sovereignty. 10 The only direct
constitutional qualification is that "private property shall not be taken for public use without just
compensation." 11 This proscription is intended to provide a safeguard against possible abuse and
so to protect as well the individual against whose property the power is sought to be enforced.
Petitioners assert that the expropriation has failed to meet the guidelines set by this Court in the
case of Guido v.Rural Progress Administration, 12 to wit: (a) the size of the land expropriated; (b)
the large number of people benefited; and, (c) the extent of social and economic
reform.13 Petitioners suggest that we confine the concept of expropriation only to the following
public uses, 14 i.e., the —
. . . taking of property for military posts, roads, streets, sidewalks, bridges, ferries, levees,
wharves, piers, public buildings including schoolhouses, parks, playgrounds, plazas,
market places, artesian wells, water supply and sewerage systems, cemeteries,
crematories, and railroads.
This view of petitioners is much too limitative and restrictive.
The court, in Guido, merely passed upon the issue of the extent of the President's power under
Commonwealth Act No. 539 to, specifically, acquire private lands for subdivision into smaller home
lots or farms for resale to bona fide tenants or occupants. It was in this particular context of the
statute that the Court had made the pronouncement. The guidelines in Guido were not meant to
be preclusive in nature and, most certainly, the power of eminent domain should not now be
understood as being confined only to the expropriation of vast tracts of land and landed estates. 15
The term "public use," not having been otherwise defined by the constitution, must be considered
in its general concept of meeting a public need or a public exigency. 16 Black summarizes the
characterization given by various courts to the term; thus:
Public Use. Eminent domain. The constitutional and statutory basis for taking property by
eminent domain. For condemnation purposes, "public use" is one which confers same
benefit or advantage to the public; it is not confined to actual use by public. It is measured
in terms of right of public to use proposed facilities for which condemnation is sought and,
as long as public has right of use, whether exercised by one or many members of public,
a "public advantage" or "public benefit" accrues sufficient to constitute a public use.
Montana Power Co. vs. Bokma, Mont. 457 P. 2d 769, 772, 773.
Public use, in constitutional provisions restricting the exercise of the right to take private
property in virtue of eminent domain, means a use concerning the whole community as
distinguished from particular individuals. But each and every member of society need not
be equally interested in such use, or be personally and directly affected by it; if the object
is to satisfy a great public want or exigency, that is sufficient. Rindge Co. vs. Los Angeles
County, 262 U.S. 700, 43 S.Ct. 689, 692, 67 L.Ed. 1186. The term may be said to mean
public usefulness, utility, or advantage, or what is productive of general benefit. It may be
limited to the inhabitants of a small or restricted locality, but must be in common, and not
for a particular individual. The use must be a needful one for the public, which cannot be
surrendered without obvious general loss and inconvenience. A "public use" for which
land may be taken defies absolute definition for it changes with varying conditions of
society, new appliances in the sciences, changing conceptions of scope and functions of
government, and other differing circumstances brought about by an increase in population
and new modes of communication and transportation. Katz v. Brandon, 156 Conn., 521,
245 A.2d 579,586. 17
The validity of the exercise of the power of eminent domain for traditional purposes is beyond
question; it is not at all to be said, however, that public use should thereby be restricted to such
traditional uses. The idea that "public use" is strictly limited to clear cases of "use by the public"
has long been discarded. This Court in Heirs of Juancho Ardona v. Reyes,18 quoting from Berman
v. Parker (348 U.S. 25; 99 L. ed. 27), held:
We do not sit to determine whether a particular housing project is or is not desirable. The
concept of the public welfare is broad and inclusive. See DayBrite Lighting, Inc. v.
Missouri, 342 US 421, 424, 96 L. Ed. 469, 472, 72 S Ct 405. The values it represents are
spiritual as well as physical, aesthetic as well as monetary. It is within the power of the
legislature to determine that the community should be beautiful as well as healthy,
spacious as well as clean, well-balanced as well as carefully patrolled. In the present
case, the Congress and its authorized agencies have made determinations that take into
account a wide variety of values. It is no for us to reappraise them. If those who govern
the District of Columbia decide that the Nation's Capital should be beautiful as well as
sanitary, there is nothing in the Fifth Amendment that stands in the way.
Once the object is within the authority of Congress, the right to realize it through the
exercise of eminent domain is clear. For the power of eminent domain is merely the
means to the end. See Luxton v. North River Bridge Co. 153 US 525, 529, 530, 38 L. ed.
808, 810, 14 S Ct 891; United States v. Gettysburg Electric R. Co. 160 US 668, 679, 40 L.
ed. 576, 580, 16 S Ct 427.
It has been explained as early as Seña v. Manila Railroad Co., 19 that:
. . . A historical research discloses the meaning of the term "public use" to be one of
constant growth. As society advances, its demands upon the individual increase and each
demand is a new use to which the resources of the individual may be devoted. . . . for
"whatever is beneficially employed for the community is a public use.
