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1. G.R. No. 168338             February 15, 2008

FRANCISCO CHAVEZ, petitioner, vs. RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL
TELECOMMUNICATIONS COMMISSION (NTC), respondents.

DECISION

PUNO, C.J.:

A. Precis

In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free speech and free expression, that any
attempt to restrict it must be met with an examination so critical that only a danger that is clear and present would be allowed to curtail it.

Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and issuances meant to curtail this right, as in  Adiong
v. COMELEC,1 Burgos v. Chief of Staff,2 Social Weather Stations v. COMELEC,3 and Bayan v. Executive Secretary Ermita.4 When on its face, it is clear that
a governmental act is nothing more than a naked means to prevent the free exercise of speech, it must be nullified.

B. The Facts

1. The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005, Press Secretary Ignacio Bunye told
reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly between the
President of the Philippines, Gloria Macapagal Arroyo, and a high-ranking official of the Commission on Elections (COMELEC). The conversation was
audiotaped allegedly through wire-tapping. 5 Later, in a Malacañang press briefing, Secretary Bunye produced two versions of the tape, one supposedly the
complete version, and the other, a spliced, "doctored" or altered version, which would suggest that the President had instructed the COMELEC official to
manipulate the election results in the President’s favor. 6 It seems that Secretary Bunye admitted that the voice was that 12345\ of President Arroyo, but
subsequently made a retraction. 7

2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released an alleged authentic tape recording of
the wiretap. Included in the tapes were purported conversations of the President, the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner
Garcillano, and the late Senator Barbers. 8

3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who had copies of the compact disc
(CD) and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. These persons included Secretary Bunye and
Atty. Paguia. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who had
personal knowledge if the crime was committed or was being committed in their presence. 9

4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to go after media  organizations "found
to have caused the spread, the playing and the printing of the contents of a tape"  of an alleged wiretapped conversation involving the President about fixing
votes in the 2004 national elections. Gonzales said that he was going to start with Inq7.net, a joint venture between the Philippine Daily Inquirer and
GMA7 television network, because by the very nature of the Internet medium, it was able to disseminate the contents of the tape more widely. He then
expressed his intention of inviting the editors and managers of Inq7.net and GMA7 to a probe, and supposedly declared, "I [have] asked the NBI to conduct a
tactical interrogation of all concerned." 10

5. On June 11, 2005, the NTC issued this press release: 11

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND
PERTINENT CIRCULARS ON PROGRAM STANDARDS

xxx xxx xxx

Taking into consideration the country’s unusual situation, and in order not to unnecessarily aggravate the same, the NTC  warns all radio stations
and television network owners/operators that the conditions of the authorization and permits issued to them by Government like the Provisional
Authority and/or Certificate of Authority explicitly provides that said companies shall not use [their] stations for the broadcasting or telecasting of
false information or willful misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain personalities are in possession
of alleged taped conversations which they claim involve the President of the Philippines and a Commissioner of the COMELEC regarding
supposed violation of election laws.

These personalities have admitted that the taped conversations are products of illegal wiretapping operations.

Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or
truthful representation of what was recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the said taped
conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority
and/or Certificate of Authority issued to these radio and television stations. It has been subsequently established that the said tapes are false
and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their
broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of
the licenses or authorizations issued to the said companies.

In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed by radio and television stations.
NTC Memorandum Circular 111-12-85 explicitly states, among others, that "all radio broadcasting and television stations shall, during any
broadcast or telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or telecast the tendency thereof is to
disseminate false information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition." The foregoing
directive had been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and television
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stations from using their stations to broadcast or telecast any speech, language or scene disseminating false information or willful
misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts.

The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the provisions of said Circulars and their
accompanying sanctions on erring radio and television stations and their owners/operators.

6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly assured the
KBP that the press release did not violate the constitutional freedom of speech, of expression, and of the press, and the right to information. Accordingly,
NTC and KBP issued a Joint Press Statement which states, among others, that: 12

 NTC respects and will not hinder freedom of the press and the right to information on matters of public concern. KBP & its members have always
been committed to the exercise of press freedom with high sense of responsibility and discerning judgment of fairness and honesty.
 NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom or censorship. The NTC further denies and
does not intend to limit or restrict the interview of members of the opposition or free expression of views.
 What is being asked by NTC is that the exercise of press freedom [be] done responsibly.
 KBP has program standards that KBP members will observe in the treatment of news and public affairs programs. These include verification of
sources, non-airing of materials that would constitute inciting to sedition and/or rebellion.
 The KBP Codes also require that no false statement or willful misrepresentation is made in the treatment of news or commentaries.
 The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving due consideration to the process being
undertaken to verify and validate the authenticity and actual content of the same."

C. The Petition

Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the NTC, "praying for the issuance of the
writs of certiorari and prohibition, as extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful, unconstitutional and oppressive
exercise of authority by the respondents." 13

Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of the people to information on matters of
public concern,14 petitioner specifically asked this Court:

[F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005 until the present that curtail the
public’s rights to freedom of expression and of the press, and to information on matters of public concern specifically in relation to information
regarding the controversial taped conversion of President Arroyo and for prohibition of the further commission of such acts, and making of such
issuances, and orders by respondents. 15

Respondents16 denied that the acts transgress the Constitution, and questioned petitioner’s legal standing to file the petition. Among the arguments they
raised as to the validity of the "fair warning" issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees compared to print
media, and the warning was issued pursuant to the NTC’s mandate to regulate the telecommunications industry. 17 It was also stressed that "most of the
[television] and radio stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon between the NTC and KBP." 18

D. The Procedural Threshold: Legal Standing

To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a member of the broadcast media, prays that we
strike down the acts and statements made by respondents as violations of the right to free speech, free expression and a free press. For another, the
recipients of the press statements have not come forward—neither intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint
statement with respondent NTC that does not complain about restraints on freedom of the press.

It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege "such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult
constitutional questions." 19

But as early as half a century ago, we have already held that where serious constitutional questions are involved, "the transcendental importance to the
public of these cases demands that they be settled promptly and definitely, brushing aside if we must, technicalities of procedure."  20 Subsequently, this
Court has repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and resolving serious legal questions that
greatly impact on public interest,21 in keeping with the Court's duty under the 1987 Constitution to determine whether or not other branches of government
have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them.

Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our society, 22 we therefore brush
aside technicalities of procedure and take cognizance of this petition, 23 seeing as it involves a challenge to the most exalted of all the civil rights, the freedom
of expression. The petition raises other issues like the extent of the right to information of the public. It is fundamental, however, that we need not address all
issues but only the most decisive one which in the case at bar is whether the acts of the respondents abridge freedom of speech and of the press.

But aside from the primordial issue of determining whether free speech and freedom of the press have been infringed, the case at bar also gives this Court
the opportunity: (1) to distill the essence of freedom of speech and of the press now beclouded by the vagaries of motherhood statements; (2) to clarify the
types of speeches and their differing restraints allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and content-based
regulations and their constitutional standard of review; (4) to examine the historical difference in the treatment of restraints between print and broadcast
media and stress the standard of review governing both; and (5) to call attention to the ongoing blurring of the lines of distinction between print and
broadcast media.

