his Creator is recognized.
And, in so far as it instills into the minds the purest
FIRST DIVISION
[G.R. No. 45459. March 13, 1937.]
GREGORIO AGLIPAY, Petitioner, v. JUAN RUIZ, Respondent.
Vicente Sotto for Petitioner.
Solicitor-General Tuason for Respondent.
SYLLABUS
1. PROHIBITION; ISSUANCE OF WRIT FOR ACTS PERFORMED WITHOUT
JURISDICTION. — While, generally, prohibition as an extraordinary legal writ will
not issue to restrain or control the performance of other than judicial or quasi-
judicial function (50 C. J., 658), its issuance and enforcement are regulated by
statute and in this jurisdiction may issue to." . . inferior tribunals, corporations,
boards, or persons, whether exercising 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.)
2. ID.; ID.; DIRECTOR OF POSTS. — The term "judicial" and "ministerial" used
with reference to "functions" in the statute are undoubtedly comprehensive and
include the challenge act of the respondent Director of Posts in the present case,
which act because alleged to be violative of the Constitution is a fortiori "without or
in excess of . . . jurisdiction."cralaw virtua1aw library
3. ID.; ID.; WRIT NOT CONFINED EXCLUSIVELY TO COURTS OR TRIBUNALS. —
The statutory rule, therefore, in this 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 the prevent the
use of the strong arm of the law in an oppressive or vindictive manner, or a
multiplicity of actions." (Dimayuga and Fajardo v. Fernandez [1922], 43 Phil., 304,
307.)
4. CONSTITUTION OF THE PHILIPPINES; RELIGIOUS FREEDOM. — 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 a denial of its influence in human affairs.
Religion as a profession of faith to an active power that binds and elevates man to
principles of morality, its influence is deeply felt and highly appreciated.
5. ID.; ID.; POSTAGE STAMPS ISSUED UNDER ACT No. 4052. — The respondent
Director of Posts issued the postage stamps in question under the provision of Act
No. 4052 of the Philippine Legislature which appropriates the sum of sixty
thousand pesos for the cost 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."cralaw virtua1aw library
6. ID.; ID.; ID. — 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 feeling to favor a
particular church or religious denominations. The stamps were not issued and sold
for the benefit of the Roman Catholic Church. Nor were money derived from the
sale of the stamps given to that church.
7. ID.; ID.; ID. — The only purpose in issuing and selling the stamps was "to
advertise the Philippines and attract more tourists 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." 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.
8. ID.; ID.; ID. — 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. 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 v.
Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)
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 issuance 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 for printing as follows:
"In the center is a 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., 658), its issuance and enforcement are regulated by
statute and in this jurisdiction may issue to." . . inferior tribunals, corporations,
boards, or persons, whether exercising 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 fortiori "without or in excess of . . . jurisdiction." The statutory rule, therefore, in
this jurisdiction is that the writ of prohibition is not confined exclusively to courts
or tribunals to keep them within the limits of their own jurisdiction and to prevent
them from encroaching upon the jurisdiction of other tribunals but will issue, in
appropriate cases, to an officer or person whose acts are without or in excess of
his authority. Not infrequently, "the writ is granted, where it is necessary for the
orderly administration of justice, or to prevent the use of the strong arm of the law
in an oppressive or vindictive manner, or a multiplicity of actions," (Dimayuga and
Fajardo v. 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 13, 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,
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, orphanage, or leprosarium." library
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. The Malolos Constitution 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 to 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 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. 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. 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 (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, Ad. Code). Thursday and Friday of Holy Week,
Thanksgiving Day, Christmas Day, and Sundays are made legal holidays (sec. 29,
Adm. Code) because of the secular idea that their observance is conducive 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:chanrob1es virtual 1aw library
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:jgc:chanrobles.com.ph
"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 cost of plates, and printing of postage stamps with new
designs, and other expenses incident thereto.
"SECTION 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.
"SECTION 3. This amount or any portion thereof not otherwise expended shall not
revert to the Treasury.
"SECTION 4. This act shall take effect on its approval.
"Approved, February 21, 1933."cralaw virtua1aw library
It will be seen that the Act appropriate the sum of sixty thousand pesos for the
cost 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
P1,618,179.10 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 feeling to favor a particular church or religious
denominations. The stamps were not issued 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 letter 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 tourists 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 in 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
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 v.
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 persecution, 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 issue postage stamps with new designs "as often as may be deemed U.S. Supreme Court
advantageous to the Government. "Even if we were to assume that these officials Board of Education v. Allen, 392 U.S. 236 (1968)
made use of a poor judgment in issuing and selling the postage stamps in question Board of Education v. Allen
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 No. 660
is yet to be filled to justify the court in setting aside the official act assailed as
coming within a constitutional inhibition. Argued April 22, 1968

The petition for a writ of prohibition is hereby denied, without pronouncement as Decided June 10, 1968
to costs. So ordered.
392 U.S. 236

Syllabus

New York's Education Law requires local public school authorities to lend textbooks
free of charge to all students in grades seven to 12, including those in private
schools. Appellant school boards sought a declaration that the statutory
requirement was invalid as violative of the State and Federal Constitutions, an
order barring appellee Commissioner of Education from removing appellants'
members from office for failing to comply with it, and an order preventing the use
of state funds for the purchase of textbooks to be lent to parochial students. The
trial court held the law unconstitutional under the First and Fourteenth
Amendments and entered summary judgment for appellants on the pleadings; the
Appellate Division reversed and ordered the complaint dismissed since appellant
school boards had no standing to attack the statute, and the New York Court of
Appeals held that appellants did have standing, but that the statute did not violate
the State or Federal Constitution. The Court of Appeals said that the law was to
benefit all school children, without regard to the type of school attended, that only
textbooks approved by school authorities could be loaned, and therefore the
statute was "completely neutral with respect to religion."
Held: The statute does not violate the Establishment or the Free Exercise Clause of
the First Amendment. Pp. 392 U. S. 241-249.
(1) The express purpose of the statute was the furtherance of educational
opportunities for the young, and the law merely makes available to all children the
benefits of a general program to lend school books free of charge, and the financial
benefit is to parents and children, not to schools. Everson v. Board of Education,
330 U. S. 1. Pp. 392 U. S. 243-244.
(2) There is no evidence that religious books have been loaned, and it cannot be
assumed that school authorities are unable to distinguish between secular and
religious books, or that they will not honestly discharge their duties to approve
only secular books. Pp. 392 U. S. 244-245.
Page 392 U. S. 237
(3) Parochial schools, in addition to their sectarian function, perform the task of
secular education, and, on the basis of this meager record, the Court cannot agree
with appellants that all teaching in a sectarian school is religious, or that the
intertwining of secular and religious training is such that secular textbooks
furnished to students are, in fact, instrumental in teaching religion. Pp. 392 U. S.
245-248.
(4) In the absence of specific evidence, and based solely on judicial notice, it
cannot be concluded that the statute results in unconstitutional state involvement
with religious instruction or violates the Establishment Clause. P. 392 U. S. 248.
(5) Since appellants have not shown that the law coerces them in any way in the
practice of religion, there is no violation of the Free Exercise Clause. Pp. 392 U. S.
248-249.
20 N.Y.2d 109, 228 N.E.2d 791, affirmed.
Lemon v. Kurtzman, 403 U.S. 602 (1971)
Primary Holding
The test for determining whether a law meets the requirements of the
Establishment Clause is whether it has a legitimate secular purpose, does not
have the primary effect of either advancing or inhibiting religion, and does not
result in an excessive entanglement of government and religion.
Facts
Under the Nonpublic Elementary and Secondary Education Act, Pennsylvania
gave the Superintendent of Public Schools the authority to allocate state funds
for textbooks, educational materials, and teacher salaries in private schools.
Most of these private schools happened to be Catholic institutions. However,
the law was carefully written to require that the salaries of teachers could be
augmented only if they taught the same courses as those offered in public
schools, used the same materials, and refrained from teaching courses in
religion. In reality, the only beneficiaries of the extra funding were teachers at
Catholic schools, which constituted 95 percent of the state's total private
schools, which in turn comprised 25 percent of all elementary schools in the
state.
In Rhode Island, a similar law known as the Salary Supplement Act designated
government money to provide salary supplements of 15 percent for teachers at
private schools. Most of these institutions also were Catholic. The First Circuit
had ruled against the Rhode Island law under the First Amendment.
Opinions
Majority
 Warren Earl Burger (Author)
 Hugo Lafayette Black
 William Orville Douglas
 John Marshall Harlan II
 Potter Stewart
 Thurgood Marshall
 Harry Andrew Blackmun
Describing the prong of the Lemon test that concerns excessive government
entanglement with religion, Burger recommended that courts consider factors
such as the nature of the government assistance, the character and purpose of
the institution receiving the assistance, and the relationship that resulted
between the government and the religious authority. All three of the prongs in
the test, which are listed in the Primary Holding above, must be satisfied for a
law to survive a challenge under the Establishment Clause. In this situation,
Burger pointed out that private and parochial schools were essentially
synonymous in the state and that the Catholic Church viewed its educational
program as a central part of its religious mission. Viewing the cumulative effect
of the relationship between the state and the Catholic Church created by this
law, he found that there was excessive entanglement between government and
religion. Once he made this finding, the law would be unconstitutional whether
or not it passed the other prongs of the test.

Concurrence

 William Orville Douglas (Author)

 Hugo Lafayette Black
 Thurgood Marshall

Concurrence

 William Joseph Brennan, Jr. (Author)

Concurrence/Dissent In Part

 Byron Raymond White (Author)

Case Commentary
The Supreme Court held that the founders clearly intended to prevent the state
from any type of sponsorship, financial support, or involvement in religious
activities, which verged too closely on establishing a state religion. While the
Lemon test has been challenged early in the 21st century, the Court continues
to use it as the principal tool of Establishment Clause analysis. A few current
Justices, such as Clarence Thomas and Antonin Scalia, have been skeptical
about its appropriateness.

EN BANC 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 halal2 certifications in the Philippines. Thus, among the
functions petitioner carries out is to conduct seminars, orient manufacturers on halal
food and issue halal certifications to qualified products and manufacturers.
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 465
creating the Philippine Halal Certification Scheme and designating respondent OMA to
oversee its implementation. Under the EO, respondent OMA has the exclusive
authority to issue halal certificates and perform other related regulatory activities.
On May 8, 2002, a news article entitled "OMA Warns NGOs Issuing Illegal 'Halal'
Certification" was published in the Manila Bulletin, a newspaper of general circulation.
In said article, OMA warned Muslim consumers to buy only products with its official
halal certification since those without said certification had not been subjected to
careful analysis and therefore could contain pork or its derivatives. Respondent OMA
also sent letters to food manufacturers asking them to secure the halal certification
only from OMA lest they violate EO 46 and RA 4109.6 As a result, petitioner lost
revenues after food manufacturers stopped securing certifications from it.
Hence, this petition for prohibition.
Petitioner contends that the subject EO violates the constitutional provision on the
separation of Church and State.7 It is unconstitutional for the government to
formulate policies and guidelines on the halal certification scheme because said
scheme is a function only religious organizations, entity or scholars can lawfully and
validly perform for the Muslims. According to petitioner, a food product becomes
halal only after the performance of Islamic religious ritual and prayer. Thus, only
practicing Muslims are qualified to slaughter animals for food. A government agency
like herein respondent OMA cannot therefore perform a religious function like
certifying qualified food products as halal.
Petitioner also maintains that the respondents violated Section 10, Article III of the
1987 Constitution which provides that "(n)o law impairing the obligation of contracts,
shall be passed." After the subject EO was implemented, food manufacturers with
existing contracts with petitioner ceased to obtain certifications from the latter.
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.

EN BANC March 7, 2017 A.M. No. 10-4-19-SC
RE: LETTER OF TONY Q. V ALENCIANO, HOLDING OF RELIGIOUS RITUALS AT THE
HALL OF JUSTICE BUILDING IN QUEZON CITY
MENDOZA, J.:
One of our fundamental differences lies in our chosen religion. Some put their faith in
a god different from ours, while some may not believe in a god at all. Nevertheless,
despite the inconveniences this difference may cause us, we must accept it
unconditionally for only upon acceptance of the fact that we are different from each
other will we learn to respect one another.
This controversy originated from a series of letters, written by Tony Q. Valenciano
(Valenciano) and addressed to then Chief Justice Reynato S. Puno (Chief Justice Puno).
In his first Letter,1 dated January 6, 2009, Valenciano reported that the basement of
the Hall of Justice of Quezon City (QC) had been converted into a Roman Catholic
Chapel, complete with offertory table, images of Catholic religious icons, a canopy, an
electric organ, and a projector. He believed that such practice violated the
constitutional provision on the separation of Church and State and the constitutional
prohibition against the appropriation of public money or property for the benefit of a
sect, church, denomination, or any other system of religion.
Valenciano further averred that the holding of masses at the basement of the QC Hall
of Justice showed that it tended to favor Catholic litigants; that the rehearsals of the
choir caused great disturbance to other employees; that the public could no longer
use the basement as resting place; that the employees and litigants of the Public
Attorney's Office (PAO), Branches 82 and 83 of the Regional Trial Court (RTC), Legal
Library, Philippine Mediation Center, and Records Section of the Office of the Clerk of
Court (OCC) could not attend to their personal necessities such as going to the
lavatories because they could not traverse the basement between 12:00 o'clock
noontime and 1: 15 o'clock in the afternoon; that the court employees became hostile
toward each other as they vied for the right to read the epistle; and that the water
supply in the entire building was cut off during the mass because the generator was
turned off to ensure silence.
In his 1st Indorsement,2 dated February 6, 2009, Chief Justice Puno referred
Valenciano 's letter to then Deputy Court Administrator (DCA) and Officer-in-Charge of
the Office on Halls of Justice, Antonio H. Dujua (DCA Dujua).
In turn, DCA Dujua, in his 1st Indorsement,3 dated February 11, 2009, referred the
letter to Executive Judge Teodoro A. Bay (Judge Bay) of the RTC and to Executive
Judge Luis Zenon Q. Maceren (Judge Maceren) of the Metropolitan Trial Court (MeTC)
for their respective comments.
In his March 6, 2009 Letter,4 addressed to DCA Dujua, Judge Maceren clarified that
the basement of the QC Hall of Justice was known as the prayer corner. He opined
that the use of the said area for holding masses did not violate the constitutional
prohibition against the use of public property for religious purposes because the
religious character of such use was merely incidental to a temporary use.
In his Memorandum,5 dated March 10, 2009, Judge Bay manifested that he was due
to compulsorily retire on April 29, 2009, and he was taking a leave of absence prior to
such date to concentrate in resolving cases submitted for decision before his sala and
requested that then Vice-Executive Judge Jaime N. Salazar (Judge Salazar) be assigned
to further investigate, study, and make recommendations on the matter raised by
Valenciana.
In the meantime, Judge Bay recommended that, pending the final resolution of the
case, daily masses be permitted to continue, provided that: (1) the mass be limited to
thirty (30) minutes; (2) no loud singing be allowed so as not to disturb others; and (3)
the inconveniences caused by the mass be addressed.
In his 1st Indorsement,6 dated May 27, 2009, Chief Justice Puno referred another
letter of Valenciano, dated May 13, 2009, to DCA Dujua for appropriate action, as he
complained that masses continued to be held at the basement of the QC Hall of
Justice.
On March 23, 2010, Valenciano wrote another letter,7 praying that rules be
promulgated by the Court to put a stop to the holding of Catholic masses, or any
other religious rituals, at the QC Hall of Justice and in all other halls of justice in the
country.
In its June 22, 2010 Resolution,8 the Court noted the March 23, 2010 letter of
Valenciano and referred the matter to the Office of the Court Administrator (OCA) for
evaluation, report and recommendation.
Thus, in its 1st Indorsement,9 dated September 6, 2010, the OCA, through then
Assistant Court Administrator (ACA) Jenny Lind R. AldecoaDelorino (now Deputy Court
Administrator), referred the letters of Valenciano to the incumbent RTC Executive
Judge Fernando T. Sagun, Jr. (Judge Sagun, Jr.) and incumbent MeTC Executive Judge
Caridad M. WalseLutero (Judge Lutero).
In his Letter-Comment,10 dated September 9, 2010, Judge Sagun, Jr. informed the
Court that his office had already implemented measures to address Valenciano's
complaints. He reported that masses were shortened to a little over thirty (30)
minutes; that it was only during special holy days of obligation when the celebration
of mass went beyond one (1) o'clock in the afternoon; that the pathways leading to
the lavatories were open and could be used without obstruction; that there was never
an instance where the actions of court personnel, who were vying to read the epistle
during mass, caused back-biting and irritation among themselves; that the water
generator had been broken beyond repair and decommissioned since December
2009; and that the court employees prepared for the mass before the day officially
started, so that the performance of their official duties in court was not hampered.
In her letter,11 Judge Lutero reported that Catholic masses were being held only
during lunch breaks and did not disturb court proceedings; that the basement of the
QC Hall of Justice could still be used as waiting area for the public; that court
personnel and the public were never physically prevented from reaching the
lavatories during mass as there was a clear path from the public offices leading to the
comfort rooms; that water service interruptions were caused by maintenance
problems and not because the water pump was being shut off during mass; and that
the elevators could not be used during mass because elevator attendants took their
lunch break from twelve (12) o'clock to one (1) o'clock in the afternoon.
Judge Lutero opined that it is not the conduct of masses in public places which the
Constitution prohibited, but the passage of laws or the use of public funds for the
purpose of establishing a religion or prohibiting the free exercise thereof. She
conveyed the fact that no law or rule had been passed and that no public funds had
been appropriated or used to support the celebration of masses. She added that the
holding of Catholic masses did not mean that Catholics had better chances of
obtaining favorable resolutions from the court.
Accordingly, Judge Lutero recommended that the holding of masses at the basement
of the QC Hall of Justice be allowed to continue considering that it was not inimical to
the interests of the court employees and the public.
The OCA Report
and Recommendation
In its Memorandum,12 dated August 7, 2014, the OCA believed that the practical
inconveniences cited by Valenciano were unfounded. It, thus, recommended that his
letter-complaints, dated January 6, 2009, May 13, 2009 and March 23, 2010, be
dismissed for lack of merit and that the RTC and MeTC Executive Judges of QC be
directed to closely regulate and monitor the holding of masses and other religious
practices within the premises of the QC Hall of Justice.1âwphi1
The OCA opined that the principle of separation of Church and State, particularly with
reference to the Establishment Clause, ought not to be interpreted according to the
rigid standards of separation; that the neutrality of the State on religion should be
benevolent because religion was an ingrained part of society and played an important
role in it; and that the State, therefore, instead of being belligerent (in the case of
Strict Separation) or being aloof (in the case of Strict Neutrality) towards religion
should instead interact and forbear.13
The OCA advanced the view that the standard of Benevolent
Neutrality/Accommodation was espoused because the principal religion clauses in our
Constitution were not limited to the Establishment Clause, which created a wall
between the Church and the State, but was quickly followed by the declaration of the
Free Exercise Clause, which protected the right of the people to practice their religion.
In effect, the standard of Benevolent Neutrality/Accommodation balanced the
interest of the State through the Establishment Clause, and the interest and right of
the individual to freely exercise his religion as guaranteed by the Free Exercise
Clause.14
The OCA observed that the present controversy did not involve a national or local law
or regulation in conflict with the Free Exercise Clause. On the contrary, Valenciano
was merely questioning the propriety of holding religious masses at the basement of
the QC Hall of Justice, which was nothing more than an issue of whether the said
religious practice could be accommodated or not. It ended up concluding that based
on prevailing jurisprudence, as well as the interpretations given to the religion clauses
of the 1987 Constitution, there was nothing constitutionally abhorrent in allowing the
continuation of the masses.15
The OCA added that by allowing or accommodating the celebration of Catholic masses
within the premises of the QC Hall of Justice, the Court could not be said to have
established Roman Catholicism as an official religion or to have endorsed the said
religion, for the reason that it also allowed other religious denominations to practice
their religion within the courthouses.16
ISSUE
WHETHER THE HOLDING OF MASSES AT THE BASEMENT OF THE QUEZON CITY HALL
OF JUSTICE VIOLATES THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH
AND STATE AS WELL AS THE CONSTITUTIONAL PROHIBITION AGAINST
APPROPRIATION OF PUBLIC MONEY OR PROPERTY FOR THE BENEFIT OF ANY SECT,
CHURCH, DENOMINATION, SECTARIAN INSTITUTION, OR SYSTEM OF RELIGION.
The Court's Ruling
The Court agrees with the findings and recommendation of the OCA and denies the
prayer of Valenciano that the holding of religious rituals of any of the world's religions
in the QC Hall of Justice or any halls of justice all over the country be prohibited.
The Holding of Religious Rituals in the Halls of Justice does not Amount to a Union
of Church and State
As earlier stated, Valenciano is against the holding of religious rituals in the halls of
justice on the ground that it violates the constitutional provision on the separation of
Church and State and the constitutional prohibition against the appropriation of
public money or property for the benefit of a sect, church, denomination, or any other
system of religion. Indeed, Section 6, Article II of the 1987 Constitution provides:
The separation of Church and State shall be inviolable.17
The Court once pronounced 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."18
Justice Isagani Cruz expounded on this doctrine, viz.:
The rationale of the rule is summed up in the familiar saying, "Strong fences make
good neighbors." The idea is to delineate the boundaries between the two institutions
and, thus, avoid encroachments by one against the other because of a
misunderstanding of the limits of their respective exclusive jurisdictions. The
demarcation line calls on the entities to "render therefore unto Caesar the things that
are Caesar's and unto God the things that are God's."19
This, notwithstanding, the State still recognizes the inherent right of the people to
have some form of belief system, whether such may be belief in a Supreme Being, a
certain way of life, or even an outright rejection of religion. Our very own Constitution
recognizes the heterogeneity and religiosity of our people as reflected in lmbong v.
Ochoa,20 as follows:
At the outset, it cannot be denied that we all live in a heterogeneous society. It is
made up of people of diverse ethnic, cultural and religious beliefs and backgrounds.
History has shown us that our government, in law and in practice, has allowed these
various religious, cultural, social and racial groups to thrive in a single society
together. It has embraced minority groups and is tolerant towards all - the religious
people of different sects and the non-believers. The undisputed fact is that our people
generally believe in a deity, whatever they conceived Him to be, and to Whom they
called for guidance and enlightenment in crafting our fundamental law. Thus, the
preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build
a just and humane society, and establish a Government that shall embody our ideals
and aspirations, promote the common good, conserve and develop our patrimony,
and secure to ourselves and our posterity, the blessings of independence and
democracy under the rule of law and a regime of truth, justice, freedom, love,
equality, and peace, do ordain and promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God" manifested their spirituality
innate in our nature and consciousness as a people, shaped by tradition and historical
experience. As this is embodied in the preamble, it means that the State recognizes
with respect the influence of religion in so far as it instills into the mind the purest
principles of morality. Moreover, in recognition of the contributions of religion to
society, the 1935, 1973 and 1987 Constitutions contain benevolent and
accommodating provisions towards religions such as tax exemption of church
property, salary of religious officers in government institutions, and optional religious
instructions in public schools. [Emphases supplied]
In Aglipay v. Ruiz21 (Aglipay), the Court acknowledged how religion could serve as a
motivating force behind each person's actions:
Religious freedom, however, as a constitutional mandate is not 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. 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. 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 xxx. Optional religious
instruction in the public schools is by constitutional mandate allowed xxx. Thursday
and Friday of Holy Week, Thanksgiving Day, Christmas Day, and Sundays are made
legal holidays (sec. 29, Adm. Code) because of the secular idea that their observance
is conducive 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 xxx.22 [Emphasis supplied]
Thus, the right to believe or not to believe has again been enshrined in Section 5,
Article III of the 1987 Constitution:
Section 5. xxx. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. xxx.
Free Exercise Clause
Freedom of religion was accorded preferred status by the framers of our fundamental
law. And this Court has consistently affirmed this preferred status, well aware that it is
"designed to protect the broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live as he believes he
ought to live, consistent with the liberty of others and with the common good."23
"The right to religious profession and worship has a two-fold aspect - freedom to
believe and freedom to act on one's beliefs. The first is absolute as long as the belief is
confined within the realm of thought. The second is subject to regulation where the
belief is translated into external acts that affect the public welfare."24 Justice Isagani
A. Cruz explained these two (2) concepts in this wise:
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the hereafter.
He may indulge his own theories about life and death; worship any god he chooses, or
none at all; embrace or reject any religion; acknowledge the divinity of God or of any
being that appeals to his reverence; recognize or deny the immortality of his soul - in
fact, cherish any religious conviction as he and he alone sees fit. However absurd his
beliefs may be to others, even if they be hostile and heretical to the majority, he has
full freedom to believe as he pleases. He may not be required to prove his beliefs. He
may not be punished for his inability to do so. Religion, after all, is a matter of faith.
"Men may believe what they cannot prove." Every one has a right to his beliefs and he
may not be called to account because he cannot prove what he believes.
(2) Freedom to Act on One's Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the
public, his freedom to do so becomes subject to the authority of the State. As great as
this liberty may be, religious freedom, like all other rights guaranteed in the
Constitution, can be enjoyed only with a proper regard for the rights of others.
It is error to think that the mere invocation of religious freedom will stalemate the
State and render it impotent in protecting the general welfare. The inherent police
power can be exercised to prevent religious practices inimical to society. And this is
true even if such practices are pursued out of sincere religious conviction and not
merely for the purpose of evading the reasonable requirements or prohibitions of the
law.
Justice Frankfurter put it succinctly: "The constitutional provision on religious freedom
terminated disabilities, it did not create new privileges. It gave religious liberty, not
civil immunity. Its essence is freedom from conformity to religious dogma, not
freedom from conformity to law because of religious dogma."25
Allowing religion to flourish is not contrary to the principle of separation of Church
and State. In fact, these two principles are in perfect harmony with each other.
The State is aware of the existence of religious movements whose members believe in
the divinity of Jose Rizal. Yet, it does not implement measures to suppress the said
religious sects. Such inaction or indifference on the part of the State gives meaning to
the separation of Church and State, and at the same time, recognizes the religious
freedom of the members of these sects to worship their own Supreme Being.
As pointed out by Judge Lutero, "the Roman Catholics express their worship through
the holy mass and to stop these would be tantamount to repressing the right to the
free exercise of their religion. Our Muslim brethren, who are government employees,
are allowed to worship their Allah even during office hours inside their own offices.
The Seventh Day Adventists are exempted from rendering Saturday duty because
their religion prohibits them from working on a Saturday. Even Christians have been
allowed to conduct their own bible studies in their own offices. All these have been
allowed in respect of the workers' right to the free exercise of their religion. xxx"26
Clearly, allowing the citizens to practice their religion is not equivalent to a fusion of
Church and State.
No Compelling State Interest
Religious freedom, however, is not absolute. It cannot have its way if there is a
compelling state interest. To successfully invoke compelling state interest, it must be
demonstrated that the masses in the QC Hall of Justice unduly disrupt the delivery of
public services or affect the judges and employees in the performance of their official
functions. In Estrada v. Escritor,27 the Court expounded on the test as follows:
The "compelling state interest" test is proper where conduct is involved for the whole
gamut of human conduct has different effects on the state's interests: some effects
may be immediate and short-term while others delayed and far-reaching. A test that
would protect the interests of the state in preventing a substantive evil, whether
immediate or delayed, is therefore necessary. However, not any interest of the state
would suffice to prevail over the right to religious freedom as this is a fundamental
.right that enjoys a preferred position in the hierarchy of rights - "the most inalienable
and sacred of all human rights", in the words of Jefferson. This right is sacred for an
invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an acknowledgment of
such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in order
to build a just and humane society and establish a government." As held in Sherbert,
only the gravest abuses, endangering paramount interests can limit this fundamental
right. A mere balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the state
can prevail over the fundamental right to religious liberty. The test requires the state
to carry a heavy burden, a compelling one, for to do otherwise would allow the state
to batter religion, especially the less powerful ones until they are destroyed. In
determining which shall prevail between the state's interest and religious liberty,
reasonableness shall be the guide. The "compelling state interest" serves the purpose
of revering religious liberty while at the same time affording protection to the
paramount interests of the state. This was the test used in Sherbert which involved
conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state interest"
test, by upholding the paramount interests of the state, seeks to protect the very
state, without which, religious liberty will not be preserved.137 [Citations omitted]
[Emphases supplied]
As reported by the Executive Judges of Quezon City, the masses were being
conducted only during noon breaks and were not disruptive of public services. The
court proceedings were not being distracted or interrupted and that the performance
of the judiciary employees were not being adversely affected. Moreover, no Civil
Service rules were being violated. As there has been no detrimental effect on the
public service or prejudice to the State, there is simply no state interest compelling
enough to prohibit the exercise of religious freedom in the halls of justice.
In fact, the Civil Service Commission (CSC) was more lenient or tolerant. On November
13, 1981, the CSC came out with Resolution No. 81-1277, which provided, among
others, that "during Friday, the Muslim pray day, Muslims are excused from work
from 10:00 o'clock in the morning to 2:00 o'clock in the afternoon." The Court struck
this down28 as not sanctioned by the law. It wrote:
To allow the Muslim employees in the Judiciary to be excused from work from 10:00
a.m. to 2:00 p.m. every Friday (Muslim Prayer Day) during the entire calendar year
would mean a diminution of the prescribed government working hours. For then, they
would be rendering service twelve (12) hours less than that required by the civil
service rules for each month. Further, this would encourage other religious
denominations to request for similar treatment.
The performance of religious practices, whether by the Muslim employees or those
belonging to other religious denominations, should not prejudice the courts and the
public. Indeed, the exercise of religious freedom does not exempt anyone from
compliance with reasonable requirements of the law, including civil service laws.
Accommodation, Not Establishment of Religion
In order to give life to the constitutional right of freedom of religion, the State adopts
a policy of accommodation. Accommodation is a recognition of the reality that some
governmental measures may not be imposed on a certain portion of the population
for the reason that these measures are contrary to their religious beliefs. As long as it
can be shown that the exercise of the right does not impair the public welfare, the
attempt of the State to regulate or prohibit such right would be an unconstitutional
encroachment.29
In Estrada v. Escritor,30 the Court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent neutrality
allows accommodation of religion under certain circumstances. Accommodations are
government policies that take religion specifically into account not to promote the
government's favored form of religion, but to allow individuals and groups to exercise
their religion without hindrance. Their purpose or effect therefore is to remove a
burden on, or facilitate the exercise of, a person's or institution's religion. As Justice
Brennan explained, the "government [may] take religion into account ... to exempt,
when possible, from generally applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be infringed, or to create
without state involvement an atmosphere in which voluntary religious exercise may
flourish." [Emphases supplied]
In Victoriano v. Elizalde Rope Workers Union,31 the Court upheld the exemption of
members of Iglesia ni Cristo from the coverage of a closed shop agreement between
their employer and a union, because it would violate the teaching of their church not
to affiliate with a labor organization.

In Ebralinag v. Division Superintendent of Schools of Cebu,32 the petitioners, who
were members of the Jehovah 's Witnesses, refused to salute the flag, sing the
national anthem, and recite the patriotic pledge for it is their belief that those were
acts of worship or religious devotion, which they could not conscientiously give to
anyone or anything except God. The Court accommodated them and granted them an
exemption from observing the flag ceremony out of respect for their religious beliefs.
Further, several laws have been enacted to accommodate religion. The Revised
Administrative Code of 1987 has declared Maundy Thursday, Good Friday, and
Christmas Day as regular holidays. Republic Act (R.A.) No. 9177 proclaimed the FIRST
Day of Shawwal, the tenth month of the Islamic Calendar, a national holiday for the
observance of Eidul Fitr (the end of Ramadan). R.A. No. 9849 declared the tenth day
of Zhu/ Hijja, the twelfth month of the Islamic Calendar, a national holiday for the
observance of Eidul Adha. Presidential Decree (P.D.) No. 1083, otherwise known as
the Code of Muslim Personal Laws of the Philippines, expressly allows a Filipino
Muslim to have more than one (1) wife and exempts him from the crime of bigamy
punishable under Revised Penal Code (RPC). The same Code allows Muslims to have
divorce.33
As to Muslims in government offices, Section 3 of P.D. No. 291, as amended by P.D.
No. 322, provides:
Sec. 3. (a) During the fasting season on the month of Ramadan, all Muslim employees
in the national government, government-owned or controlled corporations,
provinces, cities, municipalities and other instrumentalities shall observe office hours
from seven-thirty in the morning (7:30 a.m.) to three-thirty in the afternoon (3:30
p.m.) without lunch break or coffee breaks, and that there shall be no diminution of
salary or wages, provided, that the employee who is not fasting is not entitled to the
benefit of this provision.
Pursuant thereto, the CSC promulgated Resolution No. 81-1277, dated November 13,
1981, which reads in part:
2. During "Ramadan" the Fasting month (30 days) of the Muslims, the Civil Service
official time of 8 o'clock to 12 o'clock and 1 o'clock to 5 o'clock is hereby modified to
7:30 AM. to 3:30 P.M. without noon break and the difference of 2 hours is not
counted as undertime.
Following the decree, in Re: Request of Muslim Employees in the Different Courts in
Iligan City (Re: Office Hours),34 the Court recognized that the observance of Ramadan
as integral to the Islamic faith and allowed Muslim employees in the Judiciary to hold
flexible office hours from 7:30 o'clock in the morning to 3:30 o'clock in the afternoon
without any break during the period. This is a clear case of accommodation because
Section 5, Rule XVII of the Omnibus Rules Implementing Book V of E.0. No. 292,
enjoins all civil servants, of whatever religious denomination, to render public service
of no less than eight (8) hours a day or forty (40) hours a week.
Non-Establishment Clause
On the opposite side of the spectrum is the constitutional mandate that "no law shall
be made respecting an establishment of religion,"35 otherwise known as the non-
establishment clause. Indeed, there is a thin line between accommodation and
establishment, which makes it even more imperative to understand each of these
concepts by placing them in the Filipino society's perspective.
The non-establishment clause reinforces the wall of separation between Church and
State. It simply means that the State cannot set up a Church; nor pass laws which aid
one religion, aid all religion, or prefer one religion over another nor force nor
influence a person to go to or remain away from church against his will or force him to
profess a belief or disbelief in any religion; that the state cannot punish a person for
entertaining or professing religious beliefs or disbeliefs, for church attendance or
nonattendance; that no tax in any amount, large or small, can be levied to support any
religious activity or institution whatever they may be called or whatever form they
may adopt or teach or practice religion; that the state cannot openly or secretly
participate in the affairs of any religious organization or group and vice versa.36 Its
minimal sense is that the state cannot establish or sponsor an official religion.37
In the same breath that the establishment clause restricts what the government can
do with religion, it also limits what religious sects can or cannot do. They can neither
cause the government to adopt their particular doctrines as policy for everyone, nor
can they cause the government to restrict other groups. To do so, in simple terms,
would cause the State to adhere to a particular religion and, thus, establish a state
religion.38
Father Bernas further elaborated on this matter, as follows:
"In effect, what non-establishment calls for is government neutrality in religious
matters. Such government neutrality may be summarized in four general
propositions: (1) Government must not prefer one religion over another or religion
over irreligion because such preference would violate voluntarism and breed
dissension; (2) Government funds must not be applied to religious purposes because
this too would violate voluntarism and breed interfaith dissension; (3) Government
action must not aid religion because this too can violate voluntarism and breed
interfaith dissension; [and] (4) Government action must not result in excessive
entanglement with religion because this too can violate voluntarism and breed
interfaith dissension."39
Establishment entails a positive action on the part of the State. Accommodation, on
the other hand, is passive. In the former, the State becomes involved through the use
of government resources with the primary intention of setting up a state religion. In
the latter, the State, without being entangled, merely gives consideration to its
citizens who want to freely exercise their religion.
In a September 12, 2003 Memorandum for Chief Justice Hilario G. Davide, Jr., the
Office of the Chief Attorney recommended to deny, on constitutional grounds, the
request of Rev. Fr. Carlo M. Ilagan to hold a oneday vigil in honor of the Our Lady of
Caysasay within the premises of the Court. Such controversy must be distinguished
from the present issue in that with respect to the former, a Catholic priest was the
one who requested for the vigil. Moreover, in that case, the vigil would take one (1)
whole working day; whereas in this case, the masses are held at the initiative of
Catholic employees and only during the thirty-minute lunch break.
Guided by the foregoing, it is our considered view that the holding of Catholic masses
at the basement of the QC Hall of Justice is not a case of establishment, but merely
accommodation. First, there is no law, ordinance or circular issued by any duly
constitutive authorities expressly mandating that judiciary employees attend the
Catholic masses at the basement. Second, when judiciary employees attend the
masses to profess their faith, it is at their own initiative as they are there on their own
free will and volition, without any coercion from the judges or administrative officers.
Third, no government funds are being spent because the lightings and airconditioning
continue to be operational even if there are no religious rituals there. Fourth, the
basement has neither been converted into a Roman Catholic chapel nor has it been
permanently appropriated for the exclusive use of its faithful. Fifth, the allowance of
the masses has not prejudiced other religions.
No Appropriation of Public
Money or Property for the
Benefit of any Church
Section 29 (2), Article VI of the 1987 Constitution provides, "No public money or
property shall be appropriated, applied, paid, or employed, directly or indirectly, for
the use, benefit, or support of any sect, church, denomination, sectarian institution,
or system of religion, or of any priest, preacher, minister, or other religious teacher, or
dignitary as such, except when such priest, preacher, minister, or dignitary is assigned
to the armed forces, or to any penal institution, or government orphanage or
leprosarium."
The word "apply" means "to use or employ for a particular purpose."40 "Appropriate"
means "to prescribe a particular use for particular moneys or to designate or destine a
fund or property for a distinct use, or for the payment of a particular demand."41
Under the principle of noscitur a sociis, where a particular word or phrase is
ambiguous in itself or is equally susceptible of various meanings, its correct
construction may be made clear and specific by considering the company of words in
which it is found or with which it is associated. This is because a word or phrase in a
statute is always used in association with other words or phrases, and its meaning
may, thus, be modified or restricted by the latter. The particular words, clauses and
phrases should not be studied as detached and isolated expressions, but the whole
and every part of the statute must be considered in fixing the meaning of any of its
parts and in order to produce a harmonious whole. A statute must be so construed as
to harmonize and give effect to all its provisions whenever possible.42
Thus, the words "pay" and "employ" should be understood to mean that what is
prohibited is the use of public money or property for the sole purpose of benefiting or
supporting any church. The prohibition contemplates a scenario where the
appropriation is primarily intended for the furtherance of a particular church.
It has also been held that the aforecited constitutional provision "does not inhibit the
use of public property for religious purposes when the religious character of such use
is merely incidental to a temporary use which is available indiscriminately to the
public in general." Hence, a public street may be used for a religious procession even
as it is available for a civic parade, in the same way that a public plaza is not barred to
a religious rally if it may also be used for a political assemblage.43
In relation thereto, the phrase "directly or indirectly" refers to the manner of
appropriation of public money or property, not as to whether a particular act involves
a direct or a mere incidental benefit to any church. Otherwise, the framers of the
Constitution would have placed it before "use, benefit or support" to describe the
same. Even the exception to the same provision bolsters this interpretation. The
exception contemplates a situation wherein public funds are paid to a priest,
preacher, minister, or other religious teacher, or dignitary because they rendered
service in the armed forces, or to any penal institution, or government orphanage or
leprosarium. That a priest belongs to a particular church and the latter may have
benefited from the money he received is of no moment, for the purpose of the
payment of public funds is merely to compensate the priest for services rendered and
for which other persons, who will perform the same services will also be compensated
in the same manner.
Ut magis valeat quam pereat. The Constitution is to be interpreted as a whole.44 As
such, the foregoing interpretation finds support in the
Establishment Clause, which is as clear as daylight in stating that what is proscribed is
the passage of any law which tends to establish a religion, not merely to
accommodate the free exercise thereof.
The Constitution even grants tax exemption to properties actually, directly and
exclusively devoted to religious purposes.45 Certainly, this benefits the religious sects
for a portion of what could have been collected for the benefit of the public is
surrendered in their favor.
In Manosca v. CA,46 a parcel of land located in Taguig was determined by the National
Historical Institute to be the birthsite of Felix Y. Manalo, the founder of Iglesia ni
Cristo. The Republic then sought to expropriate the said property. The exercise of the
power of eminent domain was questioned on the ground that it would only benefit
members of Iglesia ni Cristo. The Court upheld the legality of the expropriation, viz.:
The practical reality that greater benefit may be derived by members of the Iglesia ni
Cristo than by most others could well be true but such a peculiar advantage still
remains to be merely incidental and secondary in nature.47 [Emphasis supplied]
Again, in Aglipay, the issuing and selling of postage stamps commemorative of the
Thirty-third International Eucharistic Congress was assailed on the ground that it
violated the constitutional prohibition against the appropriation of public money or
property for the benefit of any church. In ruling that there was no such violation, the
Court held:
It is obvious that while the issuance and sale of the stamps in question may be said to
be inseparably linked with an event of a religious character, the resulting propaganda,
if any, received by the Roman Catholic Church, was not the aim and purpose of the
Government. We are of the opinion that the Government should not be embarrassed
in its activities simply because of incidental results, more or less religious in character,
if the purpose had in view is one which could legitimately be undertaken by
appropriate legislation. The main purpose should not be frustrated by its
subordination to mere incidental results not contemplated.48 [Emphasis supplied]
Here, the basement of the QC Hall of Justice is not appropriated, applied or employed
for the sole purpose of supporting the Roman Catholics.
Further, it has not been converted into a Roman Catholic chapel for the exclusive use
of its faithful contrary to the claim of Valenciana. Judge Maceren reported that the
basement is also being used as a public waiting area for most of the day and a
meeting place for different employee organizations. The use of the area for holding
masses is limited to lunch break period from twelve (12) o'clock to one (1) o'clock in
the afternoon. Further, Judge Sagun, Jr. related that masses run for just a little over
thirty (30) minutes. It is, therefore, clear that no undue religious bias is being
committed when the subject basement is allowed to be temporarily used by the
Catholics to celebrate mass, as the same area can be used by other groups of people
and for other purposes.49 Thus, the basement of the QC Hall of Justice has remained
to be a public property devoted for public use because the holding of Catholic masses
therein is a mere incidental consequence of its primary purpose.
Conclusion
Directing the Executive Judges of the RTC and MeTC to regulate and closely monitor
the holding of masses and other religious practices within the courts does not
promote excessive collaboration between courts and various religions. On the
contrary, this is necessary to ensure that there would be no excessive entanglement.
To disallow the holding of religious rituals within halls of justice would set a dangerous
precedent and commence a domino effect. Strict separation, rather than benevolent
neutrality/accommodation, would be the norm. Thus, the establishment of Shari'a
courts, the National Commission for Muslim Filipinos, and the exception of Muslims
from the provisions of the RPC relative to the crime of bigamy would all be rendered
nugatory because of strict separation. The exception of members of Iglesia ni Cristo
from joining a union or the non-compulsion recognized in favor of members of the
Jehovah's Witnesses from doing certain gestures during the flag ceremony, will all go
down the drain simply because we insist on strict separation.
That the holding of masses at the basement of the QC Hall of Justice may offend non-
Catholics is no reason to proscribe it. Our Constitution ensures and mandates an
unconditional tolerance, without regard to whether those who seek to profess their
faith belong to the majority or to the minority. It is emphatic in saying that "the free
exercise and enjoyment of religious profession and worship shall be without
discrimination or preference." Otherwise, accommodation or tolerance would just be
mere lip service.
One cannot espouse that the constitutional freedom of religion ensures tolerance,
but, in reality, refuses to practice what he preaches. One cannot ask for tolerance
when he refuses to do the same for others.
In fine, the Court denies the plea that the holding of Catholic masses at the basement
of the QC Hall of Justice be prohibited because the said practice does not violate the
constitutional principle of separation of Church and State and the constitutional
prohibition against appropriation of public money or property for the benefit of a
sect, church, denomination, or any other system of religion.
WHEREFORE, the Court resolves to:
1. NOTE the letter-complaints of Mr. Tony Q. Valenciano, dated January 6, 2009, May
13, 2009, and March 23, 2010;
2. NOTE the 1st Indorsement, dated September 21, 2010, by the Office on Halls of
Justice, containing photocopies and certified photocopies of previous actions made
relative to the complaint;
3. NOTE the Letter-Comment, dated September 9, 2010, of Quezon City Regional Trial
Court Executive Judge Fernando T. Sagun, Jr.;
4. NOTE the undated Letter-Comment of Quezon City Metropolitan Trial Court
Executive Judge Caridad M. Walse-Lutero;
5. DENY the prayer of Tony Q. Valenciano to prohibit the holding of religious rituals in
the QC Hall of Justice and in all halls of justice in the country; and
6. DIRECT the Executive Judges of Quezon City to REGULATE and CLOSELY MONITOR
the holding of masses and other religious practices within the Quezon City Hall of
Justice by ensuring, among others, that:
(a) it does not disturb or interrupt court proceedings;
(b) it does not adversely affect and interrupt the delivery of public service; and
(c) it does not unduly inconvenience the public.
In no case shall a particular part of a public building be a permanent place for worship
for the benefit of any and all religious groups. There shall also be no permanent
display of religious icons in all halls of justice in the country. In case of religious rituals,
religious icons and images may be displayed but their presentation is limited only
during the celebration of such activities so as not to offend the sensibilities of
members of other religious denominations or the non-religious public. After any
religious affair, the icons and images shall be hidden or concealed from public view.
The disposition in this administrative matter shall apply to all halls of justice in the
country. Other churches, religious denominations or sects are entitled to the same
rights, privileges, and practices in every hall of justice. In other buildings not owned or
controlled by the Judiciary, the Executive Judges should coordinate and seek approval
of the building owners/administrators accommodating their courts.
SO ORDERED.
County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989), was
a United States Supreme Court case in which the Court considered the constitutionality of
two recurring Christmas and Hanukkah holiday displays located on public property in
downtown Pittsburgh. The first, a nativity scene (crèche), was placed on the grand
staircase of the Allegheny County Courthouse. The second of the holiday display in
question was an 18-foot (5.5 m) public Hanukkah menorah, which was placed just outside
the City-County Building next to the city's 45-foot (14 m) decorated Christmas tree and a
sign saluting liberty. The legality of the Christmas tree display was not considered in this
case.
In a complex and fragmented decision, the majority held that the County of Allegheny
violated the Establishment Clause by displaying a crèche in the county courthouse,
because the "principle or primary effect" of the display was to advance religion within the
meaning of Lemon v. Kurtzman (1971), when viewed in its overall context. Moreover, in
contrast to Lynch v. Donnelly (1984), nothing in the crèche's setting detracted from that
message.
A different majority held that the menorah display did not have the prohibited effect of
endorsing religion, given its "particular physical setting". Its combined display with a
Christmas tree and a sign saluting liberty did not impermissibly endorse both the Christian
and Jewish faiths, but simply recognized that both Christmas and Hanukkah are part of the
same winter-holiday season, which, the Court found, had attained a secular status in U.S.
society.
Background[edit]
Since 1981, the Holy Name Society of Pittsburgh had placed a crèche on the grand
staircase of the Allegheny County Courthouse. In 1986, the county also placed poinsettia
plants and two Christmas trees around the crèche. Attached to the manger was an angel
carrying a banner, with the words: Gloria in Excelsis Deo!
The Pittsburgh City-County Building (serving as City Hall) is separate from the courthouse,
and is jointly owned by the city and county. The city had placed a 45-foot Christmas tree in
front of the building "for a number of years."[1] In 1986, the city placed a plaque beneath the
tree with the mayor's name, entitled "Salute to Liberty." Below the title, the sign stated:
"During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights
remind us that we are the keepers of the flame of liberty and our legacy of freedom." Since
1982, the city had also placed a menorah with the Christmas tree in front of the City-
County Building. The city did not own the menorah, but placed, removed, and stored it
each year. The menorah was owned by Chabad House, Pittsburgh's Lubavitch Center.
On December 10, 1986, the Greater Pittsburgh Chapter of the ACLU and seven local
residents sued the city of Pittsburgh and the county of Allegheny. The lawsuit sought to
enjoin the county from displaying the crèche in the courthouse, and the city from
displaying the menorah in front of the city-county building. Chabad was allowed to
intervene to defend the menorah. The plaintiffs argued that the displays violated
the Establishment Clause, applicable via the Fourteenth Amendment.[1] On May 8, 1987,
the District Court denied the injunction to remove either the crèche or the menorah.
The Court of Appeals for the Third Circuit reversed the district court's ruling, stating that
the two displays each violated the Establishment Clause. The county, city, and Chabad all
subsequently filed petitions for certiorari.
Opinion of the Court[edit]
The majority holding of the Court found that the crèche display violated the Establishment
Clause while the menorah did not. In her opinion, Justice O'Connor explained the slightly
different reasons why she also supports Justice Blackmun's holding.[2] Justice Brennan,
joined by Justices Stevens and Marshall, joined parts III-A, IV, and V of Blackmun's
opinion. However, Brennan disagreed with Blackmun and O'Connor's respective opinions
by stating that the menorah and Christmas tree are also violations of the Establishment
Clause. Justice Kennedy, joined by Chief Justice Rehnquist and Justices
White and Scalia, disagreed with Blackmun's reasoning in part VI and agreed with the
previous judgment of the district court. Justice Stevens, in his own opinion, stated that the
appeals court was correct in its ruling. [3] He believed that the menorah display, together
with the Christmas tree, signified a double violation of the establishment clause. Since the
menorah is a religious symbol, he felt that Judaism and Christianity were being endorsed
by the government to the exclusion of all other religions. [3]
FIRST DIVISION G.R. No. L-26657 September 12, 1974

VISAYAN STEVEDORE & TRANSPORTATION COMPANY, Petitioner, vs. WORKMEN'S

COMPENSATION COMMISSION and JULIETA S. LABIYO Respondents.