Chief Justice Enrique M. Fernando states:
 The taking to be valid must be for public use. There was a time when it was felt that a SO ORDERED.
literal meaning should be attached to such a requirement. Whatever project is undertaken
must be for the public to enjoy, as in the case of streets or parks. Otherwise, expropriation Padilla, Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.
is not allowable. It is not so any more. As long as the purpose of the taking is public, then
the power of eminent domain comes into play. As just noted, the constitution in at least
two cases, to remove any doubt, determines what is public use. One is the expropriation
of lands to be subdivided into small lots for resale at cost to individuals. The other is the
transfer, through the exercise of this power, of utilities and other private enterprise to the
government. It is accurate to state then that at present whatever may be beneficially
employed for the general welfare satisfies the requirement of public use. 20

Chief Justice Fernando, writing the ponencia in J.M. Tuason & Co. vs. Land Tenure
Administration, 21 has viewed the Constitution a dynamic instrument and one that "is not to be
construed narrowly or pedantically" so as to enable it "to meet adequately whatever problems the
future has in store." Fr. Joaquin Bernas, a noted constitutionalist himself, has aptly observed that
what, in fact, has ultimately emerged is a concept of public use which is just as broad as "public
welfare." 22

Petitioners ask: But "(w)hat is the so-called unusual interest that the expropriation of (Felix
Manalo's) birthplace become so vital as to be a public use appropriate for the exercise of the
power of eminent domain" when only members of the Iglesia ni Cristo would benefit? This attempt
to give some religious perspective to the case deserves little consideration, for what should be
significant is the principal objective of, not the casual consequences that might follow from, the
exercise of the power. The purpose in setting up the marker is essentially to recognize the
distinctive contribution of the late Felix Manalo to the culture of the Philippines, rather than to
commemorate his founding and leadership of the Iglesia ni Cristo.

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. Indeed, that only a few would actually
benefit from the expropriation of property does not necessarily diminish the essence and
character of public use. 23

Petitioners contend that they have been denied due process in the fixing of the provisional value
of their property. Petitioners need merely to be reminded that what the law prohibits is the lack of
opportunity to be heard;24contrary to petitioners' argument, the records of this case are replete
with pleadings 25 that could have dealt, directly or indirectly, with the provisional value of the
property.

Petitioners, finally, would fault respondent appellate court in sustaining the trial court's order which
considered inapplicable the case of Noble v. City of Manila. 26 Both courts held correctly. The
Republic was not a party to the alleged contract of exchange between the Iglesia ni Cristo and
petitioners which (the contracting parties) alone, not the Republic, could properly be bound.

All considered, the Court finds the assailed decision to be in accord with law and jurisprudence.

WHEREFORE, the petition is DENIED. No costs.


SECOND DIVISION
G.R. No. 136349 January 23, 2006
LOURDES DE LA PAZ MASIKIP, Petitioner,
vs.
THE CITY OF PASIG, HON. MARIETTA A. LEGASPI, in her capacity as Presiding Judge of
the Regional Trial Court of Pasig City, Branch 165 and THE COURT OF
APPEALS, Respondents.
DECISION
SANDOVAL GUTIERREZ, J.:
Where the taking by the State of private property is done for the benefit of a small community
which seeks to have its own sports and recreational facility, notwithstanding that there is such a
recreational facility only a short distance away, such taking cannot be considered to be for public
use. Its expropriation is not valid. In this case, the Court defines what constitutes a genuine
necessity for public use.
This petition for review on certiorari assails the Decision1 of the Court of Appeals dated October
31, 1997 in CA-G.R. SP No. 41860 affirming the Order2 of the Regional Trial Court, Branch 165,
Pasig City, dated May 7, 1996 in S.C.A. No. 873. Likewise assailed is the Resolution 3 of the same
court dated November 20, 1998 denying petitioner’s Motion for Reconsideration.
The facts of the case are:
Petitioner Lourdes Dela Paz Masikip is the registered owner of a parcel of land with an area of
4,521 square meters located at Pag-Asa, Caniogan, Pasig City, Metro Manila.
In a letter dated January 6, 1994, the then Municipality of Pasig, now City of Pasig, respondent,
notified petitioner of its intention to expropriate a 1,500 square meter portion of her property to be
used for the "sports development and recreational activities" of the residents of Barangay
Caniogan. This was pursuant to Ordinance No. 42, Series of 1993 enacted by the
then Sangguniang Bayan of Pasig.
Again, on March 23, 1994, respondent wrote another letter to petitioner, but this time the purpose
was allegedly "in line with the program of the Municipal Government to provide land opportunities
to deserving poor sectors of our community."
On May 2, 1994, petitioner sent a reply to respondent stating that the intended expropriation of her
property is unconstitutional, invalid, and oppressive, as the area of her lot is neither sufficient nor
suitable to "provide land opportunities to deserving poor sectors of our community."
In its letter of December 20, 1994, respondent reiterated that the purpose of the expropriation of
petitioner’s property is "to provide sports and recreational facilities to its poor residents."
Subsequently, on February 21, 1995, respondent filed with the trial court a complaint for
expropriation, docketed as SCA No. 873. Respondent prayed that the trial court, after due notice
and hearing, issue an order for the condemnation of the property; that commissioners be
appointed for the purpose of determining the just compensation; and that judgment be rendered
based on the report of the commissioners.
On April 25, 1995, petitioner filed a Motion to Dismiss the complaint on the following grounds:
I
PLAINTIFF HAS NO CAUSE OF ACTION FOR THE EXERCISE OF THE POWER OF EMINENT
DOMAIN, CONSIDERING THAT:
(A) THERE IS NO GENUINE NECESSITY FOR THE TAKING OF THE PROPERTY
SOUGHT TO BE EXPROPRIATED.
(B) PLAINTIFF HAS ARBITRARILY AND CAPRICIOUSLY CHOSEN THE PROPERTY
SOUGHT TO BE EXPROPRIATED.
(C) EVEN ASSUMING ARGUENDO THAT DEFENDANT’S PROPERTY MAY BE
EXPROPRIATED BY PLAINTIFF, THE FAIR MARKET VALUE OF THE PROPERTY TO
BE EXPROPRIATED FAR EXCEEDS SEVENTY-EIGHT THOUSAND PESOS
(P78,000.00)
II
PLAINTIFF’S COMPLAINT IS DEFECTIVE IN FORM AND SUBSTANCE, CONSIDERING THAT:
(A) PLAINTIFF FAILS TO ALLEGE WITH CERTAINTY THE PURPOSE OF THE
EXPROPRIATION.