E. Re-examining The law on freedom of speech,

of expression and of the press
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No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances.24

Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given a preferred right that stands on a
higher level than substantive economic freedom or other liberties. The cognate rights codified by Article III, Section 4 of the Constitution, copied almost
verbatim from the First Amendment of the U.S. Bill of Rights, 25 were considered the necessary consequence of republican institutions and the complement of
free speech.26 This preferred status of free speech has also been codified at the international level, its recognition now enshrined in international law as a
customary norm that binds all nations.27

In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our constitutional system.  28 This right was
elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom
of speech is an indispensable condition for nearly every other form of freedom. 29 Moreover, our history shows that the struggle to protect the freedom of
speech, expression and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms. 30 For it is only when
the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of
Thomas Jefferson, we cannot both be free and ignorant.

E.1. Abstraction of Free Speech

Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own Bill of Rights provision on this basic
freedom.31 What is embraced under this provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, 32 in which it was held:

…At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest
without censorship and punishment. There is to be no previous restraint on the communication of views or subsequent liability whether in libel
suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that
Congress has a right to prevent. 33

Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is undeniable, whether as a means of assuring
individual self-fulfillment; of attaining the truth; of assuring participation by the people in social, including political, decision-making; and of maintaining the
balance between stability and change. 34 As early as the 1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest
scope and assure the widest latitude for this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public
issue should be uninhibited, robust, and wide-open. 35

Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to
official measures, and to take refuge in the existing climate of opinion on any matter of public consequence. 36 When atrophied, the right becomes
meaningless.37 The right belongs as well -- if not more – to those who question, who do not conform, who differ. 38 The ideas that may be expressed under
this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press
should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view "induces a
condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." 39 To paraphrase Justice Holmes, it is freedom for the
thought that we hate, no less than for the thought that agrees with us. 40

The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly
regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public
interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies
of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific,
news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are
conventional or shared by a majority.

The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to speech or publications that are
entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans ,41 this Court stated that all forms of
media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of speech and of expression.

While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film, television and radio broadcasting
is somewhat lesser in scope than the freedom accorded to newspapers and other print media, as will be subsequently discussed.

E.2. Differentiation: The Limits & Restraints of Free Speech

From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is not susceptible of any limitation.
But the realities of life in a complex society preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge such freedom.
For freedom of expression is not an absolute, 42 nor is it an "unbridled license that gives immunity for every possible use of language and prevents the
punishment of those who abuse this freedom."

Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in
order that it may not be injurious to the equal right of others or those of the community or society. 43 The difference in treatment is expected because the
relevant interests of one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made
in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech.  44 We have ruled, for example, that in our
jurisdiction slander or libel, lewd and obscene speech, as well as "fighting words" are not entitled to constitutional protection and may be penalized. 45

Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have been applied differently to each category,
either consciously or unconsciously. 46 A study of free speech jurisprudence—whether here or abroad—will reveal that courts have developed different tests
as to specific types or categories of speech in concrete situations; i.e., subversive speech; obscene speech; the speech of the broadcast media and of the
traditional print media; libelous speech; speech affecting associational rights; speech before hostile audiences; symbolic speech; speech that affects the right
to a fair trial; and speech associated with rights of assembly and petition. 47
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Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests, i.e., (a) the dangerous tendency
doctrine which permits limitations on speech once a rational connection has been established between the speech restrained and the danger
contemplated; 48 (b) the balancing of interests tests, used as a standard when courts need to balance conflicting social values and individual interests, and
requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation;  49 and (c) the clear and
present danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil
the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, "extremely serious and the
degree of imminence extremely high." 50

As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and present danger test to resolve free speech
challenges. More recently, we have concluded that we have generally adhered to the clear and present danger test. 51

E.3. In Focus: Freedom of the Press

Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and expression. Its practical importance,
though, is more easily grasped. It is the chief source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of opinion
on public questions. It is the instrument by which citizens keep their government informed of their needs, their aspirations and their grievances. It is the
sharpest weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go
uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:52

The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of
public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a
hostile and unjust accusation; the wound can be assuaged with the balm of clear conscience.

Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits from certain ancillary rights. The
productions of writers are classified as intellectual and proprietary. Persons who interfere or defeat the freedom to write for the press or to maintain a
periodical publication are liable for damages, be they private individuals or public officials.

E.4. Anatomy of Restrictions: Prior Restraint, Content-Neutral and Content-Based Regulations

Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom of the press. These are (1)
freedom from prior restraint; (2) freedom from punishment subsequent to publication; 53 (3) freedom of access to information; 54 and (4) freedom of
circulation.55

Considering that petitioner has argued that respondents’ press statement constitutes a form of impermissible prior restraint, a closer scrutiny of this principle
is in order, as well as its sub-specie of content-based (as distinguished from content-neutral) regulations.

At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints. This presents a unique tinge to the present
challenge, considering that the cases in our jurisdiction involving prior restrictions on speech never had any issue of whether the governmental act or
issuance actually constituted prior restraint. Rather, the determinations were always about whether the restraint was justified by the Constitution.

Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech has always been based on the
circumstances of each case, including the nature of the restraint. And in its application in our jurisdiction, the parameters of this principle have been etched
on a case-to-case basis, always tested by scrutinizing the governmental issuance or act against the circumstances in which they operate, and then
determining the appropriate test with which to evaluate.

Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or
dissemination.56 Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and
regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required
approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and
even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their
printing and publication, are deemed as previous restraint or censorship. 57 Any law or official that requires some form of permission to be had before
publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts.

Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that restrains speech is presumed
invalid,58 and "any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows,"  59 it is important to stress
not all prior restraints on speech are invalid. Certain previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation
of the challenged act as against the appropriate test by which it should be measured against.

Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech. A distinction has to be made
whether the restraint is (1) a content-neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or
manner, and under well defined standards; 60 or (2) a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance
or speech. 61 The cast of the restriction determines the test by which the challenged act is assayed with.

When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required for its validity. 62 Because
regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an  intermediate
approach—somewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based
restrictions.63 The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be
narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. The intermediate approach
has been formulated in this manner:

A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial
governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged
[freedom of speech & expression] is no greater than is essential to the furtherance of that interest. 64
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On the other hand, a governmental action that restricts freedom of speech or of the press  based on content is given the strictest scrutiny in light of its
inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster, 65 with the
government having the burden of overcoming the presumed unconstitutionality.

Unless the government can overthrow this presumption, the content-based restraint will be struck down.66

With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about—
especially the gravity and the imminence of the threatened harm – otherwise the prior restraint will be invalid. Prior restraint on speech based on its content
cannot be justified by hypothetical fears, "but only by showing a substantive and imminent evil that has taken the life of a reality already on ground." 67 As
formulated, "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." 68

The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of
free expression. 69

Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. 70 A restriction that is so broad that it
encompasses more than what is required to satisfy the governmental interest will be invalidated.  71 The regulation, therefore, must be reasonable and
narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken. 72

Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A content-based regulation, 73 however, bears
a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a
compelling reason, and the restrictions imposed are neither overbroad nor vague. 74

Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the  clear and present danger rule, as they are content-
based restrictions. The acts of respondents focused solely on but one object—a specific content— fixed as these were on the alleged taped conversations
between the President and a COMELEC official. Undoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination
of speech or expression.