MAKALINTAL, C.J.:

Appeal from the decision of the Workmen's Compensation Commission requiring

petitioner Visayan Stevedore & Transportation Company to pay respondent Julieta S.
Labiyo compensation benefits, burial expenses and costs in connection with the death
of her husband Eduardo Labiyo.

The deceased, employed as engineer by Visayan Stevedore & Transportation

Company with a monthly salary of P235.00 was part of a 3-man crew of the tugboat
"M/T DILIS." His main duty consisted in his starting the engine and seeing to it that it
functioned properly during the voyage, with the actual navigation of the tugboat
being the responsibility of his 2 other companions, the "Patron" who controlled the
wheel and a helper (timonel) who operated the rudder. According to Federico
Sespene, "patron" of the tugboat when the deceased died,... from February 10 to 17
(1964) they were given orders to tow barges to the ship and load it with cargoes. They
also had to shift or bring barges to dry dock at the company's compound in Iloilo.
Aside from that, their other work was to bring the barges from Jordan to Iloilo City,
from the terminal to the middle of Guimaras Strait or to bring workers, food and
checkers to the ship and back. As a consequence of this work, they were compelled to
stay in the tugboat. On that fatal day of February 17 (1964), they had received various
orders. And at about 4 a.m. of the same day, they were towing barges from the Shell
wharf to Tabangao, and while they were navigating, Eduardo Labiyo visibly tired and
in active duty asked for permission to take a rest. When the tugboat reached
Tabangao, witness Sespene was ordered by Orleans to start towing the barge but
when Sespeno called Labiyo to start the engine, there was no answer from Labiyo.
The Quartermaster was the one who responded instead and was the one ordered to
wake up Labiyo, who at the time was already dead. It was about 6:30 o'clock in the
morning of February 17, 1964. ...
A subsequent autopsy of the deceased's remains conducted by Dr. Raymundo L.
Torres, the assistant medicolegal officer of the Iloilo City Police Department, - traced
the cause of Eduardo Labiyo's death to "bangungot." The autopsy report reads:
AUTOPSY FINDINGS
HEAD AND NECK - No apparent external lesion was found.
THORAX - No apparent lesion was found.
ABDOMEN - No apparent external lesion was found. Stomach was full.
UPPER AND LOWER EXTREMITES - No apparent external lesion was found.
CAUSE OF DEATH - BANGUNGUT.
(Sgd.) - RAYMUNDO L. TORRES Asst. Med. Legal Officer
On March 16, 1964 respondent Julieta Labiyo, the widow, filed a claim for
compensation with the Department of Labor, Regional Office No. VII, Iloilo City. After
appropriate proceedings, the acting referee of the Workmen's Compensation Unit in
Iloilo City dismissed the case upon a finding that "the cause of death of Eduardo
Labiyo did not arise out of and was aggravated by the nature of his employment."
Upon review this decision was set aside by the Workmen's Compensation Commission
in a decision dated June 16, 1966, ordering at the same time the petitioner to pay
compensation benefits, burial expenses and costs. Petitioner thereafter moved to
reconsider but the Commission, in a resolution en banc dated August 30, 1966, denied
the motion.chanroblesvirtualawlibrarychanrobles virtual law library
The decision appealed from states:
..., there is no question that Eduardo Labiyo, together with the Patron and
Quartermaster were at work twenty-four (24) hours a day. That although they could
rest and sleep for sometime still they were always ready to be called to duty anytime,
for busy or not busy they remained in the tugboat, the premises of their employment
subject to call anytime. That the nature of their work had prevented them from
leaving the tugboat. It must also be remembered that from February 10 to 17, 1964,
the three (3) complement of the `M/T DILIS' were busy at work. Evidence supports the
finding that about 4 o'clock in the morning of February 17, 1964, Engineer Labiyo
requested permission to sleep for a while and which request had been granted. And it
appears that about 6:30 o'clock of the same morning, when he was being awakened
for duty he was already found cold and lifeless in his bunk lying on his back dressed in
his maong pants and white T/shirt. The theory of the Medico-Legal Officer who
autopsied his body was that the cause was due to 'bangungot.' To this view we cannot
subscribe. In the first place we have already learned that there is no such thing as
'bangungot;' that is, at least as of this moment, the term has not as yet been clearly
explained, particularly its cause and effect. This Commission, after considering the
evidence and the facts, is of the view that Eduardo Labiyo must have died due to over
fatigue or over exertion. Or that there must have been heart failure due to some
factors. Our view is supported by the fact that Labiyo asked permission to sleep at an
early hour in the morning of February 17. Why he asked permission to sleep must
have been due to the fact that he was actually very tired and exhausted due to the
continuous performance of their work from February 10 to 17. If work was not heavy
that morning or previous to it, and that the complement was already resting, there
was no necessity for the deceased to plead for sleep. Moreover, the allegation that his
stomach was full of food cannot be given weight because at 4:00 a.m. any meal taken
in the evening however late it may have been was already digested.
Petitioner now assails the Commission's finding that Eduardo Labiyo "must have died
due to over fatigue or over exertion," arguing that said conclusion is not at all
supported by the result of the autopsy which traced the cause of the deceased's
death to "bangungot." In taking issue with the Commission's conclusion, it is pointed
out, first, that the deceased could not have over exerted himself since he was not
performing any physical or manual labor previous to his death; and second, that the
nature of the deceased's work gave him more than ample time to rest and
sleep.chanroblesvirtualawlibrarychanrobles virtual law library
We do not think that the main point pressed by petitioner, namely, that death caused
by "bangungot" is not compensable, is at all decisive in the case at bar. What is not
denied, and this is crucial insofar as the compensability of Eduardo Labiyo's death is
concerned, is that when death came to the deceased he was in active duty as an
engineer-employee of the petitioner. This being the case, the need to pinpoint the
cause of his death as work - connected in Order to render it compensable assumes
very little importance. "(It) is to be presumed, under section 44 of the Workmen's
Compensation Act, as amended, that the employee's death, supervening at the time
of his employment, either arose out of, or was at least aggravated by said
employment. With this legal presumption the burden of proof shifts to the employer,
and the employee is relieved of the burden to show causation. ... The mere opinion of
doctors presented by petitioner as evidence cannot prevail over the presumption
established by law." (Abana vs. Quisumbing, 22 SCRA 1278, 1282)chanrobles virtual
law library
The liberal attitude displayed by this Court in considering as compensable the death
by heart attack of an off-duty employee helping in the loading operation of a vessel
(William Lines, Inc. vs. Sanopal, 42 SCRA 48), or the disappearance of an off-duty crew
member of a vessel who has no choice but to be in the vessel during the voyage
(Aboitiz Shipping Corporation vs. Pepito, 18 SCRA 1028), or the death by drowning of
an employee whose duty was to watch over and take charge of a barge in the absence
of the patron (Luzon Stevedoring Co., Inc. vs. Workmen's Compensation Commission,
10 SCRA 207), proceeds from an awareness of the fact that when an employee
undertakes to satisfy, in the course of employment, certain human wants, i.e. eating,
freshening up, sleeping and the like, "and something takes place that may cause
injury, harm or death to the employee or laborer, it is fair and logical that the
happening be considered as one occurring in the course of employment for under the
circumstances it cannot be undertaken in any other way" (Luzon Stevedoring Co., Inc.
vs. Workmen's Compensation Commission, supra), unless it can be clearly shown that
the mishap occurred because the employee acted beyond his duty or outside the
course of employment, which is not so in the case at bar. For aside from the
conclusion arrived at by the medicolegal officer who conducted the autopsy that
"bangungot" was the cause of Eduardo Labiyo's death, * there was hardly anything
else that would disconnect the deceased's death from his employment, In other
words, petitioner had not proved that death was not and could not be caused or
aggravated by the deceased's work as engineer who, at the time of his death, was
practically on 24-hour continuous duty.chanroblesvirtualawlibrarychanrobles virtual
law library
The petitioner's reliance on the case of Luzon Brokerage Co., Inc. vs. Dayao, et al., 105
Phil. 525, particularly that portion of the decision which reads:
That Antonio Dayao died of heart failure is not disputed. The point of controversy is:
what caused such failure? Was it - as the petitioner Company claims - a natural
disease locally called 'bangungot' where the victim dies in his sleep allegedly due to
bad dreams or nightmares? If this be the case then the death is not compensable. Or,
was it - as maintained by the respondents - the over-exertion or undue fatigue their
deceased father suffered in helping lift, carry and transfer from one place to another
the heavy household effects belonging to Mr. Karning or Cummins? If this be the
cause then the death is compensable.
is misplaced to justify its claim of non-liability under the Workmen's Compensation
Act. The aforequoted portion of the decision was evidently intended merely to
emphasize that in said case the theory that "bangungot" could have caused the
deceased's death appeared to be tenuous, there being competent contrary evidence
that excessive exertion and physical strain accounted for the deceased's heart failure,
In fact, in the very same case doubt was expressed as to the soundness of the theory
that "bangungot" by itself can be the cause of death, thus:
Although the enlightening points ... brought out about the dreaded disease are
worthy of note, still the inescapable conclusion is that 'bangungot' is still a theoretical
disease - whose remote and immediate cause, pathology and cure have not as yet
been accurately determined and scientifically established and confirmed. Whether it
is a natural phenomenon that by itself can destroy or snuff the life out of a human
being is still a question to which medical science has yet to give a more definite and
conclusive answer. That 'bangungot' is still veiled in its own mystery is openly
admitted by Dr. Santa Cruz who, on the witness stand, declared that 'until now, the
real cause of bangungot is not known and that its pathology cannot be found in any
textbook on medicine.
The decision under review is affirmed, with costs against the petitioner.
EN BANC G.R. No. L-9637 April 30, 1957
AMERICAN BIBLE SOCIETY, Plaintiff-Appellant, vs. CITY OF MANILA, Defendant-
Appellee.
FELIX, J.:
Plaintiff-appellant is a foreign, non-stock, non-profit, religious, missionary corporation
duly registered and doing business in the Philippines through its Philippine agency
established in Manila in November, 1898, with its principal office at 636 Isaac Peral in
said City. The defendant appellee is a municipal corporation with powers that
are to be exercised in conformity with the provisions of Republic Act No. 409, known
as the Revised Charter of the City of Manila.
In the course of its ministry, plaintiff's Philippine agency has been distributing and
selling bibles and/or gospel portions thereof (except during the Japanese occupation)
throughout the Philippines and translating the same into several Philippine dialects.
On May 29 1953, the acting City Treasurer of the City of Manila informed plaintiff that
it was conducting the business of general merchandise since November, 1945,
without providing itself with the necessary Mayor's permit and municipal license, in
violation of Ordinance No. 3000, as amended, and Ordinances Nos. 2529, 3028 and
3364, and required plaintiff to secure, within three days, the corresponding permit
and license fees, together with compromise covering the period from the 4th quarter
of 1945 to the 2nd quarter of 1953, in the total sum of P5,821.45 (Annex A).
Plaintiff protested against this requirement, but the City Treasurer demanded that
plaintiff deposit and pay under protest the sum of P5,891.45, if suit was to be taken in
court regarding the same (Annex B). To avoid the closing of its business as well as
further fines and penalties in the premises on October 24, 1953, plaintiff paid to the
defendant under protest the said permit and license fees in the aforementioned
amount, giving at the same time notice to the City Treasurer that suit would be taken
in court to question the legality of the ordinances under which, the said fees were
being collected (Annex C), which was done on the same date by filing the complaint 3rd quarter 1946 2,235.99
that gave rise to this action. In its complaint plaintiff prays that judgment be rendered
declaring the said Municipal Ordinance No. 3000, as amended, and Ordinances Nos. 4th quarter 1946 3,256.04
2529, 3028 and 3364 illegal and unconstitutional, and that the defendant be ordered
to refund to the plaintiff the sum of P5,891.45 paid under protest, together with legal 1st quarter 1947 13,241.07
interest thereon, and the costs, plaintiff further praying for such other relief and
remedy as the court may deem just equitable. 2nd quarter 1947 15,774.55

Defendant answered the complaint, maintaining in turn that said ordinances were 3rd quarter 1947 14,654.13
enacted by the Municipal Board of the City of Manila by virtue of the power granted
to it by section 2444, subsection (m-2) of the Revised Administrative Code, 4th quarter 1947 12,590.94
superseded on June 18, 1949, by section 18, subsection (1) of Republic Act No. 409,
known as the Revised Charter of the City of Manila, and praying that the complaint be 1st quarter 1948 11,143.90
dismissed, with costs against plaintiff. This answer was replied by the plaintiff
reiterating the unconstitutionality of the often-repeated ordinances. 2nd quarter 1948 14,715.26

Before trial the parties submitted the following stipulation of facts: 3rd quarter 1948 38,333.83

COME NOW the parties in the above-entitled case, thru their undersigned attorneys 4th quarter 1948 16,179.90
and respectfully submit the following stipulation of facts:
1st quarter 1949 23,975.10
1. That the plaintiff sold for the use of the purchasers at its principal office at 636 Isaac
Peral, Manila, Bibles, New Testaments, bible portions and bible concordance in 2nd quarter 1949 17,802.08
English and other foreign languages imported by it from the United States as well as
Bibles, New Testaments and bible portions in the local dialects imported and/or 3rd quarter 1949 16,640.79
purchased locally; that from the fourth quarter of 1945 to the first quarter of 1953
inclusive the sales made by the plaintiff were as follows: 4th quarter 1949 15,961.38

Quarter Amount of Sales 1st quarter 1950 18,562.46

4th quarter 1945 P1,244.21 2nd quarter 1950 21,816.32

3rd quarter 1950 25,004.55
1st quarter 1946 2,206.85
4th quarter 1950 45,287.92
2nd quarter 1946 1,950.38
1st quarter 1951 37,841.21

2nd quarter 1951
3rd quarter 1951
4th quarter 1951
bearing the price of 70 cents each from plaintiff-appellant's New York office are sold
29,103.98 here by plaintiff-appellant at P1.30 each; those bearing the price of $4.50 each are
sold here at P10 each; those bearing the price of $7 each are sold here at P15 each;
20,181.10 and those bearing the price of $11 each are sold here at P22 each, clearly show that
plaintiff's contention that it never makes any profit from the sale of its bible, is
22,968.91 evidently untenable.

1st quarter 1952 23,002.65 After hearing the Court rendered judgment, the last part of which is as follows:

2nd quarter 1952
3rd quarter 1952
4th quarter 1952
1st quarter 1953
17,626.96 As may be seen from the repealed section (m-2) of the Revised Administrative Code
and the repealing portions (o) of section 18 of Republic Act No. 409, although they
17,921.01 seemingly differ in the way the legislative intent is expressed, yet their meaning is
practically the same for the purpose of taxing the merchandise mentioned in said
24,180.72 legal provisions, and that the taxes to be levied by said ordinances is in the nature of
percentage graduated taxes (Sec. 3 of Ordinance No. 3000, as amended, and Sec. 1,
29,516.21 Group 2, of Ordinance No. 2529, as amended by Ordinance No. 3364).

2. That the parties hereby reserve the right to present evidence of other facts not
herein stipulated.
WHEREFORE, it is respectfully prayed that this case be set for hearing so that the
parties may present further evidence on their behalf. (Record on Appeal, pp. 15-16).
When the case was set for hearing, plaintiff proved, among other things, that it has
been in existence in the Philippines since 1899, and that its parent society is in New
York, United States of America; that its, contiguous real properties located at Isaac
Peral are exempt from real estate taxes; and that it was never required to pay any
municipal license fee or tax before the war, nor does the American Bible Society in the
United States pay any license fee or sales tax for the sale of bible therein. Plaintiff
further tried to establish that it never made any profit from the sale of its bibles,
which are disposed of for as low as one third of the cost, and that in order to maintain
its operating cost it obtains substantial remittances from its New York office and
voluntary contributions and gifts from certain churches, both in the United States and
in the Philippines, which are interested in its missionary work. Regarding plaintiff's
contention of lack of profit in the sale of bibles, defendant retorts that the admissions
of plaintiff-appellant's lone witness who testified on cross-examination that bibles
IN VIEW OF THE FOREGOING CONSIDERATIONS, this Court is of the opinion and so
holds that this case should be dismissed, as it is hereby dismissed, for lack of merits,
with costs against the plaintiff.
Not satisfied with this verdict plaintiff took up the matter to the Court of Appeals
which certified the case to Us for the reason that the errors assigned to the lower
Court involved only questions of law.
Appellant contends that the lower Court erred:
1. In holding that Ordinances Nos. 2529 and 3000, as respectively amended, are not
unconstitutional;
2. In holding that subsection m-2 of Section 2444 of the Revised Administrative Code
under which Ordinances Nos. 2592 and 3000 were promulgated, was not repealed by
Section 18 of Republic Act No. 409;
3. In not holding that an ordinance providing for taxes based on gross sales or
receipts, in order to be valid under the new Charter of the City of Manila, must first be
approved by the President of the Philippines; and
4. In holding that, as the sales made by the plaintiff-appellant have assumed
commercial proportions, it cannot escape from the operation of said municipal
ordinances under the cloak of religious privilege.
The issues. - As may be seen from the proceeding statement of the case, the issues
involved in the present controversy may be reduced to the following: (1) whether or
not the ordinances of the City of Manila, Nos. 3000, as amended, and 2529, 3028 and
3364, are constitutional and valid; and (2) whether the provisions of said ordinances
are applicable or not to the case at bar.
Section 1, subsection (7) of Article III of the Constitution of the Republic of the
Philippines, provides that:
(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 religion
test shall be required for the exercise of civil or political rights.
Predicated on this constitutional mandate, plaintiff-appellant contends that
Ordinances Nos. 2529 and 3000, as respectively amended, are unconstitutional and
illegal in so far as its society is concerned, because they provide for religious
censorship and restrain the free exercise and enjoyment of its religious profession, to
wit: the distribution and sale of bibles and other religious literature to the people of
the Philippines.
Before entering into a discussion of the constitutional aspect of the case, We shall first
consider the provisions of the questioned ordinances in relation to their application to
the sale of bibles, etc. by appellant. The records, show that by letter of May 29, 1953
(Annex A), the City Treasurer required plaintiff to secure a Mayor's permit in
connection with the society's alleged business of distributing and selling bibles, etc.
and to pay permit dues in the sum of P35 for the period covered in this litigation, plus
the sum of P35 for compromise on account of plaintiff's failure to secure the permit
required by Ordinance No. 3000 of the City of Manila, as amended. This Ordinance is
of general application and not particularly directed against institutions like the
plaintiff, and it does not contain any provisions whatever prescribing religious
censorship nor restraining the free exercise and enjoyment of any religious
profession. Section 1 of Ordinance No. 3000 reads as follows:
SEC. 1. PERMITS NECESSARY. - It shall be unlawful for any person or entity to conduct
or engage in any of the businesses, trades, or occupations enumerated in Section 3 of
this Ordinance or other businesses, trades, or occupations for which a permit is
required for the proper supervision and enforcement of existing laws and ordinances
governing the sanitation, security, and welfare of the public and the health of the
employees engaged in the business specified in said section 3 hereof, WITHOUT FIRST
HAVING OBTAINED A PERMIT THEREFOR FROM THE MAYOR AND THE NECESSARY
LICENSE FROM THE CITY TREASURER.
The business, trade or occupation of the plaintiff involved in this case is not
particularly mentioned in Section 3 of the Ordinance, and the record does not show
that a permit is required therefor under existing laws and ordinances for the proper
supervision and enforcement of their provisions governing the sanitation, security and
welfare of the public and the health of the employees engaged in the business of the
plaintiff. However, sections 3 of Ordinance 3000 contains item No. 79, which reads as
follows:
79. All other businesses, trades or occupations not
mentioned in this Ordinance, except those upon which the
City is not empowered to license or to tax P5.00
Therefore, the necessity of the permit is made to depend upon the power of the City
to license or tax said business, trade or occupation.
As to the license fees that the Treasurer of the City of Manila required the society to
pay from the 4th quarter of 1945 to the 1st quarter of 1953 in the sum of P5,821.45,
including the sum of P50 as compromise, Ordinance No. 2529, as amended by
Ordinances Nos. 2779, 2821 and 3028 prescribes the following:
SEC. 1. FEES. - Subject to the provisions of section 578 of the Revised Ordinances of
the City of Manila, as amended, there shall be paid to the City Treasurer for engaging
in any of the businesses or occupations below enumerated, quarterly, license fees
based on gross sales or receipts realized during the preceding quarter in accordance
with the rates herein prescribed: PROVIDED, HOWEVER, That a person engaged in any
businesses or occupation for the first time shall pay the initial license fee based on the
probable gross sales or receipts for the first quarter beginning from the date of the
opening of the business as indicated herein for the corresponding business or
occupation.
xxx xxx xxx
GROUP 2. - Retail dealers in new (not yet used) merchandise, which dealers are not
yet subject to the payment of any municipal tax, such as (1) retail dealers in general
merchandise; (2) retail dealers exclusively engaged in the sale of . . . books, including
stationery.
xxx xxx xxx
As may be seen, the license fees required to be paid quarterly in Section 1 of said
Ordinance No. 2529, as amended, are not imposed directly upon any religious
institution but upon those engaged in any of the business or occupations therein
enumerated, such as retail "dealers in general merchandise" which, it is alleged, cover
the business or occupation of selling bibles, books, etc.
Chapter 60 of the Revised Administrative Code which includes section 2444,
subsection (m-2) of said legal body, as amended by Act No. 3659, approved on
December 8, 1929, empowers the Municipal Board of the City of Manila:
(M-2) To tax and fix the license fee on (a) dealers in new automobiles or accessories
or both, and (b) retail dealers in new (not yet used) merchandise, which dealers are
not yet subject to the payment of any municipal tax.
For the purpose of taxation, these retail dealers shall be classified as (1) retail dealers
in general merchandise, and (2) retail dealers exclusively engaged in the sale of (a)
textiles . . . (e) books, including stationery, paper and office supplies, . . .: PROVIDED,
HOWEVER, That the combined total tax of any debtor or manufacturer, or both,
enumerated under these subsections (m-1) and (m-2), whether dealing in one or all of
the articles mentioned herein, SHALL NOT BE IN EXCESS OF FIVE HUNDRED PESOS PER
ANNUM.
and appellee's counsel maintains that City Ordinances Nos. 2529 and 3000, as
amended, were enacted in virtue of the power that said Act No. 3669 conferred upon
the City of Manila. Appellant, however, contends that said ordinances are longer in
force and effect as the law under which they were promulgated has been expressly
repealed by Section 102 of Republic Act No. 409 passed on June 18, 1949, known as
the Revised Manila Charter.
Passing upon this point the lower Court categorically stated that Republic Act No. 409
expressly repealed the provisions of Chapter 60 of the Revised Administrative Code
but in the opinion of the trial Judge, although Section 2444 (m-2) of the former Manila
Charter and section 18 (o) of the new seemingly differ in the way the legislative intent
was expressed, yet their meaning is practically the same for the purpose of taxing the
merchandise mentioned in both legal provisions and, consequently, Ordinances Nos.
2529 and 3000, as amended, are to be considered as still in full force and effect
uninterruptedly up to the present.
Often the legislature, instead of simply amending the pre-existing statute, will repeal
the old statute in its entirety and by the same enactment re-enact all or certain
portions of the preexisting law. Of course, the problem created by this sort of
legislative action involves mainly the effect of the repeal upon rights and liabilities
which accrued under the original statute. Are those rights and liabilities destroyed or
preserved? The authorities are divided as to the effect of simultaneous repeals and re-
enactments. Some adhere to the view that the rights and liabilities accrued under the
repealed act are destroyed, since the statutes from which they sprang are actually
terminated, even though for only a very short period of time. Others, and they seem
to be in the majority, refuse to accept this view of the situation, and consequently
maintain that all rights an liabilities which have accrued under the original statute are
preserved and may be enforced, since the re-enactment neutralizes the repeal,
therefore, continuing the law in force without interruption. (Crawford-Statutory
Construction, Sec. 322).
Appellant's counsel states that section 18 (o) of Republic Act No, 409 introduces a
new and wider concept of taxation and is different from the provisions of Section
2444(m-2) that the former cannot be considered as a substantial re-enactment of the
provisions of the latter. We have quoted above the provisions of section 2444(m-2) of
the Revised Administrative Code and We shall now copy hereunder the provisions of
Section 18, subdivision (o) of Republic Act No. 409, which reads as follows:
(o) To tax and fix the license fee on dealers in general merchandise, including
importers and indentors, except those dealers who may be expressly subject to the
payment of some other municipal tax under the provisions of this section.
Dealers in general merchandise shall be classified as (a) wholesale dealers and (b)
retail dealers. For purposes of the tax on retail dealers, general merchandise shall be
classified into four main classes: namely (1) luxury articles, (2) semi-luxury articles, (3)
essential commodities, and (4) miscellaneous articles. A separate license shall be
prescribed for each class but where commodities of different classes are sold in the
same establishment, it shall not be compulsory for the owner to secure more than
one license if he pays the higher or highest rate of tax prescribed by ordinance.
Wholesale dealers shall pay the license tax as such, as may be provided by ordinance.
For purposes of this section, the term "General merchandise" shall include poultry
and livestock, agricultural products, fish and other allied products.
The only essential difference that We find between these two provisions that may
have any bearing on the case at bar, is that, while subsection (m-2) prescribes that the
combined total tax of any dealer or manufacturer, or both, enumerated under
subsections (m-1) and (m-2), whether dealing in one or all of the articles mentioned
therein, shall not be in excess of P500 per annum, the corresponding section 18,
subsection (o) of Republic Act No. 409, does not contain any limitation as to the
amount of tax or license fee that the retail dealer has to pay per annum. Hence, and in
accordance with the weight of the authorities above referred to that maintain that
"all rights and liabilities which have accrued under the original statute are preserved
and may be enforced, since the reenactment neutralizes the repeal, therefore
continuing the law in force without interruption", We hold that the questioned
ordinances of the City of Manila are still in force and effect.
Plaintiff, however, argues that the questioned ordinances, to be valid, must first be
approved by the President of the Philippines as per section 18, subsection (ii) of
Republic Act No. 409, which reads as follows:
(ii) To tax, license and regulate any business, trade or occupation being conducted
within the City of Manila, not otherwise enumerated in the preceding subsections,
including percentage taxes based on gross sales or receipts, subject to the approval of
the PRESIDENT, except amusement taxes.
but this requirement of the President's approval was not contained in section 2444 of
the former Charter of the City of Manila under which Ordinance No. 2529 was
promulgated. Anyway, as stated by appellee's counsel, the business of "retail dealers
in general merchandise" is expressly enumerated in subsection (o), section 18 of
Republic Act No. 409; hence, an ordinance prescribing a municipal tax on said
business does not have to be approved by the President to be effective, as it is not
among those referred to in said subsection (ii). Moreover, the questioned ordinances
are still in force, having been promulgated by the Municipal Board of the City of
Manila under the authority granted to it by law.
The question that now remains to be determined is whether said ordinances are
inapplicable, invalid or unconstitutional if applied to the alleged business of
distribution and sale of bibles to the people of the Philippines by a religious
corporation like the American Bible Society, plaintiff herein.
With regard to Ordinance No. 2529, as amended by Ordinances Nos. 2779, 2821 and
3028, appellant contends that it is unconstitutional and illegal because it restrains the
free exercise and enjoyment of the religious profession and worship of appellant.
Article III, section 1, clause (7) of the Constitution of the Philippines aforequoted,
guarantees the freedom of religious profession and worship. "Religion has been
spoken of as a profession of faith to an active power that binds and elevates man to
its Creator" (Aglipay vs. Ruiz, 64 Phil., 201).It 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 (Davis vs. Beason, 133 U.S., 342). The
constitutional guaranty of the free exercise and enjoyment of religious profession and
worship carries with it the right to disseminate religious information. Any restraints 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". (Ta�ada and Fernando on the Constitution of the
Philippines, Vol. 1, 4th ed., p. 297). In the case at bar the license fee herein involved is
imposed upon appellant for its distribution and sale of bibles and other religious
literature:
In the case of Murdock vs. Pennsylvania, it was held that an ordinance requiring that a
license be obtained before a person could canvass or solicit orders for goods,
paintings, pictures, wares or merchandise cannot be made to apply to members of
Jehovah's Witnesses who went about from door to door distributing literature and
soliciting people to "purchase" certain religious books and pamphlets, all published by
the Watch Tower Bible & Tract Society. The "price" of the books was twenty-five cents
each, the "price" of the pamphlets five cents each. It was shown that in making the
solicitations there was a request for additional "contribution" of twenty-five cents
each for the books and five cents each for the pamphlets. Lesser sum were accepted,
however, and books were even donated in case interested persons were without
funds.
On the above facts the Supreme Court held that it could not be said that petitioners
were engaged in commercial rather than a religious venture. Their activities could not
be described as embraced in the occupation of selling books and pamphlets. Then the
Court continued:
"We do not mean to say that religious groups and the press are free from all financial
burdens of government. See Grosjean vs. American Press Co., 297 U.S., 233, 250, 80 L.
ed. 660, 668, 56 S. Ct. 444. We have here something quite different, for example,
from a tax on the income of one who engages in religious activities or a tax on
property used or employed in connection with activities. It is one thing to impose a
tax on the income or property of a preacher. It is quite another to exact a tax from
him for the privilege of delivering a sermon. The tax imposed by the City of Jeannette
is a flat license tax, payment of which is a condition of the exercise of these
constitutional privileges. The power to tax the exercise of a privilege is the power to
control or suppress its enjoyment. . . . Those who can tax the exercise of this religious
practice can make its exercise so costly as to deprive it of the resources necessary for
its maintenance. Those who can tax the privilege of engaging in this form of
missionary evangelism can close all its doors to all those who do not have a full purse.
Spreading religious beliefs in this ancient and honorable manner would thus be
denied the needy. . . .
It is contended however that the fact that the license tax can suppress or control this
activity is unimportant if it does not do so. But that is to disregard the nature of this
tax. It is a license tax - a flat tax imposed on the exercise of a privilege granted by the
Bill of Rights . . . The power to impose a license tax on the exercise of these freedom is
indeed as potent as the power of censorship which this Court has repeatedly struck
down. . . . It is not a nominal fee imposed as a regulatory measure to defray the
expenses of policing the activities in question. It is in no way apportioned. It is flat
license tax levied and collected as a condition to the pursuit of activities whose
enjoyment is guaranteed by the constitutional liberties of press and religion and
inevitably tends to suppress their exercise. That is almost uniformly recognized as the
inherent vice and evil of this flat license tax."
Nor could dissemination of religious information be conditioned upon the approval of
an official or manager even if the town were owned by a corporation as held in the
case of Marsh vs. State of Alabama (326 U.S. 501), or by the United States itself as
held in the case of Tucker vs. Texas (326 U.S. 517). In the former case the Supreme
Court expressed the opinion that the right to enjoy freedom of the press and religion
occupies a preferred position as against the constitutional right of property owners.
"When we balance the constitutional rights of owners of property against those of the
people to enjoy freedom of press and religion, as we must here, we remain mindful of
the fact that the latter occupy a preferred position. . . . In our view the circumstance
that the property rights to the premises where the deprivation of property here
involved, took place, were held by others than the public, is not sufficient to justify
the State's permitting a corporation to govern a community of citizens so as to restrict
their fundamental liberties and the enforcement of such restraint by the application
of a State statute." (Ta�ada and Fernando on the Constitution of the Philippines, Vol.
1, 4th ed., p. 304-306).
Section 27 of Commonwealth Act No. 466, otherwise known as the National Internal
Revenue Code, provides:
SEC. 27. EXEMPTIONS FROM TAX ON CORPORATIONS. - The following organizations though it prohibits him from introducing and carrying out a scheme or purpose which
shall not be taxed under this Title in respect to income received by them as such - he sees fit to claim as a part of his religious system.

(e) Corporations or associations organized and operated exclusively for religious,
charitable, . . . or educational purposes, . . .: Provided, however, That the income of
whatever kind and character from any of its properties, real or personal, or from any
activity conducted for profit, regardless of the disposition made of such income, shall
be liable to the tax imposed under this Code;
Appellant's counsel claims that the Collector of Internal Revenue has exempted the
plaintiff from this tax and says that such exemption clearly indicates that the act of
distributing and selling bibles, etc. is purely religious and does not fall under the above
legal provisions.
It may be true that in the case at bar the price asked for the bibles and other religious
pamphlets was in some instances a little bit higher than the actual cost of the same
but this cannot mean that appellant was engaged in the business or occupation of
selling said "merchandise" for profit. For this reason We believe that the provisions of
City of Manila Ordinance No. 2529, as amended, cannot be applied to appellant, for in
doing so it would impair its free exercise and enjoyment of its religious profession and
worship as well as its rights of dissemination of religious beliefs.
It seems clear, therefore, that Ordinance No. 3000 cannot be considered
unconstitutional, even if applied to plaintiff Society. But as Ordinance No. 2529 of the
City of Manila, as amended, is not applicable to plaintiff-appellant and defendant-
appellee is powerless to license or tax the business of plaintiff Society involved herein
for, as stated before, it would impair plaintiff's right to the free exercise and
enjoyment of its religious profession and worship, as well as its rights of dissemination
of religious beliefs, We find that Ordinance No. 3000, as amended is also inapplicable
to said business, trade or occupation of the plaintiff.
Wherefore, and on the strength of the foregoing considerations, We hereby reverse
the decision appealed from, sentencing defendant return to plaintiff the sum of
P5,891.45 unduly collected from it. Without pronouncement as to costs. It is so
ordered.

With respect to Ordinance No. 3000, as amended, which requires the obtention the
Mayor's permit before any person can engage in any of the businesses, trades or
occupations enumerated therein, We do not find that it imposes any charge upon the
enjoyment of a right granted by the Constitution, nor tax the exercise of religious
practices. In the case of Coleman vs. City of Griffin, 189 S.E. 427, this point was
elucidated as follows:

An ordinance by the City of Griffin, declaring that the practice of distributing either by
hand or otherwise, circulars, handbooks, advertising, or literature of any kind,
whether said articles are being delivered free, or whether same are being sold within
the city limits of the City of Griffin, without first obtaining written permission from the
city manager of the City of Griffin, shall be deemed a nuisance and punishable as an EN BANC  G.R. No. 95770 March 1, 1993
offense against the City of Griffin, does not deprive defendant of his constitutional
right of the free exercise and enjoyment of religious profession and worship, even
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.
x x x           x x x          x x x
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 without or in excess of their jurisdiction and with grave abuse of discretion — (1) in
the "dropping from the rolls" of students who "opted to follow their religious belief ordering their expulsion without prior notice and hearing, hence, in violation of their
which is against the Flag Salute Law" on the theory that "they forfeited their right to right to due process, their right to free public education, and their right to freedom
attend public schools." (p. 47, Rollo of G.R. No. 95770.) of speech, religion and worship (p. 23, Rollo). The petitioners pray that:

1st Indorsement c. Judgment be rendered:

DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990. i. declaring null and void the expulsion or dropping
from the rolls of herein petitioners from their
Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic], respective schools;
Agujo Elementary School with the information that this office is sad
to order the dropping of Jeremias Diamos and Jeaneth Diamos, ii. prohibiting and enjoining respondent from further
Grades III and IV pupils respectively from the roll since they opted to barring the petitioners from their classes or otherwise
follow their religious belief which is against the Flag Salute Law (R.A. implementing the expulsion ordered on petitioners;
1265) and DECS Order No. 8, series of 1955, having elected not to and
comply with the regulation about the flag salute they forfeited their
right to attend public schools (Gerona, et al. vs. Sec. of Education, et iii. compelling the respondent and all persons acting
al., 106 Philippines 15). However, should they change their mind to for him to admit and order the re-admission of
respect and follow the Flag Salute Law they may be re-accepted. petitioners to their respective schools. (p. 41, Rollo.)

(Sgd.) MANUEL F. and that pending the determination of the merits of these cases, a temporary
BIONGCOG restraining order be issued enjoining the respondents from enforcing the expulsion
District Supervisor of the petitioners and to re-admit them to their respective classes.

(p. 47, Rollo of G.R. No. 95770.) On November 27, 1990, the Court issued a temporary restraining order and a writ of
preliminary mandatory injunction commanding the respondents to immediately re-
The expulsion as of October 23, 1990 of the 43 petitioning students of the admit the petitioners to their respective classes until further orders from this Court
Daanbantayan National High School, Agujo Elementary School, Calape Barangay (p. 57, Rollo).
National High School, Pinamungajan Provincial High School, Tabuelan Central
School, Canasojan Elementary School, Liboron Elementary School, Tagaytay The Court also ordered the Secretary of Education and Cebu District Supervisor
Primary School, San Juan Primary School and Northern Central Elementary School Manuel F. Biongcog to be impleaded as respondents in these cases.
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
On May 13, 1991, the Solicitor General filed a consolidated comment to the petitions
Education Isidro Cariño but the latter did not answer their letter. (p. 21, Rollo.)
(p. 98, Rollo) defending the expulsion orders issued by the public respondents on
the grounds that:
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
1. Bizarre religious practices of the Jehovah's Witnesses produce
Superintendent of Schools, would not recall the expulsion orders of his
rebellious and anti-social school children and consequently disloyal
predecessor. Instead, he verbally caused the expulsion of some more children of
and mutant Filipino citizens.
Jehovah's Witnesses.
2. There are no new and valid grounds to sustain the charges of the
On October 31, 1990, the students and their parents filed these special civil actions
Jehovah's Witnesses that the DECS' rules and regulations on the flag
for Mandamus, Certiorari and Prohibition alleging that the public respondents acted
 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.)
Moreover, the expulsion of members of Jehovah's Witnesses from the schools
where they are 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.
Dames II, 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 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.
SO ORDERED.
 the traditional interest of parents with respect to the religious upbringing of their
children. Pp. 406 U. S. 213-215.
U.S. Supreme Court
2. Respondents have amply supported their claim that enforcement of the
Wisconsin v. Yoder, 406 U.S. 205 (1972) compulsory formal education requirement after the eighth grade would gravely
endanger if not destroy the free exercise of their religious beliefs. Pp. 406 U.S.
Wisconsin v. Yoder 215-219

No. 70-110 3. Aided by a history of three centuries as an identifiable religious sect and a
long history as a successful and self-sufficient segment of American society,
Argued December 8, 1971 the Amish have demonstrated the sincerity of their religious beliefs, the
interrelationship of belief with their mode of life, the vital role that belief and
daily conduct play in the continuing survival of Old Order Amish communities,
Decided May 15, 1972
and the hazards presented by the State's enforcement of a statute generally
valid as to others. Beyond this, they have carried the difficult burden of
406 U.S. 205
demonstrating the adequacy of their alternative mode of continuing informal
vocational education in terms of the overall interest that the State relies on in
Syllabus
support of its program of compulsory high school education. In light of this
showing, and weighing the minimal difference between what the State would
Respondents, members of the Old Order Amish religion and the Conservative
require and what the Amish already accept, it was incumbent on the State to
Amish Mennonite Church, were convicted of violating Wisconsin's compulsory
show with more particularity how its admittedly strong interest in compulsory
school attendance law (which requires a child's school attendance until age 16)
education would be adversely affected by granting an exemption to the Amish.
by declining to send their children to public or private school after they had
Pp. 406 U. S. 212-29, 406 U. S. 234-236.
graduated from the eighth grade. The evidence showed that the Amish provide
continuing informal vocational education to their children designed to prepare
4. The State's claim that it is empowered, as parens patriae, to extend the
them for life in the rural Amish community. The evidence also showed that
benefit of secondary education to children regardless of the wishes of their
respondents sincerely believed that high school attendance was contrary to the
parents cannot be sustained against a free exercise claim of the nature
Amish religion and way of life, and that they would endanger their own
revealed by this record, for the Amish have introduced convincing evidence
salvation and that of their children by complying with the law. The State
that accommodating their religious objections by forgoing one or two additional
Supreme Court sustained respondents' claim that application of the compulsory
years of compulsory education will not impair the physical or mental health of
school attendance law to them violated their rights under the Free Exercise
the child, or result in an inability to be self-supporting or to discharge the duties
Clause of the First Amendment, made applicable to the States by the
and responsibilities of citizenship, or in any other way materially detract from
Fourteenth Amendment.
the welfare of society. Pp. 406 U. S. 229-234.
Held:
49 Wis.2d 430, 182 N.W.2d 539, affirmed.
1. The State's interest in universal education is not totally free from a balancing
BURGER, C.J., delivered the opinion of the Court, in which BRENNAN,
process when it impinges on other fundamental rights, such as those
STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEWART, J.,
specifically protected by the Free Exercise Clause of the First Amendment and
filed a concurring opinion, in which BRENNAN, J., joined, post, p. 406 U. S.
237. WHITE, J., filed a concurring opinion, in which BRENNAN and
STEWART, JJ., joined, post, p. 406 U. S. 237. DOUGLAS, J., filed an opinion
dissenting in part, post, p. 406 U. S. 241. POWELL and REHNQUIST, JJ., took
no part in the consideration or decision of the case.

Page 406 U. S. 207

EN BANC

[A.M. NO. P-02-1651 : June 22, 2006]

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

ALEJANDRO ESTRADA, Complainant, v. SOLEDAD S.
ESCRITOR, Respondent.