(B) PLAINTIFF HAS FAILED TO COMPLY WITH THE PREREQUISITES LAID DOWN IN
SECTION 34, RULE VI OF THE RULES AND REGULATIONS IMPLEMENTING THE
 LOCAL GOVERNMENT CODE; THUS, THE INSTANT EXPROPRIATION PROCEEDING
IS PREMATURE.
III
THE GRANTING OF THE EXPROPRIATION WOULD VIOLATE SECTION 261 (V) OF THE
OMNIBUS ELECTION CODE.
IV
PLAINTIFF CANNOT TAKE POSSESSION OF THE SUBJECT PROPERTY BY MERELY
DEPOSITING AN AMOUNT EQUAL TO FIFTEEN PERCENT (15%) OF THE VALUE OF THE
PROPERTY BASED ON THE CURRENT TAX DECLARATION OF THE SUBJECT PROPERTY.4
On May 7, 1996, the trial court issued an Order denying the Motion to Dismiss,5 on the ground
that there is a genuine necessity to expropriate the property for the sports and recreational
activities of the residents of Pasig. As to the issue of just compensation, the trial court held that
the same is to be determined in accordance with the Revised Rules of Court.
Petitioner filed a motion for reconsideration but it was denied by the trial court in its Order of July
31, 1996. Forthwith, it appointed the City Assessor and City Treasurer of Pasig City as
commissioners to ascertain the just compensation. This prompted petitioner to file with the Court
of Appeals a special civil action for certiorari, docketed as CA-G.R. SP No. 41860. On October 31,
1997, the Appellate Court dismissed the petition for lack of merit. Petitioner’s Motion for
Reconsideration was denied in a Resolution dated November 20, 1998.
Hence, this petition anchored on the following grounds:
THE QUESTIONED DECISION DATED 31 OCTOBER 1997 (ATTACHMENT "A")
AND RESOLUTION DATED 20 NOVEMBER 1998 (ATTACHMENT "B") ARE CONTRARY TO
LAW, THE RULES OF COURT AND JURISPRUDENCE CONSIDERING THAT:
I
A. THERE IS NO EVIDENCE TO PROVE THAT THERE IS GENUINE NECESSITY FOR
THE TAKING OF THE PETITIONER’S PROPERTY.
B. THERE IS NO EVIDENCE TO PROVE THAT THE PUBLIC USE REQUIREMENT
FOR THE EXERCISE OF THE POWER OF EMINENT DOMAIN HAS BEEN COMPLIED
WITH.
C. THERE IS NO EVIDENCE TO PROVE THAT RESPONDENT CITY OF PASIG HAS
COMPLIED WITH ALL CONDITIONS PRECEDENT FOR THE EXERCISE OF THE
POWER OF EMINENT DOMAIN.
THE COURT A QUO’S ORDER DATED 07 MAY 1996 AND 31 JULY 1996, WHICH WERE
AFFIRMED BY THE COURT OF APPEALS, EFFECTIVELY AMOUNT TO THE TAKING OF
PETITIONER’S PROPERTY WITHOUT DUE PROCESS OF LAW:
II
THE COURT OF APPEALS GRAVELY ERRED IN APPLYING OF RULE ON ACTIONABLE
DOCUMENTS TO THE DOCUMENTS ATTACHED TO RESPONDENT CITY OF
PASIG’S COMPLAINT DATED 07 APRIL 1995 TO JUSTIFY THE COURT A QUO’S DENIAL OF
PETITIONER’S RESPONSIVE PLEADING TO THE COMPLAINT FOR EXPROPRIATION (THE
MOTION TO DISMISS DATED 21 APRIL 1995).
III
THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE RULE ON HYPOTHETICAL
ADMISSION OF FACTS ALLEGED IN A COMPLAINT CONSIDERING THAT THE MOTION TO
DISMISS FILED BY PETITIONER IN THE EXPROPRIATION CASE BELOW WAS THE
RESPONSIVE PLEADING REQUIRED TO BE FILED UNDER THE THEN RULE 67 OF THE
RULES OF COURT AND NOT AN ORIDNARY MOTION TO DISMISS UNDER RULE 16 OF THE
RULES OF COURT.
The foregoing arguments may be synthesized into two main issues – one substantive and one
procedural. We will first address the procedural issue.
Petitioner filed her Motion to Dismiss the complaint for expropriation on April 25, 1995. It was
denied by the trial court on May 7, 1996. At that time, the rule on expropriation was governed by
Section 3, Rule 67 of the Revised Rules of Court which provides:
"SEC. 3. Defenses and objections. – Within the time specified in the summons, each defendant, in
lieu of an answer, shall present in a single motion to dismiss or for other appropriate relief, all his
objections and defenses to the right of the plaintiff to take his property for the use or purpose
specified in the complaint. All such objections and defenses not so presented are waived. A copy
of the motion shall be served on the plaintiff’s attorney of record and filed with the court with proof
of service."
The motion to dismiss contemplated in the above Rule clearly constitutes the responsive pleading
which takes the place of an answer to the complaint for expropriation. Such motion is the pleading
that puts in issue the right of the plaintiff to expropriate the defendant’s property for the use
specified in the complaint. All that the law requires is that a copy of the said motion be served on
plaintiff’s attorney of record. It is the court that at its convenience will set the case for trial after the
filing of the said pleading.6
The Court of Appeals therefore erred in holding that the motion to dismiss filed by petitioner
hypothetically admitted the truth of the facts alleged in the complaint, "specifically that there is a
genuine necessity to expropriate petitioner’s property for public use." Pursuant to the above Rule,
the motion is a responsive pleading joining the issues. What the trial court should have done was
to set the case for the reception of evidence to determine whether there is indeed a genuine
necessity for the taking of the property, instead of summarily making a finding that the taking is for
public use and appointing commissioners to fix just compensation. This is especially so
considering that the purpose of the expropriation was squarely challenged and put in issue by
petitioner in her motion to dismiss.