E.5. Dichotomy of Free Press: Print v. Broadcast Media

Finally, comes respondents’ argument that the challenged act is valid on the ground that broadcast media enjoys free speech rights that are lesser in scope
to that of print media. We next explore and test the validity of this argument, insofar as it has been invoked to validate a content-based restriction on
broadcast media.

The regimes presently in place for each type of media differ from one other.  Contrasted with the regime in respect of books, newspapers, magazines and
traditional printed matter, broadcasting, film and video have been subjected to regulatory schemes.

The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio and television have been held to
have limited First Amendment protection,75 and U.S. Courts have excluded broadcast media from the application of the "strict scrutiny" standard that they
would otherwise apply to content-based restrictions. 76 According to U.S. Courts, the three major reasons why broadcast media stands apart from print media
are: (a) the scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print medium may be limitless];  77 (b) its
"pervasiveness" as a medium; and (c) its unique accessibility to children. 78 Because cases involving broadcast media need not follow "precisely the same
approach that [U.S. courts] have applied to other media," nor go "so far as to demand that such regulations serve ‘compelling’ government interests," 79 they
are decided on whether the "governmental restriction" is narrowly tailored to further a substantial governmental interest," 80 or the intermediate test.

As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment between broadcast and print media.  Nevertheless, a
review of Philippine case law on broadcast media will show that—as we have deviated with the American conception of the Bill of Rights 81— we likewise did
not adopt en masse the U.S. conception of free speech as it relates to broadcast media, particularly as to which test would govern content-based prior
restraints.

Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the regulatory scheme applied to broadcast media
that is not imposed on traditional print media, and narrowly confined to unprotected speech ( e.g., obscenity, pornography, seditious and inciting speech), or
is based on a compelling government interest that also has constitutional protection, such as national security or the electoral process.

Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held that the clear and present danger test
applies to content-based restrictions on media, without making a distinction as to traditional print or broadcast media.

The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting Corporation (DYRE) v. Dans ,82 wherein it was
held that "[a]ll forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for
limitations on freedom of expression continues to be the clear and present danger rule …"83

Dans was a case filed to compel the reopening of a radio station which had been summarily closed on grounds of national security. Although the issue had
become moot and academic because the owners were no longer interested to reopen, the Court still proceeded to do an analysis of the case and made
formulations to serve as guidelines for all inferior courts and bodies exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as
to what needs be considered in cases involving broadcast media. Thus: 84

xxx xxx xxx

(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause . The test for
limitations on freedom of expression continues to be the clear and present danger rule,  that words are used in such circumstances and are of such
a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent, In
his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the
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test. More recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the  Anti-Bases Coalition v. Bagatsing . (4) The clear
and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums.

Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation cannot simply
appropriate a certain frequency without regard for government regulation or for the rights of others.

All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of
television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media.

The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and
indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection
from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material
presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to
children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity
cannot be done in radio or television, where the listener or viewer is constantly tuning in and out.

Similar considerations apply in the area of national security.

The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books are found
only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income
masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy
high priorities.

On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously
received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or
television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion,
persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or
predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to
cogitate analyze, and reject the utterance.

(5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio
stations-whether by government or through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling.

The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be
used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and
television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are
the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection.

(6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case of  United States v.
Bustos (37 Phil. 731) this Court was already stressing that.

The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the
conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public
life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not
be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted.

(7) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the
Constitution. [Citations omitted]

It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to justify differentiation of treatment ( i.e., the scarcity,
pervasiveness and accessibility to children), but only after categorically declaring that "the test for limitations on freedom of expression continues to be the
clear and present danger rule," for all forms of media, whether print or broadcast.  Indeed, a close reading of the above-quoted provisions would show that
the differentiation that the Court in Dans referred to was narrowly restricted to what is otherwise deemed as "unprotected speech" ( e.g., obscenity, national
security, seditious and inciting speech), or to validate a licensing or regulatory scheme necessary to allocate the limited broadcast frequencies, which is
absent in print media. Thus, when this Court declared in Dans that the freedom given to broadcast media was "somewhat lesser in scope than the freedom
accorded to newspaper and print media," it was not as to what test should be applied, but the context by which requirements of licensing, allocation of
airwaves, and application of norms to unprotected speech. 85

In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,86 that the test to determine free expression challenges was the
clear and present danger, again without distinguishing the media. 87 Katigbak, strictly speaking, does not treat of broadcast media but motion pictures.
Although the issue involved obscenity standards as applied to movies, 88 the Court concluded its decision with the following obiter dictum that a less liberal
approach would be used to resolve obscenity issues in television as opposed to motion pictures:

All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this
Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons
have to pay their way, television reaches every home where there is a set. Children then will likely be among the avid viewers of the programs
therein shown…..It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the
young.

More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by a broadcast company, we reiterated that the clear
and present danger rule is the test we unquestionably adhere to issues that involve freedoms of speech and of the press. 89
 7

This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the broadcast media.  The rule applies to all
media, including broadcast, but only when the challenged act is a content-based regulation that infringes on free speech, expression and the press. Indeed,
in Osmena v. COMELEC,90 which also involved broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of
time and manner of advertising of political advertisements because the challenged restriction was content-neutral. 91 And in a case involving due process and
equal protection issues, the Court in Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC 92 treated a restriction imposed on a
broadcast media as a reasonable condition for the grant of the media’s franchise, without going into which test would apply.

That broadcast media is subject to a regulatory regime absent in print media is observed also in other jurisdictions, where the statutory regimes in place over
broadcast media include elements of licensing, regulation by administrative bodies, and censorship. As explained by a British author:

The reasons behind treating broadcast and films differently from the print media differ in a number of respects, but have a common historical basis.
The stricter system of controls seems to have been adopted in answer to the view that owing to their  particular impact on audiences, films, videos
and broadcasting require a system of prior restraints, whereas it is now accepted that books and other printed media do not. These media are
viewed as beneficial to the public in a number of respects, but are also seen as possible sources of harm. 93

Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was thought to provide a rationale. However, cable
and satellite television have enormously increased the number of actual and potential channels. Digital technology will further increase the number of
channels available. But still, the argument persists that broadcasting is the most influential means of communication, since it comes into the home, and so
much time is spent watching television. Since it has a unique impact on people and affects children in a way that the print media normally does not, that
regulation is said to be necessary in order to preserve pluralism. It has been argued further that a significant main threat to free expression—in terms of
diversity—comes not from government, but from private corporate bodies. These developments show a need for a reexamination of the traditional notions of
the scope and extent of broadcast media regulation. 94

The emergence of digital technology -- which has led to the convergence of broadcasting, telecommunications and the computer industry -- has likewise led
to the question of whether the regulatory model for broadcasting will continue to be appropriate in the converged environment. 95 Internet, for example,
remains largely unregulated, yet the Internet and the broadcast media share similarities,  96 and the rationales used to support broadcast regulation apply
equally to the Internet.97 Thus, it has been argued that courts, legislative bodies and the government agencies regulating media must agree to regulate both,
regulate neither or develop a new regulatory framework and rationale to justify the differential treatment. 98

F. The Case At Bar

Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its application to the case at bar. To recapitulate, a
governmental action that restricts freedom of speech or of the press based on content is given the  strictest scrutiny, with the government having the
burden of overcoming the presumed unconstitutionality by the clear and present danger rule. This rule applies equally to all kinds of media, including
broadcast media.