RESOLUTION

PUNO, J.:

While man is finite, he seeks and subscribes to the Infinite. Respondent

Soledad Escritor once again stands before the Court invoking her religious
freedom and her Jehovah God in a bid to save her family - united without the
benefit of legal marriage - and livelihood. The State, on the other hand, seeks
to wield its power to regulate her behavior and protect its interest in marriage
and family and the integrity of the courts where respondent is an employee.
How the Court will tilt the scales of justice in the case at bar will decide not
only the fate of respondent Escritor but of other believers coming to Court
bearing grievances on their free exercise of religion. This case comes to us
from our remand to the Office of the Court Administrator on August 4, 2003. 1
I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro
Estrada requested Judge Jose F. Caoibes, Jr., presiding judge of Branch 253,
Regional Trial Court of Las Piñas City, for an investigation of respondent
Soledad Escritor, court interpreter in said court, for living with a man not her
husband, and having borne a child within this live-in arrangement. Estrada
believes that Escritor is committing an immoral act that tarnishes the image of
the court, thus she should not be allowed to remain employed therein as it
might appear that the court condones her act. 2 Consequently, respondent was
charged with committing "disgraceful and immoral conduct" under Book V,
Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code. 3
Respondent Escritor testified that when she entered the judiciary in 1999, she
was already a widow, her husband having died in 1998.4 She admitted that she
started living with Luciano Quilapio, Jr. without the benefit of marriage more
than twenty years ago when her husband was still alive but living with another
woman. She also admitted that she and Quilapio have a son. 5 But as a
member of the religious sect known as the Jehovah's Witnesses and the Watch
Tower and Bible Tract Society, respondent asserted that their conjugal
arrangement is in conformity with their religious beliefs and has the approval
of her congregation.6 In fact, after ten years of living together, she executed
on July 28, 1991, a "Declaration of Pledging Faithfulness." 7
For Jehovah's Witnesses, the Declaration allows members of the congregation
who have been abandoned by their spouses to enter into marital relations. The
Declaration thus makes the resulting union moral and binding within the
congregation all over the world except in countries where divorce is allowed.
As laid out by the tenets of their faith, the Jehovah's congregation requires
that at the time the declarations are executed, the couple cannot secure the
civil authorities' approval of the marital relationship because of legal
impediments. Only couples who have been baptized and in good standing may
execute the Declaration, which requires the approval of the elders of the
congregation. As a matter of practice, the marital status of the declarants and
their respective spouses' commission of adultery are investigated before the
declarations are executed.8 Escritor and Quilapio's declarations were executed
in the usual and approved form prescribed by the Jehovah's
Witnesses,9 approved by elders of the congregation where the declarations
were executed,10 and recorded in the Watch Tower Central Office.11
Moreover, the Jehovah's congregation believes that once all legal impediments
for the couple are lifted, the validity of the declarations ceases, and the couple
should legalize their union. In Escritor's case, although she was widowed in
1998, thereby lifting the legal impediment to marry on her part, her mate was
still not capacitated to remarry. Thus, their declarations remained valid. 12 In
sum, therefore, insofar as the congregation is concerned, there is nothing
immoral about the conjugal arrangement between Escritor and Quilapio and
they remain members in good standing in the congregation.
By invoking the religious beliefs, practices and moral standards of her
congregation, in asserting that her conjugal arrangement does not constitute
disgraceful and immoral conduct for which she should be held administratively
liable,13 the Court had to determine the contours of religious freedom under
Article III, Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil
or political rights.
A. Ruling
In our decision dated August 4, 2003, after a long and arduous scrutiny into
the origins and development of the religion clauses in the United States (U.S.)
and the Philippines, we held that in resolving claims involving religious freedom
(1) benevolent neutrality or accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the religion clauses
in our Constitution; and (2) in deciding respondent's plea of exemption based
on the Free Exercise Clause (from the law with which she is administratively
charged), it is the compelling state interest test, the strictest test, which must
be applied.14
Notwithstanding the above rulings, the Court could not, at that time, rule
definitively on the ultimate issue of whether respondent was to be held
administratively liable for there was need to give the State the opportunity to
adduce evidence that it has a more "compelling interest" to defeat the claim of
the respondent to religious freedom. Thus, in the decision dated August 4,
2003, we remanded the complaint to the Office of the Court Administrator
(OCA), and ordered the Office of the Solicitor General (OSG) to intervene in
the case so it can:
(a) examine the sincerity and centrality of respondent's claimed religious belief
and practice;
(b) present evidence on the state's "compelling interest" to override
respondent's religious belief and practice; andcralawlibrary
(c) show that the means the state adopts in pursuing its interest is the least
restrictive to respondent's religious freedom. 15
It bears stressing, therefore, that the residual issues of the case pertained NOT
TO WHAT APPROACH THIS COURT SHOULD TAKE IN CONSTRUING THE
RELIGION CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN DETERMINING
CLAIMS OF EXEMPTION BASED ON FREEDOM OF RELIGION. These issues have
already been ruled upon prior to the remand, and constitute "the law of the
case" insofar as they resolved the issues of which framework and test are to be
applied in this case, and no motion for its reconsideration having been
filed.16 The only task that the Court is left to do is to determine whether the
evidence adduced by the State proves its more compelling interest. This issue
involves a pure question of fact.
B. Law of the case
Mr. Justice Carpio's insistence, in his dissent, in attacking the ruling of this
case interpreting the religious clauses of the Constitution, made more than two
years ago, is misplaced to say the least. Since neither the complainant,
respondent nor the government has filed a motion for reconsideration assailing
this ruling, the same has attained finality and constitutes the law of the case.
Any attempt to reopen this final ruling constitutes a crass contravention of
elementary rules of procedure. Worse, insofar as it would overturn the parties'
right to rely upon our interpretation which has long attained finality, it also
runs counter to substantive due process.
Be that as it may, even assuming that there were no procedural and
substantive infirmities in Mr. Justice Carpio's belated attempts to disturb
settled issues, and that he had timely presented his arguments, the results
would still be the same.
We review the highlights of our decision dated August 4, 2003.
1. Old World Antecedents
In our August 4, 2003 decision, we made a painstaking review of Old World
antecedents of the religion clauses, because "one cannot understand, much
less intelligently criticize the approaches of the courts and the political
branches to religious freedom in the recent past in the United States without a
deep appreciation of the roots of these controversies in the ancient and
medieval world and in the American experience." 17 We delved into the
conception of religion from primitive times, when it started out as the state
itself, when the authority and power of the state were ascribed to God. 18 Then,
religion developed on its own and became superior to the state, 19 its
subordinate,20 and even becoming an engine of state policy.21
We ascertained two salient features in the review of religious history: First,
with minor exceptions, the history of church-state relationships was
characterized by persecution, oppression, hatred, bloodshed, and war, all in
the name of the God of Love and of the Prince of Peace. Second, likewise with
minor exceptions, this history witnessed the unscrupulous use of religion by
secular powers to promote secular purposes and policies, and the willing
acceptance of that role by the vanguards of religion in exchange for the favors
and mundane benefits conferred by ambitious princes and emperors in
exchange for religion's invaluable service. This was the context in which the
unique experiment of the principle of religious freedom and separation of
church and state saw its birth in American constitutional democracy and in
human history.22
Strictly speaking, the American experiment of freedom and separation was not
translated in the First Amendment. That experiment had been launched four
years earlier, when the founders of the republic carefully withheld from the
new national government any power to deal with religion. As James Madison
said, the national government had no "jurisdiction" over religion or any
"shadow of right to intermeddle" with it.23
The omission of an express guaranty of religious freedom and other natural
rights, however, nearly prevented the ratification of the Constitution. The
restriction had to be made explicit with the adoption of the religion clauses in
the First Amendment as they are worded to this day. Thus, the First
Amendment did not take away or abridge any power of the national
government; its intent was to make express the absence of power. 24 It
commands, in two parts (with the first part usually referred to as the
Establishment Clause and the second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof.25
The Establishment and Free Exercise Clauses, it should be noted, were not
designed to serve contradictory purposes. They have a single goal to promote
freedom of individual religious beliefs and practices. In simplest terms, the
Free Exercise Clause prohibits government from inhibiting religious beliefs with
penalties for religious beliefs and practice, while the Establishment Clause
prohibits government from inhibiting religious belief with rewards for religious
beliefs and practices. In other words, the two religion clauses were intended to
deny government the power to use either the carrot or the stick to influence
individual religious beliefs and practices.26
In sum, a review of the Old World antecedents of religion shows the movement
of establishment of religion as an engine to promote state interests, to the
principle of non-establishment to allow the free exercise of religion.
2. Religion Clauses in the U.S. Context
The Court then turned to the religion clauses' interpretation and construction in
the United States, not because we are bound by their interpretation, but
because the U.S. religion clauses are the precursors to the Philippine religion
clauses, although we have significantly departed from the U.S. interpretation
as will be discussed later on.
At the outset, it is worth noting that American jurisprudence in this area has
been volatile and fraught with inconsistencies whether within a Court decision
or across decisions. For while there is widespread agreement regarding the
value of the First Amendment religion clauses, there is an equally broad
disagreement as to what these clauses specifically require, permit and forbid.
No agreement has been reached by those who have studied the religion
clauses as regards its exact meaning and the paucity of records in the U.S.
Congress renders it difficult to ascertain its meaning. 27
U.S. history has produced two identifiably different, even opposing, strains of
jurisprudence on the religion clauses. First is the standard of separation, which
may take the form of either (a) strict separation or (b) the tamer version of
strict neutrality or separation, or what Mr. Justice Carpio refers to as the
second theory of governmental neutrality. Although the latter form is not as
hostile to religion as the former, both are anchored on the Jeffersonian
premise that a "wall of separation" must exist between the state and the
Church to protect the state from the church.28 Both protect the principle of
church-state separation with a rigid reading of the principle. On the other
hand, the second standard, the benevolent neutrality or accommodation, is
buttressed by the view that the wall of separation is meant to protect the
church from the state. A brief review of each theory is in order.
A. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was meant to
protect the state from the church, and the state's hostility towards religion
allows no interaction between the two. According to this Jeffersonian view, an
absolute barrier to formal interdependence of religion and state needs to be
erected. Religious institutions could not receive aid, whether direct or indirect,
from the state. Nor could the state adjust its secular programs to alleviate
burdens the programs placed on believers.29 Only the complete separation of
religion from politics would eliminate the formal influence of religious
institutions and provide for a free choice among political views, thus a strict
"wall of separation" is necessary.30
Strict separation faces difficulties, however, as it is deeply embedded in
American history and contemporary practice that enormous amounts of aid,
both direct and indirect, flow to religion from government in return for huge
amounts of mostly indirect aid from religion.31 For example, less than twenty-
four hours after Congress adopted the First Amendment's prohibition on laws
respecting an establishment of religion, Congress decided to express its thanks
to God Almighty for the many blessings enjoyed by the nation with a resolution
in favor of a presidential proclamation declaring a national day of Thanksgiving
and Prayer.32 Thus, strict separationists are caught in an awkward position of
claiming a constitutional principle that has never existed and is never likely
to.33
The tamer version of the strict separationist view, the strict neutrality or
separationist view, (or, the governmental neutrality theory) finds basis in
Everson v. Board of Education, 34 where the Court declared that Jefferson's
"wall of separation" encapsulated the meaning of the First Amendment.
However, unlike the strict separationists, the strict neutrality view believes that
the "wall of separation" does not require the state to be their adversary.
Rather, the state must be neutral in its relations with groups of religious
believers and non-believers. "State power is no more to be used so as to
handicap religions than it is to favor them." 35 The strict neutrality approach is
not hostile to religion, but it is strict in holding that religion may not be used as
a basis for classification for purposes of governmental action, whether the
action confers rights or privileges or imposes duties or obligations. Only
secular criteria may be the basis of government action. It does not permit,
much less require, accommodation of secular programs to religious belief. 36
The problem with the strict neutrality approach, however, is if applied in
interpreting the Establishment Clause, it could lead to a de facto voiding of
religious expression in the Free Exercise Clause. As pointed out by Justice
Goldberg in his concurring opinion in Abington School District v.
Schempp,37 strict neutrality could lead to "a brooding and pervasive devotion
to the secular and a passive, or even active, hostility to the religious" which is
prohibited by the Constitution.38 Professor Laurence Tribe commented in his
authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very
idea of a free exercise clause. The Framers, whatever specific applications they
may have intended, clearly envisioned religion as something special; they
enacted that vision into law by guaranteeing the free exercise of religion but
not, say, of philosophy or science. The strict neutrality approach all but erases
this distinction. Thus it is not surprising that the [U.S.] Supreme Court has
rejected strict neutrality, permitting and sometimes mandating religious
classifications.39
Thus, the dilemma of the separationist approach, whether in the form of strict
separation or strict neutrality, is that while the Jeffersonian wall of separation
"captures the spirit of the American ideal of church-state separation," in real
life, church and state are not and cannot be totally separate. This is all the
more true in contemporary times when both the government and religion are
growing and expanding their spheres of involvement and activity, resulting in
the intersection of government and religion at many points. 40
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on a
different view of the "wall of separation," associated with Williams, founder of
the Rhode Island colony. Unlike the Jeffersonian wall that is meant to protect
the state from the church, the wall is meant to protect the church from the
state.41 This doctrine was expressed in Zorach v. Clauson, 42 which held, viz:
The First Amendment, however, does not say that in every and all respects
there shall be a separation of Church and State. Rather, it studiously defines
the manner, the specific ways, in which there shall be no concert or union or
dependency one or the other. That is the common sense of the matter.
Otherwise, the state and religion would be aliens to each other - hostile,
suspicious, and even unfriendly. Churches could not be required to pay even
property taxes. Municipalities would not be permitted to render police or fire
protection to religious groups. Policemen who helped parishioners into their
places of worship would violate the Constitution. Prayers in our legislative
halls; the appeals to the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; "so help me God" in our
courtroom oaths - these and all other references to the Almighty that run
through our laws, our public rituals, our ceremonies would be flouting the First
Amendment. A fastidious atheist or agnostic could even object to the
supplication with which the Court opens each session: "God save the United
States and this Honorable Court."
xxx xxx
xxx
We are a religious people whose institutions presuppose a Supreme Being. We
guarantee the freedom to worship as one chooses. . . When the state
encourages religious instruction or cooperates with religious authorities by
adjusting the schedule of public events, it follows the best of our traditions. For
it then respects the religious nature of our people and accommodates the
public service to their spiritual needs. To hold that it may not would be to find
in the Constitution a requirement that the government show a callous
indifference to religious groups. . . But we find no constitutional requirement
which makes it necessary for government to be hostile to religion and to throw
its weight against efforts to widen their effective scope of religious influence. 43
Benevolent neutrality recognizes that religion plays an important role in the
public life of the United States as shown by many traditional government
practices which, to strict neutrality, pose Establishment Clause questions.
Among these are the inscription of "In God We Trust" on American currency;
the recognition of America as "one nation under God" in the official pledge of
allegiance to the flag; the Supreme Court's time-honored practice of opening
oral argument with the invocation "God save the United States and this
Honorable Court"; and the practice of Congress and every state legislature of
paying a chaplain, usually of a particular Protestant denomination, to lead
representatives in prayer. These practices clearly show the preference for one
theological viewpoint the existence of and potential for intervention by a god
over the contrary theological viewpoint of atheism. Church and government
agencies also cooperate in the building of low-cost housing and in other forms
of poor relief, in the treatment of alcoholism and drug addiction, in foreign aid
and other government activities with strong moral dimension. 44
Examples of accommodations in American jurisprudence also abound,
including, but not limited to the U.S. Court declaring the following acts as
constitutional: a state hiring a Presbyterian minister to lead the legislature in
daily prayers,45 or requiring employers to pay workers compensation when the
resulting inconsistency between work and Sabbath leads to discharge; 46 for
government to give money to religiously-affiliated organizations to teach
adolescents about proper sexual behavior;47 or to provide religious school
pupils with books;48 or bus rides to religious schools;49 or with cash to pay for
state-mandated standardized tests.50
(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in the
Religion clauses are invoked in relation to governmental action, almost
invariably in the form of legislative acts.
Generally speaking, a legislative act that purposely aids or inhibits religion will
be challenged as unconstitutional, either because it violates the Free Exercise
Clause or the Establishment Clause or both. This is true whether one
subscribes to the separationist approach or the benevolent neutrality or
accommodationist approach.
But the more difficult religion cases involve legislative acts which have a
secular purpose and general applicability, but may incidentally or inadvertently
aid or burden religious exercise. Though the government action is not
religiously motivated, these laws have a "burdensome effect" on religious
exercise.
The benevolent neutrality theory believes that with respect to these
governmental actions, accommodation of religion may be allowed, not to
promote the government's favored form of religion, but to allow individuals
and groups to exercise their religion without hindrance. The purpose of
accommodations is to remove a burden on, or facilitate the exercise of, a
person's or institution's religion. As Justice Brennan explained, the
"government [may] take religion into account to exempt, when possible, from
generally applicable governmental regulation individuals whose religious beliefs
and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may
flourish."51 In the ideal world, the legislature would recognize the religions and
their practices and would consider them, when practical, in enacting laws of
general application. But when the legislature fails to do so, religions that are
threatened and burdened may turn to the courts for protection. 52
Thus, what is sought under the theory of accommodation is not a declaration
of unconstitutionality of a facially neutral law, but an exemption from its
application or its "burdensome effect," whether by the legislature or the
courts.53 Most of the free exercise claims brought to the U.S. Court are for
exemption, not invalidation of the facially neutral law that has a "burdensome"
effect.54
(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of accommodation in
the U.S. blossomed in the case of Sherbert v. Verner, 55 which ruled that state
regulation that indirectly restrains or punishes religious belief or conduct must
be subjected to strict scrutiny under the Free Exercise Clause. 56 According to
Sherbert, when a law of general application infringes religious exercise, albeit
incidentally, the state interest sought to be promoted must be so paramount
and compelling as to override the free exercise claim. Otherwise, the Court
itself will carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment
compensation under the law as her employment was terminated for refusal to
work on Saturdays on religious grounds. Her claim was denied. She sought
recourse in the Supreme Court. In laying down the standard for determining
whether the denial of benefits could withstand constitutional scrutiny, the
Court ruled, viz:
Plainly enough, appellee's conscientious objection to Saturday work constitutes
no conduct prompted by religious principles of a kind within the reach of state
legislation. If, therefore, the decision of the South Carolina Supreme Court is
to withstand appellant's constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the State of her
constitutional right of free exercise, or because any incidental burden on the
free exercise of appellant's religion may be justified by a "compelling state
interest in the regulation of a subject within the State's constitutional power to
regulate. . . ."57 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not
sufficient to merely show a rational relationship of the substantial infringement
to the religious right and a colorable state interest. "(I)n this highly sensitive
constitutional area, '[o]nly the gravest abuses, endangering paramount
interests, give occasion for permissible limitation.' " 58 The Court found that
there was no such compelling state interest to override Sherbert's religious
liberty. It added that even if the state could show that Sherbert's exemption
would pose serious detrimental effects to the unemployment compensation
fund and scheduling of work, it was incumbent upon the state to show that no
alternative means of regulations would address such detrimental effects
without infringing religious liberty. The state, however, did not discharge this
burden. The Court thus carved out for Sherbert an exemption from the
Saturday work requirement that caused her disqualification from claiming the
unemployment benefits. The Court reasoned that upholding the denial of
Sherbert's benefits would force her to choose between receiving benefits and
following her religion. This choice placed "the same kind of burden upon the
free exercise of religion as would a fine imposed against (her) for her Saturday
worship." This germinal case of Sherbert firmly established the exemption
doctrine, 59 viz:
It is certain that not every conscience can be accommodated by all the laws of
the land; but when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some "compelling state interest"
intervenes.
Thus, Sherbert and subsequent cases held that when government action
burdens, even inadvertently, a sincerely held religious belief or practice, the
state must justify the burden by demonstrating that the law embodies a
compelling interest, that no less restrictive alternative exists, and that a
religious exemption would impair the state's ability to effectuate its compelling
interest. As in other instances of state action affecting fundamental rights,
negative impacts on those rights demand the highest level of judicial scrutiny.
After Sherbert, this strict scrutiny balancing test resulted in court-mandated
religious exemptions from facially-neutral laws of general application whenever
unjustified burdens were found. 60
Then, in the 1972 case of Wisconsin v. Yoder, 61 the U.S. Court again ruled that
religious exemption was in order, notwithstanding that the law of general
application had a criminal penalty. Using heightened scrutiny, the Court
overturned the conviction of Amish parents for violating Wisconsin compulsory
school-attendance laws. The Court, in effect, granted exemption from a
neutral, criminal statute that punished religiously motivated conduct. Chief
Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the
eighth grade against a claim that such attendance interferes with the practice
of a legitimate religious belief, it must appear either that the State does not
deny the free exercise of religious belief by its requirement, or that there is a
state interest of sufficient magnitude to override the interest claiming
protection under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the Religion Clauses had
specially and firmly fixed the right of free exercise of religious beliefs, and
buttressing this fundamental right was an equally firm, even if less explicit,
prohibition against the establishment of any religion. The values underlying
these two provisions relating to religion have been zealously protected,
sometimes even at the expense of other interests of admittedly high social
importance. . .
The essence of all that has been said and written on the subject is that only
those interests of the highest order and those not otherwise served can
overbalance legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that religiously grounded conduct is
always outside the protection of the Free Exercise Clause. It is true that
activities of individuals, even when religiously based, are often subject to
regulation by the States in the exercise of their undoubted power to promote
the health, safety, and general welfare, or the Federal government in the
exercise of its delegated powers . . . But to agree that religiously grounded
conduct must often be subject to the broad police power of the State is not to
deny that there are areas of conduct protected by the Free Exercise Clause of
the First Amendment and thus beyond the power of the State to control, even
under regulations of general applicability. . . .This case, therefore, does not
become easier because respondents were convicted for their "actions" in
refusing to send their children to the public high school; in this context belief
and action cannot be neatly confined in logic-tight compartments. . . 62
The cases of Sherbert and Yoder laid out the following doctrines: (a) free
exercise clause claims were subject to heightened scrutiny or compelling
interest test if government substantially burdened the exercise of religion; (b)
heightened scrutiny or compelling interest test governed cases where the
burden was direct, i.e., the exercise of religion triggered a criminal or civil
penalty, as well as cases where the burden was indirect, i.e., the exercise of
religion resulted in the forfeiture of a government benefit; 63 and (c) the Court
could carve out accommodations or exemptions from a facially neutral law of
general application, whether general or criminal.
The Sherbert-Yoder doctrine had five main components. First, action was
protected conduct beyond speech, press, or worship was included in the
shelter of freedom of religion. Neither Sherbert's refusal to work on the
Sabbath nor the Amish parents' refusal to let their children attend ninth and
tenth grades can be classified as conduct protected by the other clauses of the
First Amendment. Second, indirect impositions on religious conduct, such as
the denial of twenty-six weeks of unemployment insurance benefits to Adel
Sherbert, as well as direct restraints, such as the criminal prohibition at issue
in Yoder, were prohibited. Third, as the language in the two cases indicate, the
protection granted was extensive. Only extremely strong governmental
interests justified impingement on religious conduct, as the absolute language
of the test of the Free Exercise Clause suggests. 64
Fourth, the strong language was backed by a requirement that the government
provide proof of the important interest at stake and of the dangers to that
interest presented by the religious conduct at issue. Fifth, in determining the
injury to the government's interest, a court was required to focus on the effect
that exempting religious claimants from the regulation would have, rather than
on the value of the regulation in general. Thus, injury to governmental interest
had to be measured at the margin: assuming the law still applied to all others,
what would be the effect of exempting the religious claimant in this case and
other similarly situated religious claimants in the future? Together, the fourth
and fifth elements required that facts, rather than speculation, had to be
presented concerning how the government's interest would be harmed by
excepting religious conduct from the law being challenged. 65
Sherbert and Yoder adopted a balancing test for free exercise jurisprudence
which would impose a discipline to prevent manipulation in the balancing of
interests. The fourth and the fifth elements prevented the likelihood of
exaggeration of the weight on the governmental interest side of the balance,
by not allowing speculation about the effects of a decision adverse to those
interests nor accepting that those interests would be defined at a higher level
of generality than the constitutional interests on the other side of the
balance.66
Thus, the strict scrutiny and compelling state interest test significantly
increased the degree of protection afforded to religiously motivated conduct.
While not affording absolute immunity to religious activity, a compelling
secular justification was necessary to uphold public policies that collided with
religious practices. Although the members of the U.S. Court often disagreed
over which governmental interests should be considered compelling, thereby
producing dissenting and separate opinions in religious conduct cases, this
general test established a strong presumption in favor of the free exercise of
religion.67 Most scholars and courts agreed that under Sherbert and Yoder, the
Free Exercise Clause provided individuals some form of heightened scrutiny
protection, if not always a compelling interest one. 68 The 1990 case of
Employment Division, Oregon Department of Human Resources v.
Smith,69 drastically changed all that.
Smith involved a challenge by Native Americans to an Oregon law prohibiting
use of peyote, a hallucinogenic substance. Specifically, individuals challenged
the state's determination that their religious use of peyote, which resulted in
their dismissal from employment, was misconduct disqualifying them from
receipt of unemployment compensation benefits. 70
Justice Scalia, writing for the majority, rejected the claim that free exercise of
religion required an exemption from an otherwise valid law. Scalia said that
"[w]e have never held that an individual's religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that the State is
free to regulate. On the contrary, the record of more than a century of our free
exercise jurisprudence contradicts that proposition." 71 Scalia thus declared
"that the right of free exercise does not relieve an individual of the obligation
to comply with a 'valid and neutral law of general applicability of the ground
that the law proscribes (or prescribes) conduct that his religion prescribes (or
proscribes).' " 72
Justice Scalia's opinion then reviewed the cases where free exercise challenges
had been upheld'such as Cantwell, Murdock, Follet, Pierce, and Yoder and said
that none involved the free exercise clause claims alone. All involved "the Free
Exercise Clause in conjunction with other constitutional protections, such as
freedom of speech and of the press, or the right of parents to direct the
education of their children." 73 The Court said that Smith was distinguishable
because it did not involve such a "hybrid situation," but was a free exercise
claim "unconnected with any communicative activity or parental right." 74
Moreover, the Court said that the Sherbert line of cases applied only in the
context of the denial of unemployment benefits; it did not create a basis for an
exemption from criminal laws. Scalia wrote that "[e]ven if we were inclined to
breathe into Sherbert some life beyond the unemployment compensation field,
we would not apply it to require exemptions from a generally applicable
criminal law." 75
The Court expressly rejected the use of strict scrutiny for challenges to neutral
laws of general applicability that burden religion. Justice Scalia said that
"[p]recisely because 'we are a cosmopolitan nation made up of people of
almost conceivable religious preference,' and precisely because we value and
protect that religious divergence, we cannot afford the luxury of deeming
presumptively invalid, as applied to the religious objector, every regulation of
conduct that does not protect an interest of the highest order." The Court said
that those seeking religious exemptions from laws should look to the
democratic process for protection, not the courts.76
Smith thus changed the test for the free exercise clause. Strict or heightened
scrutiny and the compelling justification approach were abandoned for
evaluating laws burdening religion; neutral laws of general applicability only
have to meet the rational basis test, no matter how much they burden
religion.77
Justice O Connor wrote a concurring opinion sharply criticizing the rejection of
the compelling state interest test, asserting that "(t)he compelling state
interest test effectuates the First Amendment's command that religious liberty
is an independent liberty, that it occupies a preferred position, and that the
Court will not permit encroachments upon this liberty, whether direct or
indirect, unless required by clear and compelling government interest 'of the
highest order.' "78 She said that strict scrutiny is appropriate for free exercise
challenges because "[t]he compelling interest test reflects the First
Amendment's mandate of preserving religious liberty to the fullest extent
possible in a pluralistic society." 79
Justice O Connor also disagreed with the majority's description of prior cases
and especially its leaving the protection of minority religions to the political
process. She said that, "First Amendment was enacted precisely to protect the
rights of those whose religious practice are not shared by the majority and
may be viewed with hostility." 80
Justice Blackmun wrote a dissenting opinion that was joined by Justices
Brennan and Marshall. The dissenting Justices agreed with Justice O Connor
that the majority had mischaracterized precedents, such as in describing Yoder
as a "hybrid" case rather than as one under the free exercise clause. The
dissent also argued that strict scrutiny should be used in evaluating
government laws burdening religion.81
Criticism of Smith was intense and widespread.82 Academics, Justices, and a
bipartisan majority of Congress noisily denounced the decision. 83 Smith has the
rather unusual distinction of being one case that is almost universally despised
(and this is not too strong a word) by both the liberals and
conservatives.84 Liberals chasten the Court for its hostility to minority faiths
which, in light of Smith's general applicability rule, will allegedly suffer at the
hands of the majority faith whether through outright hostility or neglect.
Conservatives bemoan the decision as an assault on religious belief leaving
religion, more than ever, subject to the caprice of an ever more secular nation
that is increasingly hostile to religious belief as an oppressive and archaic
anachronism.85
The Smith doctrine is highly unsatisfactory in several respects and has been
criticized as exhibiting a shallow understanding of free exercise
jurisprudence.86 First, the First amendment was intended to protect minority
religions from the tyranny of the religious and political majority. 87 Critics of
Smith have worried about religious minorities, who can suffer
disproportionately from laws that enact majoritarian mores. 88 Smith, in effect
would allow discriminating in favor of mainstream religious groups against
smaller, more peripheral groups who lack legislative clout, 89 contrary to the
original theory of the First Amendment.90 Undeniably, claims for judicial
exemption emanate almost invariably from relatively politically powerless
minority religions and Smith virtually wiped out their judicial recourse for
exemption.91 Second, Smith leaves too much leeway for pervasive welfare-
state regulation to burden religion while satisfying neutrality. After all, laws not
aimed at religion can hinder observance just as effectively as those that target
religion.92 Government impairment of religious liberty would most often be of
the inadvertent kind as in Smith considering the political culture where direct
and deliberate regulatory imposition of religious orthodoxy is nearly
inconceivable. If the Free Exercise Clause could not afford protection to
inadvertent interference, it would be left almost meaningless. 93 Third, the
Reynolds-Gobitis-Smith94 doctrine simply defies common sense. The state
should not be allowed to interfere with the most deeply held fundamental
religious convictions of an individual in order to pursue some trivial state
economic or bureaucratic objective. This is especially true when there are
alternative approaches for the state to effectively pursue its objective without
serious inadvertent impact on religion.95
At bottom, the Court's ultimate concern in Smith appeared to be two-fold: (1)
the difficulty in defining and limiting the term "religion" in today's pluralistic
society, and (2) the belief that courts have no business determining the
significance of an individual's religious beliefs. For the Smith Court, these two
concerns appear to lead to the conclusion that the Free Exercise Clause must
protect everything or it must protect virtually nothing. As a result, the Court
perceives its only viable options are to leave free exercise protection to the
political process or to allow a "system in which each conscience is a law unto
itself." 96 The Court's characterization of its choices have been soundly rejected
as false, viz:
If one accepts the Court's assumption that these are the only two viable
options, then admittedly, the Court has a stronger argument. But the Free
Exercise Clause cannot be summarily dismissed as too difficult to apply and
this should not be applied at all. The Constitution does not give the judiciary
the option of simply refusing to interpret its provisions. The First Amendment
dictates that free exercise of "religion" must be protected. Accordingly, the
Constitution compels the Court to struggle with the contours of what
constitutes "religion." There is no constitutional opt-out provision for
constitutional words that are difficult to apply.
Nor does the Constitution give the Court the option of simply ignoring
constitutional mandates. A large area of middle ground exists between the
Court's two opposing alternatives for free exercise jurisprudence.
Unfortunately, this middle ground requires the Court to tackle difficult issues
such as defining religion and possibly evaluating the significance of a religious
belief against the importance of a specific law. The Court describes the results
of this middle ground where "federal judges will regularly balance against the
importance of general laws the significance of religious practice," and then
dismisses it as a "parade of horribles" that is too "horrible to contemplate."
It is not clear whom the Court feels would be most hurt by this "parade of
horribles." Surely not religious individuals; they would undoubtedly prefer their
religious beliefs to be probed for sincerity and significance rather than
acquiesce to the Court's approach of simply refusing to grant any constitutional
significance to their beliefs at all. If the Court is concerned about requiring
lawmakers at times constitutionally to exempt religious individuals from
statutory provisions, its concern is misplaced. It is the lawmakers who have
sought to prevent the Court from dismantling the Free Exercise Clause through
such legislation as the [Religious Freedom Restoration Act of 1993], and in any
case, the Court should not be overly concerned about hurting legislature's
feelings by requiring their laws to conform to constitutional dictates. Perhaps
the Court is concerned about putting such burden on judges. If so, it would
truly be odd to say that requiring the judiciary to perform its appointed role as
constitutional interpreters is a burden no judge should be expected to fulfill. 97
Parenthetically, Smith's characterization that the U.S. Court has "never held
that an individual's religious beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the state is free to regulate" an
assertion which Mr. Justice Carpio adopted unequivocally in his dissent has
been sharply criticized even implicitly by its supporters, as blatantly untrue.
Scholars who supported Smith frequently did not do so by opposing the
arguments that the Court was wrong as a matter of original meaning [of the
religion clauses] or that the decision conflicted with precedent [i.e. the Smith
decision made shocking use of precedent] those points were often conceded. 98
To justify its perversion of precedent, the Smith Court attempted to distinguish
the exemption made in Yoder, by asserting that these were premised on two
constitutional rights combined the right of parents to direct the education of
their children and the right of free exercise of religion. Under the Court's
opinion in Smith, the right of free exercise of religion standing alone would not
allow Amish parents to disregard the compulsory school attendance law, and
under the Court's opinion in Yoder, parents whose objection to the law was not
religious would also have to obey it. The fatal flaw in this argument, however,
is that if two constitutional claims will fail on its own, how would it prevail if
combined?99 As for Sherbert, the Smith Court attempted to limit its doctrine as
applicable only to denials of unemployment compensation benefits where the
religiously-compelled conduct that leads to job loss is not a violation of
criminal law. And yet, this is precisely why the rejection of Sherbert was so
damaging in its effect: the religious person was more likely to be entitled to
constitutional protection when forced to choose between religious conscience
and going to jail than when forced to choose between religious conscience and
financial loss.100
Thus, the Smith decision elicited much negative public reaction especially from
the religious community, and commentaries insisted that the Court was
allowing the Free Exercise Clause to disappear.101 So much was the uproar that
a majority in Congress was convinced to enact the Religious Freedom
Restoration Act (RFRA) of 1993.102 The RFRA was adopted to negate the Smith
test and require strict scrutiny for free exercise claims. Indeed, the findings
section of the Act notes that Smith "virtually eliminated the requirement that
the government justify burdens on religious exercise imposed by laws neutral
toward religion."103 The Act declares that its purpose is to restore the
compelling interest test as set forth in Sherbert v. Verner and Wisconsin v.
Yoder, and to guarantee its application in all cases where free exercise of
religion is substantially burdened; and to provide a claim of defense to a
person whose religious exercise is substantially burdened by
government.104 The RFRA thus sought to overrule Smith and make strict
scrutiny the test for all free exercise clause claims. 105
In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared the RFRA
unconstitutional, ruling that Congress had exceeded its power under the
Fourteenth Amendment in enacting the law. The Court ruled that Congress is
empowered to enact laws "to enforce the amendment," but Congress is not
"enforcing" when it creates new constitutional rights or expands the scope of
rights.107
City of Boerne also drew public backlash as the U.S. Supreme Court was
accused of lack of judicial respect for the constitutional decision-making by a
coordinate branch of government. In Smith, Justice Scalia wrote:
"Values that are protected against governmental interference through
enshrinement in the Bill of Rights are not thereby banished from the political
process. Just as society believes in the negative protection accorded to the
press by the First Amendment is likely to enact laws that affirmatively foster
the dissemination of the printed word, so also a society that believes in the
negative protection accorded to religious belief can be expected to be solicitous
of that value in its legislation as well."
By invalidating RFRA, the Court showed a marked disrespect of the solicitude
of a nearly unanimous Congress. Contrary to the Court's characterization of
the RFRA as a kind of usurpation of the judicial power to say what the
Constitution means, the law offered no definition of Free Exercise, and on its
face appeared to be a procedural measure establishing a standard of proof and
allocating the duty of meeting it. In effect, the Court ruled that Congress had
no power in the area of religion. And yet, Free Exercise exists in the First
Amendment as a negative on Congress. The power of Congress to act towards
the states in matters of religion arises from the Fourteenth Amendment. 108
From the foregoing, it can be seen that Smith, while expressly recognizing the
power of legislature to give accommodations, is in effect contrary to the
benevolent neutrality or accommodation approach. Moreover, if we consider
the history of the incorporation of the religion clauses in the U.S., the decision
in Smith is grossly inconsistent with the importance placed by the framers on
religious faith. Smith is dangerous precedent because it subordinates
fundamental rights of religious belief and practice to all neutral, general
legislation. Sherbert recognized the need to protect religious exercise in light
of the massive increase in the size of government, the concerns within its
reach, and the number of laws administered by it. However, Smith abandons
the protection of religious exercise at a time when the scope and reach of
government has never been greater. It has been pointed out that Smith
creates the legal framework for persecution: through general, neutral laws,
legislatures are now able to force conformity on religious minorities whose
practice irritate or frighten an intolerant majority. 109
The effect of Smith is to erase entirely the concept of mandatory
accommodations, thereby emasculating the Free Exercise Clause. Smith left
religious freedom for many in the hands of the political process, exactly where
it would be if the religion clauses did not exist in the Bill of Rights. Like most
protections found in the Bill of Rights, the religion clauses of the First
Amendment are most important to those who cannot prevail in the political
process. The Court in Smith ignores the fact that the protections found in the
Bill of Rights were deemed too important to leave to the political process.
Because mainstream religions generally have been successful in protecting
their interests through the political process, it is the non-mainstream religions
that are adversely affected by Smith. In short, the U.S. Supreme Court has
made it clear to such religions that they should not look to the First
Amendment for religious freedom.110
(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of accommodation: (a) those
which are found to be constitutionally compelled, i.e., required by the Free
Exercise Clause; (b) those which are discretionary or legislative, i.e., not
required by the Free Exercise Clause but nonetheless permitted by the
Establishment Clause; and (c) those which the religion clauses prohibit. 111
Mandatory accommodation results when the Court finds that accommodation is
required by the Free Exercise Clause, i.e, when the Court itself carves out an
exemption. This accommodation occurs when all three conditions of the
compelling interest test are met, i.e, a statute or government action has
burdened claimant's free exercise of religion, and there is no doubt as to the
sincerity of the religious belief; the state has failed to demonstrate a
particularly important or compelling governmental goal in preventing an
exemption; and that the state has failed to demonstrate that it used the least
restrictive means. In these cases, the Court finds that the injury to religious
conscience is so great and the advancement of public purposes is incomparable
that only indifference or hostility could explain a refusal to make exemptions.
Thus, if the state's objective could be served as well or almost as well by
granting an exemption to those whose religious beliefs are burdened by the
regulation, the Court must grant the exemption. The Yoder case is an example
where the Court held that the state must accommodate the religious beliefs of
the Amish who objected to enrolling their children in high school as required by
law. The Sherbert case is another example where the Court held that the state
unemployment compensation plan must accommodate the religious convictions
of Sherbert.112
In permissive accommodation, the Court finds that the State may, but is not
required to, accommodate religious interests. The U.S. Walz case illustrates
this situation where the U.S. Supreme Court upheld the constitutionality of tax
exemption given by New York to church properties, but did not rule that the
state was required to provide tax exemptions. The Court declared that "(t)he
limits of permissible state accommodation to religion are by no means co-
extensive with the noninterference mandated by the Free Exercise
Clause."113 Other examples are Zorach v. Clauson,114 allowing released time in
public schools and Marsh v. Chambers,115 allowing payment of legislative
chaplains from public funds. Parenthetically, the Court in Smith has ruled that
this is the only accommodation allowed by the Religion Clauses.
Finally, when the Court finds no basis for a mandatory accommodation, or it
determines that the legislative accommodation runs afoul of the establishment
or the free exercise clause, it results to a prohibited accommodation. In this
case, the Court finds that establishment concerns prevail over potential
accommodation interests. To say that there are valid exemptions buttressed by
the Free Exercise Clause does not mean that all claims for free exercise
exemptions are valid.116 An example where accommodation was prohibited is
McCollum v. Board of Education,117 where the Court ruled against optional
religious instruction in the public school premises. 118
Given that a free exercise claim could lead to three different results, the
question now remains as to how the Court should determine which action to
take. In this regard, it is the strict scrutiny-compelling state interest test which
is most in line with the benevolent neutrality-accommodation approach.
Under the benevolent-neutrality theory, the principle underlying the First
Amendment is that freedom to carry out one's duties to a Supreme Being is an
inalienable right, not one dependent on the grace of legislature. Religious
freedom is seen as a substantive right and not merely a privilege against
discriminatory legislation. With religion looked upon with benevolence and not
hostility, benevolent neutrality allows accommodation of religion under certain
circumstances.
Considering that laws nowadays are rarely enacted specifically to disable
religious belief or practice, free exercise disputes arise commonly when a law
that is religiously neutral and generally applicable on its face is argued to
prevent or burden what someone's religious faith requires, or alternatively,
requires someone to undertake an act that faith would preclude. In essence,
then, free exercise arguments contemplate religious exemptions from
otherwise general laws.119
Strict scrutiny is appropriate for free exercise challenges because "[t]he
compelling interest test reflects the First Amendment's mandate of preserving
religious liberty to the fullest extent possible in a pluralistic
society.120 Underlying the compelling state interest test is the notion that free
exercise is a fundamental right and that laws burdening it should be subject to
strict scrutiny.121
In its application, the compelling state interest test follows a three-step
process, summarized as follows:
If the plaintiff can show that a law or government practice inhibits the free
exercise of his religious beliefs, the burden shifts to the government to
demonstrate that the law or practice is necessary to the accomplishment of
some important (or 'compelling' ) secular objective and that it is the least
restrictive means of achieving that objective. If the plaintiff meets this burden
and the government does not, the plaintiff is entitled to exemption from the
law or practice at issue. In order to be protected, the claimant's beliefs must
be 'sincere', but they need not necessarily be consistent, coherent, clearly
articulated, or congruent with those of the claimant's religious denomination.
'Only beliefs rooted in religion are protected by the Free Exercise Clause';
secular beliefs, however sincere and conscientious, do not suffice. 122
In sum, the U.S. Court has invariably decided claims based on the religion
clauses using either the separationist approach, or the benevolent neutrality
approach. The benevolent neutrality approach has also further been split by
the view that the First Amendment requires accommodation, or that it only
allows permissible legislative accommodations. The current prevailing view as
pronounced in Smith, however, is that that there are no required
accommodation under the First Amendment, although it permits of legislative
accommodations.
3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and
Practice
A. US Constitution and jurisprudence vis - à-vis Philippine Constitution
By juxtaposing the American Constitution and jurisprudence against that of the
Philippines, it is immediately clear that one cannot simply conclude that we
have adopted lock, stock and barrel the religion clauses as embodied in the
First Amendment, and therefore, the U.S. Court's interpretation of the same.
Unlike in the U.S. where legislative exemptions of religion had to be upheld by
the U.S. Supreme Court as constituting permissive accommodations, similar
exemptions for religion are mandatory accommodations under our own
constitutions. Thus, our 1935, 1973 and 1987 Constitutions contain provisions
on tax exemption of church property,123 salary of religious officers in
government institutions,124 and optional religious instruction.125 Our own
preamble also invokes the aid of a divine being. 126 These constitutional
provisions are wholly ours and have no counterpart in the U.S. Constitution or
its amendments. They all reveal without doubt that the Filipino people, in
adopting these constitutions, manifested their adherence to the benevolent
neutrality approach that requires accommodations in interpreting the religion
clauses.127
The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was
erroneous insofar as it asserted that the 1935 Constitution incorporates the
Walz ruling as this case was decided subsequent to the 1935 Constitution is a
misreading of the ponencia. What the ponencia pointed out was that even as
early as 1935, or more than three decades before the U.S. Court could validate
the exemption in Walz as a form or permissible accommodation, we have
already incorporated the same in our Constitution, as a mandatory
accommodation.
There is no ambiguity with regard to the Philippine Constitution's departure
from the U.S. Constitution, insofar as religious accommodations are concerned.
It is indubitable that benevolent neutrality-accommodation, whether
mandatory or permissive, is the spirit, intent and framework underlying the
Philippine Constitution.128 As stated in our Decision, dated August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these
clauses were largely adopted from the First Amendment of the U.S.
Constitution xxxx Philippine jurisprudence and commentaries on the religious
clauses also continued to borrow authorities from U.S. jurisprudence without
articulating the stark distinction between the two streams of U.S.
jurisprudence [i.e., separation and benevolent neutrality]. One might simply
conclude that the Philippine Constitutions and jurisprudence also inherited the
disarray of U.S. religion clause jurisprudence and the two identifiable streams;
thus, when a religion clause case comes before the Court, a separationist
approach or a benevolent neutrality approach might be adopted and each will
have U.S. authorities to support it. Or, one might conclude that as the history
of the First Amendment as narrated by the Court in Everson supports the
separationist approach, Philippine jurisprudence should also follow this
approach in light of the Philippine religion clauses' history. As a result, in a
case where the party claims religious liberty in the face of a general law that
inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation would
not be breached if the Court grants him an exemption. These conclusions,
however, are not and were never warranted by the 1987, 1973 and 1935
Constitutions as shown by other provisions on religion in all three
constitutions. It is a cardinal rule in constitutional construction that the
constitution must be interpreted as a whole and apparently conflicting
provisions should be reconciled and harmonized in a manner that will give to
all of them full force and effect. From this construction, it will be ascertained
that the intent of the framers was to adopt a benevolent neutrality approach in
interpreting the religious clauses in the Philippine constitutions, and the
enforcement of this intent is the goal of construing the
constitution.129 [citations omitted]
We therefore reject Mr. Justice Carpio's total adherence to the U.S. Court's
interpretation of the religion clauses to effectively deny accommodations on
the sole basis that the law in question is neutral and of general application. For
even if it were true that "an unbroken line of U.S. Supreme Court decisions"
has never held that "an individual's religious beliefs [do not] excuse him from
compliance with an otherwise valid law prohibiting conduct that the State is
free to regulate," our own Constitutions have made significant changes to
accommodate and exempt religion. Philippine jurisprudence shows that the
Court has allowed exemptions from a law of general application, in effect,
interpreting our religion clauses to cover both mandatory and permissive
accommodations.130
To illustrate, in American Bible Society v. City of Manila, 131 the Court granted to
plaintiff exemption from a law of general application based on the Free
Exercise Clause. In this case, plaintiff was required by an ordinance to secure a
mayor's permit and a municipal license as ordinarily required of those engaged
in the business of general merchandise under the city's ordinances. Plaintiff
argued that this amounted to "religious censorship and restrained the free
exercise and enjoyment of religious profession, to wit: the distribution and sale
of bibles and other religious literature to the people of the Philippines."
Although the Court categorically held that the questioned ordinances were not
applicable to plaintiff as it was not engaged in the business or occupation of
selling said "merchandise" for profit, it also ruled that applying the ordinance
to plaintiff and requiring it to secure a license and pay a license fee or tax
would impair its free exercise of religious profession and worship and its right
of dissemination of religious beliefs "as the power to tax the exercise of a
privilege is the power to control or suppress its enjoyment." The decision
states in part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious
profession and worship carries with it the right to disseminate religious
information. Any restraint of such right can only be justified like other
restraints of freedom of expression on the grounds that there is a clear and
present danger of any substantive evil which the State has the right to
prevent. (citations omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The Division
Superintendent of Schools.132 The case involved several Jehovah's Witnesses
who were expelled from school for refusing to salute the flag, sing the national
anthem and recite the patriotic pledge, in violation of the Administrative Code
of 1987. In resolving the religious freedom issue, a unanimous Court
overturned an earlier ruling denying such exemption, 133 using the "grave and
imminent danger" test, viz:
The sole justification for a prior restraint or limitation on the exercise of
religious freedom (according to the late Chief Justice Claudio Teehankee in his
dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or any
other legitimate public interest, that the State has a right (and duty) to
prevent. Absent such a threat to public safety, the expulsion of the petitioners
from the schools is not justified.134 (emphases supplied)
In these two cases, the Court itself carved out an exemption from a law of
general application, on the strength directly of the Free Exercise Clause.
We also have jurisprudence that supports permissive accommodation. The
case of Victoriano v. Elizalde Rope Workers Union135 is an example of the
application of Mr. Justice Carpio's theory of permissive accommodation, where
religious exemption is granted by a legislative act. In Victoriano, the
constitutionality of Republic Act No. 3350 was questioned. The said R.A.
exempt employees from the application and coverage of a closed shop
agreement mandated in another law based on religious objections. A
unanimous Court upheld the constitutionality of the law, holding that
"government is not precluded from pursuing valid objectives secular in
character even if the incidental result would be favorable to a religion or sect."
Interestingly, the secular purpose of the challenged law which the Court upheld
was the advancement of "the constitutional right to the free exercise of
religion."136
Having established that benevolent neutrality-accommodation is the
framework by which free exercise cases must be decided, the next question
then turned to the test that should be used in ascertaining the limits of the
exercise of religious freedom. In our Decision dated August 4, 2003, we
reviewed our jurisprudence, and ruled that in cases involving purely conduct
based on religious belief, as in the case at bar, the compelling state interest
test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible
Society, the Court mentioned the "clear and present danger" test but did not
employ it. Nevertheless, this test continued to be cited in subsequent cases on
religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned the "immediate
and grave danger" test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used, albeit
inappropriately, the "compelling state interest" test. After Victoriano, German
went back to the Gerona rule. Ebralinag then employed the "grave and
immediate danger" test and overruled the Gerona test. The fairly recent case
of Iglesia ni Cristo went back to the "clear and present danger" test in the
maiden case of American Bible Society. Not surprisingly, all the cases which
employed the "clear and present danger" or "grave and immediate danger"
test involved, in one form or another, religious speech as this test is often used
in cases on freedom of expression. On the other hand, the Gerona and German
cases set the rule that religious freedom will not prevail over established
institutions of society and law. Gerona, however, which was the authority cited
by German has been overruled by Ebralinag which employed the "grave and
immediate danger" test. Victoriano was the only case that employed the
"compelling state interest" test, but as explained previously, the use of the test
was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society,
Ebralinag and Iglesia ni Cristo where the "clear and present danger" and
"grave and immediate danger" tests were appropriate as speech has easily
discernible or immediate effects. The Gerona and German doctrine, aside from
having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the
present case involves purely conduct arising from religious belief. The
"compelling state interest" test is proper where conduct is involved for the
whole gamut of human conduct has different effects on the state's interests:
some effects may be immediate and short-term while others delayed and far-
reaching. A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore necessary.
However, not any interest of the state would suffice to prevail over the right to
religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - "the most inalienable and sacred of all
human rights", in the words of Jefferson. This right is sacred for an invocation
of the Free Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid
of Almighty God in order to build a just and humane society and establish a
government." As held in Sherbert, only the gravest abuses, endangering
paramount interests can limit this fundamental right. A mere balancing of
interests which balances a right with just a colorable state interest is therefore
not appropriate. Instead, only a compelling interest of the state can prevail
over the fundamental right to religious liberty. The test requires the state to
carry a heavy burden, a compelling one, for to do otherwise would allow the
state to batter religion, especially the less powerful ones until they are
destroyed. In determining which shall prevail between the state's interest and
religious liberty, reasonableness shall be the guide. The "compelling state
interest" serves the purpose of revering religious liberty while at the same time
affording protection to the paramount interests of the state. This was the test
used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In
the end, the "compelling state interest" test, by upholding the paramount
interests of the state, seeks to protect the very state, without which, religious
liberty will not be preserved.137 (citations omitted)
At this point, we take note of Mr. Justice Carpio's dissent, which, while loosely
disputing the applicability of the benevolent neutrality framework and
compelling state interest test, states that "[i]t is true that a test needs to be
applied by the Court in determining the validity of a free exercise claim of
exemption as made here by Escritor." This assertion is inconsistent with the
position negating the benevolent neutrality or accommodation approach. If it
were true, indeed, that the religion clauses do not require accommodations
based on the free exercise of religion, then there would be no need for a test
to determine the validity of a free exercise claim, as any and all claims for
religious exemptions from a law of general application would fail.
Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive
accommodation and mandatory accommodation is more critically important in
analyzing free exercise exemption claims because it forces the Court to
confront how far it can validly set the limits of religious liberty under the Free
Exercise Clause, rather than presenting the separation theory and
accommodation theory as opposite concepts, and then rejecting relevant and
instructive American jurisprudence (such as the Smith case) just because it
does not espouse the theory selected." He then asserts that the Smith doctrine
cannot be dismissed because it does not really espouse the strict neutrality
approach, but more of permissive accommodation.
Mr. Justice Carpio's assertion misses the point. Precisely because the doctrine
in Smith is that only legislative accommodations are allowed under the Free
Exercise Clause, it cannot be used in determining a claim of religion exemption
directly anchored on the Free Exercise Clause. Thus, even assuming that the
Smith doctrine actually espouses the theory of accommodation or benevolent
neutrality, the accommodation is limited to the permissive, or legislative
exemptions. It, therefore, cannot be used as a test in determining the claims
of religious exemptions directly under the Free Exercise Clause because Smith
does not recognize such exemption. Moreover, Mr. Justice Carpio's advocacy of
the Smith doctrine would effectively render the Free Exercise protection a
fundamental right under our Constitution nugatory because he would deny its
status as an independent source of right.
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a three-step
process. We explained this process in detail, by showing the questions which
must be answered in each step, viz:
'First, "[H]as the statute or government action created a burden on the free
exercise of religion?" The courts often look into the sincerity of the religious
belief, but without inquiring into the truth of the belief because the Free
Exercise Clause prohibits inquiring about its truth as held in Ballard and
Cantwell. The sincerity of the claimant's belief is ascertained to avoid the mere
claim of religious beliefs to escape a mandatory regulation. xxx
xxx xxx xxx
Second, the court asks: "[I]s there a sufficiently compelling state interest to
justify this infringement of religious liberty?" In this step, the government has
to establish that its purposes are legitimate for the state and that they are
compelling. Government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those
objectives will be undermined if exemptions are granted. xxx
xxx xxx xxx
Third, the court asks: "[H]as the state in achieving its legitimate purposes
used the least intrusive means possible so that the free exercise is not
infringed any more than necessary to achieve the legitimate goal of the state?"
The analysis requires the state to show that the means in which it is achieving
its legitimate state objective is the least intrusive means, i.e., it has chosen a
way to achieve its legitimate state end that imposes as little as possible on
religious liberties xxx.138 [citations omitted]
Again, the application of the compelling state interest test could result to three
situations of accommodation: First, mandatory accommodation would result if
the Court finds that accommodation is required by the Free Exercise Clause.
Second, if the Court finds that the State may, but is not required to,
accommodate religious interests, permissive accommodation results. Finally, if
the Court finds that that establishment concerns prevail over potential
accommodation interests, then it must rule that the accommodation is
prohibited.
One of the central arguments in Mr. Justice Carpio's dissent is that only
permissive accommodation can carve out an exemption from a law of general
application. He posits the view that the law should prevail in the absence of a
legislative exemption, and the Court cannot make the accommodation or
exemption.
Mr. Justice Carpio's position is clearly not supported by Philippine
jurisprudence. The cases of American Bible Society, Ebralinag, and Victoriano
demonstrate that our application of the doctrine of benevolent neutrality-
accommodation covers not only the grant of permissive, or legislative
accommodations, but also mandatory accommodations. Thus, an exemption
from a law of general application is possible, even if anchored directly on an
invocation of the Free Exercise Clause alone, rather than a legislative
exemption.
Moreover, it should be noted that while there is no Philippine case as yet
wherein the Court granted an accommodation/exemption to a religious act
from the application of general penal laws, permissive accommodation based
on religious freedom has been granted with respect to one of the crimes
penalized under the Revised Penal Code, that of bigamy.
In the U.S. case of Reynolds v. United States,139 the U.S. Court expressly
denied to Mormons an exemption from a general federal law criminalizing
polygamy, even if it was proven that the practice constituted a religious duty
under their faith.140 In contradistinction, Philippine law accommodates the
same practice among Moslems, through a legislative act. For while the act of
marrying more than one still constitutes bigamy under the Revised Penal Code,
Article 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal
Laws of the Philippines, provides that the penal laws relative to the crime of
bigamy "shall not apply to a person married under Muslim law." Thus, by
legislative action, accommodation is granted of a Muslim practice which would
otherwise violate a valid and general criminal law. Mr. Justice Carpio
recognized this accommodation when, in his dissent in our Decision dated
August 4, 2003 and citing Sulu Islamic Association of Masjid Lambayong v.
Malik,141 he stated that a Muslim Judge "is not criminally liable for bigamy
because Shari a law allows a Muslim to have more than one wife."
From the foregoing, the weakness of Mr. Justice Carpio's "permissive-
accommodation only" advocacy in this jurisdiction becomes manifest. Having
anchored his argument on the Smith doctrine that "the guaranty of religious
liberty as embodied in the Free Exercise Clause does not require the grant of
exemptions from generally applicable laws to individuals whose religious
practice conflict with those laws," his theory is infirmed by the showing that
the benevolent neutrality approach which allows for both mandatory and
permissive accommodations was unequivocally adopted by our framers in the
Philippine Constitution, our legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a "permissive accommodation-
only" stance is the antithesis to the notion that religion clauses, like the other
fundamental liberties found in the Bill or Rights, is a preferred right and an
independent source of right.
What Mr. Justice Carpio is left with is the argument, based on Smith, that the
test in Sherbert is not applicable when the law in question is a generally
applicable criminal law. Stated differently, even if Mr. Justice Carpio conceded
that there is no question that in the Philippine context, accommodations are
made, the question remains as to how far the exemptions will be made and
who would make these exemptions.
On this point, two things must be clarified: first, in relation to criminal
statutes, only the question of mandatory accommodation is uncertain, for
Philippine law and jurisprudence have, in fact, allowed legislative
accommodation. Second, the power of the Courts to grant exemptions in
general (i.e., finding that the Free Exercise Clause required the
accommodation, or mandatory accommodations) has already been decided,
not just once, but twice by the Court. Thus, the crux of the matter is whether
this Court can make exemptions as in Ebralinag and the American Bible
Society, in cases involving criminal laws of general application.
We hold that the Constitution itself mandates the Court to do so for the
following reasons.
First, as previously discussed, while the U.S. religion clauses are the
precursors to the Philippine religion clauses, the benevolent neutrality-
accommodation approach in Philippine jurisdiction is more pronounced and
given leeway than in the U.S.
Second, the whole purpose of the accommodation theory, including the notion
of mandatory accommodations, was to address the "inadvertent burdensome
effect" that an otherwise facially neutral law would have on religious exercise.
Just because the law is criminal in nature, therefore, should not bring it out of
the ambit of the Free Exercise Clause. As stated by Justice O Connor in her
concurring opinion in Smith, "[t]here is nothing talismanic about neutral laws
of general applicability or general criminal prohibitions, for laws neutral
towards religion can coerce a person to violate his religious conscience or
intrude upon his religious duties just as effectively as laws aimed at
religion."142
Third, there is wisdom in accommodation made by the Court as this is the
recourse of minority religions who are likewise protected by the Free Exercise
Clause. Mandatory accommodations are particularly necessary to protect
adherents of minority religions from the inevitable effects of majoritarianism,
which include ignorance and indifference and overt hostility to the minority. As
stated in our Decision, dated August 4, 2003:
....In a democratic republic, laws are inevitably based on the presuppositions
of the majority, thus not infrequently, they come into conflict with the religious
scruples of those holding different world views, even in the absence of a
deliberate intent to interfere with religious practice. At times, this effect is
unavoidable as a practical matter because some laws are so necessary to the
common good that exceptions are intolerable. But in other instances, the
injury to religious conscience is so great and the advancement of public
purposes so small or incomparable that only indifference or hostility could
explain a refusal to make exemptions. Because of plural traditions, legislators
and executive officials are frequently willing to make such exemptions when
the need is brought to their attention, but this may not always be the case
when the religious practice is either unknown at the time of enactment or is for
some reason unpopular. In these cases, a constitutional interpretation that
allows accommodations prevents needless injury to the religious consciences of
those who can have an influence in the legislature; while a constitutional
interpretation that requires accommodations extends this treatment to
religious faiths that are less able to protect themselves in the political arena.
Fourth, exemption from penal laws on account of religion is not entirely an
alien concept, nor will it be applied for the first time, as an exemption of such
nature, albeit by legislative act, has already been granted to Moslem polygamy
and the criminal law of bigamy.
Finally, we must consider the language of the Religion Clauses vis - à-vis the
other fundamental rights in the Bill of Rights. It has been noted that unlike
other fundamental rights like the right to life, liberty or property, the Religion
Clauses are stated in absolute terms, unqualified by the requirement of "due
process," "unreasonableness," or "lawful order." Only the right to free speech
is comparable in its absolute grant. Given the unequivocal and unqualified
grant couched in the language, the Court cannot simply dismiss a claim of
exemption based on the Free Exercise Clause, solely on the premise that the
law in question is a general criminal law.143 If the burden is great and the
sincerity of the religious belief is not in question, adherence to the benevolent
neutrality-accommodation approach require that the Court make an individual
determination and not dismiss the claim outright.
At this point, we must emphasize that the adoption of the benevolent
neutrality-accommodation approach does not mean that the Court ought to
grant exemptions every time a free exercise claim comes before it. This is an
erroneous reading of the framework which the dissent of Mr. Justice Carpio
seems to entertain. Although benevolent neutrality is the lens with which the
Court ought to view religion clause cases, the interest of the state should also
be afforded utmost protection. This is precisely the purpose of the test to draw
the line between mandatory, permissible and forbidden religious exercise.
Thus, under the framework, the Court cannot simply dismiss a claim under the
Free Exercise Clause because the conduct in question offends a law or the
orthodox view, as proposed by Mr. Justice Carpio, for this precisely is the
protection afforded by the religion clauses of the Constitution. 144 As stated in
the Decision:
xxx While the Court cannot adopt a doctrinal formulation that can eliminate the
difficult questions of judgment in determining the degree of burden on
religious practice or importance of the state interest or the sufficiency of the
means adopted by the state to pursue its interest, the Court can set a doctrine
on the ideal towards which religious clause jurisprudence should be directed.
We here lay down the doctrine that in Philippine jurisdiction, we adopt the
benevolent neutrality approach not only because of its merits as discussed
above, but more importantly, because our constitutional history and
interpretation indubitably show that benevolent neutrality is the launching pad
from which the Court should take off in interpreting religion clause cases. The
ideal towards which this approach is directed is the protection of religious
liberty "not only for a minority, however small - not only for a majority,
however large but for each of us" to the greatest extent possible within flexible
constitutional limits.145
II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003 Decision. As
mentioned, what remained to be resolved, upon which remand was necessary,
pertained to the final task of subjecting this case to the careful application of
the compelling state interest test, i.e., determining whether respondent is
entitled to exemption, an issue which is essentially factual or evidentiary in
nature.
After the termination of further proceedings with the OCA, and with the
transmittal of the Hearing Officer's report, 146 along with the evidence submitted
by the OSG, this case is once again with us, to resolve the penultimate
question of whether respondent should be found guilty of the administrative
charge of "disgraceful and immoral conduct." It is at this point then that we
examine the report and documents submitted by the hearing officer of this
case, and apply the three-step process of the compelling state interest test
based on the evidence presented by the parties, especially the government.
On the sincerity of religious belief, the Solicitor General categorically concedes
that the sincerity and centrality of respondent's claimed religious belief and
practice are beyond serious doubt.147 Thus, having previously established the
preliminary conditions required by the compelling state interest test, i.e., that
a law or government practice inhibits the free exercise of respondent's
religious beliefs, and there being no doubt as to the sincerity and centrality of
her faith to claim the exemption based on the free exercise clause, the burden
shifted to the government to demonstrate that the law or practice justifies a
compelling secular objective and that it is the least restrictive means of
achieving that objective.
A look at the evidence that the OSG has presented fails to demonstrate "the
gravest abuses, endangering paramount interests" which could limit or
override respondent's fundamental right to religious freedom. Neither did the
government exert any effort to show that the means it seeks to achieve its
legitimate state objective is the least intrusive means.
The OSG merely offered the following as exhibits and their purposes:
1. Exhibit "A-OSG" and submarking - The September 30, 2003 Letter to the
OSG of Bro. Raymond B. Leach, Legal Representative of the Watch Tower Bible
and Tract Society of the Philippines, Inc.
Purpose: To show that the OSG exerted efforts to examine the sincerity and
centrality of respondent's claimed religious belief and practice.
2. Exhibit "B-OSG" and submarking - The duly notarized certification dated
September 30, 2003 issued and signed by Bro. Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of respondent's
claimed religious belief and practice; and (2) to prove that the Declaration of
Pledging Faithfulness, being a purely internal arrangement within the
congregation of the Jehovah's Witnesses, cannot be a source of any legal
protection for respondent.
In its Memorandum-In-Intervention, the OSG contends that the State has a
compelling interest to override respondent's claimed religious belief and
practice, in order to protect marriage and the family as basic social
institutions. The Solicitor General, quoting the Constitution 148 and the Family
Code,149 argues that marriage and the family are so crucial to the stability and
peace of the nation that the conjugal arrangement embraced in the Declaration
of Pledging Faithfulness should not be recognized or given effect, as "it is
utterly destructive of the avowed institutions of marriage and the family for it
reduces to a mockery these legally exalted and socially significant institutions
which in their purity demand respect and dignity." 150
Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor
General in so far as he asserts that the State has a compelling interest in the
preservation of marriage and the family as basic social institutions, which is
ultimately the public policy underlying the criminal sanctions against
concubinage and bigamy. He also argues that in dismissing the administrative
complaint against respondent, "the majority opinion effectively condones and
accords a semblance of legitimacy to her patently unlawful cohabitation..." and
"facilitates the circumvention of the Revised Penal Code." According to Mr.
Justice Carpio, by choosing to turn a blind eye to respondent's criminal
conduct, the majority is in fact recognizing a practice, custom or agreement
that subverts marriage. He argues in a similar fashion as regards the state's
interest in the sound administration of justice.
There has never been any question that the state has an interest in protecting
the institutions of marriage and the family, or even in the sound administration
of justice. Indeed, the provisions by which respondent's relationship is said to
have impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code, Articles 334 and 349 of the Revised Penal Code, and even
the provisions on marriage and family in the Civil Code and Family Code, all
clearly demonstrate the State's need to protect these secular interests.
Be that as it may, the free exercise of religion is specifically articulated as one
of the fundamental rights in our Constitution. It is a fundamental right that
enjoys a preferred position in the hierarchy of rights - "the most inalienable
and sacred of human rights," in the words of Jefferson. Hence, it is not enough
to contend that the state's interest is important, because our Constitution itself
holds the right to religious freedom sacred. The State must articulate in
specific terms the state interest involved in preventing the exemption, which
must be compelling, for only the gravest abuses, endangering paramount
interests can limit the fundamental right to religious freedom. To rule
otherwise would be to emasculate the Free Exercise Clause as a source of right
by itself.
Thus, it is not the State's broad interest in "protecting the institutions of
marriage and the family," or even "in the sound administration of justice" that
must be weighed against respondent's claim, but the State's narrow interest in
refusing to make an exception for the cohabitation which respondent's faith
finds moral. In other words, the government must do more than assert the
objectives at risk if exemption is given; it must precisely show how and to
what extent those objectives will be undermined if exemptions are
granted.151 This, the Solicitor General failed to do.
To paraphrase Justice Blackmun's application of the compelling interest test,
the State's interest in enforcing its prohibition, in order to be sufficiently
compelling to outweigh a free exercise claim, cannot be merely abstract or
symbolic. The State cannot plausibly assert that unbending application of a
criminal prohibition is essential to fulfill any compelling interest, if it does not,
in fact, attempt to enforce that prohibition. In the case at bar, the State has
not evinced any concrete interest in enforcing the concubinage or bigamy
charges against respondent or her partner. The State has never sought to
prosecute respondent nor her partner. The State's asserted interest thus
amounts only to the symbolic preservation of an unenforced prohibition.
Incidentally, as echoes of the words of Messrs. J. Bellosillo and Vitug, in their
concurring opinions in our Decision, dated August 4, 2003, to deny the
exemption would effectively break up "an otherwise ideal union of two
individuals who have managed to stay together as husband and wife
[approximately twenty-five years]" and have the effect of defeating the very
substance of marriage and the family.
The Solicitor General also argued against respondent's religious freedom on
the basis of morality, i.e., that "the conjugal arrangement of respondent and
her live-in partner should not be condoned because adulterous relationships
are constantly frowned upon by society"; 152 and "that State laws on marriage,
which are moral in nature, take clear precedence over the religious beliefs and
practices of any church, religious sect or denomination on marriage. Verily,
religious beliefs and practices should not be permitted to override laws relating
to public policy such as those of marriage." 153
The above arguments are mere reiterations of the arguments raised by Mme.
Justice Ynares-Santiago in her dissenting opinion to our Decision dated August
4, 2003, which she offers again in toto. These arguments have already been
addressed in our decision dated August 4, 2003.154 In said Decision, we noted
that Mme. Justice Ynares-Santiago's dissenting opinion dwelt more on the
standards of morality, without categorically holding that religious freedom is
not in issue.155 We, therefore, went into a discussion on morality, in order to
show that:
(a) The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from establishing a
religion, including the morality it sanctions.156 Thus, when the law speaks of
"immorality" in the Civil Service Law or "immoral" in the Code of Professional
Responsibility for lawyers,157 or "public morals" in the Revised Penal Code,158 or
"morals" in the New Civil Code,159 or "moral character" in the
Constitution,160 the distinction between public and secular morality on the one
hand, and religious morality, on the other, should be kept in mind; 161
(b) Although the morality contemplated by laws is secular, benevolent
neutrality could allow for accommodation of morality based on religion,
provided it does not offend compelling state interests; 162
(c) The jurisdiction of the Court extends only to public and secular morality.
Whatever pronouncement the Court makes in the case at bar should be
understood only in this realm where it has authority. 163
(d) Having distinguished between public and secular morality and religious
morality, the more difficult task is determining which immoral acts under this
public and secular morality fall under the phrase "disgraceful and immoral
conduct" for which a government employee may be held administratively
liable.164 Only one conduct is in question before this Court, i.e., the conjugal
arrangement of a government employee whose partner is legally married to
another which Philippine law and jurisprudence consider both immoral and
illegal.165
(e) While there is no dispute that under settled jurisprudence, respondent's
conduct constitutes "disgraceful and immoral conduct," the case at bar
involves the defense of religious freedom, therefore none of the cases cited by
Mme. Justice Ynares-Santiago apply.166 There is no jurisprudence in Philippine
jurisdiction holding that the defense of religious freedom of a member of the
Jehovah's Witnesses under the same circumstances as respondent will not
prevail over the laws on adultery, concubinage or some other law. We cannot
summarily conclude therefore
that her conduct is likewise so "odious" and "barbaric" as to be immoral and
punishable by law.167
Again, we note the arguments raised by Mr. Justice Carpio with respect to
charging respondent with conduct prejudicial to the best interest of the
service, and we reiterate that the dissent offends due process as respondent
was not given an opportunity to defend herself against the charge of "conduct
prejudicial to the best interest of the service." Indeed, there is no evidence of
the alleged prejudice to the best interest of the service. 168
Mr. Justice Carpio's slippery slope argument, on the other hand, is non-
sequitur. If the Court grants respondent exemption from the laws which
respondent Escritor has been charged to have violated, the exemption would
not apply to Catholics who have secured church annulment of their marriage
even without a final annulment from a civil court. First, unlike Jehovah's
Witnesses, the Catholic faith considers cohabitation without marriage as
immoral. Second, but more important, the Jehovah's Witnesses have
standards and procedures which must be followed before cohabitation without
marriage is given the blessing of the congregation. This includes an
investigative process whereby the elders of the congregation verify the
circumstances of the declarants. Also, the Declaration is not a blanket
authority to cohabit without marriage because once all legal impediments for
the couple are lifted, the validity of the Declaration ceases, and the
congregation requires that the couple legalize their union.
At bottom, the slippery slope argument of Mr. Justice Carpio is speculative.
Nevertheless, insofar as he raises the issue of equality among religions, we
look to the words of the Religion Clauses, which clearly single out religion for
both a benefit and a burden: "No law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof' " On its face,
the language grants a unique advantage to religious conduct, protecting it
from governmental imposition; and imposes a unique disadvantage,
preventing the government from supporting it. To understand this as a
provision which puts religion on an equal footing with other bases for action
seems to be a curious reading. There are no "free exercise" of "establishment"
provisions for science, sports, philosophy, or family relations. The language
itself thus seems to answer whether we have a paradigm of equality or liberty;
the language of the Clause is clearly in the form of a grant of liberty. 169
In this case, the government's conduct may appear innocent and
nondiscriminatory but in effect, it is oppressive to the minority. In the
interpretation of a document, such as the Bill of Rights, designed to protect the
minority from the majority, the question of which perspective is appropriate
would seem easy to answer. Moreover, the text, history, structure and values
implicated in the interpretation of the clauses, all point toward this
perspective. Thus, substantive equality a reading of the religion clauses which
leaves both politically dominant and the politically weak religious groups equal
in their inability to use the government (law) to assist their own religion or
burden others'makes the most sense in the interpretation of the Bill of Rights,
a document designed to protect minorities and individuals from mobocracy in a
democracy (the majority or a coalition of minorities). 170
adopted in pursuing this compelling interest is the least restrictive to
respondent's religious freedom.
Thus, we find that in this particular case and under these distinct
circumstances, respondent Escritor's conjugal arrangement cannot be
penalized as she has made out a case for exemption from the law based on her
fundamental right to freedom of religion. The Court recognizes that state
interests must be upheld in order that freedoms - including religious freedom -
may be enjoyed. In the area of religious exercise as a preferred freedom,
however, man stands accountable to an authority higher than the state, and so
the state interest sought to be upheld must be so compelling that its violation
will erode the very fabric of the state that will also protect the freedom. In the
absence of a showing that such state interest exists, man must be allowed to
subscribe to the Infinite.
IN VIEW WHEREOF, the instant administrative complaint is dismissed.
SO ORDERED.