Significantly, the above Rule allowing a defendant in an expropriation case to file a motion to
dismiss in lieu of an answer was amended by the 1997 Rules of Civil Procedure, which took effect
on July 1, 1997. Section 3, Rule 67 now expressly mandates that any objection or defense to the
taking of the property of a defendant must be set forth in an answer.
The fact that the Court of Appeals rendered its Decision in CA-G.R. SP No. 41860 on October 31,
after the 1997 Rules of Civil Procedure took effect, is of no moment. It is only fair that the Rule at
the time petitioner filed her motion to dismiss should govern. The new provision cannot be applied
retroactively to her prejudice.
We now proceed to address the substantive issue.
In the early case of US v. Toribio,7 this Court defined the power of eminent domain as "the right of
a government to take and appropriate private property to public use, whenever the public exigency
requires it, which can be done only on condition of providing a reasonable compensation therefor."
It has also been described as the power of the State or its instrumentalities to take private property
for public use and is inseparable from sovereignty and inherent in government.8
The power of eminent domain is lodged in the legislative branch of the government. It delegates
the exercise thereof to local government units, other public entities and public utility
corporations,9 subject only to Constitutional limitations. Local governments have no inherent
power of eminent domain and may exercise it only when expressly authorized by statute.10 Section
19 of the Local Government Code of 1991 (Republic Act No. 7160) prescribes the delegation by
Congress of the power of eminent domain to local government units and lays down the
parameters for its exercise, thus:
"SEC. 19. Eminent Domain. – A local government unit may, through its chief executive and acting
pursuant to an ordinance, exercise the power of eminent domain for public use, purpose or
welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant
to the provisions of the Constitution and pertinent laws: Provided, however, That, the power of
eminent domain may not be exercised unless a valid and definite offer has been previously made
to the owner and such offer was not accepted: Provided, further, That, the local government unit
may immediately take possession of the property upon the filing of expropriation proceedings and
upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market
value of the property based on the current tax declaration of the property to be
expropriated: Provided, finally, That, the amount to be paid for expropriated property shall be
determined by the proper court, based on the fair market value at the time of the taking of the
property."
Judicial review of the exercise of eminent domain is limited to the following areas of concern: (a)
the adequacy of the compensation, (b) the necessity of the taking, and (c) the public use character
of the purpose of the taking.11
In this case, petitioner contends that respondent City of Pasig failed to establish a genuine
necessity which justifies the condemnation of her property. While she does not dispute the
intended public purpose, nonetheless, she insists that there must be a genuine necessity for the
proposed use and purposes. According to petitioner, there is already an established sports
development and recreational activity center at Rainforest Park in Pasig City, fully operational and
being utilized by its residents, including those from Barangay Caniogan. Respondent does not
dispute this. Evidently, there is no "genuine necessity" to justify the expropriation.
The right to take private property for public purposes necessarily originates from "the necessity"
and the taking must be limited to such necessity. In City of Manila v. Chinese Community of
Manila,12 we held that the very foundation of the right to exercise eminent domain is a
genuine necessity and that necessity must be of a public character. Moreover, the
ascertainment of the necessity must precede or accompany and not follow, the taking of the land.
In City of Manila v. Arellano Law College,13 we ruled that "necessity within the rule that the
particular property to be expropriated must be necessary, does not mean an absolute but only a
reasonable or practical necessity, such as would combine the greatest benefit to the public with
the least inconvenience and expense to the condemning party and the property owner consistent
with such benefit."
Applying this standard, we hold that respondent City of Pasig has failed to establish that there is a
genuine necessity to expropriate petitioner’s property. Our scrutiny of the records shows that the
Certification14 issued by the Caniogan Barangay Council dated November 20, 1994, the basis for
the passage of Ordinance No. 42 s. 1993 authorizing the expropriation, indicates that the intended
beneficiary is the Melendres Compound Homeowners Association, a private, non-profit
organization, not the residents of Caniogan. It can be gleaned that the members of the said
Association are desirous of having their own private playground and recreational facility.
Petitioner’s lot is the nearest vacant space available. The purpose is, therefore, not clearly and
categorically public. The necessity has not been shown, especially considering that there exists an
alternative facility for sports development and community recreation in the area, which is the
Rainforest Park, available to all residents of Pasig City, including those of Caniogan.
The right to own and possess property is one of the most cherished rights of men. It is so
fundamental that it has been written into organic law of every nation where the rule of law prevails.
Unless the requisite of genuine necessity for the expropriation of one’s property is clearly
established, it shall be the duty of the courts to protect the rights of individuals to their private
property. Important as the power of eminent domain may be, the inviolable sanctity which the
Constitution attaches to the property of the individual requires not only that the purpose for the
taking of private property be specified. The genuine necessity for the taking, which must be of a
public character, must also be shown to exist.
WHEREFORE, the petition for review is GRANTED. The challenged Decision and Resolution of
the Court of Appeals in CA-G.R. SP No. 41860 are REVERSED. The complaint for expropriation
filed before the trial court by respondent City of Pasig, docketed as SCA No. 873, is
ordered DISMISSED.
SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

Masikip vs. City of Pasig, 479 SCRA 391, G.R. No. 136349 January 23, 2006
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-3708 May 18, 1953
ROYAL L. RUTTER, plaintiff-appellant,
vs.
PLACIDO J. ESTEBAN, defendant-appellee.
Susano A. Velasquez for appellant.
Teodoro R. Dominguez for appellee.