This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a) the test; (b) the presumption; (c) the burden of proof;
(d) the party to discharge the burden; and (e) the quantum of evidence necessary. On the basis of the records of the case at bar, respondents who have the
burden to show that these acts do not abridge freedom of speech and of the press failed to hurdle the clear and present danger test. It appears that the  great
evil which government wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records of the case at bar,
however, are confused and confusing, and respondents’ evidence falls short of satisfying the clear and present danger test.  Firstly, the various statements of
the Press Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped conversation is also suspect. The Press
Secretary showed to the public two versions, one supposed to be a "complete" version and the other, an "altered" version.  Thirdly, the evidence of the
respondents on the who’s and the how’s of the wiretapping act is ambivalent, especially considering the tape’s different versions. The identity of the wire-
tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case.  Fourthly, given all these unsettled facets
of the tape, it is even arguable whether its airing would violate the anti-wiretapping law.

We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press.  Our laws are of different kinds and
doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a person’s private comfort but does not endanger
national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free
press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the
press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the
Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the
circumference of all these factors to determine compliance with the clear and present danger test,  the Court should not be misinterpreted as devaluing
violations of law. By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat,  the
need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils.  For
this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free
speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.

This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press statements of the Secretary of Justice and of the
NTC in question constitute a form of content-based prior restraint that has transgressed the Constitution. In resolving this issue,  we hold that it is not decisive
that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements
were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice,
while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the government in an
official capacity is covered by the rule on prior restraint. The concept of an "act" does not limit itself to acts already converted to a formal order or official
circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior
restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free
speech and press.

There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less the NTC, a regulatory agency
that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive,
who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in
issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press.
This silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation.
 8

The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the distinct facts of each case.
For there are no hard and fast rules when it comes to slippery constitutional questions, and the limits and construct of relative freedoms are never set in
stone. Issues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in
cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow
too soon struck for freedom is preferred than a blow too late.

In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby issued, nullifying the official statements made by
respondents on June 8, and 11, 2005 warning the media on airing the alleged wiretapped conversation between the President and other personalities, for
constituting unconstitutional prior restraint on the exercise of freedom of speech and of the press

SO ORDERED.

REYNATO S. PUNO
Chief Justice

WE CONCUR:

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

RUBEN T. REYES TERESITA LEONARDO-DE CASTRO

Associate Justice Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

2. G.R. No. 103956 March 31, 1992

BLO UMPAR ADIONG, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

GUTIERREZ, JR., J.:

The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may prohibit the posting of decals and stickers on "mobile"
places, public or private, and limit their location or publication to the authorized posting areas that it fixes.

On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the Constitution, the Omnibus Election Code,
Republic Acts Nos. 6646 and 7166 and other election laws.

Section 15(a) of the resolution provides:

Sec. 15. Lawful Election Propaganda. — The following are lawful election propaganda:

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or printed materials not more than eight and
one-half (8-1/2) inches in width and fourteen (14) inches in length. Provided, That decals and stickers may be posted only in any of the
authorized posting areas provided in paragraph (f) of Section 21 hereof.

Section 21 (f) of the same resolution provides:

Sec. 21(f). Prohibited forms of election propaganda. —

 9

It is unlawful:

xxx xxx xxx

(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda  in any place, whether public or private, mobile or
stationary, except in the COMELEC common posted areas and/or billboards, at the campaign headquarters of the candidate or political
party, organization or coalition, or at the candidate's own residential house or one of his residential houses, if he has more than
one: Provided, that such posters or election propaganda shall not exceed two (2) feet by three (3) feet in size. (Emphasis supplied)

x x x           x x x          x x x

The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election Code on lawful election propaganda which provides:

Lawful election propaganda. — Lawful election propaganda shall include:

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and one-half inches in
width and fourteen inches in length;

(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two feet by three feet, except that, at the
site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three
feet by eight feet in size, shall be allowed: Provided, That said streamers may not be displayed except one week before the date of the
meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or

(d) All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all interested
parties and hearing where all the interested parties were given an equal opportunity to be heard:  Provided, That the Commission's
authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after
the authorization has been granted. (Section 37, 1978 EC)

and Section 11(a) of Republic Act No. 6646 which provides:

Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited under Section 85 of Batas
Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or publicly exhibit any election propaganda in any
place, whether private, or public, except in the common poster areas  and/or billboards provided in the immediately preceding section, at
the candidate's own residence, or at the campaign headquarters of the candidate or political party: Provided, That such posters or
election propaganda shall in no case exceed two (2) feet by three (3) feet in area:  Provided, Further, That at the site of and on the
occasion of a public meeting or rally, streamers, not more than two (2) and not exceeding three (3) feet by eight (8) feet each may be
displayed five (5) days before the date of the meeting or rally, and shall be removed within twenty-four (24) hours after said meeting or
rally; . . . (Emphasis supplied)

Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's Resolution insofar as it prohibits the posting
of decals and stickers in "mobile" places like cars and other moving vehicles. According to him such prohibition is violative of Section 82 of the Omnibus
Election Code and Section 11(a) of Republic Act No. 6646. In addition, the petitioner believes that with the ban on radio, television and print political
advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with this prohibition. The posting of decals and
stickers on cars and other moving vehicles would be his last medium to inform the electorate that he is a senatorial candidate in the May 11, 1992 elections.
Finally, the petitioner states that as of February 22, 1992 (the date of the petition) he has not received any notice from any of the Election Registrars in the
entire country as to the location of the supposed "Comelec Poster Areas."

The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on "mobile" places whether public or private except in
designated areas provided for by the COMELEC itself is null and void on constitutional grounds.

First — the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the Constitution (Sec. 4, Article III). There is no public
interest substantial enough to warrant the kind of restriction involved in this case.

There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of our own Bill of Rights provision on this
basic freedom.

All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of a preferred freedom. (Thomas v. Collins,
323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36 SCRA 228 [1970])

This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable condition of nearly every other freedom.
(Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Paño, 134 SCRA 438 [1985]) It is difficult to imagine how the other provisions of the Bill of Rights and
the right to free elections may be guaranteed if the freedom to speak and to convince or persuade is denied and taken away.

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and
sometimes unpleasantly sharp attacks on government and public officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964]; cited in the
concurring opinion of then Chief Justice Enrique Fernando in Babst v. National Intelligence Board, 132 SCRA 316 [1984]) Too many restrictions will deny to
people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of
information to make more meaningful the equally vital right of suffrage. (Mutuc v. Commission on Elections, supra)
 10

The determination of the limits of the Government's power to regulate the exercise by a citizen of his basic freedoms in order to promote fundamental public
interests or policy objectives is always a difficult and delicate task. The so-called balancing of interests — individual freedom on one hand and substantial
public interests on the other — is made even more difficult in election campaign cases because the Constitution also gives specific authority to the
Commission on Elections to supervise the conduct of free, honest, and orderly elections.