As previously discussed, our Constitution adheres to the benevolent neutrality

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

Finally, even assuming that the OSG has proved a compelling state interest, it
has to further demonstrate that the state has used the least intrusive means SECOND DIVISION
possible so that the free exercise is not infringed any more than necessary to
achieve the legitimate goal of the state, i.e., it has chosen a way to achieve its
A.M. No. RTJ-15-2417 [Formerly known as OCA IPI No. 10-3466-RTJ],
legitimate state end that imposes as little as possible on religious
July 22, 2015
liberties.174 Again, the Solicitor General utterly failed to prove this element of
the test. Other than the two documents offered as cited above which
ELADIO D. PERFECTO, Complainant, v. JUDGE ALMA CONSUELO D.
established the sincerity of respondent's religious belief and the fact that the
ESIDERA, Respondent.
agreement was an internal arrangement within respondent's congregation, no
iota of evidence was offered. In fact, the records are bereft of even a feeble
attempt to procure any such evidence to show that the means the state RESOLUTION
 LEONEN, J.:
On July 15, 2010, Eladio Perfecto filed an administrative Complaint 1 against
Judge Alma Consuelo Desales-Esidera of Branch 20 of the Regional Trial Court
of Catarman, Northern Samar for falsification of public document and
dishonesty.
Eladio Perfecto (Perfecto) alleged that Judge Alma Consuelo Desales-Esidera
(Judge Desales-Esidera) was first married to Richard Tang Tepace on May 7,
1987 at the Metropolitan Trial Court of Manila. 2
chanrobleslaw
On October 3, 1990, Judge Desales-Esidera gave birth to a daughter with
Renato Verano Esidera at Capitol Medical Center in Quezon City. 3 Her marriage
to Richard Tang Tepace was later declared void on January 27, 1992. 4
Based on her certification of marriage records dated February 21, 2009, Judge
Desales-Esidera married Renato Verano Esidera on June 3, 1992. 5 chanrobleslaw
Perfecto further alleged that Judge Desales-Esidera falsified her daughter's
birth certificate to make it appear that she and Renato Verano Esidera were
married on March 18, 1990 and that their daughter was a legitimate child. 6 No
marriage took place on that date based on a certification of no marriage issued
by the Office of the City Civil Registrar of Paranaque City. 7 Judge Desales-
Esidera did not take any step to rectify the error on her daughter's birth
certificate.8
chanrobleslaw
Perfecto prays for Judge Desales-Esidera's dismissal from office for her alleged
dishonesty.9 chanrobleslaw
Judge Desales-Esidera filed her Comment with Motion to Dismiss on December
30, 2010.10 She argued that Perfecto did not comply with the requirement of
personal knowledge under Rule 140, Section 1.11 He should have supported his
Complaint "with affidavits of persons who knew her personally or with
authenticated copies of documents that supported his
allegations."12 Otherwise, Perfecto's allegations were nothing more than
"tsismis" or hearsay.13 Perfecto perjured himself when he subscribed to facts
that were not based on his personal knowledge.14 chanrobleslaw
Judge Desales-Esidera brought this court's attention to the allegedly malicious
means by which Perfecto obtained the documents supporting his
allegations.15 According to her, the documents were secured in connivance with
persons involved in or were related to parties in other administrative cases.
Perfecto also connived with court employees who violated either the law or
Supreme Court circulars by bringing court records outside the court without
the judge's knowledge or consent.16 Judge Desales-Esidera claimed that this
affects Perfecto's credibility and integrity. 17 chanrobleslaw
Moreover, Judge Desales-Esidera claimed that the persons involved in
obtaining the documents "desperately want[ed] [her] out of the judiciary so
that they could continue their illegal activities in the office[,] like temporary
borrowing of funds in the Office of the Clerk of Court . . . and the abuse of the
accreditation of [Perfecto] [,] whose newspaper [was] not printed and
circulated generally and regularly in Northern Samar." 18 chanrobleslaw
Judge Desales-Esidera further argued that the charges against her were
chanrobleslaw
personal and not judicial.19 She did not participate in the accomplishment of
the birth certificate.20 She had planned to correct her daughter's birth
certificate, but she and her husband decided against it for the best interest of
her daughter.21chanrobleslaw
On the question of integrity, honesty, and morality, Judge Desales-Esidera
argued that everything she did was legal and in accordance with her religious
beliefs. She was, indeed, married to her second husband on March 18, 1990,
but only under recognized Catholic rites.22 The priest who officiated their
marriage had no authority to solemnize marriages under the civil law.
Further, Judge Desales-Esidera argued that while her religious marriage was
done before the declaration of nullity of her first marriage, the prevailing
jurisprudence at that time was that "there was no need for a judicial decree to
establish the invalidity of void marriage."23 She described her state of mind
and motivations for her acts as follows:chanRoblesvirtualLawlibrary
When I got married the first time, it was not our intention to live together as
husband and wife. It was a secret marriage solemnized by a judge. We
planned of a church wedding supposedly on my birthday of the same year.
However, Richard reasoned out that he was still confused because his mother
was sick while his father, a Chinese, would not agree because it was the Year
of the Dragon. As established by the evidence in the annulment case (Decision,
page 4 onwards, Annex C of Complaint), I continued living with my parents
and using my paternal name. Never for a moment did we live together as
husband and wife. For some reasons we cooled off and finally called it quits.
When I met my second husband, I found it very much unfair to be bound in a
marriage that was never consummated. I wanted the marriage annulled. But
the annulment process was long and I was not getting any younger. Then, I
got pregnant. I knew it was against my values but I had no choice. I heard
that getting pregnant beyond thirty was more risky.
Renato and I are both religious. We both wanted to correct what we have
started wrongly. I consulted at least two priests who were knowledgeable on
Canon Law, a certain Fr. Albarico from San Sebastian Church and Rev. Fr.
David J. Tither, C.SS.R of the Redemptorist Church in Baclaran. I also made
my own research on Catholic annulment and got a copy of the deliberations on
"psychological incapacity" as a ground for annulment under the Family Code. I
need not over emphasize that in view of the separation of the Church and the
State, civil marriages are not recognized by the Catholic Church. Couples who
are civilly married are considered living in state of sin, and may be ex-
communicated. They cannot receive the sacraments. Thus, my marriage to
Richard Tang was not recognized by the Catholic Church. Moreover, in my
research I found this digest in Vol. 1, Civil Code Annotated. Ambrosio Padilla,
p. 454, 1975 edition:chanRoblesvirtualLawlibrary
"People vs. Whipkey, (CA) 69, O.G. 9678. - Pursuant to Art. 66 of the
Civil Code, before a marriage license can be obtained by a citizen or
subject of a foreign country, he must first present a certificate of legal
capacity to contract marriage to be issued by the diplomatic or
consular official of his own country. The law stresses the mandatory
character of this requirement by the use of the word "necessary", so
that marriage license secured in violation of Article 66 of the Civil Code
is a void license."
I need not go into details. But anybody knows that a marriage solemnized with
a void license is no marriage at all. My marriage to Richard Tang, a Chinese,
was void ab initio. If I am not mistaken, at that time, the jurisprudence was
that there was no need for a judicial decree to establish the invalidity of void
marriage. (People vs. Aragon, 100 Phil. 1033, cited on page 470 of the same
book).
The logical conclusion, therefore, was that there was no impediment for Renato
and I to get married although we still need the court order to cancel the
registration. But we both can receive the sacrament. Our primary purpose in
availing of the Sacrament of Holy Matrimony was to continue living in a state
of grace while waiting for the result of the annulment case which came two
years later. So after consultations and a little catechesis with Fr. David Tither,
he finally officiated the sacramental marriage rite in one of the confessional
rooms in the parish office of Baclaran Church with two other priests. Rev. Fr.
Patrick J. Deane, C.SS.R and Rev. Fr. Desmond de Souza, C.SS.R., as
witnesses. Our second marriage on June 3, 1992 was again in a religious
ceremony but with all the formalities required by law.
That pregnancy was very complicated. In fact, it was diagnosed as ectopic
pregnancy. After two sessions with Fr. David Tither, also a known healer and
exorcist, the fetus finally went down from the fallopian tube to the womb but
was born prematurely. It was also difficult and painful giving birth to her. So,
my husband Renato took charge of everything, including the preparation for
the registration of the baby.
Complainant accuses me of falsifying the birth certificate of my daughter, Mary
Joyce. However, her certificate of live birth form was accomplished by her
father in his own handwriting and signed by him. My husband Renato is not a
lawyer. To him, what matters is that our union is blessed by God and that
before the eyes of the Almighty, our daughter is legitimate.
The date of marriage which my husband supplied in the birth certificate of our
daughter, Mary Joyce, is the date we received the Sacrament of Holy
Matrimony on March 18, 1990. Fr. David Tither had no license to solemnize
marriage from the National Archives or from the civil government. It was a
purely sacramental marriage rite, without legal effect but definitely valid and
recognized by the Roman Catholic Church. It is called "matrimona de
conciencia". All he could give us was a blank certificate of marriage but signed
by him and the two priest witnesses, a certification and a covering letter
(Annex E, F and G). The need referred to in the covering letter did not arrive
because our second marriage (June 3, 1992) came before Mary Joyce attended
the pre-school, so the form remained blank up to this date. If I were as
scheming as my accusers, I should have filled it up a long time ago. But I am
too honest and honorable to do that.
According to the Order to comment, I am also accused of immorality. The
basis of morality is generally the do's and don'ts set by the Church of whatever
religion. As Catholics, we have the Ten Commandments. I have sinned against
one but I took advantage of the Sacrament of Reconciliation and the
Sacrament of Matrimony. I did not, and do not live with anybody not my
husband as defined by my Catholic faith. Chastity is a virtue. Even if one is
civilly married but if there is no religious ratification, in the eyes of my God,
the spouses are living in sin and cannot take the Sacrament of the Holy
Eucharist.
From the day I saw the certified copy of the birth certificate of our daughter, I
already planned to correct it. But, being married, anything that would affect
our family must be a conjugal decision. We decided against it, not because I
am a lawbreaker, dishonest or immoral, but because not to disturb her birth
record will serve her best interest and welfare. It will save her the
embarrassment of being different in some way from her sisters; and the
repercussion of being branded an "illegitimate" by her teachers and peers. As a
mother, I have to protect her from, everything detrimental to her well-being.
More than a judge, I am a mother and a wife. As a lawyer, I agreed because it
can always be corrected when the time or need comes. This case has already
affected my daughter emotionally, especially when she learned that somebody
secured her birth certificate and pretended to be "Mary Joyce." She could not
understand why she should be dragged in this controversy using her birth
certificate which is supposed to be confidential. Neither do I. If the Xerox
copies appended to the Complaint were perused carefully, my children,
especially Mary Joyce, would have been saved from emotional shock and
trauma. Being appointed to the Judiciary is not a license to pry on our personal
life before I became a judge and criticize our wisdom.
Finally, my life and the status of our firstborn could not have escaped the
scrutiny of all those involved in the selection process in the appointment to the
Judiciary, including those who conducted the background investigation. It is
personal and has nothing to do with my professional life then, and now, with
my judicial life. My love story is the best proof of my morality and my honesty.
I never kept it a secret; but I cannot allow it also to be publicized
unnecessarily. The first civil marriage was never consummated because of our
agreement to have a church wedding first. The second marriage was purely a
sacramental rite in obedience to the Law of God, so that my husband and I
would continue living together without offending our God until the annulment
process was finalized. The third marriage was made to finally formalize our
status in the eyes of the law of man.
The reason for these administrative cases is that I cannot be like my accusers.
I cannot join them because I value my dignity and my peace of mind.
We all have our stories to tell. Nobody's perfect. What is important is we learn
from our mistakes, amend our lives and avoid further wrongdoings. If the
Honorable Court Administrator, through the Legal Office, would only conduct
discreet investigation on the life of my accusers and their lifestyles, the Office
would realize who among us is leading an immoral life. 24 (Emphasis in the
original)
On September 29, 2014, the Office of the Court Administrator recommended
that Judge Desales-Esidera be found guilty of disgraceful, immoral, or
dishonest conduct and that she be suspended from judicial service for 15 days
with the warning that a repetition of a similar offense would be dealt with more
severely.25
chanrobleslaw
The Office of the Court Administrator found that Judge Desales-Esidera
condoned the misrepresentation made on her child's birth certificate. 26 chanrobleslaw
The Office of the Court Administrator also found that Judge Desales-Esidera
engaged in an "illicit affair" and contracted a second marriage while another
marriage subsisted.27 She contracted the second marriage knowing that there
were legal impediments to that marriage. 28 Judge Desales-Esidera "did not
comport herself according to her Roman Catholic faith." 29 chanrobleslaw
We find that Judge Desales-Esidera's omission to correct her child's birth
certificate is not sufficient to render her administratively liable under the
circumstances. The error in the birth certificate cannot be attributed to her.
She did not participate in filling in the required details in the document. The
birth certificate shows that it was her husband who signed it as informant. 30 chanrobleslaw
Judge Desales-Esidera is also not guilty of disgraceful and immoral conduct
under the Code of Professional Responsibility.
Morality refers to what is good or right conduct at a given circumstance.
In Estrada v. Escritor,31 this court described morality as "how we ought to live'
and why."32 chanrobleslaw
Morality may be religious, in which case what is good depends on the moral
prescriptions of a high moral authority or the beliefs of a particular religion.
Religion, as this court defined in Aglipay v. Ruiz,33 is "a profession of faith to an
active power that binds and elevates man to his Creator." 34 A conduct is
religiously moral if it is consistent with and is carried out in light of the divine
set of beliefs and obligations imposed by the active power.
Morality may also be secular, in which case it is independent of any divine
moral prescriptions. What is good or right at a given circumstance does not
derive its basis from any religious doctrine but from the independent moral
sense shared as humans.
The non-establishment clause35 bars the State from establishing, through laws
and rules, moral standards according to a specific religion. Prohibitions against
immorality should be based on a purpose that is independent of religious
beliefs. When it forms part of our laws, rules, and policies, morality must be
secular. Laws and rules of conduct must be based on a secular purpose. 36 chanrobleslaw
In the same way, this court, in resolving cases that touch on issues of
morality, is bound to remain neutral and to limit the bases of its judgment on
secular moral standards. When laws or rules refer to morals or immorality,
courts should be careful not to overlook the distinction between secular and
religious morality if it is to keep its part in upholding constitutionally
guaranteed rights.37chanrobleslaw
There is the danger of "compelled religion"38 and, therefore, of negating the
very idea of freedom of belief and non-establishment of religion when religious
morality is incorporated in government regulations and policies. As explained
in Estrada v. Escritor:39 cralawred
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. 40
The Office of the Court Administrator recommended that we find respondent
judge guilty of immoral conduct based on, among others, her alleged affair and
her failure to comport herself according to the Roman Catholic faith.
This court may not sit as judge of what is moral according to a particular
religion. We do not have jurisdiction over and is not the proper authority to
determine which conduct contradicts religious doctrine. We have jurisdiction
over matters of morality only insofar as it involves conduct that affects the
public or its interest.
Thus, for purposes of determining administrative liability of lawyers and
judges, "immoral conduct" should relate to their conduct as officers of the
court. To be guilty of "immorality" under the Code of Professional
Responsibility, a lawyer's conduct must be so depraved as to reduce the
public's confidence in the Rule of Law. Religious morality is not binding
whenever this court decides the administrative liability of lawyers and persons
under this court's supervision. At best, religious morality weighs only
persuasively on us.
Therefore, we cannot properly conclude that respondent judge's acts of
contracting a second marriage during the subsistence of her alleged first
marriage and having an alleged "illicit" affair are "immoral" based on her
Catholic faith. This court is not a judge of religious morality.
We also do not find that respondent judge's acts constitute immorality for
purposes of administrative liability. Under the circumstances, respondent
judge's second marriage and her alleged affair with her second husband
were not of such depravity as to reduce confidence in the Rule of Law.
Respondent judge and her first husband never really lived together as husband
and wife. She claimed that her first husband did not want to have a church
wedding. She and her husband did not have a child. She claimed that this
marriage was not recognized by her church. Eventually, their marriage was
declared void,41 and she was wed civilly to her second husband, with whom
respondent judge allegedly had an affair.
Moreover, respondent judge's acts were not intrinsically harmful. When
respondent judge married her second husband, no harm was inflicted upon any
one, not even the complainant. There was no evidence on the records that the
first husband, who was the most interested person in the issue, even objected
to the second marriage.
While we do not find respondent judge administratively liable for immorality,
we can determine if she is administratively liable for possible misconduct. The
Code of Professional Responsibility directs lawyers to obey the laws and
promote respect for the law.42chanrobleslaw
We cannot conclude that, for purposes of determining administrative liability,
respondent judge disobeyed the law against bigamy when she and her second
husband conducted a marriage ceremony on March 18, 1990.
Respondent judge claimed that this marriage was merely a sacramental
marriage entered into only to comply with the requirements of their religious
beliefs. It was valid only under the Roman Catholic Church but has no legal
effect. Their solemnizing officer was not licensed to solemnize marriage from
the National Archives or from the civil government. 43
chanrobleslaw
Article 349 of the Revised Penal Code prohibits a second or subsequent
marriage before the legal dissolution of a first marriage: chanRoblesvirtualLawlibrary
Art. 349. Bigamy. - The penalty of prision mayor shall be imposed upon any
person who shall contract a second or subsequent marriage before the former
marriage has been legally dissolved, or before the absent spouse has been
declared presumptively dead by means of a judgment rendered in the proper
proceedings. chanroblesvirtuallawlibrary
The second or subsequent marriage contemplated under this provision is the
marriage entered into under the law. Article 1 of the Family Code defines
marriage as "a special contract of permanent union between a man and a
woman entered into in accordance with law for the establishment of conjugal
and family life[.]"
Thus, the validity of the second marriage, if not for the subsistence of the first
marriage, is considered one of the elements of the crime of bigamy. The
elements of bigamy are: chanRoblesvirtualLawlibrary
(a) the offender has been legally married; (b) the marriage has not been
legally dissolved or, in case his or her spouse is absent, the absent spouse
could not yet be presumed dead according to the Civil Code; (c) that he
contracts a second or subsequent marriage; and (d) the second or subsequent
marriage has all the essential requisites for validity. The felony is
consummated on the celebration of the second marriage or subsequent
marriage. It is essential in the prosecution for bigamy that the alleged second
marriage, having all the essential requirements, would be valid were it not for
the subsistence of the first marriage.44 (Emphasis supplied, citations omitted)
Respondent judge's act of participating in the marriage ceremony as governed
only by the rules of her religion is not inconsistent with our law against
bigamy. What the law prohibits is not second marriage during a subsisting
marriage per se. What the law prohibits is a second marriage that would have
been valid had it not been for the subsisting marriage. Under our law,
respondent judge's marriage in 1990 was invalid because of the solemnizing
officer's lack of authority.
Marriages entered into in accordance with the law may or may not include
marriages recognized in certain religions. Religious marriages are recognized in
and may be governed by our laws only if they conform to legal requirements.
Religious marriages that lack some or all the requirements under the law are
invalid.45 They are not considered to have been entered into. They do not
enjoy the benefits, consequences, and incidents of marriage provided under
the law.
The lack of authority of the officer that solemnized respondent judge's
marriage in 1990 renders such marriage invalid. It is not recognized in our law.
Hence, no second marriage can be imputed against respondent judge while her
first marriage subsisted.
However, respondent judge may have disobeyed the law, particularly Article
350 of the Revised Penal Code, which prohibits knowingly contracting
marriages against the provisions of laws. Article 350 of the Revised Penal Code
provides:chanRoblesvirtualLawlibrary
ART. 350. Marriage contracted against provisions of laws. - The penalty of
prision correccional in its medium and maximum periods shall be imposed
upon any person who, without being included in the provisions of the next
preceding article, shall contract marriage knowing that the requirements of the
law have not been complied with or that the marriage is in disregard of a legal
impediment. (Emphasis supplied)
Respondent judge knew that the solemnizing officer during her and her
husband's marriage in 1990 had no civil authority to solemnize marriages. It is
clear from her Comment that she and her husband's only consideration for
their 1990 marriage was the recognition from the Roman Catholic Church. She
stated that: chanRoblesvirtualLawlibrary
Fr. David Tither had no license to solemnize marriage from the National
Archives or from the civil government. Hence, he was not under obligation to
register our marriage. It was a purely sacramental marriage rite, without legal
effect but definitely valid and recognized by the Roman Catholic Church. It is
called "matrimona de conciencia."46
However, Article 350 may be of doubtful constitutionality when applied to
religious exercise and expression insofar as it prescribes upon individuals and
religious communities formal requirements for the conduct of their religious
ceremonies. It puts a burden47 upon the exercise of beliefs by criminalizing
marriages performed in accordance with those beliefs, but lacks some or all
the requisites of a valid marriage under the law. These requirements include
not only age and consent, but also formal requisites such as marriage license
and civil authority of the solemnizing officer even though violence, fraud, or
intimidation was not present under the circumstances. It may, therefore, limit
religious exercise and expression to the formalities of law.
Thus, unless respondent judge's act of participating in a marriage ceremony
according to her religious beliefs violates other peoples' rights or poses grave
and imminent danger to the society,48 we cannot rule that respondent judge is
administratively liable for her participation in her religious marriage
ceremony.49 chanrobleslaw
In Estrada,50 this court ruled that in religious freedom cases, the test of
benevolent neutrality should be applied. Under the test of benevolent
neutrality, religious freedom is weighed against a compelling state interest: chanRoblesvirtualLawlibrary
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.51 (Emphasis in the original)
We find that there is no compelling state interest that may limit respondent
judge's right to participate in religious and merely ceremonial acts that are
non-violative of other people's rights and with no legally binding effect. The
institution of marriage is not threatened when we accommodate respondent
judge's freedom to participate in such ceremonies even if they have secular
counterparts under our laws.
In any case, respondent judge did not ask that she and her husband be given
the same rights as civilly married partners before their civil wedding in 1992.
She does not ask that our laws recognize her marriage in 1990 as valid.
Respondent judge also does not seem to be against civil marriages. She and
her husband were even civilly wed after her marriage with her first spouse was
declared void.
However, benevolent neutrality and claims of religious freedom cannot shield
respondent judge from liability for misconduct under our laws. Respondent
judge knowingly entered into a civil marriage with her first husband. She knew
its effects under our laws. She had sexual relations with her second husband
while her first marriage was subsisting.
Lawyers are not and should not be expected to be saints. What they do as
citizens of their faiths are beyond this court's power to judge. Lawyers,
however, are officers of court. They are expected to care about and sustain the
law. This court's jurisdiction over their actions is limited to their acts that may
affect public confidence in the Rule of Law. Our state has secular interests to
protect. This court cannot be expected to condone misconduct done knowingly
on account of religious freedom or expression.
Finally, the Office of the Court Administrator and the Administrators of lower
courts should look into the motives of persons who file complaints against our
judges and officers of court when allegations point to possible administrative
violations. This is not to say that complainants' motives are relevant to their
causes of actions. However, complainants who come to court with unclean
hands should not be spared from liability just because they were the first to
submit their accusations.
WHEREFORE, we find respondent Judge Alma Consuelo Desales-Esidera guilty
of violating Canon 1 of the Code of Professional Responsibility. Respondent
Judge Desales-Esidera is SUSPENDED from judicial service for one (1) month
with a warning that repetition of a similar offense will be dealt with more
severely. She is STERNLY WARNED that repetition of the same violations in
the future will be dealt with more severely.