BAUTISTA ANGELO, J.:
On August 20, 1941, Royal L. Rutter sold to Placido J.Esteban two parcels of land situated in the
city of Manila for the sum of P9,600 of which P4,800 were paid outright, and the balance of P4,800
was made payable as follows: P2,400 on or before August 7, 1942, and P2,400 on or before
August 27, 1943, with interest at the rate of 7 percent per annum.
To secure the payment of said balance of P4,800, a first mortgage over the same parcels of land
has been constituted in favor of the plaintiff. The deed of sale having been registered, a new title
was issued in favor of Placido J.Esteban with a mortgage duly annotated on the back thereof.
Placido J. Esteban failed to pay the two installments as agreed upon, as well as the interest that
had accrued there-on, and so on August 2, 1949, Royal L. Rutter instituted this action in the Court
of First Instance of Manila to recover the balance due, the interest due thereon, and the attorney's
fees stipulated in the contract. The complaint also contains a prayer for sale of the properties
mortgaged in accordance with law.
Placido J. Esteban admitted the averments of the complaint, but set up a defense the moratorium
clause embodied in Republic Act No. 342. He claims that this is a prewar obligation contracted on
August 20, 1941; that he is a war sufferer, having filed his claim with the Philippine War Damage
Commission for the losses he had suffered as a consequence of the last war; and that under
section 2 of said Republic Act No. 342, payment of his obligation cannot be enforced until after the
lapse of eight years from the settlement of his claim by the Philippine War Damage Commission,
and this period has not yet expired.
After a motion for summary judgment has been presented by the defendant, and the requisite
evidence submitted covering the relevant facts, the court rendered judgment dismissing the
complaint holding that the obligation which plaintiff seeks to enforce is not yet demandable under
the moratorium law. Plaintiff filed a motion for reconsideration wherein he raised for the first time
the constitutionality of the moratorium law, but the motion was denied. Hence this appeal.
The only question to be determined hinges on the validity of Republic Act No. 342 which was
approved by Congress on July 26, 1948. It is claimed that this act if declared applicable to the
present case is unconstitutional being violative of the constitutional provision forbidding the
impairement of the obligation of contracts (Article III, section 1, Constitution of the Philippines).
Section 2 of Republic Act No. 342 provides that all debts and other monetary obligations
contracted before December 8, 1941, any provision in the contract creating the same or any
subsequent aggreement affecting such obligation to the contrary notwithstanding, shall not due
and demandable for a period of eight (8) years from and after settlement of the war damage claim
of the debtor by the Philippine War Damage Commission; and section 3 of said Act provides that
should the provision of section 2 be declared void and unenforceable, then as regards the
obligation affected thereby, the provisions of Executive Order No. 25 dated November 18, 1944,
as amended by Executive Order No. 32, dated March 10, 1945, relative to debt moratorium, shall
continue to be in force and effect, any contract affecting the same to the contrary notwithstanding,
until subsequently repealed or amended by a legislative enactment. It thus clearly appears in said
Act that the nullification of its provisions will have the effect of reviving the previous moratorium
orders issued by the President of the Philippines.
Statutes declaring a moratorium on the enforcement of monetary obligations are not of recent
enactment. These moratorium laws are not new. "For some 1,400 years western civilization has
made use of extraordinary devices for saving the credit structure, devices generally known as
moratoria. The moratorium is postponement of fulfillment of obligations decreed by the state
through the medium of the courts or the legislature. Its essence is the application of the sovereign
power" (58 C.J. S., p. 1208 footnote 87). In the United States, may state legislatures have adopted
moratorium laws "during times of financial distress, especially when incident to, or caused by, a
war" (41 C.J., p.213). Thus, such laws "were passed by many state legislatures at the time of the
civil war suspending the rights of creditors for a definite and reasonable time, . . . whether they
suspend the right of action or make dilatory the remedy" (12 C.J., p 1078). The laws were
declared constitutional. However, some courts have also declared that "such statutes are void as
to contracts made before their passage where the suspension of remedied prescribed is indefinite
or unreasonable in duration" (12C.J., 1078). The true test, therefore, of the constitutionality of the
moratorium statute lies in the determination of the period of a suspension of the remedy. It is
required that such suspension be definite and reasonable, otherwise it would be violative of the
constitution.
One of the arguments advanced against the validity of the moratorium law is the fact that it impairs
the obligation of contracts which is prohibited by the Constitution. This argument, however does
not now hold water. While this may be conceded, it is however justified as a valid exercise by the
State of its police power. The leading case on the matter is Home Building and Loan
Association vs. Blaisdell, 290 U. S., 398, decide by the Supreme Court of the United States on
January 8, 1934. Here appellant contested the validity of charter 339 of the laws of Minnesota of
1993, approved April 13, 1933, called the Minnesota Mortgage Moratorium Law, as being
repugnant to the contract clause of the Federal Constitution. The statute was sustained by the
Supreme Court of Minnesota as an emergency measure. "Although coceding that the obligations
of the mortgage contract was impaired, the court decided that what it thus described as an
impairment was, notwithstanding the contract clause of the Federal Constitution, within the police
power of the State as that power was called into exercise by the public economic emergency
which the legislative had found to exist". This theory was up-held by the Supreme Court. Speaking
through Chief Justice Hughes, the court made the following pronouncements:
Not only is the constitutional provision qualified by the measure of control which the State
retains over remedial processes, but the State also continues to possess authority to
safeguard the vital interest of its people. It does not matter that legislation appropriate to
that end "has the result of modifying or abrogating contracts already in effect." . . . . Not
only are existing laws read into contracts in order to fix obligations as between the parties,
but the reservation of essential attributes of sovereign power is also read into contracts as
a postulate of the legal order. The policy of protecting contracts against impairement
presupposes the maintenance of a government by virtue of which contractual relations
are worthwhile a government which retains adequate authority to secure the peace and
good order of society. This principle of harmonizing the constitutional prohibition with the
necessary residuum of state power has had progressive recognition in the decision of this
Court.
xxx xxx xxx
The economic interests of the State may justify the exercise of its continuing and
dominant protective power notwithstanding interference with contracts. . . .
xxx xxx xxx
Similarly, where the protective power of the State is exercised in a manner otherwise
appropriate in the regulation of a business it is no objection that the performance of
existing contracts may be frustrated by the prohibition of injurious practices. . . .