We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory powers  vis-a-vis the conduct and manner
of elections, to wit:

Sec. 4. The Commission may, during the election period supervise or regulate the enjoyment or utilization of all franchises or permits for
the operation of transportation and other public utilities, media of communication or information, all grants special privileges, or
concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the
right to reply, including reasonable equal rates therefore, for public information campaigns and forms among candidates in connection
with the object of holding free, orderly, honest, peaceful and credible elections. (Article IX(c) section 4)

The variety of opinions expressed by the members of this Court in the recent case of  National Press Club v. Commission on Elections  (G.R. No. 102653,
March 5, 1991) and its companion cases underscores how difficult it is to draw a dividing line between permissible regulation of election campaign activities
and indefensible repression committed in the name of free and honest elections. In the National Press Club, case, the Court had occasion to reiterate the
preferred status of freedom of expression even as it validated COMELEC regulation of campaigns through political advertisements. The gray area is rather
wide and we have to go on a case to case basis.

There is another problem involved. Considering that the period of legitimate campaign activity is fairly limited and, in the opinion of some, too short, it
becomes obvious that unduly restrictive regulations may prove unfair to affected parties and the electorate.

For persons who have to resort to judicial action to strike down requirements which they deem inequitable or oppressive, a court case may prove to be a
hollow remedy. The judicial process, by its very nature, requires time for rebuttal, analysis and reflection. We cannot act instantly on knee-jerk impulse. By
the time we revoke an unallowably restrictive regulation or ruling, time which is of the essence to a candidate may have lapsed and irredeemable
opportunities may have been lost.

When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked
against actions intended for maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of freedom. For in the
ultimate analysis, the freedom of the citizen and the State's power to regulate are not antagonistic. There can be no free and honest elections if in the efforts
to maintain them, the freedom to speak and the right to know are unduly curtailed.

There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra)  case but all of us were unanimous that regulation
of election activity has its limits. We examine the limits of regulation and not the limits of free speech. The carefully worded opinion of the Court, through Mr.
Justice Feliciano, shows that regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in time and
scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her qualifications, if it cuts off the flow of media
reporting, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective.

Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, in National Press Club, we find the regulation in the
present case of a different category. The promotion of a substantial Government interest is not clearly shown.

A government regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or
substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. ( Id., at 377, 20 L Ed 2d
672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118 [1984])

The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There is no
clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression. Under the clear
and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to
justify a clamp over one's mouth or a writing instrument to be stilled:

The case confronts us again with the duty our system places on the Court to say where the individual's freedom ends and the State's
power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is
balanced by the preferred place given in our scheme to the great, the indispensable democratic freedom secured by the first Amendment
. . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions and it is the character of the right, not of
the limitation, which determines what standard governs the choice . . .

For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely,
but by clear and present danger . The rational connection between the remedy  provided and the evil to be curbed, which in other context
might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly,
whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public
danger, actual or impending. Only the greatest abuses, endangering permanent interests, give occasion for permissible limitation.
(Thomas V. Collins, 323 US 516 [1945]). (Emphasis supplied)

Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political party. The regulation
strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be
furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily
his own and not of anybody else. If, in the National Press Club case, the Court was careful to rule out restrictions on reporting by newspapers or radio and
television stations and commentators or columnists as long as these are not correctly paid-for advertisements or purchased opinions with less reason can
we sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who pastes a sticker or decal on
his private property.
 11

Second — the questioned prohibition premised on the statute and as couched in the resolution is void for overbreadth.

A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).

In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose
cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The
breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance prohibiting all distribution of literature at
any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was unnecessary to accomplish
legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of four
different municipalities which either banned or imposed prior restraints upon the distribution of handbills. In holding the ordinances
invalid, the court noted that where legislative abridgment of fundamental personal rights and liberties is asserted, "the courts should be
astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public
convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise
of rights so vital to the maintenance of democratic institutions," 308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84 L ed 1213, 60
S Ct. 900, 128 ALR 1352, the Court said that "[c]onduct remains subject to regulation for the protection of society," but pointed out that in
each case "the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom."
(310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]

The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length  in any
place, including mobile places whether public or private except in areas designated by the COMELEC. Verily, the restriction as to where the decals and
stickers should be posted is so broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In consequence
of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides that no person
shall be deprived of his property without due process of law:

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and the Constitution, in
the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it.
The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep.
383. Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of
the land. 1 Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])

As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate needs the consent
of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and stickers the use
of his property but more important, in the process, it would deprive the citizen of his right to free speech and information:

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society
that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The danger of
distribution can so easily be controlled by traditional legal methods leaving to each householder the full right to decide whether he will
receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the constitution, the naked restriction
of the dissemination of ideas." (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of justification on the part
of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any place, whether public or
private, except in the common poster areas sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared personal
poster on his own front door or on a post in his yard. While the COMELEC will certainly never require the absurd, there are no limits to what overzealous and
partisan police officers, armed with a copy of the statute or regulation, may do.

The provisions allowing regulation are so loosely worded that they include the posting of decals or stickers in the privacy of one's living room or bedroom.
This is delegation running riot. As stated by Justice Cardozo in his concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446 [1935), "The
delegated power is unconfined and vagrant . . . This is delegation running riot. No such plentitude of power is susceptible of transfer."

Third — the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the electorate as regards their candidacies,
mandated by Article II, Section 26 and Article XIII, section 1 in relation to Article IX (c) Section 4 of the Constitution, is not impaired by posting decals and
stickers on cars and other private vehicles. Compared to the paramount interest of the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance.

Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities for public service, . . . while under section 1, Article
XIII thereof "The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity,
reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good."
(Emphasis supplied)

It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving vehicles needs the consent of the owner of
the vehicle. Hence, the preference of the citizen becomes crucial in this kind of election propaganda not the financial resources of the candidate. Whether
the candidate is rich and, therefore, can afford to doleout more decals and stickers or poor and without the means to spread out the same number of decals
and stickers is not as important as the right of the owner to freely express his choice and exercise his right of free speech. The owner can even prepare his
own decals or stickers for posting on his personal property. To strike down this right and enjoin it is impermissible encroachment of his liberties.
 12

In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the authorized areas designated by the
COMELEC becomes censorship which cannot be justified by the Constitution:

. . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding
from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law,
with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of government in the
discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes
must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, either substantive
or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying
the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental law.
Even its power of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication is a logical.
corollary of this basic principle that the Constitution is paramount. It overrides any governmental measure that fails to live up to its
mandates. Thereby there is a recognition of its being the supreme law. (Mutuc v. Commission on Elections, supra)

The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the freedom to speak and the right to know. It is
not alone the widest possible dissemination of information on platforms and programs which concern us. Nor are we limiting ourselves to protecting the
unfettered interchange of ideas to bring about political change. (Cf. New York Times v. Sullivan,  supra) The big number of candidates and elective positions
involved has resulted in the peculiar situation where almost all voters cannot name half or even two-thirds of the candidates running for Senator. The public
does not know who are aspiring to be elected to public office.