Respondent judge cannot claim that engaging in sexual relations with another The Office of the Court Administrator is ORDERED to conduct an investigation
person during the subsistence of a marriage is an exercise of her religious regarding respondent's claims of illegal court activities.
expression. Legal implications and obligations attach to any person who
chooses to enter civil marriages. This is regardless of how civil marriages are SO ORDERED. cr

treated in that person's religion.

Moreover, respondent judge, as a lawyer and even more so as a judge, is

expected to abide by the law. Her conduct affects the credibility of the courts
in dispensing justice. Thus, in finding respondent judge administratively liable
for a violation of her marriage obligations under our laws, this court protects
the credibility of the judiciary in administering justice. In the words of Justice
Carpio in his dissenting opinion in Estrada: chanRoblesvirtualLawlibrary

Court employees, from the highest magistrate to the lowliest clerk, are
expected to abide scrupulously with the law. They are held to a higher
standard since they are part of the judicial machinery that dispenses justice.
[T]here exists a compelling state interest to hold Escritor to the same
standards required of every court employee. If unsanctioned, Escritor's
unlawful conduct would certainly impair the integrity and credibility of the
judiciary.52

Section 6 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 impaired except in the interest of national
security, public safety, or public health, as may be provided by law.
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.
Thus, the court has wide latitude in fixing the amount of bail. Where it fears that
the accused may jump bail, it is certainly not precluded from installing devices to
ensure against the same. Options may include increasing the bail bond to an
appropriate level, or requiring the person to report periodically to the court and to
make an accounting of his movements.12 In the present case, where petitioner
was found to have left the country several times while the case was pending, the
Court of Appeals required the confiscation of his passport and the issuance of a
hold-departure order against him.
Under the circumstances of this case, we find that appropriate conditions have
been imposed in 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 whereabouts. Although an
increase in the amount of bail while the case is on appeal may be meritorious, we
find that the setting of the amount at P5,500,000.00 is unreasonable, excessive,
and constitutes an effective denial of petitioner's right to bail.
The purpose for bail is to guarantee the appearance of the accused at the trial,13
or whenever so required by the Court14. The amount should be high enough to
assure the presence of the accused when required but no higher than is reasonably
calculated to fulfill this purpose.15 To fix 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 liability that
accused is charged of; this we cannot allow because bail is not intended as a
punishment, nor as a satisfaction of civil liability which should necessarily await the
judgment of the appellate court.
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 29, 2000, maintains recommended bail at
P40,000.00 for estafa where the amount of fraud is P142,000.00 or over and the
imposable penalty 20 years of reclusion temporal). True, the Court has held that
the Bail Bond Guide, a circular of the Department of Justice for the guidance of
state prosecutors, although technically not binding upon the courts, "merits
attention, being in a sense 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 justice.17
This notwithstanding, the Court is not precluded from imposing in petitioner's case
an amount higher than P40,000.00 (based on the Bail Bond Guide) where it
perceives that an appropriate increase is dictated by the circumstances.
It militates emphasis that petitioner is seeking bail on appeal. Section 5, Rule 114
of the Revised Rules of Criminal Procedure is clear that although the grant of bail
on appeal is non-capital 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 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:
The importance attached to conviction is due to the underlying principle that bail
should be granted only where it is uncertain whether the accused is guilty or
innocent, and therefore, where that uncertainty is removed by conviction it would,
generally speaking, be absurd to admit to bail. After a person has been tried and
convicted the presumption of innocence which may be relied upon in prior
applications is rebutted, and the burden is upon the accused to show error in the
conviction. From another point of view it may be 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 than before
conviction.xxx20
Petitioner is seeking bail on appeal. He was in fact declared guilty beyond
reasonable doubt by the RTC, and due to the serious amount of fraud involved,
sentenced to imprisonment for twenty years --the maximum penalty for estafa by
false pretenses or fraudulent acts allowed by the 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 bail, the setting of bail in the amount of P5,500,000.00 is unjustified as
having no legal nor factual basis. Guided by the penalty imposed by the lower
court and the weight of the evidence against petitioner, we believe that the
amount of P200,000.00 is more reasonable.
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 impaired except in the interest of national security, public safety, or
public health, as may be provided by law.
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

Petitioner also contests the condition imposed by the Court of Appeals that he
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 a resident therein until
final judgment is rendered or in case he transfers residence, it must be with prior
notice to the court", claiming that the same violates his liberty of abode and travel.

Notably, petitioner does not question the hold-departure order which prevents him
from leaving the Philippines unless expressly permitted by the court which issued
the order.21 In fact, the petition submits that "the hold-departure order against
petitioner is already sufficient guarantee that he will not escape. Thus, to require
him to inform the court every time he changed his residence is already
unnecessary."22

The right to change abode and travel within the Philippines, being invoked by EN BANC  
petitioner, are not absolute rights. Section 6, Article III of the 1987 Constitution
states: August 8, 2017

G.R. No. 225442

SAMAHAN NG MGA PROGRESIBONG KABATAAN (SPARK),* JOANNE ROSE SACE
LIM, JOHN ARVIN NAVARRO BUENAAGUA, RONEL BACCUTAN, MARK LEO
DELOS REYES, and CLARISSA JOYCE VILLEGAS, minor, for herself and as
represented by her father, JULIAN VILLEGAS, JR., Petitioners,
vs.
QUEZON CITY, as represented by MAYOR HERBERT BAUTISTA, CITY OF MANILA,
as represented by MAYOR JOSEPH ESTRADA, and NAVOTAS CITY, as represented
by MAYOR JOHN REY TIANGCO,, Respondents,
DECISION
PERLAS-BERNABE, J.:
This petition for certiorari and prohibition  assails the constitutionality of the curfew
1
ordinances issued by the local governments of Quezon City, Manila, and Navotas. The
petition prays that a temporary restraining order (TRO) be issued ordering respondents
Herbert Bautista, Joseph Estrada, and John Rey Tiangco, as Mayors of their respective
local governments, to prohibit, refrain, and desist from implementing and enforcing these
issuances, pending resolution of this case, and eventually, declare the City of Manila's
ordinance as ultra vires for being contrary to Republic Act No. (RA) 9344,  or the "Juvenile
2 assessment of the alleged curfew violator. 14
Justice and Welfare Act," as amended, and all curfew ordinances as unconstitutional for
violating the constitutional right of minors to travel, as well as the right of parents to rear
their children.
The Facts
Following the campaign of President Rodrigo Roa Duterte to implement a nationwide
curfew for minors, several local governments in Metro Manila started to strictly implement
their curfew ordinances on minors through police operations which were publicly known as
part of "Oplan Rody." 3
Among those local governments that implemented curfew ordinances were respondents:
(a) Navotas City, through Pambayang Ordinansa Blg. 99- 02,  dated August 26, 1999,
4 prohibition of minors on streets during curfew hours will not per se protect and promote the
entitled "Nagtatakdang 'Curfew' ng mga Kabataan na Wala Pang Labing
Walong (18) Taong Gulang sa Bayan ng Navotas, Kalakhang Maynila," as amended
by Pambayang Ordinansa Blg. 2002-13,  dated June 6, 2002 (Navotas Ordinance); (b)
5 Furthermore, petitioners claim that the Manila Ordinance, particularly Section 4  thereof,
City of Manila, through Ordinance No. 8046  entitled "An Ordinance Declaring the Hours
6 contravenes Section 57-A  of RA 9344, as amended, given that the cited curfew provision
from 10:00 P.M. to 4:00 A.M. of the Following Day as 'Barangay Curfew Hours' for
Children and Youths Below Eighteen (18) Years of Age; Prescribing Penalties Therefor;
and for Other Purposes" dated October 14, 2002 (Manila Ordinance); and (c) Quezon City,
through Ordinance No. SP- 2301,  Series of 2014, entitled "An Ordinance Setting for a [sic]
7
Disciplinary Hours in Quezon City for Minors from 10:00 P.M. to 5:00 A.M., Providing
Penalties for Parent/Guardian, for Violation Thereof and for Other Purposes" dated July
31, 2014 (Quezon City Ordinance; collectively, Curfew Ordinances). 8
Petitioners,  spearheaded by the Samahan ng mga Progresibong Kabataan (SPARK) - an
9
association of young adults and minors that aims to forward a free and just society, in
particular the protection of the rights and welfare of the youth and minors  - filed this
10
present petition, arguing that the Curfew Ordinances are unconstitutional because
they: (a) result in arbitrary and discriminatory enforcement, and thus, fall under the void for
vagueness doctrine; (b) suffer from overbreadth by proscribing or impairing legitimate
activities of minors during curfew hours; (c) deprive minors of the right to liberty and the
right to travel without substantive due process; and (d) deprive parents of their natural and
primary right in rearing the youth without substantive due process.  In addition, petitioners
11
assert that the Manila Ordinance contravenes RA 9344, as amended by RA 10630. 12
More specifically, petitioners posit that the Curfew Ordinances encourage arbitrary and
discriminatory enforcement as there are no clear provisions or detailed standards on how
law enforcers should apprehend and properly determine the age of the alleged curfew
violators.  They further argue that the law enforcer's apprehension depends only on his
13
physical assessment, and, thus, subjective and based only on the law enforcer's visual
While petitioners recognize that the Curfew Ordinances contain provisions indicating the
activities exempted from the operation of the imposed curfews, i.e., exemption of working
students or students with evening class, they contend that the lists of exemptions do not
cover the range and breadth of legitimate activities or reasons as to why minors would be
out at night, and, hence, proscribe or impair the legitimate activities of minors during
curfew hours. 15
Petitioners likewise proffer that the Curfew Ordinances: (a) are unconstitutional as they
deprive minors of the right to liberty and the right to travel without substantive due
process;  and (b) fail to pass the strict scrutiny test, for not being narrowly tailored and for
16
employing means that bear no reasonable relation to their purpose.  They argue that the
17
social and moral welfare of children of the community. 18
19
20
imposes on minors the penalties of imprisonment, reprimand, and admonition. They
contend that the imposition of penalties contravenes RA 9344's express command that no
penalty shall be imposed on minors for curfew violations. 21
Lastly, petitioners submit that there is no compelling State interest to impose curfews
contrary to the parents' prerogative to impose them in the exercise of their natural and
primary right in the rearing of the youth, and that even if a compelling interest exists, less
restrictive means are available to achieve the same. In this regard, they suggest massive
street lighting programs, installation of CCTV s (closed-circuit televisions) in public streets,
and regular visible patrols by law enforcers as other viable means of protecting children
and preventing crimes at night. They further opine that the government can impose more
reasonable sanctions, i.e., mandatory parental counseling and education seminars
informing the parents of the reasons behind the curfew, and that imprisonment is too harsh
a penalty for parents who allowed their children to be out during curfew hours. 22
The Issue Before the Court
The primordial issue for the Court's resolution in this case is whether or not the Curfew
Ordinances are unconstitutional.
The Court's Ruling
The petition is partly granted.
I.
At the onset, the Court addresses the procedural issues raised in this case. Respondents
seek the dismissal of the petition, questioning: (a) the propriety of certiorari and prohibition
under Rule 65 of the Rules of Court to assail the constitutionality of the Curfew
Ordinances; (b) petitioners' direct resort to the Court, contrary to the hierarchy of courts
doctrine; and (c) the lack of actual controversy and standing to warrant judicial review. 23
A. Propriety of the Petition for
Certiorari and Prohibition.
Under the 1987 Constitution, judicial power includes the duty of the courts of justice not
only "to settle actual controversies involving rights which are legally demandable and
enforceable," but also "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."  Section 1, Article VIII of the 1987 Constitution reads:
24
ARTICLE VIII
JUDICIAL DEPARTMENT
Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government. (Emphasis and underscoring supplied)
Case law explains that the present Constitution has "expanded the concept of judicial
power, which up to then was confined to its traditional ambit of settling actual
controversies involving rights that were legally demandable and enforceable." 25
In Araullo v. Aquino III,  it was held that petitions for certiorari and prohibition filed before
26
the Court "are the remedies by which the grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government may
be determined under the Constitution."  It was explained that "[w]ith respect to the Court, x
27
x x the remedies of certiorari and prohibition are necessarily broader in scope and reach,
and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction
committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-
judicial or ministerial functions, but also to set right, undo[,] and restrain any act of
grave abuse of discretion amounting to lack or excess of jurisdiction by any branch
or instrumentality of the Government, even if the latter does not exercise judicial,
quasi-judicial or ministerial functions. This application is expressly authorized by the
text of the second paragraph of Section 1, [Article VIII of the 1987 Constitution cited
above]."28
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical
Centers Association, Inc.,  it was expounded that "[ m ]eanwhile that no specific
29
procedural rule has been promulgated to enforce [the] 'expanded' constitutional definition
of judicial power and because of the commonality of 'grave abuse of discretion' as a
ground for review under Rule 65 and the courts' expanded jurisdiction, the Supreme Court
- based on its power to relax its rules - allowed Rule 65 to be used as the medium for
petitions invoking the courts' expanded jurisdiction[. ]" 30
In this case, petitioners question the issuance of the Curfew Ordinances by the legislative
councils of Quezon City, Manila, and Navotas in the exercise of their delegated legislative
powers on the ground that these ordinances violate the Constitution, specifically, the
provisions pertaining to the right to travel of minors, and the right of parents to rear their
children. They also claim that the Manila Ordinance, by imposing penalties against minors,
conflicts with RA 9344, as amended, which prohibits the imposition of penalties on minors
for status offenses. It has been held that "[t]here is grave abuse of discretion when an act
is (1) done contrary to the Constitution, the law or jurisprudence or (2) executed
whimsically, capriciously or arbitrarily, out of malice, ill will or personal bias. "  In light of
31
the foregoing, petitioners correctly availed of the remedies of certiorari and prohibition,
although these governmental actions were not made pursuant to any judicial or quasi-
judicial function.
B. Direct Resort to the Court.
Since petitions for certiorari and prohibition are allowed as remedies to assail the
constitutionality of legislative and executive enactments, the next question to be resolved
is whether or not petitioners' direct resort to this Court is justified.
The doctrine of hierarchy of courts "[r]equires that recourse must first be made to the
lower-ranked court exercising concurrent jurisdiction with a higher court. The Supreme
Court has original jurisdiction over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus. While this jurisdiction is shared with the Court of Appeals
[(CA)] and the [Regional Trial Courts], a direct invocation of this Court's jurisdiction is
allowed when there are special and important reasons therefor, clearly and
especially set out in the petition[.]"  This Court is tasked to resolve "the issue of
32
constitutionality of a law or regulation at the first instance [if it] is of paramount
importance and immediately affects the social, economic, and moral well-being of
the people,"  as in this case. Hence, petitioners' direct resort to the Court is justified.
33
C. Requisites of Judicial Review.
"The prevailing rule in constitutional litigation is that no question involving the
constitutionality or validity of a law or governmental act may be heard and decided by the
Court unless there is compliance with the legal requisites for judicial inquiry,
namely: (a) there must be an actual case or controversy calling for the exercise of
judicial power; (b) the person challenging the act must have the standing to question the
validity of the subject act or issuance; (c) the question of constitutionality must be raised at
the earliest opportunity; and (d) the issue of constitutionality must be the very lis mota of
the case."  In this case, respondents assail the existence of the first two (2) requisites.
34
1. Actual Case or Controversy.
"Basic in the exercise of judicial power - whether under the traditional or in the expanded
setting - is the presence of an actual case or controversy."  "[A]n actual case or
35
controversy is one which 'involves a conflict of legal rights, an assertion of opposite legal
claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract
difference or dispute.' In other words, 'there must be a contrariety of legal rights that
can be interpreted and enforced on the basis of existing law and
jurisprudence."  According to recent jurisprudence, in the Court's exercise of its
36
expanded jurisdiction under the 1987 Constitution, this requirement is simplified "by
merely requiring a prima facie showing of grave abuse of discretion in the assailed
governmental act." 37
"Corollary to the requirement of an actual case or controversy is the requirement of
ripeness. A question is ripe for adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it. For a case to be considered ripe
for adjudication, it is a prerequisite that something has then been accomplished or
performed by either branch before a court may come into the picture, and the
petitioner must allege the existence of an immediate or threatened injury to himself
as a result of the challenged action. He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result of the act complained
of."
38
Applying these precepts, this Court finds that there exists an actual justiciable controversy
in this case given the evident clash of the parties' legal claims, particularly on whether the
Curfew Ordinances impair the minors' and parents' constitutional rights, and whether the
Manila Ordinance goes against the provisions of RA 9344. Based on their asseverations,
petitioners have - as will be gleaned from the substantive discussions below - conveyed
a prima facie case of grave abuse of discretion, which perforce impels this Court to
exercise its expanded jurisdiction. The case is likewise ripe for adjudication, considering
that the Curfew Ordinances were being implemented until the Court issued the
TRO  enjoining their enforcement. The purported threat or incidence of injury is, therefore,
39
not merely speculative or hypothetical but rather, real and apparent.
2. Legal Standing.
"The question of locus standi or legal standing focuses on the determination of whether
those assailing the governmental act have the right of appearance to bring the matter to
the court for adjudication. [Petitioners] must show that they have a personal and
substantial interest in the case, such that they have sustained or are in immediate
danger of sustaining, some direct injury as a consequence of the enforcement of
the challenged governmental act."  "' [I]nterest' in the question involved must be
40
material - an interest that is in issue and will be affected by the official act- as distinguished
from being merely incidental or general." 41
"The gist of the question of [legal] standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions. Unless a person is injuriously affected
in any of his constitutional rights by the operation of statute or ordinance, he has no
standing." 42
As abovementioned, the petition is anchored on the alleged breach of two (2)
constitutional rights, namely: (1) the right of minors to freely travel within their respective
localities; and (2) the primary right of parents to rear their children. Related to the first is
the purported conflict between RA 9344, as amended, and the penal provisions of the
Manila Ordinance.
Among the five (5) individual petitioners, only Clarissa Joyce Villegas (Clarissa) has legal travel, it is also requested to determine the extent of the State's authority to regulate these
standing to raise the issue affecting the minor's right to travel,  because: (a) she was still a
43
rights in the interest of general welfare. Accordingly, this case is of overarching
minor at the time the petition was filed before this Court,  and, hence, a proper subject of
44
significance to the public, which, therefore, impels a relaxation of procedural rules,
the Curfew Ordinances; and (b) as alleged, she travels from Manila to Quezon City at including, among others, the standing requirement.
night after school and is, thus, in imminent danger of apprehension by virtue of the Curfew
Ordinances. On the other hand, petitioners Joanne Rose Sace Lim, John Arvin Navarro That being said, this Court now proceeds to the substantive aspect of this case.
Buenaagua, Ronel Baccutan (Ronel), and Mark Leo Delos Reyes (Mark Leo) admitted in
the petition that they are all of legal age, and therefore, beyond the ordinances' coverage. II.
Thus, they are not proper subjects of the Curfew Ordinances, for which they could base
any direct injury as a consequence thereof.
A. Void for Vagueness.
None of them, however, has standing to raise the issue of whether the Curfew Ordinances
Before resolving the issues pertaining to the rights of minors to travel and of parents to
violate the parents' right to rear their children as they have not shown that they stand
rear their children, this Court must first tackle petitioners' contention that the Curfew
before this Court as parent/s and/or guardian/s whose constitutional parental right has
Ordinances are void for vagueness.
been infringed. It should be noted that Clarissa is represented by her father, Julian
Villegas, Jr. (Mr. Villegas), who could have properly filed the petition for himself for the
alleged violation of his parental right. But Mr. Villegas did not question the Curfew In particular, petitioners submit that the Curfew Ordinances are void for not containing
Ordinances based on his primary right as a parent as he only stands as the representative sufficient enforcement parameters, which leaves the enforcing authorities with unbridled
of his minor child, Clarissa, whose right to travel was supposedly infringed. discretion to carry out their provisions. They claim that the lack of procedural guidelines in
these issuances led to the questioning of petitioners Ronel and Mark Leo, even though
they were already of legal age. They maintain that the enforcing authorities apprehended
As for SPARK, it is an unincorporated association and, consequently, has no legal
the suspected curfew offenders based only on their physical appearances and, thus, acted
personality to bring an action in court.  Even assuming that it has the capacity to sue,
45

arbitrarily. Meanwhile, although they conceded that the Quezon City Ordinance requires
SPARK still has no standing as it failed to allege that it was authorized by its members
enforcers to determine the age of the child, they submit that nowhere does the said
who were affected by the Curfew Ordinances, i.e., the minors, to file this case on their
ordinance require the law enforcers to ask for proof or identification of the child to show his
behalf.
age.47

Hence, save for Clarissa, petitioners do not have the required personal interest in the
The arguments are untenable.
controversy. More particularly, Clarissa has standing only on the issue of the alleged
violation of the minors' right to travel, but not on the alleged violation of the parents' right.
"A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning and
These notwithstanding, this Court finds it proper to relax the standing requirement insofar
differ as to its application. It is repugnant to the Constitution in two (2) respects: (1) it
as all the petitioners are concerned, in view of the transcendental importance of the issues
violates due process for failure to accord persons, especially the parties targeted by
involved in this case. "In a number of cases, this Court has taken a liberal stance towards
it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
the requirement of legal standing, especially when paramount interest is involved. Indeed,
discretion in carrying out its provisions and becomes an arbitrary flexing of the
when those who challenge the official act are able to craft an issue of
Government muscle." 48

transcendental significance to the people, the Court may exercise its sound
discretion and take cognizance of the suit. It may do so in spite of the inability of the
petitioners to show that they have been personally injured by the operation of a law or any
other government act." 46
In this case, petitioners' invocation of the void for vagueness doctrine is improper,
considering that they do not properly identify any provision in any of the Curfew
Ordinances, which, because of its vague terminology, fails to provide fair warning and
notice to the public of what is prohibited or required so that one may act accordingly.  The
49

This is a case of first impression in which the constitutionality of juvenile curfew ordinances
void for vagueness doctrine is premised on due process considerations, which are
is placed under judicial review. Not only is this Court asked to determine the impact of
absent from this particular claim. In one case, it was opined that:
these issuances on the right of parents to rear their children and the right of minors to
[T]he vagueness doctrine is a specie of "unconstitutional uncertainty," which may involve
"procedural due process uncertainty cases" and "substantive due process uncertainty
cases." "Procedural due process uncertainty" involves cases where the statutory language
was so obscure that it failed to give adequate warning to those subject to its prohibitions
as well as to provide proper standards for adjudication. Such a definition encompasses the
vagueness doctrine. This perspective rightly integrates the vagueness doctrine with the
due process clause, a necessary interrelation since there is no constitutional provision that
explicitly bars statutes that are "void-for-vagueness."50
Essentially, petitioners only bewail the lack of enforcement parameters to guide the local
authorities in the proper apprehension of suspected curfew offenders. They do not assert
any confusion as to what conduct the subject ordinances prohibit or not prohibit
but only point to the ordinances' lack of enforcement guidelines. The mechanisms
related to the implementation of the Curfew Ordinances are, however, matters of policy
that are best left for the political branches of government to resolve. Verily, the objective of
curbing unbridled enforcement is not the sole consideration in a void for vagueness
analysis; rather, petitioners must show that this perceived danger of unbridled
enforcement stems from an ambiguous provision in the law that allows enforcement
authorities to second-guess if a particular conduct is prohibited or not prohibited. In this
regard, that ambiguous provision of law contravenes due process because agents of the
government cannot reasonably decipher what conduct the law permits and/or forbids.
In Bykofsky v. Borough of Middletown,   it was ratiocinated that:
51
A vague law impermissibly delegates basic policy matters to policemen, judges, and juries
for resolution on ad hoc and subjective basis, and vague standards result in erratic and
arbitrary application based on individual impressions and personal predilections. 52
As above-mentioned, petitioners fail to point out any ambiguous standard in any of the
provisions of the Curfew Ordinances, but rather, lament the lack of detail on how the age
of a suspected minor would be determined. Thus, without any correlation to any vague
legal provision, the Curfew Ordinances cannot be stricken down under the void for
vagueness doctrine.
Besides, petitioners are mistaken in claiming that there are no sufficient standards to
identify suspected curfew violators. While it is true that the Curfew Ordinances do not
explicitly state these parameters, law enforcement agents are still bound to follow the
prescribed measures found in statutory law when implementing ordinances. Specifically,
RA 9344, as amended, provides:
Section 7. Determination of Age. - x x x The age of a child may be determined from the
child's birth certificate, baptismal certificate or any other pertinent documents. In
the absence of these documents, age may be based on information from the child
himself/herself, testimonies of other persons, the physical appearance of the child
and other relevant evidence. (Emphases supplied)
This provision should be read in conjunction with · the Curfew Ordinances because RA
10630 (the law that amended RA 9344) repeals all ordinances inconsistent with statutory
law.  Pursuant to Section 57-A of RA 9344, as amended by RA 10630,  minors caught in
53 54
violation of curfew ordinances are children at risk and, therefore, covered by its
provisions.  It is a long-standing principle that "[c]onformity with law is one of the
55
essential requisites for the validity of a municipal ordinance."  Hence, by necessary
56
implication, ordinances should be read and implemented in conjunction with related
statutory law.
Applying the foregoing, any person, such as petitioners Ronel and Mark Leo, who was
perceived to be a minor violating the curfew, may therefore prove that he is beyond the
application of the Curfew Ordinances by simply presenting any competent proof of
identification establishing their majority age. In the absence of such proof, the law
authorizes enforcement authorities to conduct a visual assessment of the suspect, which -
needless to state - should be done ethically and judiciously under the circumstances.
Should law enforcers disregard these rules, the remedy is to pursue the appropriate action
against the erring enforcing authority, and not to have the ordinances invalidated.
All told, petitioners' prayer to declare the Curfew Ordinances as void for vagueness is
denied.
B. Right of Parents to Rear their
Children.
Petitioners submit that the Curfew Ordinances are unconstitutional because they deprive
parents of their natural and primary right in the rearing of the youth without substantive
due process. In this regard, they assert that this right includes the right to determine
whether minors will be required to go home at a certain time or will be allowed to stay late
outdoors. Given that the right to impose curfews is primarily with parents and not with the
State, the latter's interest in imposing curfews cannot logically be compelling. 57
Petitioners' stance cannot be sustained.
Section 12, Article II of the 1987 Constitution articulates the State's policy relative to the
rights of parents in the rearing of their children:
Section 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally protect the
life of the mother and the life of the unborn from conception. The natural and primary
right and duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the
Government. (Emphasis and underscoring supplied.)
As may be gleaned from this provision, the rearing of children (i.e., referred to as the
"youth") for civic efficiency and the development of their moral character are characterized
not only as parental rights, but also as parental duties. This means that parents are not
only given the privilege of exercising their authority over their children; they are equally
obliged to exercise this authority conscientiously. The duty aspect of this provision is a
reflection of the State's independent interest to ensure that the youth would eventually
grow into free, independent, and well-developed citizens of this nation. For indeed, it is
during childhood that minors are prepared for additional obligations to society. "[T]he duty
to prepare the child for these [obligations] must be read to include the inculcation of
moral standards, religious beliefs, and elements of good citizenship."  "This 58
affirmative process of teaching, guiding, and inspiring by precept and example is essential
to the growth of young people into mature, socially responsible citizens." 59
By history and tradition, "the parental role implies a substantial measure of authority over
one's children."  In Ginsberg v. New York,  the Supreme Court of the United States (US)
60 61
remarked that "constitutional interpretation has consistently recognized that the parents'
claim to authority in their own household to direct the rearing of their children is basic in
the structure of our society."  As in our Constitution, the right and duty of parents to rear
62
their children is not only described as "natural," but also as "primary." The qualifier
"primary" connotes the parents' superior right over the State in the upbringing of
their children.  The rationale for the State's deference to parental control over their
63
children was explained by the US Supreme Court in Bellotti v. Baird (Bellotti),  as follows:
64
[T]he guiding role of parents in their upbringing of their children justifies limitations on the
freedoms of minors. The State commonly protects its youth from adverse governmental
action and from their own immaturity by requiring parental consent to or involvement in
important decisions by minors. But an additional and more important justification for
state deference to parental control over children is that "the child is not [a) mere
creature of the State; those who nurture him and direct his destiny have the right,
coupled with the high duty, to recognize and prepare him for additional
obligations."  (Emphasis and underscoring supplied)
65
While parents have the primary role in child-rearing, it should be stressed that "when
actions concerning the child have a relation to the public welfare or the well-being
of the child, the [Sltate may act to promote these legitimate interests."  Thus, "[i]n
66
cases in which harm to the physical or mental health of the child or to public safety,
peace, order, or welfare is demonstrated, these legitimate state interests may
override the parents' qualified right to control the upbringing of their children."
As our Constitution itself provides, the State is mandated to support parents in the
exercise of these rights and duties. State authority is therefore, not exclusive of, but
rather, complementary to parental supervision.  In Nery v. Lorenzo,  this Court68
acknowledged the State's role as parens patriae in protecting minors, viz. :
[Where minors are involved, the State acts as parens patriae. To it is cast the duty
of protecting the rights of persons or individual who because of age or incapacity
are in an unfavorable position, vis-a-vis other parties. Unable as they are to take due
care of what concerns them, they have the political community to look after their welfare.
This obligation the state must live up to. It cannot be recreant to such a trust. As was set
forth in an opinion of the United States Supreme Court: "This prerogative of parens
patriae is inherent in the supreme power of every State, x x x."  (Emphases and
69
underscoring supplied)
As parens patriae, the State has the inherent right and duty to aid parents in the
moral development of their children,  and, thus, assumes a supporting role for parents
70
to fulfill their parental obligations. In Bellotti, it was held that "[I]egal restriction on minors,
especially those supportive of the parental role, may be important to the child's chances
for the full growth and maturity that make eventual participation in a free society
meaningful and rewarding. Under the Constitution, the State can properly conclude
that parents and others, teachers for example, who have the primary responsibility
for children's well-being are entitled to the support of the laws designed to aid
discharge of that responsibility." 71
The Curfew Ordinances are but examples of legal restrictions designed to aid parents in
their role of promoting their children's well-being. As will be later discussed at greater
length, these ordinances further compelling State interests (particularly, the promotion of
juvenile safety and the prevention of juvenile crime), which necessarily entail limitations on
the primary right of parents to rear their children. Minors, because of their peculiar
vulnerability and lack of experience, are not only more exposed to potential physical harm
by criminal elements that operate during the night; their moral well-being is likewise
imperiled as minor children are prone to making detrimental decisions during this time. 72
At this juncture, it should be emphasized that the Curfew Ordinances apply only when the
minors are not - whether actually or constructively (as will be later discussed) -
accompanied by their parents. This serves as an explicit recognition of the State's
deference to the primary nature of parental authority and the importance of parents' role in
child-rearing. Parents are effectively given unfettered authority over their children's
conduct during curfew hours when they are able to supervise them. Thus, in all
actuality, the only aspect of parenting that the Curfew Ordinances affects is the
67
parents' prerogative to allow minors to remain in public places without parental
accompaniment during the curfew hours.   In this respect, the ordinances neither
73
dictate an over-all plan of discipline for the parents to apply to their minors nor
force parents to abdicate their authority to influence or control their minors'
activities.  As such, the Curfew Ordinances only amount to a minimal - albeit reasonable -
74
infringement upon a parent's right to bring up his or her child.
Finally, it may be well to point out that the Curfew Ordinances positively influence children
to spend more time at home. Consequently, this situation provides parents with better
opportunities to take a more active role in their children's upbringing. In Schleifer v. City of
Charlottesvillle (Schleifer),  the US court observed that the city government "was entitled
75
to believe x x x that a nocturnal curfew would promote parental involvement in a child's
upbringing. A curfew aids the efforts of parents who desire to protect their children from
the perils of the street but are unable to control the nocturnal behavior of those
children."  Curfews may also aid the "efforts of parents who prefer their children to spend
76
time on their studies than on the streets."  Reason dictates that these realities observed
77
in Schleifer are no less applicable to our local context. Hence, these are additional
reasons which justify the impact of the nocturnal curfews on parental rights.
In fine, the Curfew Ordinances should not be declared unconstitutional for violating the
parents' right to rear their children.
C. Right to Travel.
Petitioners further assail the constitutionality of the Curfew Ordinances based on the
minors' right to travel. They claim that the liberty to travel is a fundamental right, which,
therefore, necessitates the application of the strict scrutiny test. Further, they submit that
even if there exists a compelling State interest, such as the prevention of juvenile crime
and the protection of minors from crime, there are other less restrictive means for
achieving the government's interest.  In addition, they posit that the Curfew Ordinances
78
suffer from overbreadth by proscribing or impairing legitimate activities of minors during
curfew hours. 79
Petitioner's submissions are partly meritorious.
At the outset, the Court rejects petitioners' invocation of the overbreadth doctrine,
considering that petitioners have not claimed any transgression of their rights to free
speech or any inhibition of speech-related conduct. In Southern Hemisphere Engagement
Network, Inc. v. AntiTerrorism Council(Southern Hemisphere),  this Court explained that
80
"the application of the overbreadth doctrine is limited to a facial kind of challenge and,
owing to the given rationale of a facial challenge, applicable only to free speech
cases,"  viz.:
81
By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost always under
situations not before the court, that are impermissibly swept by the substantially overbroad
regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially
overbroad if the court confines itself only to facts as applied to the litigants.
The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that
a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve
away the unconstitutional aspects of the law by invalidating its improper applications on a
case to case basis. Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth analysis, those rules
give way; challenges are permitted to raise the rights of third parties; and the court
invalidates the entire statute "on its face," not merely "as applied for" so that the overbroad
law becomes unenforceable until a properly authorized court construes it more
narrowly. The factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the "chilling;" deterrent effect of the overbroad statute on
third parties not courageous enough to bring suit. The Court assumes that an
overbroad law's "very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is designed to
remove that deterrent effect on the speech of those third parties.  (Emphases and
82
underscoring supplied)
In the same case, it was further pointed out that "[i]n restricting the overbreadth doctrine to
free speech claims, the Court, in at least two [(2)] cases, observed that the US Supreme
Court has not recognized an overbreadth doctrine outside the limited context of the First
Amendment,  and that claims of facial overbreadth have been entertained in cases
83
involving statutes which, by their terms, seek to regulate only spoken words. In Virginia v.
Hicks,  it was held that rarely, if ever, will an overbreadth challenge succeed against a law
84
or regulation that is not specifically addressed to speech or speech-related conduct.
Attacks on overly broad statutes are justified by the 'transcendent value to all society of
constitutionally protected expression. "' 85
In the more recent case of SpousesImbong v. Ochoa, Jr.,  it was opined that "[f]acial
86
challenges can only be raised on the basis of overbreadth and not on
vagueness. Southern Hemisphere demonstrated how vagueness relates to violations of
due process rights, whereas facial challenges are raised on the basis of overbreadth
and limited to the realm of freedom of expression." 87
That being said, this Court finds it improper to undertake an overbreadth analysis in this
case, there being no claimed curtailment of free speech. On the contrary, however, this
Court finds proper to examine the assailed regulations under the strict scrutiny test.
The right to travel is recognized and guaranteed as a fundamental right88 under Section 6,
Article III of the 1987 Constitution, to wit:
Section 6. 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 impaired except in the interest of national security, public safety, or public
health, as may be provided by law. (Emphases and underscoring supplied)
Jurisprudence provides that this right refers to the right to move freely from the Philippines
to other countries or within the Philippines.  It is a right embraced within the general
89
concept of liberty.  Liberty - a birthright of every person - includes the power of
90
locomotion  and the right of citizens to be free to use their faculties in lawful ways and to
91
live and work where they desire or where they can best pursue the ends of life. 92
The right to travel is essential as it enables individuals to access and exercise their other
rights, such as the rights to education, free expression, assembly, association, and
religion.  The inter-relation of the right to travel with other fundamental rights was briefly
93
rationalized in City of Maquoketa v. Russell,  as follows:
94
Whenever the First Amendment rights of freedom of religion, speech, assembly, and
association require one to move about, such movement must necessarily be protected
under the First Amendment.
Restricting movement in those circumstances to the extent that First Amendment
Rights cannot be exercised without violating the law is equivalent to a denial of
those rights. One court has eloquently pointed this out:
We would not deny the relatedness of the rights guaranteed by the First
Amendment to freedom of travel and movement. If, for any reason, people cannot walk
or drive to their church, their freedom to worship is impaired. If, for any reason, people
cannot walk or drive to the meeting hall, freedom of assembly is effectively blocked. If, for
any reason, people cannot safely walk the sidewalks or drive the streets of a community,
opportunities for freedom of speech are sharply limited. Freedom of movement is
inextricably involved with freedoms set forth in the First Amendment. (Emphases
supplied)
Nevertheless, grave and overriding considerations of public interest justify restrictions
even if made against fundamental rights. Specifically on the freedom to move from one
place to another, jurisprudence provides that this right is not absolute.  As the 1987
95
Constitution itself reads, the State  may impose limitations on the exercise of this right,
96
provided that they: (1) serve the interest of national security, public safety, or public
health; and (2) are provided by law. 97
The stated purposes of the Curfew Ordinances, specifically the promotion of juvenile
safety and prevention of juvenile crime, inarguably serve the interest of public safety. The
restriction on the minor's movement and activities within the confines of their residences
and their immediate vicinity during the curfew period is perceived to reduce the probability
of the minor becoming victims of or getting involved in crimes and criminal activities. As to
the second requirement, i.e., that the limitation "be provided by law," our legal system is
replete with laws emphasizing the State's duty to afford special protection to children, i.e.,
RA 7610,  as amended, RA 9775  RA 9262  RA 9851 RA 9344  RA 10364  RA
98 99 100 101 102 103
9211  RA8980,  RA9288,  and Presidential Decree (PD) 603,  as amended.
104 105 106 107
Particularly relevant to this case is Article 139 of PD 603, which explicitly authorizes local
government units, through their city or municipal councils, to set curfew hours for children.
It reads:
Article 139. Curfew Hours for Children. - City or municipal councils may prescribe
such curfew hours for children as may be warranted by local conditions. The duty to
enforce curfew ordinances shall devolve upon the parents or guardians and the local
authorities.
x x x x (Emphasis and underscoring supplied)
As explicitly worded, city councils are authorized to enact curfew ordinances (as what
respondents have done in this case) and enforce the same through their local officials. In
other words, PD 603 provides sufficient statutory basis - as required by the Constitution -
to restrict the minors' exercise of the right to travel.
The restrictions set by the Curfew Ordinances that apply solely to minors are likewise
constitutionally permissible. In this relation, this Court recognizes that minors do possess
and enjoy constitutional rights,  but the exercise of these rights is not co-extensive as
108
those of adults.  They are always subject to the authority or custody of another, such as
109
their parent/s and/or guardian/s, and the State.  As parens patriae, the State regulates
110
and, to a certain extent, restricts the minors' exercise of their rights, such as in their affairs
concerning the right to vote,  the right to execute contracts,  and the right to engage in
111 112
gainful employment.  With respect to the right to travel, minors are required by law to
113
obtain a clearance from the Department of Social Welfare and Development before they
can travel to a foreign country by themselves or with a person other than their
parents.  These limitations demonstrate that the State has broader authority over the
114
minors' activities than over similar actions of adults,  and overall, reflect the State's
115
general interest in the well-being of minors.  Thus, the State may impose limitations on
116
the minors' exercise of rights even though these limitations do not generally apply to
adults.
In Bellotti, the US Supreme Court identified three (3) justifications for the differential
117
treatment of the minors' constitutional rights. These are: first, the peculiar vulnerability
of children; second, their inability to make critical decisions in an informed and
mature manner; and third, the importance of the parental role in child rearing: 118
[On the first reason,] our cases show that although children generally are protected by the
same constitutional guarantees against governmental deprivations as are adults, the
State is entitled to adjust its legal system to account for children's vulnerability and
their needs for 'concern, ... sympathy, and ... paternal attention.x x x.
[On the second reason, this Court's rulings are] grounded [on] the recognition that, during
the formative years of childhood and adolescence, minors often lack the experience,
perspective, and judgment to recognize and avoid choices that could be detrimental
to them. x x x.
xxxx
[On the third reason,] the guiding role of parents in the upbringing of their children justifies
limitations on the freedoms of minors. The State commonly protects its youth from adverse
governmental action and from their own immaturity by requiring parental consent to or
involvement in important decisions by minors. x x x.
xxxx
x x x Legal restrictions on minors, especially those supportive of the parental role,
may be important to the child's chances for the full growth and maturity that make
eventual participation in a free society meaningful and rewarding.  (Emphases and
119
underscoring supplied)
Moreover, in Prince v. Massachusetts,  the US Supreme Court acknowledged the
120
heightened dangers on the streets to minors, as compared to adults:
A democratic society rests, for its continuance, upon the healthy, well-rounded growth of
young people into full maturity as citizens, with all that implies. It may secure this against
impeding restraints and dangers within a broad range of selection. Among evils most
appropriate for such action are the crippling effects of child employment, more especially
in public places, and the possible harms arising from other activities subject to all the
diverse influences of the [streets]. It is too late now to doubt that legislation
appropriately designed to reach such evils is within the state's police power, whether
against the parent's claim to control of the child or one that religious scruples dictate
contrary action.
It is true children have rights, in common with older people, in the primary use of
highways. But even in such use streets afford dangers for them not affecting adults.
And in other uses, whether in work or in other things, this difference may be
magnified.  (Emphases and underscoring supplied)
121
For these reasons, the State is justified in setting restrictions on the minors' exercise of
their travel rights, provided, they are singled out on reasonable grounds.
Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine the
reasonableness of classifications.  The strict scrutiny test applies when a classification
122
either (i) interferes with the exercise of fundamental rights, including the basic liberties
guaranteed under the Constitution, or (ii) burdens suspect classes.  The intermediate
123
scrutiny test applies when a classification does not involve suspect classes or
fundamental rights, but requires heightened scrutiny, such as in classifications based on
gender and legitimacy.  Lastly, the rational basis test applies to all other subjects not
124
covered by the first two tests.125
Considering that the right to travel is a fundamental right in our legal system guaranteed
no less by our Constitution, the strict scrutiny test  is the applicable test.  At this juncture,
126 127
it should be emphasized that minors enjoy the same constitutional rights as adults; the fact
that the State has broader authority over minors than over adults does not trigger the
application of a lower level of scrutiny.  In Nunez v. City of San Diego (Nunez),  the US
128 129
court illumined that:
Although many federal courts have recognized that juvenile curfews implicate the
fundamental rights of minors, the parties dispute whether strict scrutiny review is
necessary. The Supreme Court teaches that rights are no less "fundamental" for
minors than adults, but that the analysis of those rights may differ:
Constitutional rights do not mature and come into being magically only when one
attains the state-defined age of majority.  Minors, as well as adults, are protected by
1âwphi1
the Constitution and possess constitutional rights. The Court[,] indeed, however, [has
long] recognized that the State has somewhat broader authority to regulate the activities of
children than of adults. xxx. Thus, minors' rights are not coextensive with the rights of
adults because the state has a greater range of interests that justify the infringement
of minors' rights.
The Supreme Court has articulated three specific factors that, when applicable, warrant
differential analysis of the constitutional rights of minors and adults: x x x. The Bellotti test
[however] does not establish a lower level of scrutiny for the constitutional rights of
minors in the context of a juvenile curfew. Rather, the Bellotti framework enables
courts to determine whether the state has a compelling state interest justifying greater
restrictions on minors than on adults. x x x.
x x x Although the state may have a compelling interest in regulating minors
differently than adults, we do not believe that [a] lesser degree of scrutiny is
appropriate to review burdens on minors' fundamental rights. x x x.
According, we apply strict scrutiny to our review of the ordinance. x x x.  (Emphases
130
supplied)
The strict scrutiny test as applied to minors entails a consideration of the peculiar
circumstances of minors as enumerated in Bellotti vis-a-vis the State's duty
as parenspatriae to protect and preserve their well-being with the compelling State
interests justifying the assailed government act. Under the strict scrutiny test, a legislative
classification that interferes with the exercise of a fundamental right or operates to the
disadvantage of a suspect class is presumed unconstitutional.  Thus, the government
131
has the burden of proving that the classification (1) is necessary to achieve
a compelling State interest, and (i1) is the least restrictive means to protect such
interest or the means chosen is narrowly tailored to accomplish the interest. 132
a. Compelling State Interest.
Jurisprudence holds that compelling State interests include constitutionally declared
policies.  This Court has ruled that children's welfare and the State's mandate to
133
protect and care for them as parenspatriae constitute compelling interests to justify
regulations by the State.  It is akin to the paramount interest of the state for which some
134
individual liberties must give way.  As explained in Nunez, the Bellotti framework shows
135
that the State has a compelling interest in imposing greater restrictions on minors than on
adults. The limitations on minors under Philippine laws also highlight this compelling
interest of the State to protect and care for their welfare.
In this case, respondents have sufficiently established that the ultimate objective of the
Curfew Ordinances is to keep unsupervised minors during the late hours of night time off
of public areas, so as to reduce - if not totally eliminate - their exposure to potential harm,
and to insulate them against criminal pressure and influences which may even include
themselves. As denoted in the "whereas clauses" of the Quezon City Ordinance, the State,
in imposing nocturnal curfews on minors, recognizes that:
[b] x x x children, particularly the minors, appear to be neglected of their proper care and
guidance, education, and moral development, which [lead] them into exploitation, drug
addiction, and become vulnerable to and at the risk of committing criminal offenses;
xxxx
[d] as a consequence, most of minor children become out-of-school youth, unproductive
by-standers, street children, and member of notorious gangs who stay, roam around or
meander in public or private roads, streets or other public places, whether singly or in
groups without lawful purpose or justification;
xxxx
[f] reports of barangay officials and law enforcement agencies reveal that minor children
roaming around, loitering or wandering in the evening are the frequent personalities
involved in various infractions of city ordinances and national laws;
[g] it is necessary in the interest of public order and safety to regulate the movement of
minor children during night time by setting disciplinary hours, protect them from neglect,
abuse or cruelty and exploitation, and other conditions prejudicial or detrimental to their
development;
[h] to strengthen and support parental control on these minor children, there is a need to
put a restraint on the tendency of growing number of youth spending their nocturnal
activities wastefully, especially in the face of the unabated rise of criminality and to ensure
that the dissident elements of society are not provided with potent avenues for furthering
their nefarious activities[.]
136
The US court's judicial demeanor in Schleifer,  as regards the information gathered by the
137
City Council to support its passage of the curfew ordinance subject of that case, may
serve as a guidepost to our own eatment of the present case. Significantly, in Schleifer,
the US court recognized the entitlement of elected bodies to implement policies for a safer
community, in relation to the proclivity of children to make dangerous and potentially life-
shaping decisions when left unsupervised during the late hours of night:
Charlottesville was constitutionally justified in believing that its curfew would materially
assist its first stated interest-that of reducing juvenile violence and crime. The City Council
acted on the basis of information from many sources, including records from
Charlottesville's police department, a survey of public opinion, news reports, data from the
United States Department of Justice, national crime reports, and police reports from other
localities. On the basis of such evidence, elected bodies are entitled to conclude that
keeping unsupervised juveniles off the streets late at night will make for a safer
community. The same streets may have a more volatile and less wholesome
character at night than during the day. Alone on the streets at night children face a
series of dangerous and potentially life-shaping decisions. Drug dealers may lure
them to use narcotics or aid in their sale. Gangs may pressure them into membership or
participation in violence. "[D]uring the formative years of childhood and adolescence,
minors often lack the experience, perspective, and judgment to recognize and avoid
choices that could be detrimental to them." Those who succumb to these criminal
influences at an early age may persist in their criminal conduct as adults. Whether
we as judges subscribe to these theories is beside the point. Those elected officials with
their finger on the pulse of their home community clearly did. In attempting to reduce
through its curfew the opportunities for children to come into contact with criminal
influences, the City was directly advancing its first objective of reducing juvenile
violence and crime.  (Emphases and underscoring supplied; citations omitted)
138
Similar to the City of Charlottesville in Schleifer, the local governments of Quezon City and xxxx
Manila presented statistical data in their respective pleadings showing the alarming
prevalence of crimes involving juveniles, either as victims or perpetrators, in their Under the ordinance, during nine months of the year a minor could not even attend the
respective localities.139
city council meetings if they ran past 10:30 (which they frequently do) to express his
views on the necessity to repeal the curfew ordinance, clearly a deprivation of his First
Based on these findings, their city councils found it necessary to enact curfew ordinances Amendment right to freedom of speech.
pursuant to their police power under the general welfare clause.  In this light, the Court
140