. . . . The question is not whether the legislative action affects contracts incidentally, or
directly or indirectly, but whether the legislation is addressed to a legitimate end and the
measures taken are reasonable and appropriate to that end.
xxx xxx xxx
Undoubtedly, whatever is reserved of state power must be consistent with the fair intent
of the constitutional limitation of that power. The reserved power cannot be construed to
destroy the limitation to be construed so as to destroy the reserved power in its essential
aspects. They must be construed to harmony with each other. This principle precludes a
construction which would permit the State to adopt as its policy the repudiation of debts or
the destruction of contracts or the denial of means to enforce them. But it does not follow
that conditions may not arise in which a temporary restraint of enforcement may be
consistent with the spirit and purpose of the constitutional provision and thus be found to
be within the range of the reserved power of the state to protect the vital interests of the
community. It cannot be maintained that the constitutional prohibition should be so
construed as to prevent limited and temporary interpositions with respect to the
enforcement of contracts if made necessary by great public calamity such as fire, flood, or
earthquake. See American Land Co. vs. Zeiss, 219 U.S. 47, 55 L. ed. 82, 31 S. Ct. 200.
The reservation of state power appropriate to such extraordinary conditions may be
deemed to be as much a part of all contracts, as is the reservation of state power to
protect the public interest in the other situation to which we have referred. And if state
power exists to give temporary relief from the enforcement of contracts in the present of
disasters due to physical causes such as fire, flood or earthquake, that power cannot be
said to be nonexistent when the urgent public need demanding such relief is produced by
other and economic causes (78 L.ed. 426, 428-429.)
This decision elicited several comments. One came from the Harvard Law Review. It said:
"Forsaking its well-trodden of the new mortgage moratory laws meet its scrutiny, and in so doing
announced an elastic concept of the contract clause which, if not newly formulated, at least
received such unequivocal expression that it bids fair to revolutionize a tradition of constitutional
interpretation. . . . The court rested its decision on the ground that laws altering existing contracts
constitute an impairment within the meaning of the contract clause only if they are unreasonable in
the light of the circumstances occasioning their enactment. Application of this 'rule of reason was
justified on the theory that all contracts are made subject to an implied reservation of the
protective power of the state, and that therefore statutes which validly exercise this reserved
power, rather than impairing the obligations of an existing contract, are comprehended within
them" (47 Harvard Law Review, pp. 660, 661-662).
But the ruling in the Blaisdell case has its limitations which should not be overlooked in the
determination of the extent to be given to the legislation which attempts to encroach upon the
enforcement of a monetary obligation. It must be noted that the application of the reserved power
of the State to protect the integrity of the government and the security of the people should be
limited to its proper bounds and must be addressed to a legitimate purpose. If these bounds are
transgressed, there is no room for the exercise of the power, for the constitutional inhibition
against the impairment of contracts would assert itself. We can cite instances by which these
bounds may be transgressed. One of them is that the impairment should only refer to the remedy
and not to a substantive right. The State may postpone the enforcement of the obligation but
cannot destroy it by making the remedy futile (W.B. Worthen Co. vs. Kavanaugh, 79 L.ed. 1298,
1301-1303). Another limitation refers to the propriety of the remedy. The rule requires that the
alteration or change that the new legislation desires to write into an existing contract must not be
burdened with restrictions and conditions that would make the remedy hardly pursuing
(Bronson vs. Kinziel, I How, 311, 317; 46 Har. Law Review, p. 1070). In other words, the Blaisdell
case postulates that the protective power of the State, the police power, may only be invoked and
justified by an emergency, temporary in nature, and can only be exercised upon reasonable
conditions in order that it may not infringe the constitutional provision against impairment of
contracts (First Trust Co. of Lincoln vs. Smith 277 N.W., pp. 762, 769). As justice Cardozo aptly
said, "A different situation is presented when extensions are so piled up as to make the remedy a
shadow . . . The changes of remedy now challenged as invalid are to be viewed in combination,
with the cumulative significance that each imparts to all. So viewed they are seen to be an
oppressive and unnecessary destruction of nearly all the incidents that give attractiveness and
value to collateral security (W.B. Worthen vs. Kavanaugh, 295 U.S. 56, 62). In fine, the decision in
the Blaisdell case is predicated on the ground that the laws altering existing contracts will
constitute an impairment of the contract clause of the Constitution only if they are unreasonable in
the light of the circumstances occasioning their enactment (47 Harvard Law Review, p. 660).
The question now to be determined is, is the period of eight (8) years which Republic Act No. 342
grants to debtors of a monetary obligation contracted before the last global war and who is a war
sufferer with a claim duly approved by the Philippine War Damage Commission reasonable under
the present circumstances?
It should be noted that Republic Act No. 342 only extends relief to debtors of prewar obligations
who suffered from the ravages of the last war and who filed a claim for their losses with the
Philippine War Damage Commission. It is therein provided that said obligation shall not be due
and demandable for a period of eight (8) years from and after settlement of the claim filed by the
debtor with said Commission. The purpose of the law is to afford to prewar debtors an opportunity
to rehabilitate themselves by giving them a reasonabled time within which to pay their prewar
debts so as to prevent them from being victimized buy their creditors. While it is admitted in said
law that since liberation conditions have gradually returned to normal, this is not so with regard to
those who have suffered the ravages of war and so it was therein declared as a policy that as to
them the debt moratorium should be continued in force (section 1).