There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the voter may accept or reject. When a
person attaches a sticker with such a candidate's name on his car bumper, he is expressing more than the name; he is espousing ideas. Our review of the
validity of the challenged regulation includes its effects in today's particular circumstances. We are constrained to rule against the COMELEC prohibition.

WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the Commission on Elections providing that "decals
and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, J.J., concur.

Feliciano and Bellosillo, JJ., are on leave.

Separate Opinions 

CRUZ, J.: concurring:

I join Mr. Justice Gutierrez and reiterate the views expressed in my dissent in National Press Club v. Commission on Elections . The stand taken by the Court
in the case at bar is a refreshing change from its usual deferential attitude toward authoritarianism as a persistent vestige of the past regime. After the
disappointing decision in the ad ban case, I hope that the present decision will guide us to the opposite direction, toward liberty and the full recognition of
freedom of expression. This decision is a small step in rectifying the errors of the past, but it is a step just the same, and on the right track this time.

Regarding the sticker ban, I think we are being swamped with regulations that unduly obstruct the free flow of information so vital in an election campaign.
The Commission on Elections seems to be bent on muzzling the candidates and imposing all manner of silly restraints on their efforts to reach the
electorate. Reaching the electorate is precisely the purpose of an election campaign, but the Commission on Elections obviously believes that the
candidates should be as quiet as possible.

Instead of limiting the dissemination of information on the election issues and the qualifications of those vying for public office, what the Commission on
Elections should concentrate on is the education of the voters on the proper exercise of their suffrages. This function is part of its constitutional duty to
supervise and regulate elections and to prevent them from deteriorating into popularity contests where the victors are chosen on the basis not of their
platforms and competence but on their ability to sing or dance, or play a musical instrument, or shoot a basketball, or crack a toilet joke, or exhibit some such
dubious talent irrelevant to their ability to discharge a public office. The public service is threatened with mediocrity and indeed sheer ignorance if not
stupidity. That is the problem the Commission on Elections should try to correct instead of wasting its time on much trivialities as where posters shall be
allowed and stickers should not be attached and speeches may be delivered.

The real threat in the present election is the influx of the unqualified professional entertainers whose only asset is the support of their drooling fans, the
demagogues who drumbeat to the clink of coins their professed present virtues and past innocence, the opportunists for whom flexibility is a means of
political survival and even of financial gain, and, most dangerous of all, the elements of our electorate who would, with their mindless ballots, impose these
office-seekers upon the nation. These are the evils the Commission on Elections should try to correct, not the inconsequential and inane question of where
stickers should be stuck. I have nothing but praise for the zeal of the Commission on Elections in pursuing the ideal of democratic elections, but I am afraid it
is barking up the wrong tree.

Separate Opinions

CRUZ, J., concurring:

I join Mr. Justice Gutierrez and reiterate the views expressed in my dissent in National Press Club v. Commission on Elections . The stand taken by the Court
in the case at bar is a refreshing change from its usual deferential attitude toward authoritarianism as a persistent vestige of the past regime. After the
disappointing decision in the ad ban case, I hope that the present decision will guide us to the opposite direction, toward liberty and the full recognition of
freedom of expression. This decision is a small step in rectifying the errors of the past, but it is a step just the same, and on the right track this time.

Regarding the sticker ban, I think we are being swamped with regulations that unduly obstruct the free flow of information so vital in an election campaign.
The Commission on Elections seems to be bent on muzzling the candidates and imposing all manner of silly restraints on their efforts to reach the
 13

electorate. Reaching the electorate is precisely the purpose of an election campaign, but the Commission on Elections obviously believes that the
candidates should be as quiet as possible.

Instead of limiting the dissemination of information on the election issues and the qualifications of those vying for public office, what the Commission on
Elections should concentrate on is the education of the voters on the proper exercise of their suffrages. This function is part of its constitutional duty to
supervise and regulate elections and to prevent them from deteriorating into popularity contests where the victors are chosen on the basis not of their
platforms and competence but on their ability to sing or dance, or play a musical instrument, or shoot a basketball, or crack a toilet joke, or exhibit some such
dubious talent irrelevant to their ability to discharge a public office. The public service is threatened with mediocrity and indeed sheer ignorance if not
stupidity. That is the problem the Commission on Elections should try to correct instead of wasting its time on much trivialities as where posters shall be
allowed and stickers should not be attached and speeches may be delivered.

The real threat in the present election is the influx of the unqualified professional entertainers whose only asset is the support of their drooling fans, the
demagogues who drumbeat to the clink of coins their professed present virtues and past innocence, the opportunists for whom flexibility is a means of
political survival and even of financial gain, and, most dangerous of all, the elements of our electorate who would, with their mindless ballots, impose these
office-seekers upon the nation. These are the evils the Commission on Elections should try to correct, not the inconsequential and inane question of where
stickers should be stuck. I have nothing but praise for the zeal of the Commission on Elections in pursuing the ideal of democratic elections, but I am afraid it
is barking up the wrong tree.

3. G.R. No. 88373 May 18, 1990

JUAN PONCE ENRILE, petitioner, vs. HON. IGNACIO CAPULONG and AYER PRODUCTIONS PTY. LTD., respondents.

G.R. No. 82330 May 18, 1990

AYER PRODUCTIONS PTY. LTD and McELROY & McELROY FILM PRODUCTIONS, petitioners, vs.HON. IGNACIO M. CAPULONG and JUAN PONCE
ENRILE, respondents.

G.R. No. 82398 May 18, 1990

HAL McELROY, petitioner, vs. HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court of Makati, Branch 134, and
JUAN PONCE ENRILE, respondents.

SARMIENTO, J.:

The petitioner filed this Petition to stop the respondent court from acting on the private respondent's application for damages arising from the wrongful
issuance of a writ of preliminary injunction by that court, later nullified by this Court in Ayer Productions Pty. Ltd. v. Capulong. 1 Ayer's findings are as follows:

xxx xxx xxx

On 23 February 1988, private respondent filed a Complaint with application for Temporary Restraining Order and Writ of Preliminary
Injunction with the Regional Trial Court of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners
from producing the movie "The Four Day Revolution". The complaint alleged that petitioners' production of the mini-series without private
respondent's consent and over his objection, constitutes an obvious violation of his, right of privacy. On 24 February 1988, the trial court
issued ex-parte a Temporary Restraining Order and set for hearing the application for preliminary injunction.

On 9 March 1988, Hal McElroy filed a Motion to Dismiss with Opposition to the Petition for Preliminary Injunction contending that the
mini-series film would not involve the private life of Juan Ponce Enrile nor that of his family and that a preliminary injunction would
amount to a prior restraint on their right of free expression. Petitioner Ayer Productions also filed its own Motion to Dismiss alleging lack
of cause of action as the mini-series had not yet been completed.