thus finds that the local governments have not only conveyed but, in fact, attempted
to substantiate legitimate concerns on public welfare, especially with respect to
minors. As such, a compelling State interest exists for the enactment and enforcement of
the Curfew Ordinances.
With the first requirement of the strict scrutiny test satisfied, the Court now proceeds to
determine if the restrictions set forth in· the Curfew Ordinances are narrowly tailored or
provide the least restrictive means to address the cited compelling State interest - the
second requirement of the strict scrutiny test.
b. Least Restrictive Means/ Narrowly Drawn.
The second requirement of the strict scrutiny test stems from the fundamental premise that
citizens should not be hampered from pursuing legitimate activities in the exercise of their
constitutional rights. While rights may be restricted, the restrictions must be minimal or
only to the extent necessary to achieve the purpose or to address the State's compelling
interest. When it is possible for governmental regulations to be more narrowly drawn
to avoid conflicts with constitutional rights, then they must be so narrowly drawn.  141
xxxx
[In contrast, the ordinance in Bykofsky v. Borough of Middletown (supra note 52)] was [a]
very narrowly drawn ordinance of many pages with eleven exceptions and was very
carefully drafted in an attempt to pass constitutional muster. It specifically excepted [the]
exercise of First Amendment rights, travel in a motor vehicle and returning home by
a direct route from religious, school, or voluntary association activities. (Emphases
supplied)
After a thorough evaluation of the ordinances' respective provisions, this Court finds that
only the Quezon City Ordinance meets the above-discussed requirement, while the Manila
and Navotas Ordinances do not.
The Manila Ordinance cites only four (4) exemptions from the coverage of the curfew,
namely: (a) minors accompanied by their parents, family members of legal age, or
guardian; (b) those running lawful errands such as buying of medicines, using of
telecommunication facilities for emergency purposes and the like; (c) night school students
and those who, by virtue of their employment, are required in the streets or outside their
residence after 10:00 p.m.; and (d) those working at night.146

Although treated differently from adults, the foregoing standard applies to regulations on
minors as they are still accorded the freedom to participate in any legitimate activity, For its part, the Navotas Ordinance provides more exceptions, to wit: (a) minors with night
whether it be social, religious, or civic.  Thus, in the present case, each of the ordinances
142
classes; (b) those working at night; (c) those who attended a school or church activity, in
must be narrowly tailored as to ensure minimal constraint not only on the minors' right to coordination with a specific barangay office; (d) those traveling towards home during the
travel but also on their other constitutional rights.
143
curfew hours; (e) those running errands under the supervision of their parents, guardians,
or persons of legal age having authority over them; (j) those involved in accidents,
In In Re Mosier,  a US court declared a curfew ordinance unconstitutional impliedly for not
144
calamities, and the like. It also exempts minors from the curfew during these specific
being narrowly drawn, resulting in unnecessary curtailment of minors' rights to freely occasions: Christmas eve, Christmas day, New Year's eve, New Year's day, the night
exercise their religion and to free speech.  It observed that:
145
before the barangay fiesta, the day of the fiesta, All Saints' and All Souls' Day, Holy
Thursday, Good Friday, Black Saturday, and Easter Sunday. 147

The ordinance prohibits the older minor from attending alone Christmas Eve
Midnight Mass at the local Roman Catholic Church or Christmas Eve services at the
various local Protestant Churches. It would likewise prohibit them from attending the
New [Year's] Eve watch services at the various churches. Likewise it would prohibit
grandparents, uncles, aunts or adult brothers and sisters from taking their minor relatives
of any age to the above mentioned services. x x x.
This Court observes that these two ordinances are not narrowly drawn in that their
exceptions are inadequate and therefore, run the risk of overly restricting the minors'
fundamental freedoms. To be fair, both ordinances protect the rights to education, to
gainful employment, and to travel at night from school or work.  However, even with those
148
safeguards, the Navotas Ordinance and, to a greater extent, the Manila Ordinance still do
not account for the reasonable exercise of the minors' rights of association, free exercise
of religion, rights to peaceably assemble, and of free expression, among others.
The exceptions under the Manila Ordinance are too limited, and thus, unduly trample upon
protected liberties. The Navotas Ordinance is apparently more protective of constitutional
rights than the Manila Ordinance; nonetheless, it still provides insufficient safeguards as
discussed in detail below:
First, although it allows minors to engage in school or church activities, it hinders them
from engaging in legitimate non-school or nonchurch activities in the streets or going to
and from such activities; thus, their freedom of association is effectively curtailed. It bears
stressing that participation in legitimate activities of organizations, other than school or
church, also contributes to the minors' social, emotional, and intellectual development, yet,
such participation is not exempted under the Navotas Ordinance.
Second, although the Navotas Ordinance does not impose the curfew during Christmas
Eve and Christmas day, it effectively prohibits minors from attending traditional religious
activities (such as simbang gabi) at night without accompanying adults, similar to the
scenario depicted in Mosier.  This legitimate activity done pursuant to the minors' right to
149
freely exercise their religion is therefore effectively curtailed.
Third, the Navotas Ordinance does not accommodate avenues for minors to engage in
political rallies or attend city council meetings to voice out their concerns in line with their
right to peaceably assemble and to free expression.
Certainly, minors are allowed under the Navotas Ordinance to engage in these activities
outside curfew hours, but the Court finds no reason to prohibit them from participating in
these legitimate activities during curfew hours. Such proscription does not advance the
State's compelling interest to protect minors from the dangers of the streets at night, such
as becoming prey or instruments of criminal activity. These legitimate activities are merely
hindered without any reasonable relation to the State's interest; hence, the Navotas
Ordinance is not narrowly drawn. More so, the Manila Ordinance, with its limited
exceptions, is also not narrowly drawn.
In sum, the Manila and Navotas Ordinances should be completely stricken down since
their exceptions, which are essentially determinative of the scope and breadth of the
curfew regulations, are inadequate to ensure protection of the above-mentioned
fundamental rights. While some provisions may be valid, the same are merely ancillary
thereto; as such, they cannot subsist independently despite the presence  of any
150
separability clause.
151
The Quezon City Ordinance stands in stark contrast to the first two (2) ordinances as it
sufficiently safeguards the minors' constitutional rights. It provides the following
exceptions:
Section 4. EXEMPTIONS - Minor children under the following circumstances shall not be
covered by the provisions of this ordinance;
(a) Those accompanied by their parents or guardian;
(b) Those on their way to or from a party, graduation ceremony,
religious mass, and/or other extra-curricular activities of their school
or organization wherein their attendance are required or otherwise
indispensable, or when such minors are out and unable to go home
early due to circumstances beyond their control as verified by the
proper authorities concerned; and
(c) Those attending to, or in experience of, an emergency situation such as
conflagration, earthquake, hospitalization, road accident, law enforcers
encounter, and similar incidents[;]
(d) When the minor is engaged in an authorized employment activity, or
going to or returning home from the same place of employment activity
without any detour or stop;
(e) When the minor is in [a] motor vehicle or other travel accompanied by
an adult in no violation of this Ordinance;
(f) When the minor is involved in an emergency;
(g) When the minor is out of his/her residence attending an official
school, religious, recreational, educational, social, community or
other similar private activity sponsored by the city, barangay, school,
or other similar private civic/religious organization/group (recognized
by the community) that supervises the activity or when the minor is
going to or returning home from such activity, without any detour or
stop; and
(h) When the minor can present papers certifying that he/she is a student
and was dismissed from his/her class/es in the evening or that he/she is a
working student.  (Emphases and underscoring supplied)
152
As compared to the first two (2) ordinances, the list of exceptions under the Quezon City
Ordinance is more narrowly drawn to sufficiently protect the minors' rights of association,
free exercise of religion, travel, to peaceably assemble, and of free expression.
Specifically, the inclusion of items (b) and (g) in the list of exceptions guarantees the
protection of these aforementioned rights. These items uphold the right of association
by enabling minors to attend both official and extra-curricular activities not only of
their school or church but also of other legitimate organizations. The rights to
peaceably assemble and of free expression are also covered by these items given
that the minors' attendance in the official activities of civic or religious
organizations are allowed during the curfew hours. Unlike in the Navotas Ordinance,
the right to the free exercise of religion is sufficiently safeguarded in the Quezon City
Ordinance by exempting attendance at religious masses even during curfew hours. In
relation to their right to ravel, the ordinance allows the minor-participants to move to
and from the places where these activities are held. Thus, with these numerous
exceptions, the Quezon City Ordinance, in truth, only prohibits unsupervised
activities that hardly contribute to the well-being of minors who publicly loaf and
loiter within the locality at a time where danger is perceivably more prominent.
To note, there is no lack of supervision when a parent duly authorizes his/her minor child
to run lawful errands or engage in legitimate activities during the night, notwithstanding
curfew hours. As astutely observed by Senior Associate Justice Antonio T. Carpio and
Associate Justice Marvic M.V.F. Leonen during the deliberations on this case, parental
permission is implicitly considered as an exception found in Section 4, item (a) of the
Quezon City Ordinance, i.e., "[t]hose accompanied by their parents or guardian", as
accompaniment should be understood not only in its actual but also in its constructive
sense. As the Court sees it, this should be the reasonable construction of this exception so
as to reconcile the juvenile curfew measure with the basic premise that State interference
is not superior but only complementary to parental supervision. After all, as the
Constitution itself prescribes, the parents' right to rear their children is not only natural but
primary.
Ultimately, it is important to highlight that this Court, in passing judgment on these
ordinances, is dealing with the welfare of minors who are presumed by law to be incapable
of giving proper consent due to their incapability to fully understand the import and
consequences of their actions. In one case it was observed that:
A child cannot give consent to a contract under our civil laws. This is on the rationale that
she can easily be the victim of fraud as she is not capable of fully understanding or
knowing the nature or import of her actions. The State, as parenspatriae, is under the
obligation to minimize the risk of harm to those who, because of their minority, are as yet
unable to take care of themselves fully. Those of tender years deserve its protection. 153
Under our legal system's own recognition of a minor's inherent lack of full rational capacity,
and balancing the same against the State's compelling interest to promote juvenile safety
and prevent juvenile crime, this Court finds that the curfew imposed under the Quezon City
Ordinance is reasonably justified with its narrowly drawn exceptions and hence,
constitutional. Needless to say, these exceptions are in no way limited or restricted, as the
State, in accordance with the lawful exercise of its police power, is not precluded from
crafting, adding, or modifying exceptions in similar laws/ordinances for as long as the
regulation, overall, passes the parameters of scrutiny as applied in this case.
D. Penal Provisions of the Manila Ordinance.
Going back to the Manila Ordinance, this Court deems it proper - as it was raised - to
further discuss the validity of its penal provisions in relation to RA 9344, as amended.
To recount, the Quezon City Ordinance, while penalizing the parent/s or guardian under
Section 8 thereof,  does not impose any penalty on the minors. For its part, the Navotas
154
Ordinance requires the minor, along with his or her parent/s or guardian/s, to render social
civic duty and community service either in lieu of - should the parent/s or guardian/s of the
minor be unable to pay the fine imposed - or in addition to the fine imposed
therein.  Meanwhile, the Manila Ordinance imposed various sanctions to the minor
155
based on the age and frequency of violations, to wit:
SEC. 4. Sanctions and Penalties for Violation. Any child or youth violating this ordinance
shall be sanctioned/punished as follows:
(a) If the offender is Fifteen (15) years of age and below, the sanction
shall consist of a REPRIMAND for the youth offender and
ADMONITION to the offender's parent, guardian or person exercising
parental authority.
(b) If the offender is Fifteen (15) years of age and under Eighteen (18)
years of age, the sanction/penalty shall be:
1. For the FIRST OFFENSE, Reprimand and Admonition;
2. For the SECOND OFFENSE, Reprimand and Admonition, and
a warning about the legal impostitions in case of a third and
subsequent violation; and
3. For the THIRD AND SUBSEQUENT
OFFENSES, Imprisonment of one (1) day to ten (10) days, or a
Fine of TWO THOUSAND PESOS (Php2,000.00), or both at the
discretion of the Court, PROVIDED, That the complaint shall be
 filed by the PunongBarangay with the office of the City
Prosecutor.  (Emphases and underscoring supplied).
156
Thus springs the question of whether local governments could validly impose on minors
these sanctions - i.e., (a) community . service; (b) reprimand and admonition; (c) fine; and
(d) imprisonment. Pertinently, Sections 57 and 57-A of RA 9344, as amended, prohibit
the imposition of penalties on minors for status offenses such as curfew
violations, viz.:
SEC. 57. Status Offenses. - Any conduct not considered an offense or not penalized
if committed by an adult shall not be considered an offense and shall not be
punished if committed by a child.
SEC. 57-A. Violations of Local Ordinances. - Ordinances enacted by local governments
concerning juvenile status offenses such as but not limited to, curfew violations,
truancy, parental disobedience, anti-smoking and anti-drinking laws, as well as light
offenses and misdemeanors against public order or safety such as, but not limited to,
disorderly conduct, public scandal, harassment, drunkenness, public intoxication, criminal
nuisance, vandalism, gambling, mendicancy, littering, public urination, and
trespassing, shall be for the protection of children. No penalty shall be imposed on
children for said violations, and they shall instead be brought to their residence or to
any barangay official at the barangay hall to be released to the custody of their
parents. Appropriate intervention programs shall be provided for in such
ordinances. The child shall also be recorded as a "child at risk" and not as a "child in
conflict with the law." The ordinance shall also provide for intervention programs, such as
counseling, attendance in group activities for children, and for the parents, attendance in
parenting education seminars. (Emphases and underscoring supplied.)
To clarify, these provisions do not prohibit the enactment of regulations that curtail the
conduct of minors, when the similar conduct of adults are not considered as an offense or
penalized (i.e., status offenses). Instead, what they prohibit is the imposition
of penalties on minors for violations of these regulations. Consequently, the enactment of
curfew ordinances on minors, without penalizing them for violations thereof, is not violative
of Section 57-A.
"Penalty"  is defined as "[p]unishment imposed on a wrongdoer usually in the form of
157
imprisonment or fine";  "[p ]unishment imposed by lawful authority upon a person who
158
commits a deliberate or negligent act."  Punishment, in tum, is defined as "[a] sanction -
159
such as fine, penalty, confinement, or loss of property, right, or privilege - assessed
against a person who has violated the law." 160
The provisions of RA 9344, as amended, should not be read to mean that all the actions of
the minor in violation of the regulations are without legal consequences. Section 57-A
thereof empowers local governments to adopt appropriate intervention programs, such
as community-based programs  recognized under Section 54  of the same law.
161 162
In this regard, requiring the minor to perform community service is a valid form of
intervention program that a local government (such as Navotas City in this case) could
appropriately adopt in an ordinance to promote the welfare of minors. For one, the
community service programs provide minors an alternative mode of rehabilitation as they
promote accountability for their delinquent acts without the moral and social stigma caused
by jail detention.
In the same light, these programs help inculcate discipline and compliance with the law
and legal orders. More importantly, they give them the opportunity to become productive
members of society and thereby promote their integration to and solidarity with their
community.
The sanction of admonition imposed by the City of Manila is likewise consistent with
Sections 57 and 57-A of RA 9344 as it is merely a formal way of giving warnings and
expressing disapproval to the minor's misdemeanor. Admonition is generally defined as a
"gentle or friendly reproof' or "counsel or warning against fault or oversight."  The Black's
163
Law Dictionary defines admonition as "[a]n authoritatively issued warning or
censure";  while the Philippine Law Dictionary defines it as a "gentle or friendly reproof, a
164
mild rebuke, warning or reminder, [counseling], on a fault, error or oversight, an
expression of authoritative advice or warning."  Notably, the Revised Rules on
165
Administrative Cases in the Civil Service (RRACCS) and our jurisprudence in
administrative cases explicitly declare that "a warning or admonition shall not be
considered a penalty." 166
In other words, the disciplinary measures of community-based programs and admonition
are clearly not penalties - as they are not punitive in nature - and are generally less
intrusive on the rights and conduct of the minor. To be clear, their objectives are to
formally inform and educate the minor, and for the latter to understand, what actions must
be avoided so as to aid him in his future conduct.
A different conclusion, however, is reached with regard to reprimand and fines and/or
imprisonment imposed by the City of Manila on the minor. Reprimand is generally defined
as "a severe or formal reproof."  The Black's Law Dictionary defines it as "a mild form of
167
lawyer discipline that does not restrict the lawyer's ability to practice law";  while the
168
Philippine Law Dictionary defines it as a "public and formal censure or severe reproof,
administered to a person in fault by his superior officer or body to which he belongs. It is
more than just a warning or admonition."  In other words, reprimand is a formal and public
169
pronouncement made to denounce the error or violation committed, to sharply criticize and
rebuke the erring individual, and to sternly warn the erring individual including the public
against repeating or committing the same, and thus, may unwittingly subject the erring
individual or violator to unwarranted censure or sharp disapproval from others. In fact, the
RRACCS and our jurisprudence explicitly indicate that reprimand is a penalty,  hence,
170
prohibited by Section 57-A of RA 9344, as amended.
Fines and/or imprisonment, on the other hand, undeniably constitute penalties - as
provided in our various criminal and administrative laws and jurisprudence - that Section
57-A of RA 9344, as amended, evidently prohibits.
Ordinansa Blg. No. 99-02, as amended by Pambayang Ordinansa Blg. 2002-13 issued by
the local government of Navotas City, UNCONSTITUTIONAL and, thus, NULL and VOID;
while Ordinance No. SP-2301, Series of 2014, issued by the local government of the
Quezon City is declared CONSTITUTIONAL and, thus, VALID in accordance with this
Decision.
SO ORDERED.

As worded, the prohibition in Section 57-A is clear, categorical, and unambiguous. It states
that "[n]o penalty shall be imposed on children for x x x violations [of] juvenile
status offenses]." Thus, for imposing the sanctions of reprimand, fine, and/or
imprisonment on minors for curfew violations, portions of Section 4 of the Manila
Ordinance directly and irreconcilably conflict with the clear language of Section 57-A of RA
9344, as amended, and hence, invalid. On the other hand, the impositions of community
service programs and admonition on the minors are allowed as they do not constitute
penalties.

CONCLUSION
In sum, while the Court finds that all three Curfew Ordinances have passed the first prong
of the strict scrutiny test - that is, that the State has sufficiently shown a compelling interest
to promote juvenile safety and prevent juvenile crime in the concerned localities, only the
Quezon City Ordinance has passed the second prong of the strict scrutiny test, as it is the
only issuance out of the three which provides for the least restrictive means to achieve this
interest. In particular, the Quezon City Ordinance provides for adequate exceptions that
enable minors to freely exercise their fundamental rights during the prescribed curfew
hours, and therefore, narrowly drawn to achieve the State's purpose. Section 4 (a) of the
said ordinance, i.e., "[t]hose accompanied by their parents or guardian", has also been
construed to include parental permission as a constructive form of accompaniment and
hence, an allowable exception to the curfew measure; the manner of enforcement,
however, is left to the discretion of the local government unit.
In fine, the Manila and Navotas Ordinances are declared unconstitutional and thus, null
and void, while the Quezon City Ordinance is declared as constitutional and thus, valid in
accordance with this Decision.
For another, the Court has determined that the Manila Ordinance's penal provisions
imposing reprimand and fines/imprisonment on minors conflict with Section 57-A of RA
9344, as amended. Hence, following the rule that ordinances should always conform with
the law, these provisions must be struck down as invalid.
EN BANC   APRIL 17, 2018 G.R. No. 197930
EFRAIM C. GENUINO, ERWIN F. GENUINO and SHERYL G. SEE, Petitioners
vs HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice, and RICARDO V.
PARAS III, in his capacity as Chief State Counsel, CRISTINO L. NAGUIAT, JR. and
the BUREAU OF IMMIGRATION, Respondents
DECISION
REYES, JR., J.:
These consolidated Petitions for Certiorari and Prohibition with Prayer for the Issuance of
Temporary Restraining Orders (TRO) and/or Writs of Preliminary Injunction Under Rule 65
of the Rules of Court assail the constitutionality of Department of Justice (DOJ) Circular
No. 41, series of 2010, otherwise known as the "Consolidated Rules and Regulations
Governing Issuance and Implementation of Hold Departure Orders, Watchlist Orders and
Allow Departure Orders," on the ground that it infringes on the constitutional right to travel.
Also, in G.R. Nos. 199034 and 199046, the petitioners therein seek to annul and set aside
the following orders issued by the former DOJ Secretary Leila De Lima (De Lima),
pursuant to DOJ Circular No. 41, thus:

WHEREFORE, the petition is PARTLYGRANTED. The Court hereby declares Ordinance 1. Watchlist Order No. ASM-11-237 dated August 9, 2011; 1

No. 8046, issued by the local government of the City of Manila, and Pambayang
2. Amended Watchlist Order No. 2011-422 dated September 6, 2011;  and 2
(b) XVI-INV-11D-00170, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et
al., for plunder, malversation and/or illegal use of OWWA funds, graft and corruption,
3. Watchlist Order No. 2011-573 dated October 27, 2011. 3 violation of the Omnibus Election Code (OEC), violation of the Code of Conduct and
Ethical Standards for Public Officials, and qualified theft;  and
8

In a Supplemental Petition, petitioner Gloria Macapagal-Arroyo (GMA) further seeks the

invalidation of the Order  dated November 8, 2011, denying her application for an Allow-
4 (c) XVI-INV-11F-00238, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et
Departure Order (ADO). al., for plunder, malversation, and/or illegal use of public funds, graft and corruption,
violation of the OEC, violation of the Code of Conduct and Ethical Standards for Public
Similarly, in G.R. No. 197930, petitioners Efraim C. Genuino (Efraim), Erwin F. Genuino Officials and qualified theft.
9

(Erwin) and Sheryl Genuino-See (Genuinos) pray for the nullification of the Hold-Departure
Order  (HDO) No. 2011-64 dated July 22, 2011 issued against them.
5 In view of the foregoing criminal complaints, De Lima issued DOJ WLO No. 2011-422
dated August 9, 2011 against GMA pursuant to her authority under DOJ Circular No. 41.
Antecedent Facts She also ordered for the inclusion of GMA's name in the Bureau of Immigration (BI)
watchlist.  Thereafter, the Bl issued WLO No. ASM-11-237,  implementing De Lima's
10 11

order.
On March 19, 1998, then DOJ Secretary Silvestre H. Bello III issued DOJ Circular No. 17,
prescribing rules and regulations governing the issuance of HDOs. The said issuance was
intended to restrain the indiscriminate issuance of HDOs which impinge on the people's On September 6, 2011, De Lima issued DOJ Amended WLO No. 2011-422 against GMA
right to travel. to reflect her full name "Ma. Gloria M. Macapagal-Arroyo" in the BI Watchlist.  WLO No.
12

2011-422, as amended, is valid for a period of 60 days, or until November 5, 2011, unless
sooner terminated or otherwise extended. This was lifted in due course by De Lima, in an
On April 23, 2007, former DOJ Secretary Raul M. Gonzalez issued DOJ Circular No. 18,
Order dated November 14, 2011, following the expiration of its validity.13

prescribing rules and regulations governing the issuance and implementation of watchlist
orders. In particular, it provides for the power of the DOJ Secretary to issue a Watchlist
Order (WLO) against persons with criminal cases pending preliminary investigation or Meanwhile, on October 20, 2011, two criminal complaints for Electoral Sabotage and
petition for review before the DOJ. Further, it states that the DOJ Secretary may issue an Violation of the OEC were filed against GMA and her husband, Jose Miguel Arroyo
ADO to a person subject of a WLO who intends to leave the country for some exceptional (Miguel Arroyo), among others, with the DOJ-Commission on Elections (DOJ-COMELEC)
reasons.  Even with the promulgation of DOJ Circular No. 18, however, DOJ Circular No.
6 Joint Investigation Committee on 2004 and 2007 Election Fraud,  specifically:
14

17 remained the governing rule on the issuance of HDOs by the DOJ.

(a) DOJ-COMELEC Case No. 001-2011, entitled DOJ-COMELEC Fact Finding Team vs.
On May 25, 2010, then Acting DOJ Secretary Alberto C. Agra issued the assailed DOJ Gloria Macapagal-Arroyo et al., (for the Province of Maguindanao), for electoral
Circular No. 41, consolidating DOJ Circular Nos. 17 and 18, which will govern the sabotage/violation of the OEC and COMELEC Rules and Regulations;  and 15

issuance and implementation of HDOs, WLOS, and ADOs. Section 10 of DOJ Circular No.
41 expressly repealed all rules and regulations contained in DOJ Circular Nos. 17 and 18, (b) DOJ-COMELEC Case No. 002-2011, entitled Aquilino Pimentel III vs. Gloria
as well as all instructions, issuances or orders or parts thereof which are inconsistent with Macapagal-Arroyo, et al., for electoral sabotage.16

its provisions.
Following the filing of criminal complaints, De Lima issued DOJ WLO No. 2011-573
After the expiration of GMA's term as President of the Republic of the Philippines and her against GMA and Miguel Arroyo on October 27, 2011, with a validity period of 60 days, or
subsequent election as Pampanga representative, criminal complaints were filed against until December 26, 2011, unless sooner terminated or otherwise extended. 17

her before the DOJ, particularly:

In three separate letters dated October 20, 2011, October 21, 2011, and October 24,
(a) XVI-INV-10H-00251, entitled Danilo A. Lihaylihay vs. Gloria Macapagal-Arroyo, et 2011, GMA requested for the issuance of an ADO, pursuant to Section 7 of DOJ Circular
al., for plunder;
7 No. 41, so that she may be able to seek medical attention from medical specialists abroad
for her hypoparathyroidism and metabolic bone mineral disorder. She mentioned six
different countries where she intends to undergo consultations and treatments: United
States of America, Germany, Singapore, Italy, Spain and Austria.  She likewise undertook
18
Also, on November 8, 2011, De Lima issued an Order,  denying GMA's application for an
27

to return to the Philippines, once her treatment abroad is completed, and participate in the ADO, based on the following grounds:
proceedings before the DOJ.  In support of her application for ADO, she submitted the
19

following documents, viz.: First, there appears to be discrepancy on the medical condition of the applicant as stated
in her affidavit, on the other hand, and the medical abstract of the physicians as well as
1. Second Endorsement dated September 16, 2011 of Speaker Feliciano Belmonte, Jr. to her physician's statements to Secretary Ona during the latter's October 28, 2011 visit to
the Secretary of Foreign Affairs, of her Travel Authority; the Applicant, on the other.

2. First Endorsement dated October 19, 2011  of Artemio A. Adasa, OIC Secretary
20
xxxx
General of the House of Representatives, to the Secretary of Foreign Affairs, amending
her Travel Authority to include travel to Singapore, Spain and Italy; Second, based on the medical condition of Secretary Ona, there appears to be no urgent
and immediate medical emergency situation for Applicant to seek medical treatment
3. Affidavit dated October 21, 2011,  stating the purpose of travel to Singapore, Germany
21
abroad. x x x.
and Austria;
xxxx
4. Medical Abstract dated October 22, 2011,  signed by Dr. Roberto Mirasol (Dr. Mirasol);
22

Third, Applicant lists several countries as her destination, some of which were not for
5. Medical Abstract dated October 24, 2011,  signed by Dr. Mario Ver;
23
purposes of medical consultation, but for attending conferences. XX X.

6. Itinerary submitted by the Law Firm of Diaz, Del Rosario and Associates, detailing the
schedule of consultations with doctors in Singapore.
To determine whether GMA's condition necessitates medical attention abroad, the Medical
Abstract prepared by Dr. Mirasol was referred to then Secretary of the Department of
Health, Dr. Enrique Ona (Dr. Ona) for his expert opinion as the chief government
physician. On October 28, 2011, Dr. Ona, accompanied by then Chairperson of the Civil
Service Commission, Francisco Duque, visited GMA at her residence in La Vista
Subdivision, Quezon City. Also present at the time of the visit were GMA's attending
doctors who explained her medical condition and the surgical operations conducted on
her. After the visit, Dr. Ona noted that "Mrs. Arroyo is recuperating reasonably well after
having undergone a series of three major operations." 24
xxxx
Fourth, while the Applicant's undertaking is to return to the Philippines upon the
completion of her medical treatment, this means that her return will always depend on said
treatment, which, based on her presentation of her condition, could last indefinitely. x x x.
xxxx
Fifth, X X X X. Applicant has chosen for her destination five (5) countries, namely,
Singapore, Germany, Austria, Spain and Italy, with which the Philippines has no existing
extradition treaty. X X X.

Χ Χ Χ Χ
On November 8, 2011, before the resolution of her application for ADO, GMA filed the
present Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court with
IN VIEW OF THE FOREGOING, the application for an Allow Departure Order (ADO)
Prayer for the Issuance of a TRO and/or Writ of Preliminary Injunction, docketed as G.R.
of Congresswoman MA. GLORIA M. MACAPAGAL-ARROYO is hereby DENIED for
No. 199034, to annul and set aside DOJ Circular No. 41 and WLOs issued against her for
lack of merit.
allegedly being unconstitutional. 25

SO ORDERED.  28

A few hours thereafter, Miguel Arroyo filed a separate Petition for Certiorari and Prohibition
under the same rule, with Prayer for the Issuance of a TRO and/or a Writ of Preliminary
Injunction, likewise assailing the constitutionality of DOJ Circular No. 41 and WLO No.
2011-573. His petition was docketed as G.R. No. 199046. 26
On November 9, 2011, De Lima, together with her co-respondents, Ricardo V. Paras, III,
Chief State Counsel of the DOJ and Ricardo A. David, Jr., who was then BI
Commissioner, (respondents) filed a Very Urgent Manifestation and Motion  in G.R. Nos.
29
199034 and 199046, praying (1) that they be given a reasonable time to comment on the
petitions and the applications for a TRO and/or writ of preliminary injunction before any
action on the same is undertaken by the Court; (2) that the applications for TRO and/or
writ of preliminary injunction be denied for lack of merit, and; (3) that the petitions be set
for oral arguments after the filing of comments thereto. 30
On November 13, 2011, GMA filed a Supplemental Petition  which included a prayer to
31
annul and set aside the Order dated November 8, 2011, denying her application for ADO.
On the following day, GMA filed her Comment/Opposition  to the respondents' Very
32
Urgent Manifestation and Motion dated November 9, 2011, in G.R. No. 199034.
On November 15, 2011, the Court issued a Resolution,  ordering the consolidation of G.R.
33
Nos. 199034 and 199046, and requiring the respondents to file their comment thereto not
later than November 18, 2011. The Court likewise resolved to issue a TRO in the
consolidated petitions, enjoining the respondents from enforcing or implementing DOJ
Circular No. 41 and WLO Nos. ASM-11-237 dated August 9, 2011, 2011-422 dated
September 6, 2011, and 2011-573 dated October 27, 2011, subject to the following
conditions, to wit:
(i) The petitioners shall post a cash bond of Two Million Pesos (₱2,000,000.00) payable to
this Court within five (5) days from notice hereof. Failure to post the bond within the
aforesaid period will result in the automatic lifting of the temporary restraining order;
(ii) The petitioners shall appoint a legal representative common to both of them who will
receive subpoena, orders and other legal processes on their behalf during their absence.
The petitioners shall submit the name of the legal representative, also within five (5) days
from notice hereof; and
(iii) If there is a Philippine embassy or consulate in the place where they will be traveling,
the petitioners shall inform said embassy or consulate by personal appearance or by
phone of their whereabouts at all times; 34
On the very day of the issuance of the TRO, the petitioners tendered their
compliance  with the conditions set forth in the Resolution dated November 15, 2011 of
35
the Court and submitted the following: (1) a copy of Official Receipt No. 0030227-SC-EP,
showing the payment of the required cash bond of Two Million Pesos
(₱2,000,000.00);  (2) certification from the Fiscal and Management and Budget Office of
36
the Supreme Court, showing that the cash bond is already on file with the office;  (3)
37
special powers of attorney executed by the petitioners, appointing their respective lawyers
as their legal representatives;   and (4) an undertaking to report to the nearest consular
38
office in the countries where they will travel.
39
At around 8:00 p.m. on the same day, the petitioners proceeded to the Ninoy Aquino
International Airport (NAIA), with an aide-de-camp and a private nurse, to take their flights
to Singapore. However, the BI officials at NAIA refused to process their travel documents
which ultimately resulted to them not being able to join their flights.
40
On November 17, 2011, GMA, through counsel, filed an Urgent Motion  for Respondents
41
to Cease and Desist from Preventing Petitioner GMA from Leaving the Country. She
strongly emphasized that the TRO issued by the Court was immediately executory and
that openly defying the same is tantamount to gross disobedience and resistance to a
lawful order of the Court."  Not long after, Miguel Arroyo followed through with an Urgent
42
Manifestation,  adopting and repleading all the allegations in GMA's motion.
43
On November 16, 2011, the respondents filed a Consolidated Urgent Motion for
Reconsideration and/or to Lift TRO,  praying that the Court reconsider and set aside the
44
TRO issued in the consolidated petitions until they are duly heard on the merits. In support
thereof, they argue that the requisites for the issuance of a TRO and writ of preliminary
injunction were not established by the petitioners. To begin with, the petitioners failed to
present a clear and mistakable right which needs to be protected by the issuance of a
TRO. While the petitioners anchor their right in esse on the right to travel under Section 6,
Article III of the 1987 Constitution, the said right is not absolute. One of the limitations on
the right to travel is DOJ Circular No. 41, which was issued pursuant to the rule-making
powers of the DOJ in order to keep individuals under preliminary investigation within the
jurisdiction of the Philippine criminal justice system. With the presumptive constitutionality
of DOJ Circular No. 41, the petitioners cannot claim that they have a clear and
unmistakable right to leave the country as they are the very subject of the mentioned
issuance.  Moreover, the issuance of a TRO will effectively render any judgment on the
45
consolidated petitions moot and academic. No amount of judgment can recompense the
irreparable injury that the state is bound to suffer if the petitioners are permitted to leave
the Philippine jurisdiction.
46
On November 18, 2011, the Court issued a Resolution,  or requiring De Lima to show
47
cause why she should not be disciplinarily dealt with or held in contempt of court for failure
to comply with the TRO. She was likewise ordered to immediately comply with the TRO by
allowing the petitioners to leave the country. At the same time, the Court denied the
Consolidated Urgent Motion for Reconsideration and/or to Lift TRO dated November 16,
2011 filed by the Office of the Solicitor General.
48
On even date, the COMELEC, upon the recommendation of the Joint DOJ-COMELEC
Preliminary Investigation Committee, filed an information for the crime of electoral
sabotage under Section 43(b) of Republic Act (R.A.) No. 9369 against GMA, among
others, before the Regional Trial Court (RTC) of Pasay City, which was docketed as R-
PSY-11-04432-CR  and raffled to Branch 112. A warrant of arrest for GMA was forthwith
49
issued.
Following the formal filing of an Information in court against GMA, the respondents filed an
Urgent Manifestation with Motion to Lift TRO.  They argue that the filing of the information
50
for electoral sabotage against GMA is a supervening event which warrants the lifting of the
TRO issued by this Court. They asseverate that the filing of the case vests the trial court
the jurisdiction to rule on the disposition of the case. The issue therefore on the validity of
the assailed WLOs should properly be raised and threshed out before the RTC of Pasay
City where the criminal case against GMA is pending, to the exclusion of all other courts. 51
Also, on November 18, 2011, the COMELEC issued a Resolution, dismissing the
complaint for violation of OEC and electoral sabotage against Miguel Arroyo, among
others, which stood as the basis for the issuance of WLO No. 2011-573. Conformably, the
DOJ issued an Order dated November 21, 2011,  lifting WLO No. 2011-573 against
52
Miguel Arroyo and ordering for the removal of his name in the BI watchlist.
Thereafter, the oral arguments on the consolidated petitions proceeded as scheduled on
November 22, 2011, despite requests from the petitioners' counsels for an earlier date.
Upon the conclusion of the oral arguments on December 1, 2011, the parties were
required to submit their respective memoranda. 53
Meanwhile, in G.R. No. 197930, HDO No. 2011-64 dated July 22, 2011  was issued
54
against Genuinos, among others, after criminal complaints for Malversation, as defined
under Article 217 of the Revised Penal Code (RPC), and Violation of Sections 3(e), (g), (h)
and (i) of R.A. No. 3019 were filed against them by the Philippine Amusement and Gaming
Corporation (PAGCOR), through its Director, Eugene Manalastas, with the DOJ on June
14, 2011, for the supposed diversion of funds for the film "Baler." This was followed by the
filing of another complaint for Plunder under R.A. No. 7080, Malversation under Article 217
of the RPC and Violation of Section 3 of R.A. No. 3019, against the same petitioners, as
well as members and incorporators of BIDA Production, Inc. Wildformat, Inc. and Pencil
First, Inc., for allegedly siphoning off PAGCOR funds into the coffers of BIDA entities.
Another complaint was thereafter filed against Efraim and Erwin was filed before the Office
of the Ombudsman for violation of R.A. No. 3019 for allegedly releasing PAGCOR funds
intended for the Philippine Sports Commission directly to the Philippine Amateur
Swimming Association, Inc.  In a Letter  dated July 29, 2011 addressed to Chief State
55 56
Counsel Ricardo Paras, the Genuinos, through counsel, requested that the HDO against
them be lifted. This plea was however denied in a Letter  dated August 1, 2011 which
57
prompted the institution of the present petition by the Genuinos. In a Resolution  dated
58
April 21, 2015, the Court consolidated the said petition with G.R. Nos. 199034 and
199046.
The Court, after going through the respective memoranda of the parties and their
pleadings, sums up the issues for consideration as follows:
I personal and substantial interest in the case such that he has sustained, or will sustain,
WHETHER THE COURT MAY EXERCISE ITS POWER OF JUDICIAL REVIEW;
II
WHETHER THE DOJ HAS THE AUTHORITY TO ISSUE DOJ CIRCULAR NO. 41; and
III
WHETHER THERE IS GROUND TO HOLD THE FORMER DOJ SECRETARY GUILTY
OF CONTEMPT OF COURT.
Ruling of the Court
The Court may exercise its power of
judicial review despite the filing of
information for electoral sabotage
against GMA
It is the respondents' contention that the present petitions should be dismissed for lack of a
justiciable controversy. They argue that the instant petitions had been rendered moot and
academic by (1) the expiration of the WLO No. 422 dated August 9, 2011, as amended by
the Order dated September 6, 2011;  (2) the filing of an information for electoral sabotage
59
against GMA,  and; (3) the lifting of the WLO No. 2011-573 dated November 14, 2011
60
against Miguel Arroyo and the subsequent deletion of his name from the BI watchlist after
the COMELEC en banc dismissed the case for electoral sabotage against him. 61
The power of judicial review is articulated in Section 1, Article VIII of the 1987 Constitution
which reads:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. 62
Like almost all powers conferred by the Constitution, the power of judicial review is subject
to limitations, to wit: (1) there must be an actual case or controversy calling for the
exercise of judicial power; (2) the person challenging the act must have the standing to
question the validity of the subject act or issuance; otherwise stated, he must have a
direct injury as a result of its enforcement; (3) the question of constitutionality must be
raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis
mota of the case. 63
Except for the first requisite, there is no question with respect to the existence of the three
(3) other requisites. Petitioners have the locus standi to initiate the petition as they claimed
to have been unlawfully subjected to restraint on their right to travel owing to the issuance
of WLOs against them by authority of DOJ Circular No. 41. Also, they have contested the
constitutionality of the questioned issuances at the most opportune time.
The respondents, however, claim that the instant petitions have become moot and
academic since there is no longer any actual case or controversy to resolve following the
subsequent filing of an information for election sabotage against GMA on November 18,
2011 and the lifting of WLO No. 2011-573 against Miguel Arroyo and the deletion of his
name from the BI watchlist after the dismissal of the complaint for electoral sabotage
against him.
To be clear, "an actual case or controversy involves a conflict of legal right, an opposite
legal claims susceptible of judicial resolution. It is definite and concrete, touching the legal
relations of parties having adverse legal interest; a real and substantial controversy
admitting of specific relief."  When the issues have been resolved or when the
64
circumstances from which the legal controversy arose no longer exist, the case is
rendered moot and academic. "A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so that a declaration thereon would
be of no practical use or value."65
The Court believes that the supervening events following the filing of the instant petitions,
while may have seemed to moot the instant petitions, will not preclude it from ruling on the
constitutional issues raised by the petitioners. The Court, after assessing the necessity
and the invaluable gain that the members of the bar, as well as the public may realize from
the academic discussion of the constitutional issues raised in the petition, resolves to put
to rest the lingering constitutional questions that abound the assailed issuance. This is not
a novel occurrence as the Court, in a number of occasions, took up cases up to its
conclusion notwithstanding claim of mootness.
In Evelio Javier vs. The Commission on Elections,  emphatically stated, thus:
66
The Supreme Court is not only the highest arbiter of legal questions but also the
conscience of the government. The citizen comes to us in quest of law but we must also
give him justice. The two are not always the same. There are times when we cannot grant
the latter because the issue has been settled and decision is no longer possible according
to the law. But there are also times when although the dispute has disappeared, as in this
case, it nevertheless cries out to be resolved. Justice demands that we act then, not only
for the vindication of the outraged right, though gone, but also for the guidance of and as a
restraint upon the future.
67
In Prof. David vs. Pres. Macapagal-Arroyo,  the Court proceeded in ruling on the
68
constitutionality of Presidential Proclamation (PP) No. 1017 in which GMA declared a state
of national emergency, and General Order No. 5 (G.O. No. 5), which ordered the members
of the Armed Forces of the Philippines and the Philippine National Police to carry all
necessary actions to suppress acts of terrorism and lawless violence, notwithstanding the
issuance of PP 1021 lifting both issuances. The Court articulated, thus:
The Court holds that President Arroyo's issuance of PP 1021 did not render the present
petitions moot and academic. During the eight (8) days that PP 1017 was operative, the
police officers, according to petitioners, committed illegal acts in implementing it. Are PP
1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal
acts? These are the vital issues that must be resolved in the present petitions. It must be
stressed that unconstitutional act is not a law, it confers no rights, it imposes no
duties, it affords no protection; it is in legal contemplation, inoperative.
The "moot and academic" principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution; second, the exceptional
character of the situation and the paramount public interest is involved; third, when
constitutional issue raised requires formulation of controlling principles to guide the bench,
the bar, and the public; and fourth, the case is capable of repetition yet evading
review.  (Citations omitted and emphasis supplied)
69
In the instant case, there are exceptional circumstances that warrant the Court's exercise
of its power of judicial review. The petitioners impute the respondents of violating their
constitutional right to travel through the enforcement of DOJ Circular No. 41. They claim
that the issuance unnecessarily places a restraint on the right to travel even in the
absence of the grounds provided in the Constitution.
There is also no question that the instant petitions involved a matter of public interest as
the petitioners are not alone in this predicament and there can be several more in the
future who may be similarly situated. It is not farfetched that a similar challenge to the
constitutionality of DOJ Circular No. 41 will recur considering the thousands of names
listed in the watch list of the DOJ, who may brave to question the supposed illegality of the
issuance. Thus, it is in the interest of the public, as well as for the education of the
members of the bench and the bar, that this Court takes up the instant petitions and
resolves the question on the constitutionality of DOJ Circular No. 41.
The Constitution is inviolable and
supreme of all laws
We begin by emphasizing that the Constitution is the fundamental, paramount and
supreme law of the nation; it is deemed written in every statute and contract.  If a law or
70
an administrative rule violates any norm of the Constitution, that issuance is null and void
and has no effect.
The Constitution is a testament to the living democracy in this jurisdiction. It contains the
compendium of the guaranteed rights of individuals, as well as the powers granted to and
restrictions imposed on government officials and instrumentalities. It is that lone unifying
code, an inviolable authority that demands utmost respect and obedience.
The more precious gifts of democracy that the Constitution affords us are enumerated in
the Bill of Rights contained in Article III. In particular, Section 1 thereof provides:
Section 1. 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.
The guaranty of liberty does not, however, imply unbridled license for an individual to do
whatever he pleases, for each is given an equal right to enjoy his liberties, with no one
superior over another. Hence, the enjoyment of one's liberties must not infringe on anyone
else's equal entitlement.
Surely, the Bill of Rights operates as a protective cloak under which the individual may
assert his liberties. Nonetheless, "the Bill of Rights itself does not purport to be an absolute
guaranty of individual rights and liberties. Even liberty itself, the greatest of all rights, is not
unrestricted license to act according to one's will. It is subject to the far more overriding
demands and requirements of the greater number." 71
It is therefore reasonable that in order to achieve communal peace and public welfare,
calculated limitations in the exercise of individual freedoms are necessary. Thus, in many
significant provisions, the Constitution itself has provided for exceptions and restrictions to
balance the free exercise of rights with the equally important ends of promoting common
good, public order and public safety.
The state's exercise of police power is also well-recognized in this jurisdiction as an
acceptable limitation to the exercise of individual rights. In Philippine Association of
Service Exporters, Inc. vs. Drilon,[[72]] it was defined as the inherent and plenary power in
the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of
society. It is rooted in the conception that men in organizing the state and imposing upon
its government limitations to safeguard constitutional rights did not intend thereby to
enable an individual citizen or a group of citizens to obstruct unreasonably the enactment
of such salutary measures calculated to ensure communal peace, safety, good order, and
welfare.73
Still, it must be underscored that in a constitutional government like ours, liberty is the rule
and restraint the exception.  Thus, restrictions in the exercise of fundamental liberties are
74
heavily guarded against so that they may not unreasonably interfere with the free exercise
of constitutional guarantees.
The right to travel and its limitations
The right to travel is part of the "liberty" of which a citizen cannot be deprived without due
process of law.  It is part and parcel of the guarantee of freedom of movement that the
75
Constitution affords its citizen. Pertinently, Section 6, Article III of the Constitution
provides:
Section 6. 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 impaired except in the interest of national security, public safety or public health,
as maybe provided by law.
Liberty under the foregoing clause includes the right to choose one's residence, to leave it
whenever he pleases and to travel wherever he wills.  Thus, in Zacarias Villavicencio vs.
76
Justo Lucban,  the Court held illegal the action of the Mayor of Manila in expelling women
77
who were known prostitutes and sending them to Davao in order to eradicate vices and
immoral activities proliferated by the said subjects. It was held that regardless of the
mayor's laudable intentions, no person may compel another to change his residence
without being expressly authorized by law or regulation.
It is apparent, however, that the right to travel is not absolute. There are constitutional,
statutory and inherent limitations regulating the right to travel. Section 6 itself provides that
the right to travel may be impaired only in the interest of national security, public safety or
public health, as may be provided by law. In Silverio vs. Court of Appeals,  the Court
78
elucidated, thus:
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the
liberty of travel may be impaired even without Court Order, the appropriate executive
officers or administrative authorities are not armed with arbitrary discretion to impose
limitations. They can impose limits only on the basis of "national security, public safety,
or public health" and "as may be provided by law," a limitive phrase which did not
appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition,
1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the
ban on international travel imposed under the previous regime when there was a Travel
Processing Center, which issued certificates of eligibility to travel upon application of an
interested party.  (Emphasis ours)
79
Clearly, under the provision, there are only three considerations that may permit a
restriction on the right to travel: national security, public safety or public health. As a
further requirement, there must be an explicit provision of statutory law or the Rules of
Court  providing for the impairment. The requirement for a legislative enactment was
80
purposely added to prevent inordinate restraints on the person's right to travel by
administrative officials who may be tempted to wield authority under the guise of national
security, public safety or public health. This is in keeping with the principle that ours is a
government of laws and not of men and also with the canon that provisions of law limiting
the enjoyment of liberty should be construed against the government and in favor of the
individual.
81
The necessity of a law before a curtailment in the freedom of movement may be permitted
safety or public health. So, in the first part, there is the word "court"; in the second part, it
seems that the question rises as to who determines whether it is in the interest of national
security, public safety, or public health. May it be determined merely by administrative
authorities?
FR. BERNAS. The understanding we have of this is that, yes, it may be determined by
administrative authorities provided that they act, according to line 9, within the limits
prescribed by law. For instance when this thing came up; what was in mind were
passport Officers. If they want to deny a passport on the first instance, do they have to go
to court? The position is, they may deny a passport provided that the denial is based on
the limits prescribed by law. The phrase "within the limits prescribed by law" is
something which is added here. That did not exist in the old provision. 84