But we should not lost sight of the fact that these obligations had been pending since 1945 as a
result of the issuance of Executive Orders Nos. 25 and 32 and at present their enforcement is still
inhibited because of the enactment of Republic Act No. 342 and would continue to be
unenforceable during the eight-year period granted to prewar debtors to afford them an
opportunity to rehabilitate themselves, which in plain languaged means that the creditors would
have to observe a vigil of at least twelve (12) years before they could effect a liquidation of their
investment dating as far back as 1941. This period seems to us unreasonable, if not oppressive.
while the purpose of Congress is plausible, and should be commended, the relief accorded works
injustice to creditors who are practically left at the mercy of the debtors. Their hope to effect
collection becomes extremely remote, more so if the credits are unsecured. And the injustice is
more patent when, under the law, the debtor is not even required to pay interest during the
operation of the relief, unlike similar statutes in the United States (Home Building and Loan
Association vs. Blaisdell, supra).
There are at least three cases where the Supreme Court of the United States declared the
moratorium laws violative of the contract clause of the constitution because the period granted to
debtors as a relief was found unwarranted by the contemplated emergency. One of them is W. B.
Worthen Co. vs. Thomas, 292 U. S., 426-435; 78 L. ed., 1344, 1347. Here the Legislature of
Arkansas passed na act providing for an exemption, "without limitation as to amount or restriction
with respect to particular circumstances or relations, of all moneys paid or payable to any resident
of the state under any life, sick, accident or disability insurance policy, from liability for the payment
of the debts of the recipient", and an attempt was made to apply the statute to debts owing before
its approval. The court held that "such an exemption, applied in the case of debts owing before the
exemption was created by the legislature, constitutes an unwarranted interference with the
obligation of contracts in violation of the constitutional provision", and cannot be sustained even as
emergency legislation, because it contains no limitation as to time, amount, circumstances or need
(supra, 292 U. S., pp. 426-432).
The other case is W. B. Worthen vs. Kavanaugh (supra). Here certain Municipal Improvement
Districts organized under the laws of Arkansas were empowered to issue bonds and to mortgage
benefit assessments as security therefor. One of these districts acted upon the powers thus
conferred. Some of the bonds were in default for nonpayment of principal and interest. So an
action was brought by the bond-holders to foreclose the assessment upon the lots of delinquent
owners. These bonds and mortgages were executed under the statutes then in force. Later the
legislature of Arkansas passed three acts making changes in the remedies available under the
former statutes, which changes were attacked as an unconstitutional impairment of contracts. The
court sustained this view holding that the "changes in the remedies available for the enforcement
of a mortgage may not, even when the public welfare is invoked as an excuse, be pressed so far
as to cut down the security of a mortgage without moderation or reason or in a spirit of oppression.
. . . A State is free to regulate the procedure in its courts even with reference to contracts already
made, and moderate extensions of the time for pleading or for trial will ordinarily fall within the
power so reversed; by a different situation is presented when extensions are so piled up to make
the remedy a shadow."
The third case is Louisville joint Stock Land Bank vs. Radford, 295 U. S. 555, 79 L. ed 1593. This
case presented for decision the question whether subsection (s) added to section 75 of the
Bankruptcy Act by the Frazier-Lemke Act, June 28, 1934, chap. 869, 48 Stat. at L. 1289 U. S. C.
title 11, sec. 203, is consistent with the Federal Constitution. The court said that it is
unconstitutional if applied to farm mortgages already existing, holding that "property rights of
holders of farm mortgages are unconstitutionally taken, in violation of the Fifth Amendment, by a
statute (Bankruptcy Act, sec. 75(s) Frazier-Lemke Act of June 28, 1934, chap. 869, 48 Stat. at L.
1286) applicable only to debts existing at the time of its enactment which provides that a farmer
whose farm is mortgaged, and who has failed to obtain the consents necessary to a composition
under the Bankruptcy Act, may, upon being adjudged a bankrupt, if the mortgagee assents,
purchase the mortgaged property at its them appraised value by agreeing to make deferred
payments of stated percentages of the appraised value over a period of six years, with interests at
1 per cent per annum, or, if the mortgagee refuses his assent to such purchase, may obtain a stay
of all proceedings for a period of five years, during which he shall retain possession of all or any
part of his property, under the control of the court, provided he pays a reasonable rental therefor,
and that at the end of five years he may pay into court the appraised price thereof, or, if a lien
holder shall request a reappraisal by the court, the reappraised price, whereupon the court shall,
by an order, turn over full possession and title of the property to the debtor, and he may apply for
his discharge."
In addition, we may cite leading state court decisions which practically involved the same ruling
and which reflect the tendency of the courts towards legislation involving modification of mortgage
or monetary contracts which contains provisions that are deemed unreasonable or oppressive.
Some of those which may be deemed representative follows:
1. Pouquette vs. O'Brien, 100 Pac. 2nd series, 979 (1940). The Supreme Court of Arizona held
unconstitutional a 1937 statute authorizing courts to extend for a period of not longer than two
years all actions or foreclosures of real estate mortgages, and a 1939 statutes authorizing the
courts to extend foreclosure proceedings not later than March 4, 1941.
2. First Trust Joint Stock Land Bank of Chicago vs. Adolph Arp et al., 283 N.W. 441, 120 A.L.R.
932 (1939). The Supreme Court of Iowa declared unconstitutional the Moratorium Acts enacted in
1933, 1935 and 1937, providing for extension of the 1933 Moratorium Act covering a period of six
years.
3. First Trust Co. of Lincoln vs. Smith et al., 227 N.W. 762 (1938). The Supreme Court of
Nebraska declared unconstitutional the Nebraska Moratorium Law as reenacted, extending the
benefit of the remedy to a period of six years, as being repugnant to the contract clause of the
Constitution.