In an Order dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the petitioners, the dispositive portion
of which reads thus:

WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all persons and entities
employed or under contract with them, including actors, actresses and members of the production staff and crew, as
well as all persons and entities acting on defendants' behalf, to cease and desist from producing and filming the mini-
series entitled "The Four Day Revolution" and from making any reference whatsoever to plaintiff or his family and
from creating any fictitious character in lieu of plaintiff which nevertheless is based on, or bears remote, substantial
or marked resemblance or similarity to, or is otherwise identifiable with, plaintiff in the production and filming any
similar film or photoplay, until further orders from this Court, upon plaintiffs filing of a bond in the amount of
P2,000,000.00, to answer for whatever damages defendants may suffer by reason of the injunction if the Court
should finally decide that plaintiff was not entitled thereto.

xxx xxx xxx

(Emphasis supplied)

On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for C ertiorari dated 21 March 1988 with an urgent prayer
for Preliminary Injunction or Restraining Order, which petition was docketed as G.R. No. L-82380.
 14

A day later, or on 23 March 1988, petitioner Hal McElroy also filed a separate Petition for Certiorari with Urgent Prayer for a Restraining
Order or Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398.

By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was required to file a consolidated
Answer. Further, in the same Resolution, the Court granted a limited Temporary Restraining Order partially enjoining the implementation
of the respondent Judge's Order of 16 March 1988 and the Writ of Preliminary Injunction issued therein, and allowing the petitioners to
resume producing and filming those portions of the projected miniseries which do not make any reference to private respondent or his
family or to any fictitious character based on or bearing substantial resemblance or similarity to or identifiable as private respondent.

Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a right of privacy. 2

On April 29, 1988, this Court rendered its Decision, the dispositive portion of which reads as follows:

WHEREFORE,

a) The Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of respondent trial court granting a
Writ of Preliminary Injunction is hereby SET ASIDE. The limited Temporary Restraining Order granted by this Court on 24 March 1988 is
hereby MODIFIED by enjoining unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and made
PERMANENT, and

b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate Petitions for Certiorari with Prayer for
Preliminary Injunction or Restraining Order, the Court, in the exercise of its plenary and supervisory jurisdiction, hereby REQUIRES
Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and accordingly to
SET ASIDE and DISSOLVE his Temporary Restraining Order dated 25 March 1987 and any Preliminary Injunction that may have been
issued by him.

No pronouncement as to costs.

SO ORDERED. 3

On May 16, 1988, the petitioner filed a Motion for Reconsideration. 4 On June 9, 1988, this Court denied the Motion with finality. 5 On June 20, 1988, our
Decision was entered in the Book of Entries. 6

On November 24, 1988, the private respondent filed a "Motion to Resolve" with the respondent court, in connection with its Motion to Dismiss filed on March
9, 1988. 7

On January 19, 1989, the respondent court issued an Order, granting the Motion to Dismiss. 8

On February 10, 1989, the private respondent filed a "Motion for Reconsideration and/or Application to Hold Plaintiff and the Surety Bond Company the First
Integrated Bonding Insurance Company, Inc. Jointly and Severally Liable on the Bond." 9 The private respondent claimed that as a consequence allegedly of
the Writ of Preliminary Injunction, it was forced to "[move] the filming of the picture to Sri Lanka after an extensive locational survey,"  10 that "[the] move
caused over [sic] budget travelling costs of entire cast and crew from Manila to Sri Lanka and Australia; additional days of shooting in excess of original
schedule; additional communications costs; costs for building additional sets and decorations in Australia and Sri Lanka; insurance costs; location survey
costs, accommodations; and special unit shooting , cost," 11 and that "as a direct result of [the] preliminary injunction issued in this case, [it] suffered losses
and damages totalling FOUR HUNDRED THIRTY-EIGHT THOUSAND SEVENTY-THREE AUSTRALIAN DOLLARS . . ." 12 It also sought to hold the
petitioner (along with its surety, the First Integrated Bonding Insurance Company, Inc.) liable on his (the petitioner's) bond, FIBICI Board No. JCL-(8)00323,
in the sum of P2,000,000.00, Philippine Currency. 13

Subsequently, on February 12, 1989, the private respondent filed a "Notice to Take Oral Deposition," in support of its claim for damages, of four witnesses,
all residents of New South Wales, Australia, before Consul Petronila Carbonell of the Philippine Consulate General of Australia, Sydney,
Australia. 14

On February 28, 1989, the petitioner filed a "Motion to Suppress Notice to Take Deposition and/or For Protective Order," on the ground,  inter alia, that the
private respondent's right to damages under the bond was not indubitable and prayed that pending the determination thereof, the deposition-taking be
postponed. The private respondent opposed the Motion.

After a further exchange of pleadings, the respondent court, on May 2, 1989, issued an Order, the dispositive portion of which reads as follows:

WHEREFORE, plaintiff's motion to suppress notice to take deposition and/or for protective order be, as it is, hereby, DENIED. 15

According to the respondent court, the private respondent had the right to an award of damages, "resulting from [the Supreme Court's] ruling that [the
petitioner] is not entitled to the writ [of preliminary injunction]." 16

On May 9, 1989, the petitioner was served a copy of another "Notice to Take Oral Deposition." 17 On May 15, 1989, he filed a "Motion to Suppress Notice to
Take Oral Deposition." 18 On May 19, 1989, he filed a "Motion for Reconsideration (Re: Order dated 2 May 1989). 19 The private respondent opposed it.

On June 1, 1989, the respondent Court issued an Order, the dispositive portion of which reads as follows:

WHEREFORE, the motion for reconsideration filed by plaintiff, is hereby DENIED. 20

According to the respondent court:

 15

. . . The Court finds and resolves that the application or claim for damages of the [private respondent] was filed within the reglementary
period of time, considering that the fifteen (15) day period should be counted from the receipt of the Order of this Court dismissing this
case, dated January 19, 1989., and not from the receipt of [the private respondent] of the decision of the Supreme Court dated April 29,
1988 . . . and this Court in effect recognizes the right of [the private respondent] to file its application and claim for damages under the
injunction bond filed by [the petitioner]. 21

On June 6, 1989, the petitioner filed the present Petition for Certiorari and prohibition with preliminary injunction and/or restraining order. The petitioner, as
we indicated, asks this Court to stop the respondent court from conducting further proceedings below, specifically, to nullify its Order, dated May 2, 1989,
and its Order, dated June 1, 1989. He submits that both Orders were issued with grave abuse of discretion, to wit:

RESPONDENT JUDGE ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN
ADMITTING AYERS APPLICATION FOR DAMAGES, NOTWITHSTANDING THAT THIS HONORABLE COURTS DECISION IN G.R.
NO. 82380, WHICH HAD LONG BECOME FINAL AND EXECUTORY, OPERATED TO DISMISS, OR RESULTED IN THE EFFECTIVE
DISMISSAL OF, THE MAIN CASE.

II

ASSUMING ARGUENDO THAT THIS HONORABLE COURTS DECISION IN G.R. NO. 82380 DID NOT OPERATE TO DISMISS, OR
RESULT IN THE EFFECTIVE DISMISSAL OF, THE MAIN CASE, RESPONDENT JUDGE NEVERTHELESS ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ADMITTING AYERS APPLICATION FOR
DAMAGES CONSIDERING THAT AYER, IN VIOLATING THE PREVIOUS INJUNCTIVE ORDER OF RESPONDENT JUDGE,
FORFEITED THE RIGHT TO CLAIM FOR DAMAGES AGAINST THE BOND FOR THE VERY INJUNCTION WHICH AYER DEFIED IN
THE FIRST PLACE.