is apparent in the deliberations of the members of the Constitutional Commission. In

particular, Fr. Joaquin Bernas, in his sponsorship speech, stated thus: During the discussions, however, the Commission realized the necessity of separating the
concept of liberty of abode and the right to travel in order to avoid untoward results.
On Section 5, in the explanation on page 6 of the annotated provisions, it says that the Ultimately, distinct safeguards were laid down which will protect the liberty of abode and
phrase "and changing the same" is taken from the 1935 version; that is, changing the the right to travel separately, viz.:
abode. The addition of the phrase WITHIN THE LIMITS PRESCRIBED BY LAW ensures
that, whether the rights be impaired on order of a court or without the order of a court, the MR. TADEO. Mr. Presiding Officer, anterior amendment on Section 5, page 2, line 11.
impairment must be in accordance with the prescriptions of law; that is, it is not left to the Iminumungkahi kong alisin iyong mga salitang nagmumula sa "or" upang maiwasan natin
discretion of any public officer.
82
ang walang pakundangang paglabag sa liberty of abode sa ngalan ng national security at
pagsasagawa ng "hamletting" ng kung sinu-sino na lamang. Kapag inalis ito,
It is well to remember that under the 1973 Constitution, the right to travel is compounded maisasagawa lamang ang "hamletting" upon lawful order of the court. X X X.
with the liberty of abode in Section 5 thereof, which reads:
xxxx
Section 5, 1973 Constitution: 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 MR. RODRIGO. Aside from that, this includes the right to travel?
security, public safety, or public health. (Emphasis ours)
FR. BERNAS. Yes.
The provision, however, proved inadequate to afford protection to ordinary citizens who
were subjected to "hamletting" under the Marcos regime.  Realizing the loophole in the
83
MR. RODRIGO. But another right is involved here and that is to travel?
provision, the members of the Constitutional Commission agreed that a safeguard must be
incorporated in the provision in order to avoid this unwanted consequence. Thus, the
SUSPENSION OF SESSION
Commission meticulously framed the subject provision in such a manner that the right
cannot be subjected to the whims of any administrative officer. In addressing the loophole,
they found that requiring the authority of a law most viable in preventing unnecessary FR. BERNAS. Mr. Presiding Officer, may I request a suspension so that we can separate
intrusion in the freedom of movement, viz.: the liberty of abode and or changing the same from the right to travel, because they may
necessitate different provisions.
MR. NOLLEDO. X X X X
THE PRESIDING OFFICER (Mr. Bengzon). The session is suspended.
My next question is with respect to Section 5, lines 8 to 12 of page 2. It says here that the
liberty of abode shall not be impaired except upon lawful order of the court or - xxxx
underscoring the word "or" - when necessary in the interest of national security, public
RESUMPTION OF SESSION
xxxx
THE PRESIDING OFFICER (Mr.Bengzon). The session is resumed. Commisioner Bernas
is recognized
FR. BERNAS. The proposal is amended to read: "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 IMPAIRED EXCEPT IN THE
INTEREST OF NATIONAL SECURITY, PUBLIC SAFETY, OR PUBLIC HEALTH AS
MAYBE PROVIDED BY LAW.
THE PRESIDING OFFICER (Mr. Bengzon). The Committee has accepted the
amendment, as amended. Is there any objection? (Silence) The Chair hears none; the
amendment, as amended, is approved. 85
It is clear from the foregoing that the liberty of abode may only be impaired by a lawful
order of the court and, on the one hand, the right to travel may only be impaired by a law
that concerns national security, public safety or public health. Therefore, when the
exigencies of times call for a limitation on the right to travel, the Congress must respond to
the need by explicitly providing for the restriction in a law. This is in deference to the
primacy of the right to travel, being a constitutionally-protected right and not simply a
statutory right, that it can only be curtailed by a legislative enactment.
Thus, in Philippine Association of Service Exporters, Inc. vs. Hon. Franklin M. Drilon,  the
86
Court upheld the validity of the Department Order No. 1, Series of 1988, issued by the
Department of Labor and Employment, which temporarily suspended the deployment of
domestic and household workers abroad. The measure was taken in response to
escalating number of female workers abroad who were subjected to exploitative working
conditions, with some even reported physical and personal abuse. The Court held that
Department Order No. 1 is a valid implementation of the Labor Code, particularly, the
policy to "afford protection to labor." Public safety considerations justified the restraint on
the right to travel.
Further, in Leave Division, Office of the Administrative Services (OAS) - Office of the Court
Administrator (OCA) vs. Wilma Salvacion P. Heusdens,  the Court enumerated the
87
statutes which specifically provide for the impairment of the right to travel, viz.:
Some of these statutory limitations [to the right to travel] are the following:
1] The Human Security Act of 2010 or (R.A.] No. 9372. The law restricts the right to travel
of an individual charged with the crime of terrorism even though such person is out on bail.
2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the
Secretary of Foreign Affairs or his authorized consular officer may refuse the issuance of,
restrict the use of, or withdraw, a passport of a Filipino citizen.
3] The "Anti- Trafficking in Persons Act of 2003" or R.A. No. 9208. Pursuant to the
provisions thereof, the [BI], in order to manage migration and curb trafficking in persons,
issued Memorandum Order Radir No. 2011-011, allowing its Travel Control and
Enforcement Unit to "offload passengers with fraudulent travel documents, doubtful
purpose of travel, including possible victims of human trafficking" from our ports.
4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A. No. 8042, as
amended by R.A. No. 10022. In enforcement of said law, the Philippine Overseas
Employment Administration (POEA) may refuse to issue deployment permit to a specific
country that effectively prevents our migrant workers to enter such country.
5] The Act on Violence against Women and Children or R.A. No. 9262. The law restricts
movement of an individual against whom the protection order is intended.
6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-
Country Adoption Board may issue rules restrictive of an adoptee's right to travel "to
protect the Filipino child from abuse, exploitation, trafficking and/or sale or any other
practice in connection with adoption which is harmful, detrimental, or prejudicial to the
child."
88
In any case, when there is a dilemma between an individual claiming the exercise of a
constitutional right vis-à-vis the state's assertion of authority to restrict the same, any doubt
must, at all times, be resolved in favor of the free exercise of the right, absent any explicit
provision of law to the contrary.
The issuance of DOJ Circular No. 41
has no legal basis
Guided by the foregoing disquisition, the Court is in quandary of identifying the authority
from which the DOJ believed its power to restrain the right to travel emanates. To begin
with, there is no law particularly providing for the authority of the secretary of justice to
curtail the exercise of the right to travel, in the interest of national security, public safety or
public health. As it is, the only ground of the former DOJ Secretary in restraining the
petitioners, at that time, was the pendency of the preliminary investigation of the Joint
DOJ-COMELEC Preliminary Investigation Committee on the complaint for electoral
sabotage against them. 89
To be clear, DOJ Circular No. 41 is not a law. It is not a legislative enactment which
underwent the scrutiny and concurrence of lawmakers, and submitted to the President for
approval. It is a mere administrative issuance apparently designed to carry out the
provisions of an enabling law which the former DOJ Secretary believed to be Executive
Order (E.O.) No. 292, otherwise known as the "Administrative Code of 1987." She opined
that DOJ Circular No. 41 was validly issued pursuant to the agency's rulemaking powers
provided in Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O. No. 292 and Section 50,
Chapter 11, Book IV of the mentioned Code.
Indeed, administrative agencies possess quasi-legislative or rulemaking powers, among
others. It is the power to make rules and regulations which results in delegated legislation
that is within the confines of the granting statute and the doctrine of non-delegability and
separability of powers."  In the exercise of this power, the rules and regulations that
90
administrative agencies promulgate should be within the scope of the statutory authority
granted by the legislature to the administrative agency. It is required that the regulation be
germane to the objects and purposes of the law, and be not in contradiction to, but in
conformity with, the standards prescribed by law. They must conform to and be consistent
with the provisions of the enabling statute in order for such rule or regulation to be valid.  91
It is, however, important to stress that before there can even be a valid administrative
issuance, there must first be a showing that the delegation of legislative power is itself
valid. It is valid only if there is a law that (a) is complete in itself, setting forth therein the
policy to be executed, carried out, or implemented by the delegate; and (b) fixes a
standard the limits of which are sufficiently determinate and determinable to which the
delegate must conform in the performance of his functions. 92
A painstaking examination of the provisions being relied upon by the former DOJ
Secretary will disclose that they do not particularly vest the DOJ the authority to issue DOJ
Circular No. 41 which effectively restricts the right to travel through the issuance of WLOs
and HDOs. Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O. No. 292 reads:
Section 1. Declaration of Policy. It is the declared policy of the State to provide the
government with a principal law agency which shall be both its legal counsel and
prosecution arm; administer the criminal justice system in accordance with the
accepted processes thereof consisting in the investigation of the crimes,
prosecution of offenders and administration of the correctional system; implement the
laws on the admission and stay of aliens, citizenship, land titling system, and settlement of
land problems involving small landowners and member of indigenous cultural minorities,
and provide free legal services to indigent members of the society.
xxxx
Section 3. Powers and Functions.- to accomplish its mandate, the Department shall have
the following powers and functions:
(1) Act as principal law agency of the government and as legal counsel and representative
thereof, whenever so required;
(2) Investigate the commission of crimes, prosecute offenders and administer the
probation and correction system;
xxxx
(6) Provide immigration and naturalization regulatory services and implement the
laws governing citizenship and the admission and stay of aliens;
(7) Provide legal services to the national government and its functionaries, including
government-owned and controlled corporations and their subsidiaries;
(8) Such other functions as may be provided by law. (Emphasis supplied)
A plain reading of the foregoing provisions shows that they are mere general provisions
designed to lay down the purposes of the enactment and the broad enumeration of the
powers and functions of the DOJ. In no way can they be interpreted as a grant of power to
curtail a fundamental right as the language of the provision itself does not lend to that
stretched construction. To be specific, Section 1 is simply a declaration of policy, the
essence of the law, which provides for the statement of the guiding principle, the purpose
and the necessity for the enactment. The declaration of policy is most useful in statutory
construction as an aid in the interpretation of the meaning of the substantive provisions of
the law. It is preliminary to the substantive portions of the law and certainly not the part in
which the more significant and particular mandates are contained. The suggestion of the
former DOJ Secretary that the basis of the issuance of DOJ Circular No. 41 is contained in
the declaration of policy of E.O. No. 292 not only defeats logic but also the basic style of
drafting a decent piece of legislation because it supposes that the authors of the law
included the operative and substantive provisions in the declaration of policy when its
objective is merely to introduce and highlight the purpose of the law.
Succinctly, "a declaration of policy contained in a statute is, like a preamble, not a part of
the substantive portions of the act. Such provisions are available for clarification of
ambiguous substantive portions of the act, but may not be used to create ambiguity in
other substantive provisions." 93
In the same way, Section 3 does not authorize the DOJ to issue WLOS and HDOs to
restrict the constitutional right to travel. There is even no mention of the exigencies stated
in the Constitution that will justify the impairment. The provision simply grants the DOJ the
power to investigate the commission of crimes and prosecute offenders, which are
basically the functions of the agency. However, it does not carry with it the power to
indiscriminately devise all means it deems proper in performing its functions without regard
to constitutionally-protected rights. The curtailment of a fundamental right, which is what
DOJ Circular No. 41 does, cannot be read into the mentioned provision of the law. Any
impairment or restriction in the exercise of a constitutional right must be clear, categorical
and unambiguous. For the rule is that:
Constitutional and statutory provisions control with respect to what rules and regulations
may be promulgated by an administrative body, as well as with respect to what fields are
subject to regulation by it. It may not make rules and regulations which are inconsistent
with the provisions of the Constitution or a statute, particularly the statute it is
administering or which created it, or which are in derogation of, or defeat, the purpose of a
statute. 
94
The DOJ cannot also rely on Section 50, Chapter 11, Book IV of E.O. No. 292, which
simply provides for the types of issuances that administrative agencies, in general, may
issue. It does not speak of any authority or power but rather a mere clarification on the
nature of the issuances that may be issued by a secretary or head of agency. The
innocuous provision reads as follows:
Section 50. General Classification of Issuances. The administrative issuances of
Secretaries and heads of bureaus, offices and agencies shall be in the form of circulars or
orders.
(1) Circulars shall refer to issuance prescribing policies, rules and regulations, and
procedures promulgated pursuant to law, applicable to individuals and organizations
outside the Government and designed to supplement provisions of the law or to provide
means for carrying them out, including information relating thereto; and
(2) Orders shall refer to issuances directed to particular offices, officials, or employees,
concerning specific matters including assignments, detail and transfer of personnel, for
observance or compliance by all concerned. (Emphasis Ours)
In the same manner, Section 7, Chapter 2, Title III, Book IV of E.O. 292 cited in the
memorandum of the former DOJ Secretary cannot justify the restriction on the right to
travel in DOJ Circular No. 41. The memorandum particularly made reference to
Subsections 3, 4 and 9 which state:
Section 7. Powers and Functions of the Secretary. - The Secretary shall:
(1) Advise the President in issuing executive orders, regulations, proclamations and other
issuances, the promulgation of which is expressly vested by law in the President relative to
matters under the jurisdiction of the Department;
(2) Establish the policies and standards for the operation of the Department pursuant to
the approved programs of governments:
(3) Promulgate rules and regulations necessary to carry out department objectives,
policies, functions, plans, programs and projects;
(4) Promulgate administrative issuances necessary for the efficient administration
of the offices under the Secretary and for proper execution of the laws relative
thereto. These issuances shall not prescribe penalties for their violation, except
when expressly authorized by law;
xxxx
(9) Perform such other functions as may be provided by law. (Emphasis Ours)
It is indisputable that the secretaries of government agencies have the power to
promulgate rules and regulations that will aid in the performance of their functions. This is
adjunct to the power of administrative agencies to execute laws and does not require the
authority of a law. This is, however, different from the delegated legislative power to
promulgate rules of government agencies.
The considered opinion of Mr. Justice Carpio in Abakada Guro Party List (formerly AASIS)
et al. vs. Hon. Purisima et l.  is illuminating:
95
The inherent power of the Executive to adopt rules and regulations to execute or
implement the law is different from the delegated legislative power to prescribe rules. The
inherent power of the Executive to adopt rules to execute the law does not require any
legislative standards for its exercise while the delegated legislative power requires
sufficient legislative standards for its exercise.
xxxx
Whether the rule-making power by the Executive is a delegated legislative power or an
inherent Executive power depends on the nature of the rule-making power involved. If the
rule-making power is inherently a legislative power, such as the power to fix tariff rates, the
rule-making power of the Executive is a delegated legislative power. In such event, the
delegated power can be exercised only if sufficient standards are prescribed in the law
delegating the power.
If the rules are issued by the President in implementation or execution of self-executory
constitutional powers vested in the President, the rule-making power of the President is
not a delegated legislative power. X X X. The rule is that the President can execute the
law without any delegation of power from the legislature. Otherwise, the President
becomes a mere figure-head and not the sole Executive of the Government. 96
The questioned circular does not come under the inherent power of the executive
department to adopt rules and regulations as clearly the issuance of HDO and WLO is not
the DOJ's business. As such, it is a compulsory requirement that there be an existing law,
complete and sufficient in itself, conferring the expressed authority to the concerned
agency to promulgate rules. On its own, the DOJ cannot make rules, its authority being
confined to execution of laws. This is the import of the terms "when expressly provided by
law" or "as may be provided by law" stated in Sections 7(4) and 7(9), Chapter 2, Title III,
Book IV of E.O. 292 . The DOJ is confined to filling in the gaps and the necessary details
in carrying into effect the law as enacted.  Without a clear mandate of an existing law, an
97
administrative issuance is ultra vires.
Consistent with the foregoing, there must be an enabling law from which DOJ Circular No.
41 must derive its life. Unfortunately, all of the supposed statutory authorities relied upon
by the DOJ did not pass the completeness test and sufficient standard test. The DOJ
miserably failed to establish the existence of the enabling law that will justify the issuance
of the questioned circular.
That DOJ Circular No. 41 was intended to aid the department in realizing its mandate only
begs the question. The purpose, no matter how commendable, will not obliterate the lack
of authority of the DOJ to issue the said issuance. Surely, the DOJ must have the best
intentions in promulgating DOJ Circular No. 41, but the end will not justify the means. To
sacrifice individual liberties because of a perceived good is disastrous to democracy. In
Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian
Reform,  the Court emphasized:
98
One of the basic principles of the democratic system is that where the rights of the
individual are concerned, the end does not justify the means. It is not enough that there be
a valid objective; it is also necessary that the means employed to pursue it be in keeping
with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no
question that not even the strongest moral conviction or the most urgent public need,
subject only to a few notable exceptions, will excuse the bypassing of an individual's
rights. It is no exaggeration to say that a person invoking a right guaranteed under Article
III of the Constitution is a majority of one even as against the rest of the nation who would
deny him that right.99
The DOJ would however insist that the resulting infringement of liberty is merely incidental,
together with the consequent inconvenience, hardship or loss to the person being
subjected to the restriction and that the ultimate objective is to preserve the investigative
powers of the DOJ and public order.  It posits that the issuance ensures the presence
100
within the country of the respondents during the preliminary investigation.  Be that as it
101
may, no objective will ever suffice to legitimize desecration of a fundamental right. To
relegate the intrusion as negligible in view of the supposed gains is to undermine the
inviolable nature of the protection that the Constitution affords.
Indeed, the DOJ has the power to investigate the commission of crimes and prosecute
offenders. Its zealousness in pursuing its mandate is laudable but more admirable when
tempered by fairness and justice. It must constantly be reminded that in the hierarchy of
rights, the Bill of Rights takes precedence over the right of the State to prosecute, and
when weighed against each other, the scales of justice tilt towards the former.   Thus, 102
in Allado vs. Diokno,  the Court declared, viz.:
103
The sovereign power has the inherent right to protect itself and its people from vicious acts
which endanger the proper administration of justice; hence, the State has every right to
prosecute and punish violators of the law. This is essential for its self- preservation, nay,
its very existence. But this does not confer a license for pointless assaults on its citizens.
The right of the State to prosecute is not a carte blanche for government agents to defy
and disregard the rights of its citizens under the Constitution. 
104
The DOJ stresses the necessity of the restraint imposed in DOJ Circular No. 41 in that to
allow the petitioners, who are under preliminary investigation, to exercise an untrammelled
right to travel, especially when the risk of flight is distinctly high will surely impede the
efficient and effective operation of the justice system. The absence of the petitioners, it
asseverates, would mean that the farthest criminal proceeding they could go would be the
filing of the criminal information since they cannot be arraigned in absentia. 105
The predicament of the DOJ is understandable yet untenable for relying on grounds other
what is permitted within the confines of its own power and the nature of preliminary
investigation itself. The Court, in Paderanga vs. Drilon,  made a clarification on the nature
106
of a preliminary investigation, thus:
A preliminary investigation is x x x an inquiry or proceeding for the purpose of determining
whether there is sufficient ground to engender a well founded belief that a crime
cognizable by the Regional Trial Court has been committed and that the respondent is
probably guilty thereof, and should be held for trial. X X X A preliminary investigation is not
the occasion for the full and exhaustive display of the parties' evidence; it is for the
presentation of such evidence only as may engender a well grounded belief that an
offense has been committed and that the accused is probably guilty thereof. 107
It bears emphasizing that the conduct of a preliminary investigation is an implement of due
process which essentially benefits the accused as it accords an opportunity for the
presentation of his side with regard to the accusation.  The accused may, however, opt to
108
waive his presence in the preliminary investigation. In any case, whether the accused
responds to a subpoena, the investigating prosecutor shall resolve the complaint within 10
days after the filing of the same.
The point is that in the conduct of a preliminary investigation, the presence of the accused
is not necessary for the prosecutor to discharge his investigatory duties. If the accused
chooses to waive his presence or fails to submit countervailing evidence, that is his own
lookout. Ultimately, he shall be bound by the determination of the prosecutor on the
presence of probable cause and he cannot claim denial of due process.
The DOJ therefore cannot justify the restraint in the liberty of movement imposed by DOJ
Circular No. 41 on the ground that it is necessary to ensure presence and attendance in
the preliminary investigation of the complaints. There is also no authority of law granting it
the power to compel the attendance of the subjects of a preliminary investigation, pursuant
to its investigatory powers under E.O. No. 292. Its investigatory power is simply
inquisitorial and, unfortunately, not broad enough to embrace the imposition of restraint on
the liberty of movement.
That there is a risk of flight does not authorize the DOJ to take the situation upon itself and
draft an administrative issuance to keep the individual within the Philippine jurisdiction so
that he may not be able to evade criminal prosecution and consequent liability. It is an
arrogation of power it does not have; it is a usurpation of function that properly belongs to
the legislature.
Without a law to justify its action, the issuance of DOJ Circular No. 41 is an unauthorized
act of the DOJ of empowering itself under the pretext of dire exigency or urgent necessity.
This action runs afoul the separation of powers between the three branches of the
government and cannot be upheld. Even the Supreme Court, in the exercise of its power
to promulgate rules is limited in that the same shall not diminish, increase, or modify
substantive rights.109 This should have cautioned the DOJ, which is only one of the many
agencies of the executive branch, to be more scrutinizing in its actions especially when
they affect substantive rights, like the right to travel.
The DOJ attempts to persuade this Court by citing cases wherein the restrictions on the
right to travel were found reasonable, i.e. New York v. O'Neill,  Kwong vs. Presidential
110
Commission on Good Government  and PASEI.
111
It should be clear at this point that the DOJ cannot rely on PASEI to support its position for
the reasons stated earlier in this disquisition. In the same manner, Kant Kwong is not an
appropriate authority since the Court never ruled on the constitutionality of the authority of
the PCGG to issue HDOs in the said case. On the contrary, there was an implied
recognition of the validity of the PCGG's Rules and Regulations as the petitioners therein
even referred to its provisions to challenge the PCGG's refusal to lift the HDOs issued
against them despite the lapse of the period of its effectivity. The petitioners never raised
any issue as to the constitutionality of Section 2 of the PCGG Rules and Regulations but
only questioned the agency's nonobservance of the rules particularly on the lifting of
HDOs. This is strikingly different from the instant case where the main issue is the
constitutionality of the authority of the DOJ Secretary to issue HDOs under DOJ Circular
No. 41.
Similarly, the pronouncement is New York does not lend support to the respondents' case.
In the said case, the respondent therein questioned the constitutionality of a Florida statute
entitled "Uniform Law to Secure the Attendance of Witnesses from Within or Without a
State in Criminal Proceedings," under which authority a judge of the Court of General
Sessions, New York County requested the Circuit Court of Dade County, Florida, where
he was at that time, that he be given into the custody of New York authorities and be
transported to New York to testify in a grand jury proceeding. The US Supreme Court
upheld the constitutionality of the law, ruling that every citizen, when properly summoned,
has the obligation to give testimony and the same will not amount to violation of the
freedom to travel but, at most, a mere temporary interference. The clear deviation of the
instant case from New York is that in the latter case there is a law specifically enacted to
require the attendance of the respondent to court proceedings to give his testimony,
whenever it is needed. Also, after the respondent fulfils his obligation to give testimony, he
is absolutely free to return in the state where he was found or to his state of residence, at
the expense of the requesting state. In contrast, DOJ Circular No. 41 does not have an
enabling law where it could have derived its authority to interfere with the exercise of the
right to travel. Further, the respondent is subjected to continuing restraint in his right to
travel as he is not allowed to go until he is given, if he will ever be given, an ADO by the
secretary of justice.
The DOJ cannot issue DOJ Circular
No. 41 under the guise of police
power
The DOJ's reliance on the police power of the state cannot also be countenanced. Police
power pertains to the "state authority to enact legislation that may interfere with personal
liberty or property in order to promote the general welfare."  "It may be said to be that
112
inherent and plenary power in the State which enables it to prohibit all things hurtful to the
comfort, safety, and welfare of society."  Verily, the exercise of this power is primarily
113
lodged with the legislature but may be wielded by the President and administrative boards,
as well as the lawmaking bodies on all municipal levels, including the barangay, by virtue
of a valid delegation of power. 114
It bears noting, however, that police power may only be validly exercised if (a) the interests
of the public generally, as distinguished from those of a particular class, require the
interference of the State, and (b) the means employed are reasonably necessary to the
attainment of the object sought to be accomplished and not unduly oppressive upon
individuals.115
On its own, the DOJ cannot wield police power since the authority pertains to Congress.
Even if it claims to be exercising the same as the alter ego of the President, it must first
establish the presence of a definite legislative enactment evidencing the delegation of
power from its principal. This, the DOJ failed to do. There is likewise no showing that the
curtailment of the right to travel imposed by DOJ Circular No. 41 was reasonably
necessary in order for it to perform its investigatory duties.
In any case, the exercise of police power, to be valid, must be reasonable and not
repugnant to the Constitution.  It must never be utilized to espouse actions that violate the
116
Constitution. Any act, however noble its intentions, is void if it violates the Constitution.  In
117
the clear language of the Constitution, it is only in the interest of national security, public
safety and public health that the right to travel may be impaired. None one of the
mentioned circumstances was invoked by the DOJ as its premise for the promulgation of
DOJ Circular No. 41.
DOJ Circular No. 41 transcends
constitutional limitations
Apart from lack of legal basis, DOJ Circular No. 41 also suffers from other serious
infirmities that render it invalid. The apparent vagueness of the circular as to the distinction
between a HDO and WLO is violative of the due process clause. An act that is vague
"violates due process for failure to accord persons, especially the parties targeted by it, fair
notice of the conduct to avoid and leaves law enforcers unbridled discretion in carrying out
its provisions and becomes an arbitrary flexing of the Government muscle."  Here, the
118
distinction is significant as it will inform the respondents of the grounds, effects and the
measures they may take to contest the issuance against them. Verily, there must be a
standard by which a HDO or WLO may be issued, particularly against those whose cases
are still under preliminary investigation, since at that stage there is yet no criminal
information against them which could have warranted the restraint.
Further, a reading of the introductory provisions of DOJ Circular No. 41 shows that it
emanates from the DOJ's assumption of powers that is not actually conferred to it. In one
of the whereas clauses of the issuance, it was stated, thus:
WHEREAS, while several Supreme Court circulars, issued through the Office of the Court
Administrator, clearly state that "[HDO) shall be issued only in criminal cases within the
exclusive jurisdiction of the [RTCs)," said circulars are, however, silent with respect to
cases falling within the jurisdiction of courts below the RTC as well as those pending
determination by government prosecution offices;
Apparently, the DOJ's predicament which led to the issuance of DOJ Circular No. 41 was
the supposed inadequacy of the issuances of this Court pertaining to HDOs, the more
pertinent of which is SC Circular No. 3997.  It is the DOJ's impression that with the
119
silence of the circular with regard to the issuance of HDOs in cases falling within the
jurisdiction of the MTC and those still pending investigation, it can take the initiative in
filling in the deficiency. It is doubtful, however, that the DOJ Secretary may undertake such
action since the issuance of HDOs is an exercise of this Court's inherent power "to
preserve and to maintain the effectiveness of its jurisdiction over the case and the person
of the accused."  It is an exercise of judicial power which belongs to the Court alone, and
120
which the DOJ, even as the principal law agency of the government, does not have the
authority to wield.
Moreover, the silence of the circular on the matters which are being addressed by DOJ
Circular No. 41 is not without good reasons.  Circular No. 39-97 was specifically issued to
1awp++i1
avoid indiscriminate issuance of HDOs resulting to the inconvenience of the parties
affected as the same could amount to an infringement on the right and liberty of an
individual to travel. Contrary to the understanding of the DOJ, the Court intentionally held
that the issuance of HDOs shall pertain only to criminal cases within the exclusive
jurisdiction of the RTC, to the exclusion of criminal cases falling within the jurisdiction of
the MTC and all other cases. The intention was made clear with the use of the term "only."
The reason lies in seeking equilibrium between the state's interest over the prosecution of
the case considering the gravity of the offense involved and the individual's exercise of his
right to travel. Thus, the circular permits the intrusion on the right to travel only when the
criminal case filed against the individual is within the exclusive jurisdiction of the RTC, or
those that pertains to more serious crimes or offenses that are punishable with
imprisonment of more than six years. The exclusion of criminal cases within the jurisdiction
of the MTC is justified by the fact that they pertain to less serious offenses which is not
commensurate with the curtailment of a fundamental right. Much less is the reason to
impose restraint on the right to travel of respondents of criminal cases still pending
investigation since at that stage no information has yet been filed in court against them. It
is for these reasons that Circular No. 3997 mandated that HDO may only be issued in
criminal cases filed with the RTC and withheld the same power from the MTC.
Remarkably, in DOJ Circular No. 41, the DOJ Secretary went overboard by assuming
powers which have been withheld from the lower courts in Circular No. 39-97. In the
questioned circular, the DOJ Secretary may issue HDO against the accused in criminal
cases within the jurisdiction of the MTC  and against defendants, respondents and
121
witnesses in labor or administrative cases,  no matter how unwilling they may be. He may
122
also issue WLO against accused in criminal cases pending before the RTC,  therefore
123
making himself in equal footing with the RTC, which is authorized by law to issue HDO in
the same instance. The DOJ Secretary may likewise issue WLO against respondents in
criminal cases pending preliminary investigation, petition for review or motion for
reconsideration before the DOJ.  More striking is the authority of the DOJ Secretary to
124
issue a HDO or WLO motu proprio, even in the absence of the grounds stated in the
issuance if he deems necessary in the interest of national security, public safety or public In the subject WLOs, the illegal restraint on the right to travel was subtly incorporated in
health.125
the wordings thereof. For better illustration, the said WLOs are hereby reproduced as
follows:
It bears noting as well that the effect of the HDO and WLO in DOJ Circular No. 41 is too
obtrusive as it remains effective even after the lapse of its validity period as long as the WLO No. ASM-11-237 127

DOJ Secretary does not approve the lifting or cancellation of the same. Thus, the (Watchlist)
respondent continually suffers the restraint in his mobility as he awaits a favorable
indorsement of the government agency that requested for the issuance of the HDO or In re: GLORIA M. MACAPAGAL-ARROYO
WLO and the affirmation of the DOJ Secretary even as the HDO or WLO against him had
become functus officio with its expiration. x-----------------------x

It did not also escape the attention of the Court that the DOJ Secretary has authorized ORDER
himself to permit a person subject of HDO or WLO to travel through the issuance of an
ADO upon showing of "exceptional reasons" to grant the same. The grant, however, is
On 09 August 2011, Hon. Leila M. De Lima, Secretary of the Department of Justice issued
entirely dependent on the sole discretion of the DOJ Secretary based on his assessment
an order docketed as Watchlist Order No. 2011-422 directing the Bureau of Immigration to
of the grounds stated in the application.
include the name GLORIA M. MACAPAGAL-ARROYO in the Bureau's Watchlist.
The constitutional violations of DOJ Circular No. 41 are too gross to brush aside
It appears that GLORIA M. MACAPAGAL-ARROYO is the subject of an investigation by
particularly its assumption that the DOJ Secretary's determination of the necessity of the
the Department of Justice in connection with the following cases:
issuance of HDO or WLO can take the place of a law that authorizes the restraint in the
right to travel only in the interest of national security, public safety or public health. The
DOJ Secretary has recognized himself as the sole authority in the issuance and Docket No. Title of the Case Offense/s Charged
cancellation of HDO or WLO and in the determination of the sufficiency of the grounds for
an ADO. The consequence is that the exercise of the right to travel of persons subject of XVI-INV-10H-00251 Danilo A. Lihaylihay vs. Gloria Plunder
preliminary investigation or criminal cases in court is indiscriminately subjected to the Macapagal-Arroyo
discretion of the DOJ Secretary.
XVIX-INV-11D-00170 Francisco I. Chavez vs. Plunder, Malversation and/or
Gloria Macapagal-Arroyo Illegal use of OWWA Funds,
This is precisely the situation that the 1987 Constitution seeks to avoid for an executive
Graft and Corruption,
officer to impose restriction or exercise discretion that unreasonably impair an individual's
Violation of The Omnibus
right to travel-- thus, the addition of the phrase, "as maybe provided by law" in Section 6,
Election Code, Violation of
Article III thereof. In Silverio, the Court underscored that this phraseology in the 1987
the Code of Ethical Standards
Constitution was a reaction to the ban on international travel imposed under the previous
for Public Officials, and
regime when there was a Travel Processing Center, which issued certificates of eligibility
Qualified Theft
to travel upon application of an interested party.  The qualifying phrase is not a mere
126

innocuous appendage. It secures the individual the absolute and free exercise of his right XVI-INV-11F-00238 Francisco I. Chavez vs. Plunder, Malversation and/or
to travel at all times unless the more paramount considerations of national security, public Gloria Macapagal-Arroyo Illegal use of Public Funds,
safety and public health call for a temporary interference, but always under the authority of Jocelyn "Joc-Joc" Bolante, Graft and Corruption,
a law. Ibarra Poliquit et al. Violation of The Omnibus
Election Code. Violation of
The subject WLOs and the restraint the Code of Ethical Standards
on the right to travel. for Public Officials, and
Qualified Theft
 Based on the foregoing and pursuant to Department of Justice Circular No. 41 for Public Officials, and
(Consolidated Rules and Regulations Governing the Issuance and Implementation of Hold Qualified Theft
Departure Orders, Watchlist Orders, and Allow Departure Orders) dated 25 May 2010, we
order the inclusion of the name GLORIA M. MACAPAGAL-ARROYO in the Watchlist. XVI-INV-11F-00238 Francisco I. Chavez vs. Plunder, Malversation and/or
Gloria Macapagal-Arroyo Illegal use of Public Funds,
This watchlist shall be valid for sixty (60) days unless sooner revoked or extended. Jocelyn "Joc-Joc" Bolante, Graft and Corruption,
Ibarra Poliquit et al. Violation of The Omnibus
The Airport Operation Division and Immigration Regulation Division Chiefs shall implement Election Code. Violation of
this Order. the Code of Ethical Standards
for Public Officials, and
Notify the Computer Section. Qualified Theft

SO ORDERED. Pursuant to Section 2(c) of Department Circular (D.C.) No. 41 dated May 25, 2010
Consolidated Rules and Regulations Governing the Issuance and Implementation of Hold
09 August 2011 (Emphasis ours) Departure Orders, Watchlist Orders, and Allow Departure Orders), the undersigned hereby
motu proprio issues a Watchlist Order against Ma. Gloria M. Macapagal-Arroyo.

Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in

Watchlist Order No. 2011-422 128 the Bureau of Immigration's Watchlist the name of Ma. Gloria M. Macapagal-Arroyo.