4. Milkint vs. McNeely, Clerk of court, et al., 169 S.E. 790 (1933). The Supreme Court of Appeals
of West Virginia declared unconstitutional certain acts of legislature enacted in 1932, extending
the period of redemption three years beyond the one-year period then allowed by statute, being an
impairment of contract as to sales made prior to enactment thereof.
5. Haynes vs. Treadway, 65 Pac. 892 (1901). The Supreme Court of California declared
unconstitutional a statute which extends the right of redemption from six months twelve months
being a substantial impairment of the obligation contracts if applied to a mortgage already
executed.
6. Swinburne vs. Mills, 50 Pac. 489 (1879). The Supreme Court of Washington declared a statute
unconstitutional in so far as it provides that, on a decree for foreclosure of a mortgage executed
before the act was passed, the debtor shall be entitled to have the order of sale stayed for one
year, as being an impairment of the obligation of contract.
These cases apply with added force in this jurisdiction considering the conditions no prevailing in
our country. We do not need to go far to appreciate this situation. We can see it and feel it as we
gaze around to observe the wave of reconstruction and rehabilitation that has swept the country
since liberation thanks to the aid of America and the innate progressive spirit of our people. This
aid and this spirit have worked wonders in so short a time that it can now be safely stated that in
the main the financial condition of our country and our people, individually and collectively, has
practically returned to normal notwithstanding occasional reverses caused by local dissidence and
the sporadic disturbance of peace and order in our midst. Business, industry and agriculture have
picked up and developed at such stride that we can say that we are now well on the road to
recovery and progress. This is so not only as far as our observation and knowledge are capable to
take note and comprehend but also because of the official pronouncements made by our Chief
Executive in public addresses and in several messages he submitted to Congress on the general
state of the nation. To bear this out, it would suffice for us to state some of those public statements
which we deem to be most expressive and representative of the general situation. We quote:
We have balanced our national budget. We shall again have at the end of the current
fiscal year a sizeable surplus. . . .
We have greatly improved the economic and financial conditions of the country. Through
the Rehabilitation Finance Corporation, loans amounting to P90,480,136 have been
granted for the recontruction and rehabilitation purposes. . . .
We have set up the Central bank to expand our credit, stabilize our currency and provide
a new source of financing for the agricultural and industrial development of the nation.
xxx xxx xxx
. . . The commitment thus far made is not only a favorable sign ushering in finally the
implementation of our plans of economic development, but a significantly successful test
of the solvency of our foreign credit, for it was accepted only after a thorough examination
of our resources and development plans by a board of economists of international
authority (Pres. Quirino's "State-of-the-Nation" Message of the Joint Session of Congress
on Jan. 24, 1949, 45 Off. Gaz., Ja., 1949).
We have strengthened, . . . our internal and external finances. Six years ago, we were a
country prostrate from the destruction of war. . . . today, we can say that our people not
only have returned to their prewar activities, but . . . have progressed and prospered far
beyond what they ever dreamed of before the war.
. . . Three years ago the national income stood at four billion pesos; today it is over seven
billion pesos. . . . The government income has been steadily rising from 60 million pesos
in 1946 to approximately 600 million pesos today, also a progress in six years.
xxx xxx xxx
. . . The ravages of war are fast disappearing, and instead, what beautiful vistas unfold
themselves before our eyes at this moment in our immediate surroundings. Compare this
beautiful view with that of the past and all that we have accomplished in scarcely six
years of struggle, sacrifice, determination, and bold decision. (Applause.) We have
brought this nation out of the paralysis of destruction into economic normalcy and
financial stability. . . .
. . . Our external finances have greatly improved, and . . . our pesos is one of the most
stable currencies in the world today. (Applause.) I repeat, our pesos is one of the most
stable currencies in the world today.
All these find grateful reflection in a better-sheltered, better-clothed, better-fed, and
healthier population that has grown from 18 million to 20 million in a half dozen years, in a
school enrollment that has doubled since the outbreak of the last war from less than 2
million to over 4 million young students in the public schools, and in democratic processes
that are gaining in vigor and permanence with each passing year" (Address of his
Excellency Quirino, President of the Philippines, on the occasion of the celebration of the
sixth anniversary of the independence of the Philippines, July 4, 1952, Luneta, Manila, 48
Off. Gaz., pp. 3287-3289).
In the face of the foregoing observations, and consistent with what we believe to be as the only
course dictated by justice, fairness and righteousness, we feel that the only way open to us under
the present circumstances is to declare that the continued operation and enforcement of Republic
Act No. 342 at the present time is unreasonable and oppressive, and should not be prolonged a
minute longer, and, therefore, the same should be declared null and void and without effect. And
what we say here with respect to said Act also holds true as regards Executive Orders Nos. 25
and 32, perhaps with greater force and reason as to the latter, considering that said Orders
contain no limitation whatsoever in point of time as regards the suspension of the enforcement
and effectivity of monetary obligations. And there is need to make this pronouncement in view of
the revival clause embodied in said Act if and when it is declared unconstitutional or invalid.

Wherefore, the decision appealed from will be reversed, without pronouncement as to costs.

Judgment is hereby rendered ordering the defendant to pay the plaintiff the sum of P4,800 with
interest thereon at the rate of 7 per cent annum from August 27, 1942, until its full payment, plus
12 per cent as attorney's fees. Failure to pay this judgment as stated, the properties mortgaged
will be sold at public auction and the proceeds applied to its payment in accordance with law. So
ordered.

Paras, C.J., Feria, Bengzon, Padilla, Tuason, and Labrador, JJ., concur.
Pablo, J., concurs with the dispositive part.

Rutter vs. Esteban, 93 Phil., 68, No. L-3708 May 18, 1953