In re: Issuance of Watchlist Pursuant to Section 4 of D.C. No. 41, this Order is valid for a period of sixty (60) days from
Order against MA. GLORIA M. issuance unless sooner terminated or extended.
MACAPAGAL-ARROYO
SO ORDERED.
x-----------------------x
City of Manila, September 6, 2011. (Emphasis ours)
AMENDED ORDER

Whereas, Ma. Gloria M. Macapagal-Arroyo is the subject of an investigation by this

Department in connection with the following cases: Watchlist Order (WLO) No. 2011- 573 129

Docket No. Title of the Case Offense/s Charged IN RE: Issuance of WLO against
BENJAMIN ABALOS, SR. et al.
XVI-INV-10H-00251 Danilo A. Lihaylihay vs. Gloria Plunder
Macapagal-Arroyo x-----------------------x

XVIX-INV-11D-00170 Francisco I. Chavez vs. Plunder, Malversation and/or ORDER

Gloria Macapagal-Arroyo
Illegal use of OWWA Funds,
Graft and Corruption,
Violation of The Omnibus
Election Code, Violation of
the Code of Ethical Standards
Pursuant to Section 2(c) of Department Circular No. 41 dated May 25, 2010 (Consolidated
Rules and Regulations Governing the Issuance and Implementation of Hold Departure
Orders, Watchlist Orders, and Allow Departure Orders), after careful evaluation, finds the
Application for the Issuance of WLO against the following meritorious;
 xxxx Hold Departure Order (HDO)
No. 2011- 64 130

12. MA. GLORIA M. MACAPAGAL-ARROYO Address: Room MB-2, House of

Representatives Quezon City
xxxx
Ground for WLO Issuance: Pendency of the case, entitled "DOJ-
COMELEC Fact Finding Committee v.
Benjamin Abalos Sr., et al.," for
Electoral Sabotage/Omnibus Election
Code docketed as DOJ-COMELEC
Case No. 001-2011
1. MA. GLORIA M. MACAPAGAL-ARROYO
Address: Room MB-2, House of Representatives Quezon City
2. JOSE MIGUEL TUASON ARROYO
Address: L.T.A. Bldg. 118 Perea St. Makati City
xxxx
Ground for WLO Issuance: Pendency of the case, entitled
"Aquilino Pimentel III v. Gloria
Macapagal-Arroyo, el Al.." for
Electoral Sabotage docketed as DOJ-
COMELEC Case No. 002-2011.
Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in
the Bureau of Immigration's Watchlist, the names of the above-named persons.
This Order is valid for a period of sixty (60) days from the date of its issuance unless
sooner terminated or otherwise extended. 1âwphi1
In re: Issuance of HDO against
EFRAIM C. GENUINO, ET AL.
x-----------------------x
ORDER
After a careful evaluation of the application, including the documents attached thereto, for
the issuance of Hold Departure Order (HDO) against the above-named persons filed
pursuant to this Department's Circular (D.C.) No. 41 (Consolidated Rules and Regulations
Governing the Issuance and Implementation of Hold Departure Orders, Watchlist Orders,
and Allow Departure Orders) dated May 25, 2010, we find the application meritorious.
Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in
the Bureau of Immigration's Watchlist the names of EFRAIM C. GENUINO, SHERYLL F.
GENUINO-SEE, ERWIN F. GENUINO, RAFAEL "BUTCH" A. FRANCISCO, EDWARD
"DODIE" F. KING, RENE C. FIGUEROA, ATTY, CARLOS R. BAUTISTA, JR., EMILIO
"BOYET" B. MARCELO, RODOLFO SORIANO, JR., AND JOHNNY G. TAN.
Name: EFRAIM C. GENUINO
Nationality: Filipino
Last known address: No. 42 Lapu Lapu Street,
Magallanes Village, Makati City
Ground for HDO Issuance: Malversation, Violation of the
Anti-Graft and Corrupt Practices
Act, Plunder
Details of the Case: Plending before the National
Prosecution Service, Department
of Justice (NPS Docket No. XV-
INV-11F-00229 Pending before

the Office of the Ombudsman

(Case No. CPL-C-11-1297)
SO ORDERED. Pending before the National
Prosecution Service, Department
On the other hand, HDO No. 2011-64 issued against the petitioners in G. R. No. 197930 of Justice (I.S. No. XVI-INV-11G-
pertinently states: 00248)
 Name:
Nationality:
Last known address:
Ground for HDO Issuance:
Details of the case:
Name:
Nationality:
Last known address:
Ground for HDO Issuance:
Details of the Case:
xxxx
Pursuant to Section 1 of D.C. No. 41, this Order is valid for a period of five (5) years
unless sooner terminated.
SO ORDERED. (Emphasis ours)
On its face, the language of the foregoing issuances does not contain an explicit restraint
on the right to travel. The issuances seemed to be a mere directive from to the BI officials
SHERYLL F. GENUINO-SEE
Filipino
No. 32-a Pasco Parkview, Makati
City
Malversation, Violation of the
Anti-Graft and Corrupt Practices
Act, Plunder
Pending before the National
Prosecution Service, Department
of Justice (I.S. No. XVI-INV-11G-
00248)
ERWIN F. GENUINO
Filipino
No. 5 J.P. Rizal Extension,
COMEMBO, Makati City
Malversation, Violation of the
Anti-Graft and Corrupt Practices
Act, Plunder
Pending before the National
Prosecution Service, Department
of Justice (NPS Docket No. XV-
INV-11F-00229 Pending before
the National Prosecution Service,
Department of Justice (I.S. No.
XVI-INV-11G-00248)
to include the named individuals in the watchlist of the agency. Noticeably, however, all of
the WLOs contained a common reference to DOJ Circular No. 41, where the authority to
issue the same apparently emanates, and from which the restriction on the right to travel
can be traced. Section 5 thereof provides, thus:
Section 5. HDO/WLO Lifting or Cancellation- In the lifting or cancellation of the
HDO/WLO issued pursuant to this Circular, the following shall apply:
(a) The HDO may be lifted or cancelled under any of the following grounds:
1. When the validity period of the HDO as provided for in the preceding
section has already expired;
2. When the accused subject of the HDO has been allowed to leave
the country during the pendency of the case, or has been acquitted of
the charge, or the case in which the warrant/order of arrest was issued has
been dismissed or the warrant/order of arrest has been recalled;
3. When the civil or labor case or case before an administrative agency of
the government wherein the presence of the alien subject of the HDO/WLO
has been dismissed by the court or by appropriate government agency, or
the alien has been discharged as a witness therein, or the alien has been
allowed to leave the country:
(b) The WLO may be lifted or cancelled under any of the following grounds:
1. When the validity period of the WLO as provided for in the preceding
section has already expired;
2. When the accused subject of the WLO has been allowed by
the court to leave the country during the pendency of the case, or has
been acquitted of the charge; and
3. When the preliminary investigation is terminated, or when
the petition for review, or motion for reconsideration has been denied
and/or dismissed.
xxxx
That the subject of a HDO or WLO suffers restriction in the right to travel is implied in the
fact that under Sections 5(a) (2) and 5(b) (2), the concerned individual had to seek
permission to leave the country from the court during the pendency of the case against
him. Further, in 5 (b) (3), he may not leave unless the preliminary investigation of the case
in which he is involved has been terminated.
In the same manner, it is apparent in Section 7 of the same circular that the subject of a
HDO or WLO cannot leave the country unless he obtains an ADO. The said section reads
as follows:
Section 7. Allow Departure Order (ADO)- Any person subject of HDO/WLO issued
pursuant to this Circular who intends, for some exceptional reasons, to leave the
country may, upon application under oath with the Secretary of Justice, be issued an
ADO.
The ADO may be issued upon submission of the following requirements:
(a) Affidavit stating clearly the purpose, inclusive period of the date of
travel, and containing an undertaking to immediately report to the DOJ
upon return; and
(b) Authority to travel or travel clearance from the court or appropriate
government office where the case upon which the issued HDO/WLO was
based is pending, or from the investigating prosecutor in charge of the
subject case.
By requiring an ADO before the subject of a HDO or WLO is allowed to leave the country,
the only plausible conclusion that can be made is that its mere issuance operates as a
restraint on the right to travel. To make it even more difficult, the individual will need to cite
an exceptional reason to justify the granting of an ADO.
The WLO also does not bear a significant distinction from a HDO, thereby giving the
impression that they are one and the same or, at the very least, complementary such that
whatever is not covered in Section 1,  which pertains to the issuance of HDO, can
131
conveniently fall under Section 2,  which calls for the issuance of WLO. In any case, there
132
is an identical provision in DOJ Circular No. 41 which authorizes the Secretary of Justice
to issue a HDO or WLO against anyone, motu proprio, in the interest of national security,
public safety or public health. With this all-encompassing provision, there is nothing that
can prevent the Secretary of Justice to prevent anyone from leaving the country under the
guise of national security, public safety or public health.
The exceptions to the right to travel
are limited to those stated in Section
6, Article III of the Constitution
The DOJ argues that Section 6, Article III of the Constitution is not an exclusive
enumeration of the instances wherein the right to travel may be validly impaired.  It cites
133
that this Court has its own administrative issuances restricting travel of its employees and
that even lower courts may issue HDO even on grounds outside of what is stated in the
Constitution.  134
The argument fails to persuade.
It bears reiterating that the power to issue HDO is inherent to the courts. The courts may
issue a HDO against an accused in a criminal case so that he may be dealt with in
accordance with law.  It does not require legislative conferment or constitutional
135
recognition; it co-exists with the grant of judicial power. In Defensor-Santiago vs.
Vasquez,   the Court declared, thus:
136
Courts possess certain inherent powers which may be said to be implied from a general
grant of jurisdiction, in addition to those expressly conferred on them. These inherent
powers are such powers as are necessary for the ordinary and efficient exercise of
jurisdiction; or essential to the existence, dignity and functions of the court, as well as to
the due administration of justice; or are directly appropriate, convenient and suitable to the
execution of their granted powers; and include the power to maintain the court's
jurisdiction and render it effective in behalf of the litigants. 
137
The inherent powers of the courts are essential in upholding its integrity and largely
beneficial in keeping the people's faith in the institution by ensuring that it has the power
and the means to enforce its jurisdiction.
As regards the power of the courts to regulate foreign travels, the Court, in Leave Division,
explained:
With respect to the power of the Court, Section 5 (6), Article VIII of the 1987 Constitution
provides that the Supreme Court shall have administrative supervision over all
courts and the personnel thereof. This provision empowers the Court to oversee all
matters relating to the effective supervision and management of all courts and personnel
under it. Recognizing this mandate, Memorandum Circular No. 26 of the Office of the
President, dated July 31, 1986, considers the Supreme Court exempt and with authority to
promulgate its own rules and regulations on foreign travels. Thus, the Court came out with
OCA Circular No. 49-2003 (B).
Where a person joins the Judiciary or the government in general, he or she swears to
faithfully adhere to, and abide with, the law and the corresponding office rules and
regulations. These rules and regulations, to which one submits himself or herself, have
been issued to guide the government officers and employees in the efficient performance
of their obligations. When one becomes a public servant, he or she assumes certain duties
with their concomitant responsibilities and gives up some rights like the absolute right to
travel so that public service would not be prejudiced. 138
It is therefore by virtue of its administrative supervision over all courts and personnel that
this Court came out with OCA Circular No. 492003, which provided for the guidelines that
must be observed by employees of the judiciary seeking to travel abroad. Specifically, they
are required to secure a leave of absence for the purpose of foreign travel from this Court
through the Chief Justice and the Chairmen of the Divisions, or from the Office of the
Court Administrator, as the case maybe. This is "to ensure management of court dockets
and to avoid disruption in the administration of justice." 139
OCA Circular No. 49-2003 is therefore not a restriction, but more properly, a regulation of
the employee's leave for purpose of foreign travel which is necessary for the orderly
administration of justice. To "restrict" is to restrain or prohibit a person from doing
something; to "regulate" is to govern or direct according to rule.  This regulation comes as
140
a necessary consequence of the individual's employment in the judiciary, as part and
parcel of his contract in joining the institution. For, if the members of the judiciary are at
liberty to go on leave any time, the dispensation of justice will be seriously hampered.
Short of key personnel, the courts cannot properly function in the midst of the intricacies in
the administration of justice. At any rate, the concerned employee is not prevented from
pursuing his travel plans without complying with OCA Circular No. 49-2003 but he must be
ready to suffer the consequences of his non-compliance.
The same ratiocination can be said of the regulations of the Civil Service Commission with
respect to the requirement for leave application of employees in the government service
seeking to travel abroad. The Omnibus Rules Implementing Book V of E.O. No. 292 states
the leave privileges and availment guidelines for all government employees, except those
who are covered by special laws. The filing of application for leave is required for purposes
of orderly personnel administration. In pursuing foreign travel plans, a government
employee must secure an approved leave of absence from the head of his agency before
leaving for abroad.
To be particular, E.O. No. 6 dated March 12, 1986, as amended by Memorandum Order
(MO) No. 26 dated July 31, 1986, provided the procedure in the disposition of requests of
government officials and employees for authority to travel abroad. The provisions of this
issuance were later clarified in the Memorandum Circular No. 18 issued on October 27,
1992. Thereafter, on September 1, 2005, E.O. No. 459 was issued, streamlining the
procedure in the disposition of requests of government officials and employees for
authority to travel abroad. Section 2 thereof states:
Section 2. Subject to Section 5 hereof, all other government officials and employees
seeking authority to travel abroad shall henceforth seek approval from their
respective heads of agencies, regardless of the length of their travel and the number of
delegates concerned. For the purpose of this paragraph, heads of agencies refer to the
Department Secretaries or their equivalents. (Emphasis ours)
The regulation of the foreign travels of government employees was deemed necessary "to
promote efficiency and economy in the government service."  The objective was clearly
141
administrative efficiency so that government employees will continue to render public
services unless they are given approval to take a leave of absence in which case they can
freely exercise their right to travel. It should never be interpreted as an exception to the
right to travel since the government employee during his approved leave of absence can
travel wherever he wants, locally or abroad. This is no different from the leave application
requirements for employees in private companies.
The point is that the DOJ may not justify its imposition of restriction on the right to travel of
the subjects of DOJ Circular No. 41 by resorting to an analogy. Contrary to its claim, it
does not have inherent power to issue HDO, unlike the courts, or to restrict the right to
travel in anyway. It is limited to the powers expressly granted to it by law and may not
extend the same on its own accord or by any skewed interpretation of its authority.
The key is legislative enactment
The Court recognizes the predicament which compelled the DOJ to issue the questioned
circular but the solution does not lie in taking constitutional shortcuts. Remember that the
Constitution "is the fundamental and paramount law of the nation to which all other laws
must conform and in accordance with which all private rights are determined and all public
authority administered."  Any law or issuance, therefore, must not contradict the language
142
of the fundamental law of the land; otherwise, it shall be struck down for being
unconstitutional.
Consistent with the foregoing, the DOJ may not promulgate rules that have a negative
impact on constitutionally-protected rights without the authority of a valid law. Even with
the predicament of preventing the proliferation of crimes and evasion of criminal
responsibility, it may not overstep constitutional boundaries and skirt the prescribed legal
processes.
That the subjects of DOJ Circular No. 41 are individuals who may have committed a wrong
against the state does not warrant the intrusion in the enjoyment of their basic rights. They
are nonetheless innocent individuals and suspicions on their guilt do not confer them
lesser privileges to enjoy. As emphatically pronounced in Secretary of National Defense
vs. Manalo, et al.,   "the constitution is an overarching sky that covers all in its protection.
143
It affords protection to citizens without distinction. Even the most despicable person
deserves the same respect in the enjoyment of his rights as the upright and abiding.
Let it also be emphasized that this Court fully realizes the dilemma of the DOJ. The It is well to remember that on November 18, 2011, a Resolution  was issued requiring De
145

resolution of the issues in the instant petitions was partly aimed at encouraging the
legislature to do its part and enact the necessary law so that the DOJ may be able to
pursue its prosecutorial duties without trampling on constitutionally-protected rights.
Without a valid legislation, the DOJ's actions will perpetually be met with legal hurdles to
the detriment of the due administration of justice. The challenge therefore is for the
legislature to address this problem in the form of a legislation that will identify permissible
intrusions in the right to travel. Unless this is done, the government will continuously be
confronted with questions on the legality of their actions to the detriment of the
implementation of government processes and realization of its objectives.
In the meantime, the DOJ may remedy its quandary by exercising more vigilance and
efficiency in the performance of its duties. This can be accomplished by expediency in the
assessment of complaints filed before its office and in the prompt filing of information in
court should there be an affirmative finding of probable cause so that it may legally request
for the issuance of HDO and hold accused for trial. Clearly, the solution lies not in
resorting to constitutional shortcuts but in an efficient and effective performance of its
prosecutorial duties.
The Court understands the dilemma of the government on the effect of the declaration of
unconstitutionality of DOJ Circular No. 41, considering the real possibility that it may be
utilized by suspected criminals, especially the affluent ones, to take the opportunity to
immediately leave the country. While this is a legitimate concern, it bears stressing that the
government is not completely powerless or incapable of preventing their departure or
having them answer charges that may be subsequently filed against them. In his Separate
Concurring Opinion, Mr. Justice Carpio, pointed out that Republic Act No. (R.A.) 8239,
otherwise known as the Philippine Passport Act of 1996, explicitly grants the Secretary of
Foreign Affairs or any of the authorized consular officers the authority to issue verify,
restrict, cancel or refuse the issuance of a passport to a citizen under the circumstances
mentioned in Section 4  thereof. Mr. Justice Tijam, on the other hand, mentioned
144
Lima to show cause why she should not be disciplinarily dealt or be held in contempt for
failure to comply with the TRO issued by this Court.
In view, however, of the complexity of the facts and corresponding full discussion that it
rightfully deserves, the Court finds it more fitting to address the same in a separate
proceeding. It is in the interest of fairness that there be a complete and exhaustive
discussion on the matter since it entails the imposition of penalty that bears upon the
fitness of the respondent as a member of the legal profession. The Court, therefore, finds
it proper to deliberate and resolve the charge of contempt against De Lima in a separate
proceeding that could accommodate a full opportunity for her to present her case and
provide a better occasion for the Court to deliberate on her alleged disobedience to a
lawful order.
WHEREFORE, in view of the foregoing disquisition, Department of Justice Circular No. 41
is hereby declared UNCONSTITUTIONAL. All issuances which were released pursuant
thereto are hereby declared NULL and VOID.
The Clerk of Court is hereby DIRECTED to REDOCKET the Resolution of the Court dated
November 28, 2011, which required respondent Leila De Lima to show cause why she
should not be cited in contempt, as a separate petition.
SO ORDERED.

Memorandum Circular No. 036, which was issued pursuant to R.A. No. 9208 or the Anti-
Trafficking in Persons Act of 2003, as amended by R.A. No. 10364 or the Expanded Anti-
Trafficking in Persons Acts of 2012, which authorizes the BI to hold the departure of
suspected traffickers or trafficked individuals. He also noted that the Commissioner of BI
has the authority to issue a HDO against a foreigner subject of deportation proceedings in
order to ensure his appearance therein. Similarly, the proposal of Mr. Justice Velasco for
the adoption of new set of rules which will allow the issuance of a precautionary warrant of
arrest offers a promising solution to this quandary. This, the Court can do in recognition of
the fact that laws and rules of procedure should evolve as the present circumstances
require.

Contempt charge against respondent

De Lima

Section 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.
SECOND DIVISION June 29, 2016 G.R. No. 210858
DEPARTMENT OF FOREIGN AFFAIRS, Petitioner,
vs. BCA INTERNATIONAL CORPORATION, Respondent.
CARPIO, J.:
The Case
This petition for review  assails the Orders dated 11 October 2013  and 8 January
1 2
2014,  as well as the Resolution dated 2 September 2013,  of the Regional Trial Court of
3 4
Makati City (RTC), Branch 146, in SP. PROC. No. M-7458.
The Facts
In an Amended Build-Operate-Transfer Agreement dated 5 April 2002 (Agreement),
petitioner Department of Foreign Affairs (DFA) awarded the Machine Readable Passport
and Visa Project (MRPN Project) to respondent BCA International Corporation (BCA), a
domestic corporation. During the implementation of the MRPN Project, DFA sought to
terminate the Agreement. However, BCA opposed the termination and filed a Request for
Arbitration, according to the provision in the Agreement:
Section 19.02. Failure to Settle Amicably - If the Dispute cannot be settled amicably within
ninety (90) days by mutual discussion as contemplated under Section 19.01 herein, the
Dispute shall be settled with finality by an arbitrage tribunal operating under International
Law, hereinafter referred to as the "Tribunal", under the UNCITRAL Arbitration Rules
contained in Resolution 31/98 adopted by the United Nations General Assembly on
December 15, 1976, and entitled "Arbitration Rules on the United Nations Commission on
the International Trade Law". The DFA and the BCA undertake to abide by and implement
the arbitration award. The place of arbitration shall be Pasay City, Philippines, or such
other place as may be mutually agreed upon by both parties. The arbitration proceeding
shall be conducted in the English language.  (Emphasis supplied)
5
On 29 June 2009, an ad hoc arbitral tribunal  was constituted. In an Order dated 15 April
6
2013,  the arbitral tribunal approved BCA's request to apply in court for the issuance of
7
subpoena, subject to the conditions that the application will not affect its proceedings and
the hearing set in October 2013 will proceed whether the witnesses attend or not.
On 16 May 2013, BCA filed before the RTC a Petition for Assistance in Taking
Evidence  pursuant to the Implementing Rules and Regulations (IRR) of "The Alternative
8
Dispute Resolution Act of 2004," or Republic Act No. 9285 (RA 9285). In its petition, BCA
sought the issuance of subpoena ad testificandum and subpoena duces tecum to the
following witnesses and documents in their custody: 9
Witnesses Documents to be produced
1. Secretary of Foreign Affairs or his a. Request for Proposal dated
representative/s, specifically Undersecretary
Franklin M. Ebdalin and Ambassador Belen
F. Anota
September 10, 1999 for the MRP/V
Project;
b. Notice of Award dated September 29,
2000 awarding the MRP/V Project
Company to implement the MRP/V
Project;
c. Department of Foreign Affairs
Machine Readable Passport and
Visa Project Build-Operate-Transfer
Agreement dated February 8, 2001;
d. Department of Foreign Affairs
Machine Readable Passport and
Visa Project Amended Build-Operate-
Transfer Agreement dated April 5,
2002;
e. Documents, records, papers and
correspondence between DFA and
BCA regarding the negotiations for
the contract of lease of the PNB
building, which was identified in the
Request for Proposal as the Central
Facility Site, and the failure of said
negotiations;
f. Documents, records, reports, studies,
papers and correspondence between
DFA and BCA regarding the search
for alternative Central Facility Site;
g. Documents, records, papers and
correspondence between DFA and
BCA regarding the latter’s
submission of the Project Master
Plan (Phase One of the MRP/V
Project);
h. Documents, records, papers and
correspondence among DFA, DFA’s
Project Planning Team, Questronix
Corporation, MRP/V Advisory Board
and other related government
agencies, and BCA regarding the
recommendation for the issuance of
the Certificate of Acceptance in favor
of BCA;
i. Certificate of Acceptance for Phase
One dated June 9, 2004 issued by
DFA;
j. Documents, records, papers and
correspondence between DFA and
BCA regarding the approval of the
Star Mall complex as the Central
Facility Site;
k. Documents, records, papers and
correspondence among DFA,
Questronix Corporation, MRP/V
Advisory Board and other related
government agencies, and BCA
regarding the recommendation for
the approval of the Stare Mall
complex as the Central Facility Site;
l. Documents, records, papers and
correspondence between DFA and
BCA regarding the DFA’s request for
BCA to terminate its Assignment
Agreement with Philpass, including
BCA’s compliance therewith;
m. Documents, records, papers and
correspondence between DFA and
BCA regarding the DFA’s demand for
BCA to prove its financial capability
to implement the MRP/V Project,
including the compliance therewith by
BCA;
n. Documents, records, papers and
correspondence between DFA and
BCA regarding the DFA’s attempt to
termiante the Amended BOT
Agreement, including BCA’s
response to DFA and BCA’s attempts
to mutually discuss the matter with
DFA;
o. Documents, records, papers and
correspondence among DFA and
MRP/V Advisory Board, DTI-BOT
Center, Department of Finance and
Commission on Audit regarding the
delays in the implementation of the
MRP/V Project, DFA’s requirement

2. Secretary of Finance or his
representative/s, specifically former
Secretary of Finance Juanita D. Amatong
3. Chairman of the Commission on Audit or
her representative/s, specifically Ms.
Iluminada M.V. Fabroa (Director IV)
for BCA to prove its financial
capability, and the opinions of the
said government agencies in relation
to DFA’s attempt to terminate the
Amended BOT Agreement; and
p. Other related documents, records,
papers and correspondence.
a. Documents, records, papers and
correspondence between DFA and
Department of Finance regarding the
DFA’s requirement for BCA to prove
its financial capability to implement
the MRP/V Project and its opinion
thereon;
b. Documents, records, papers and
correspondence between DFA and
DOF regarding BCA’s compliance
with DFA’s demand for BCA to
further prove its financial capability to
implement the MRP/V Project;
c. Documents, records, papers and
correspondence between DFA and
DOF regarding the delays in the
implementation of the MRP/V Project;
d. Documents, records, papers and
correspondence between DFA and
DOF regarding the DFA’s attempted
termination of the Amended BOT
Agreement; and
e. Other related documents, records,
papers and correspondence.
a. Documents, records, papers and
correspondence between DFA and
COA regarding the COA’s conduct of
a sectoral performance audit on the
MRP/V Project;
b. Documents, records, papers and
correspondence between DFA and
COA regarding the delays in and its
4. Executive Director or any officer or
representative of the Department of Trade
and Industry Build-Operate-Transfer Center,
specifically Messrs. Noel Eli B. Kintanar,
Rafaelito H. Taruc and Luisito Ucab
recommendation to fast-track the
implementation of the MRP/V Project;
c. Documents, records, papers and
correspondence between DFA and
COA regarding COA’s advice to
cancel the Assignment Agreement
between BCA and Philpass "for being
contrary to existing laws and
regulations and DOJ opinion";
d. Documents, records, papers and
correspondence between DFA and
COA regarding DFA’s attempted
termination of the Amended BOT
Agreement; and
e. Other related documents, records,
papers and correspondence.
a. Documents, records, papers and
correspondence between DFA and
BOT Center regarding the delays in
the implementation of the MRP/V
Project, including DFA’s delay in the
issuance of the Certificate of
Acceptance for Phase One of the
MRP/V Project and in approving the
Central Facility Site at the Star Mall
complex;
b. Documents, records, papers and
correspondence between DFA and
BOT Center regarding BCA’s
financial capability and the BOT
Center’s opinion on DFA’s demand
for BCA to further prove its financial
capability to implement the MRP/V
project;
c. Documents, records, papers and
correspondence between DFA and
BOT Center regarding the DFA’s
attempt to terminate the Amended
BOT Agreement, including the BOT
Center’s unsolicited advice dated
December 23, 2005 stating that the

5. Chairman of the DFA MRP/V Advisory
Board or his representative/s, specifically
DFA Undersecretary Franklin M. Ebdalin and
MRP/V Project Manager, specifically Atty.
Voltaire Mauricio
issuance of the Notice of Termination
was "precipitate, and done without
first carefully ensuring that there were
sufficient grounds to warrant such an
issuance" and was "devoid of merit";
d. Documents, records, papers and
correspondence between DFA and
BOT Center regarding the DFA’s
unwarrented refusal to approve
BCA’s proposal to obtain the required
financing by allowing the entry of a
"strategic investor"; and
e. Other related documents, records,
papers and correspondence.
a. Documents, records, papers and
correspondence between DFA and
the MRP/V Advisory Board regarding
BCA[‘s] performance of its obligations
for Phase One of the MRP/V Project,
the MRP/V Advisory Board’s
recommendation for the issuance of
the Certificate of Acceptance of
Phase One of the MRP/V Project and
its preparation of the draft of the
Certificate of Acceptance;
b. Documents, records, papers and
correspondence between DFA and
the MRP/V Advisory Board regarding
the latter’s recommendation for the
DFA to approve the Star Mall
complex as the Central Facility Site;
c. Documents, records, papers and
correspondence between DFA and
the MRP/V Advisory Board regarding
BCA’s request to allow the
investment of S.F. Pass International
in Philpass;
d. Documents, records, papers and
correspondence between DFA and
the MRP/V Advisory Board regarding
BCA’s financial capability and the
MRP/V Advisory Board’s opinion on
DFA’s demand for BCA to further
prove its financial capability to
implement the MRP/V Project;
e. Documents, records, papers and
correspondence between DFA and
the MRP/V Advisory Board regarding
the DFA’s attempted termination of
the Amended BOT Agreement; and
f. Other related documents, records,
papers and correspondence.
On 1 July 2013, DFA filed its comment, alleging that the presentation of the witnesses and
documents was prohibited by law and protected by the deliberative process privilege.
The RTC Ruling
In a Resolution dated 2 September 2013, the RTC ruled in favor of BCA and held that the
evidence sought to be produced was no longer covered by the deliberative process
privilege. According to the RTC, the Court held in Chavez v. Public Estates Authority  that
10
acts, transactions or decisions are privileged only before a definite proposition is reached
by the agency and since DFA already made a definite proposition and entered into a
contract, DFA's acts, transactions or decisions were no longer privileged. 11
The dispositive portion of the RTC Resolution reads:
WHEREFORE, the petition is granted. Let subpoena ad testificandum [and
subpoena] duces tecum be issued to the persons listed in paragraph 11 of the Petition for
them to appear and bring the documents specified in paragraph 12 thereof, before the Ad
Hoc Tribunal for the hearings on October 14, 15, 16, 17, 2013 at 9:00 a.m. and 2:00 p.m.
at the Malcolm Hall, University of the Philippines, Diliman, Quezon City.12
On 6 September 2013, the RTC issued the subpoena due es tecum and subpoena ad
testificandum. On 12 September 2013, DFA filed a motion to quash the subpoena duces
tecum and subpoena ad testificandum, which BCA opposed.
In an Order dated 11 October 2013, the RTC denied the motion to quash and held that the
motion was actually a motion for reconsideration, which is prohibited under Rule 9.9 of the
Special Rules of Court on Alternative Dispute Resolution (Special ADR Rules).
On 14, 16, and 17 October 2013, Undersecretary Franklin M. Ebdalin (Usec. Ebdalin),
Atty. Voltaire Mauricio (Atty. Mauricio), and Luisi to Ucab (Mr. Ucab) testified before the
arbitral tribunal pursuant to the subpoena.
In an Order dated 8 January 2014, the RTC denied the motion for reconsideration filed by
DFA. The RTC ruled that the motion became moot with the appearance of the witnesses
during the arbitration hearings. Hence, DFA filed this petition with an urgent prayer for the
issuance of a temporary restraining order and/or a writ of preliminary injunction.
In a Resolution dated 2 April 2014, the Court issued a temporary restraining order
enjoining the arbitral tribunal from taking cognizance of the testimonies of Usec. Ebdalin,
Atty. Mauricio, and Mr. Ucab.
The Issues
DFA raises the following issues in this petition: (1) the 1976 UNCITRAL Arbitration Rules
and the Rules of Court apply to the present arbitration proceedings, not RA 9285 and the
Special ADR Rules; and (2) the witnesses presented during the 14, 16, and 17 October
2013 hearings before the ad hoc arbitral tribunal are prohibited from disclosing information
on the basis of the deliberative process privilege.
The Ruling of the Court
We partially grant the petition.
Arbitration is deemed a special proceeding  and governed by the special provisions of RA
13
9285, its IRR, and the Special ADR Rules.   RA 9285 is the general law applicable to all
14
matters and controversies to be resolved through alternative dispute resolution
methods.   While enacted only in 2004, we held that RA 9285 applies to pending
15
arbitration proceedings since it is a procedural law, which has retroactive effect:
While RA 9285 was passed only in 2004, it nonetheless applies in the instant case
since it is a procedural law which has a retroactive effect. Likewise, KOGIES filed its
application for arbitration before the KCAB on July 1, 1998 and it is still pending because
no arbitral award has yet been rendered. Thus, RA 9285 is applicable to the instant case.
Well-settled is the rule that procedural laws are construed to be applicable to actions
pending and undetermined at the time of their passage, and are deemed retroactive in that
sense and to that extent. As a general rule, the retroactive application of procedural
laws does not violate any personal rights because no vested right has yet attached
nor arisen from them.   (Emphasis supplied)
16
The IRR of RA 9285 reiterate that RA 9285 is procedural in character and applicable to all
pending arbitration proceedings.  Consistent with Article 2046 of the Civil Code,   the
17 18
Special ADR Rules were formulated and were also applied to all pending arbitration
proceedings covered by RA 9285, provided no vested rights are impaired.   Thus, contrary
19
to DFA's contention, RA 9285, its IRR, and the Special ADR Rules are applicable to the
present arbitration proceeding. The arbitration between the DFA and BCA is still pending,
since no arbitral award has yet been rendered. Moreover, DFA did not allege any vested
rights impaired by the application of those procedural rules.
RA 9285, its IRR, and the Special ADR Rules provide that any party to an arbitration,
whether domestic or foreign, may request the court to provide assistance in taking
evidence such as the issuance of subpoena ad testificandum and subpoena duces
tecum.  The Special ADR Rules specifically provide that they shall apply to assistance in
20
taking evidence,  and the RTC order granting assistance in taking evidence shall be
21
immediately executory and not subject to reconsideration or appeal.  An appeal with the
22
Court of Appeals (CA) is only possible where the RTC denied a petition for assistance in
taking evidence.   An appeal to the Supreme Court from the CA is allowed only under any
23
of the grounds specified in the Special ADR Rules.  We rule that the DFA failed to follow
24
the procedure and the hierarchy of courts provided in RA 9285, its IRR, and the Special
ADR Rules, when DFA directly appealed before this Court the RTC Resolution and Orders
granting assistance in taking evidence.
DFA contends that the RTC issued the subpoenas on the premise that RA 9285 and the
Special ADR Rules apply to this case. However, we find that even without applying RA
9285 and the Special ADR Rules, the RTC still has the authority to issue the subpoenas to
assist the parties in taking evidence.
The 1976 UNCITRAL Arbitration Rules, agreed upon by the parties to govern them, state
that the "arbitral tribunal shall apply the law designated by the parties as applicable to the
substance of the dispute. Failing such designation by the parties, the arbitral tribunal shall
apply the law determined by the conflict of laws rules which it considers applicable.
"  Established in this jurisdiction is the rule that the law of the place where the contract is
25
made governs, or lex loci contractus.  Since there is no law designated by the parties as
26
applicable and the Agreement was perfected in the Philippines, "The Arbitration Law," or
Republic Act No. 876 (RA 876), applies.
RA 876 empowered arbitrators to subpoena witnesses and documents when the
materiality of the testimony has been demonstrated to them.   In Transfield Philippines,
27
Inc. v. Luzon Hydro Corporation,   we held that Section 14 of RA 876 recognizes the right
28
of any party to petition the court to take measures to safeguard and/or conserve any
matter which is the subject of the dispute in arbitration.
Considering that this petition was not filed in accordance with RA 9285, the Special ADR
Rules and 1976 UNCITRAL Arbitration Rules, this petition should normally be denied.
However, we have held time and again that the ends of justice are better served when
cases are determined on the merits after all parties are given full opportunity to ventilate
their causes and defenses rather than on technicality or some procedural
imperfections.   More importantly, this case is one of first impression involving the
29
production of evidence in an arbitration case where the deliberative process privilege is
invoked.
Thus, DFA insists that we determine whether the evidence sought to be subpoenaed is
covered by the deliberative process privilege.  DFA contends that the RTC erred in holding
1âwphi1
that the deliberative process privilege is no longer applicable in this case. According to the
RTC, based on Chavez v. Public Estates Authority,  "acts, transactions or decisions are
30
privileged only before a definite proposition is reached by the agency," and since, in this
case, DFA not only made "a definite proposition" but already entered into a contract then
the evidence sought to be produced is no longer privileged. 31
We have held in Chavez v. Public Estates Authority  that:32
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.
xxxx
The right to information, however, does not extend to matters recognized as privileged
information under the separation of powers. 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. 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, 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. This 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. Congress has also prescribed other limitations
on the right to information in several legislations. (Emphasis supplied)
Contrary to the RTC's ruling, there is nothing in our Chavez v. Public Estates
Authority  ruling which states that once a "definite proposition" is reached by an agency,
33
the privileged character of a document no longer exists. On the other hand, we hold that
before a "definite proposition" is reached by an agency, there are no "official acts,
transactions, or decisions" yet which can be accessed by the public under the right to
information. Only when there is an official recommendation can a "definite proposition"
arise and, accordingly, the public's right to information attaches. However, this right to
information has certain limitations and does not cover privileged information to protect
the independence of decision-making by the government.
Chavez v. Public Estates Authority  expressly and unequivocally states that the right to
34
information "should not cover recognized exceptions like privileged
information, military and diplomatic secrets and similar matters affecting national security
and public order." Clearly, Chavez v. Public Estates Authority  expressly mandates
35
that "privileged information" should be outside the scope of the constitutional right to
information, just like military and diplomatic secrets and similar matters affecting national
security and public order. In these exceptional cases, even the occurrence of a "definite
proposition" will not give rise to the public's right to information.
Deliberative process privilege is one kind of privileged information, which is within
the exceptions of the constitutional right to information. In In Re: Production of Court
Records and Documents and the Attendance of Court Officials and Employees as
Witnesses,   we held that:
36
Court deliberations are traditionally recognized as privileged
communication. Section 2, Rule 10 of the IRSC provides:
Section 2. Confidentiality of court sessions. - Court sessions are executive in character,
with only the Members of the Court present. Court deliberations are confidential and shall
not be disclosed to outside parties, except as may be provided herein or as authorized by
the Court.
Justice Abad discussed the rationale for the rule in his concurring opinion to the Court
Resolution in Arroyo v. De Lima (TRO on Watch List Order case): the rules on
confidentiality will enable the Members of the Court to "freely discuss the issues without
fear of criticism for holding unpopular positions" or fear of humiliation for one's
comments. The privilege against disclosure of these kinds of
information/communication is known as deliberative process privilege, involving as
it does the deliberative process of reaching a decision. "Written advice from a variety
of individuals is an important element of the government's decision-making process and
that the interchange of advice could be stifled if courts forced the government to disclose
those recommendations;" the privilege is intended "to prevent the 'chilling' of deliberative
communications."
The privilege is not exclusive to the Judiciary. We have in passing recognized the claim of
this privilege by the two other branches of government in Chavez v. Public Estates
Authority (speaking through J. Carpio) when the Court declared that -
[t]he information x x x like internal deliberations of the Supreme Court and other collegiate
courts, or executive sessions of either house of Congress, 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. (Emphasis
supplied)
In Akbayan v. Aquino,   we adopted the ruling of the U.S. Supreme Court in NLRB v.
37
Sears, Roebuck & Co,  which stated that the deliberative process privilege protects from
38
disclosure "advisory opinions, recommendations, and deliberations comprising part of a
process by which governmental decisions and policies are formulated." We explained that
"[w]ritten advice from a variety of individuals is an important element of the government's
decision-making process and that the interchange of advice could be stifled if courts
forced the government to disclose those recommendations"; thus, the privilege is intended
"to prevent the 'chilling' of deliberative communications."
39
The privileged character of the information does not end when an agency has adopted a
definite proposition or when a contract has been perfected or consummated; otherwise,
the purpose of the privilege will be defeated.
The deliberative process privilege applies if its purpose is served, that is, "to protect the
frank exchange of ideas and opinions critical to the government's decision[-]making
process where disclosure would discourage such discussion in the future."   In Judicial
40
Watch of Florida v. Department of Justice,   the U.S. District Court for the District of
41
Columbia held that the deliberative process privilege's "ultimate purpose x x x is to prevent
injury to the quality of agency decisions by allowing government officials freedom to
debate alternative approaches in private," and this ultimate purpose would not be served
equally well by making the privilege temporary or held to have expired. In Gwich 'in
Steering Comm. v. Office of the Governor,   the Supreme Court of Alaska held that
42
communications have not lost the privilege even when the decision that the documents
preceded is finally made. The Supreme Court of Alaska held that "the question is not
whether the decision has been implemented, or whether sufficient time has passed, but
whether disclosure of these preliminary proposals could harm the agency's future
decision[-]making by chilling either the submission of such proposals or their forthright
consideration."
Traditionally, U.S. courts have established two fundamental requirements, both of which
must be met, for the deliberative process privilege to be invoked.  First, the
43
communication must be predecisional, i.e., "antecedent to the adoption of an agency
policy." Second, the communication must be deliberative, i.e., "a direct part of the
deliberative process in that it makes recommendations or expresses opinions on legal or
policy matters." It must reflect the "give-and-take of the consultative process."  The
44
Supreme Court of Colorado also took into account other considerations:
Courts have also looked to other considerations in assessing whether material is
predecisional and deliberative. The function and significance of the document in the
agency's decision-making process are relevant. Documents representing the ideas and
theories that go into the making of policy, which are privileged, should be distinguished
from "binding agency opinions and interpretations" that are "retained and referred to as
precedent" and constitute the policy itself.
Furthermore, courts examine the identity and decision-making authority of the office or
person issuing the material. A document from a subordinate to a superior official is more
likely to be predecisional, "while a document moving in the opposite direction is more likely
to contain instructions to staff explaining the reasons for a decision already made."
Finally, in addition to assessing whether the material is predecisional and deliberative, and
in order to determine if disclosure of the material is likely to adversely affect the purposes
of the privilege, courts inquire whether "the document is so candid or personal in nature
that public disclosure is likely in the future to stifle honest and frank communication within
the agency." As a consequence, the deliberative process privilege typically covers
recommendations, advisory opinions, draft documents, proposals, suggestions,
and other subjective documents that reflect the personal opinions of the writer
rather than the policy of the agency.   (Emphasis supplied)
45
Thus, "[t]he deliberative process privilege exempts materials that are 'predecisional' and
'deliberative,' but requires disclosure of policy statements and final opinions 'that have the
force of law or explain actions that an agency has already taken."’ 46
In City of Colorado Springs v. White,   the Supreme Court of Colorado held that the
47
outside consultant's evaluation report of working environment and policies was covered by
the deliberative process privilege because the report contained observations on current
atmosphere and suggestions on how to improve the division rather than an expression of
final agency decision. In Strang v. Collyer,  the U.S. District Court for the District of
48
Columbia held that the meeting notes that reflect the exchange of opinions between
agency personnel or divisions of agency are covered by the deliberative process privilege
because they "reflect the agency's group thinking in the process of working out its policy"
and are part of the deliberative process in arriving at the final position. In Judicial Watch v.
Clinton,  the U.S. District Court for the District of Columbia held that handwritten notes
49
reflecting preliminary thoughts of agency personnel were properly withheld under the
deliberative process privilege. The U.S. District Court reasoned that "disclosure of this type
of deliberative material inhibits open debate and discussion, and has a chilling effect on
the free exchange of ideas."
This Court applied the deliberative process privilege in In Re: Production of Court Records
and Documents and the Attendance of Court Officials and Employees as Wltnesses  and 50
found that court records which are "predecisional" and "deliberative" in nature - in
particular, documents and other communications which are part of or related to the
deliberative process, i.e., notes, drafts, research papers, internal discussions, internal
memoranda, records of internal deliberations, and similar papers - are protected and
cannot be the subject of a subpoena if judicial privilege is to be preserved. We further held
that this privilege is not exclusive to the Judiciary and cited our ruling in Chavez v. Public
Estates Authority. 51
The deliberative process privilege can also be invoked in arbitration proceedings under RA
9285.
"Deliberative process privilege contains three policy bases: first, the privilege protects
candid discussions within an agency; second, it prevents public confusion from premature
disclosure of agency opinions before the agency establishes final policy; and third, it
protects the integrity of an agency's decision; the public should not judge officials based on
information they considered prior to issuing their final decisions."  Stated differently, the
52
privilege serves "to assure that subordinates within an agency will feel free to provide the
decision[-]maker with their uninhibited opinions and recommendations without fear of later
being subject to public ridicule or criticism; to protect against premature disclosure of
proposed policies before they have been finally formulated or adopted; and to protect
against confusing the issues and misleading the public by dissemination of documents
suggesting reasons and rationales for a course of action which were not in fact the
ultimate reasons for the agency's action." 53
Under RA 9285,  orders of an arbitral tribunal are appealable to the courts. If an official is
54
compelled to testify before an arbitral tribunal and the order of an arbitral tribunal is
appealed to the courts, such official can be inhibited by fear of later being subject to public
criticism, preventing such official from making candid discussions within his or her agency.
The decision of the court is widely published, including details involving the privileged
information. This disclosure of privileged information can inhibit a public official from
expressing his or her candid opinion. Future quality of deliberative process can be
impaired by undue exposure of the decision-making process to public scrutiny after the
court decision is made.
Accordingly, a proceeding in the arbitral tribunal does not prevent the possibility of the
purpose of the privilege being defeated, if it is not allowed to be invoked. In the same
manner, the disclosure of an information covered by the deliberative process privilege to a
court arbitrator will defeat the policy bases and purpose of the privilege.
DFA did not waive the privilege in arbitration proceedings under the Agreement. The
Agreement does not provide for the waiver of the deliberative process privilege by DFA.
The Agreement only provides that:
Section 20.02 None of the parties shall, at any time, before or after the expiration or
sooner termination of this Amended BOT Agreement, without the consent of the other
party, divulge or suffer or permit its officers, employees, agents or contractors to divulge
to any person, other than any of its or their respective officers or employees who require
the same to enable them properly to carry out their duties, any of the contents of this
Amended BOT Agreement or any information relating to the negotiations
concerning the operations, contracts, commercial or financial arrangements or
affair[s] of the other parties hereto. Documents marked "CONFIDENTIAL" or the like,
providing that such material shall be kept confidential, and shall constitute prima
facie evidence that such information contained therein is subject to the terms of this
provision.
Section 20.03 The restrictions imposed in Section 20.02 herein shall not apply to the
disclosure of any information:
xxxx
C. To a court arbitrator or administrative tribunal the course of proceedings before it
to which the disclosing party is party; x x x  (Emphasis supplied)
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Section 20.02 of the Agreement merely allows, with the consent of the other
party, disclosure by a party to a court arbitrator or administrative tribunal of the contents of
the "Amended BOT Agreement or any information relating to the
negotiations concerning the operations, contracts, commercial or financial arrangements
or affair[s] of the other parties hereto." There is no express waiver of information forming
part of DFA's predecisional deliberative or decision-making process. Section 20.02 does
not state that a party to the arbitration is compelled to disclose to the tribunal privileged
information in such party's possession.
On the other hand, Section 20.03 merely allows a party, if it chooses, without the
consent of the other party, to disclose to the tribunal privileged information in such
disclosing party's possession. In short, a party can disclose privileged information In the present case, considering that the RTC erred in applying our ruling
in its possession, even without the consent of the other party, if the disclosure is to in Chavez v. Public Estates Authority,  and both BCA's and DFA's assertions of subpoena
63

a tribunal. However, a party cannot be compelled by the other party to disclose
privileged information to the tribunal, where such privileged information is in its
possession and not in the possession of the party seeking the compulsory
disclosure.
Nothing in Section 20.03 mandates compulsory disclosure of privileged information.
Section 20.03 merely states that "the restrictions imposed in Section 20.02," referring to
the "consent of the other party," shall not apply to a disclosure of privileged information by
a party in possession of a privileged information. This is completely different from
compelling a party to disclose privileged information in its possession against its own will.
Rights cannot be waived if it is contrary to law, public order, public policy, morals, or
good customs, or prejudicial to a third person with a right recognized by law.   There is
56
a public policy involved in a claim of deliberative process privilege - "the policy of open,
frank discussion between subordinate and chief concerning administrative action."  Thus,
57
of evidence and the deliberative process privilege are broad and lack specificity, we will
not be able to determine whether the evidence sought to be produced is covered by the
deliberative process privilege. The parties are directed to specify their claims before the
RTC and, thereafter, the RTC shall determine which evidence is covered by the
deliberative process privilege, if there is any, based on the standards provided in this
Decision. It is necessary to consider the circumstances surrounding the demand for the
evidence to determine whether or not its production is injurious to the consultative
functions of government that the privilege of non-disclosure protects.
WHEREFORE, we resolve to PARTIALLY GRANT the petition and REMAND this case to
the Regional Trial Court of Makati City, Branch 146, to determine whether the documents
and records sought to be subpoenaed are protected by the deliberative process privilege
as explained in this Decision. The Resolution dated 2 April 2014 issuing a Temporary
Restraining Order is superseded by this Decision.

the deliberative process privilege cannot be waived. As we have held in Akbayan v. SO ORDERED.
Aquino,   the deliberative process privilege is closely related to the presidential
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communications privilege and protects the public disclosure of information that can
compromise the quality of agency decisions:

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, 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 decisions. (Emphasis supplied)

As a qualified privilege, the burden falls upon the government agency asserting the
deliberative process privilege to prove that the information in question satisfies both
requirements - predecisional and deliberative.   "The agency bears the burden of
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establishing the character of the decision, the deliberative process involved, and the role
played by the documents in the course of that process."  It may be overcome upon a
60

showing that the discoverant's interests in disclosure of the materials outweigh the
government's interests in their confidentiality.  "The determination of need must be made
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flexibly on a case-by-case, ad hoc basis," and the "factors relevant to this balancing

include: the relevance of the evidence, whether there is reason to believe the documents
may shed light on government misconduct, whether the information sought is available
from other sources and can be obtained without compromising the government's
deliberative processes, and the importance of the material to the discoverant's case." 62