III

ASSUMING ARGUENDO THAT AYER HAD NOT FORFEITED THE RIGHT TO CLAIM FOR DAMAGES AGAINST THE INJUNCTION
BOND, RESPONDENT JUDGE NEVERTHELESS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN ADMITTING AYER'S APPLICATION FOR DAMAGES CONSIDERING THAT, HYPOTHETICALLY
ADMITTING THE ALLEGATIONS IN SAID APPLICATION, THE CLAIMED DAMAGES RESULTED NOT FROM COMPLIANCE WITH
THE INJUNCTION BUT RATHER FROM AYER'S DEFIANCE THEREOF.

IV

RESPONDENT JUDGE ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN
REFUSING TO SUPPRESS THE DEPOSITION PROCEEDING WHICH WAS PROPOSED IN CONNECTION WITH THE
INADMISSIBLE APPLICATION FOR DAMAGES. 22

On June 13, 1989, this Court issued the following Resolution:

G.R. No. 88373 (Juan Ponce Enrile vs. Hon. Ignacio Capulong, et al.). — Acting on the special civil action for  certiorari and prohibition
with prayer for a writ of preliminary injunction and/or restraining order, the Court Resolved, without giving due course to the petition, to
require the respondents to COMMENT thereon, within then (10) days from notice.

The Court further Resolved to ISSUE a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders
from this Court, ordering the respondent judge from implementing the questioned Orders (dated May 2, 1989 and June 1, 1989) issued
by him in Civil Case No. 88-151, entitled "Juan Ponce Enrile vs. Ayer Productions, Pty. Ltd.", from conducting further proceedings in
Ayers application for damages against the injunction bond and from taking depositions or conducting other discovery proceedings, or any
other proceedings. 23

On June 21, 1989, the private respondent filed its comment, holding that:

RESPONDENT JUDGE ACTED CORRECTLY WHEN HE REFUSED TO ACCEPT PETITIONER'S GRATUITOUS CLAIM THAT THE
DECISION OF THIS HONORABLE SUPREME COURT IN G.R. NO. 82380, "OPERATED TO DISMISS" CIVIL CASE NO. 88-151, AND
THAT THE 15-DAY PERIOD FOR FINALITY OF THE DECISION SHOULD BE COUNTED FROM RECEIPT OF THIS HONORABLE
COURTS DECISION. 24

II

THE TRIAL COURT ACTED CORRECTLY WHEN IT ALLOWED [THE PRIVATE RESPONDENT] TO TAKE THE DEPOSITION BY
ORAL INTERROGATORIES OF ITS WITNESSES TO PROVE THE DAMAGES IT SUSTAINED AS A RESULT OF THAT INJUNCTION.
THE CLAIM THAT [THE PRIVATE RESPONDENT] VIOLATED THE INJUNCTION IS FALSE. 25

III

THE RESPONDENT JUDGE ACTED CORRECTLY WHEN IT ALLOWED [THE PRIVATE RESPONDENT] TO EXERCISE ITS RIGHT
TO TAKE ITS WITNESSES' DEPOSITION BY ORAL INTERROGATORIES SINCE PETITIONERS GRATUITOUS SPECULATION
THAT [THE PRIVATE RESPONDENT] "CAUSED ITS OWN DAMAGES" IS A FACTUAL ISSUE SUBJECT TO PROOF. 26
 16

IV

THE TRIAL COURT ACTED PROPERLY IN ALLOWING THE DEPOSITION TAKING. 27

After exchanges of further pleadings, this Court issued a Resolution considering the private respondent's Comment as an Answer, giving due course to the
petition, and correcting the parties to file their Memoranda. 28

A rule firmly settled in this jurisdiction is that a claim for damages arising from a wrongful injunction should be filed in the main case with notice to the
surety. 29 If the lower court's decision, denying injunction, is however appealed to the Appellate Court, and the latter affirms the denial, the application may be
commenced in the Appellate Court, which may either direct a remand of the case for reception of evidence or otherwise hear the claim itself. 30 So also, it
must be commenced before judgment attains finality. 31 Otherwise, it is barred. Thus, it is provided under Section 9, Rule 58, of the Rules of Court, in relation
to Section 20, Rule 57 thereof —

Sec. 9. Judgment to include damages against party and sureties . — Upon the trial the amount of damages to be awarded to the plaintiff,
or to the defendant, as the case may be, upon the bond of the other party, shall be claimed, ascertained, and awarded under the same
procedure as prescribed in section 20 of Rule 57.

It has been held that this procedure is mandatory, and the failure to observe it deprives the aggrieved party the right to proceed against the surety bond. 32

The Court finds that the single most important question that confronts it pertains to whether or not the claim for damages was filed before finality of judgment.
Corollarily, whose "judgment" is to be considered, ours or the respondent court's?

The petitioner contends that the reckoning point should be prior to June 20, 1988, the date our Decision became final by virtue of the issuance of an Entry of
Judgment. On the other hand, the private respondent insists that our Decision delved alone on the incidental issue of whether or not a writ of preliminary
injunction was proper, and avoided the case on the merits, amongst others, as to damages. Hence, so it is submitted, the departure point should be January
19, 1989, the date the respondent Judge issued the Order dismissing the case. The issue then turns on whether or not our Decision was one on the merits
of Civil Case No. 88-151, for if it was so, it is the Decision to be considered, and the point of reference should be prior to June 20, 1988, the date judgment
was entered.

Ayer Productions Pty. Ltd. vs. Capulong, so we hold, is in the nature of disposition of Civil Case No. 88-151 before Judge Ignacio Capulong on its merits.
Hence, when we held in that case that the petitioner was not entitled to injunctive relief, we spoke in the clearest terms possible that the petitioner lacked any
cause of action for injunction, whether preliminary or permanent. It is notable that, as Ayer decreed in part.

. . . The limited Temporary Restraining Order granted by this Court on 24 March 1988 is hereby MODIFIED  by enjoining unqualifiedly the
implementation of respondent Judge's Order of 16 March 1988 and made PERMANENT . . . 33

If we made the Temporary Restraining Order (TRO) of March 24, 1988 permanent, it means that no injunctive writ may be issued in any manner whatsoever,
because, as we said there: "The production and filming by petitioners of the projected motion picture "The Four Day Revolution" does not, in the
circumstances of this case, constitute an unlawful intrusion upon [the petitionersl "right of privacy,"" 34 and that injunction was a prior restraint to free speech
and consequently, injunction was not permissible. Accordingly, there is no doubt that when we gave due course to the private respondent's Petition, and
made the TRO permanent. we could not have been any more clear that we were disposing of Civil Case No. 88-151 on the merits. And when we granted the
private' respondent's Petition, we also unavoidably dismissed Civil Case No. 88-151.

It is also to be noted that the petitioner's Complaint was in essence one for injunction, and corrollarily for the issuance of preliminary injunction pending
further proceedings. The fact that it also prayed for damages, the question of which the private respondent alleges has been left untouched, is insignificant,
because demands for damages customarily shadow actions for injunction. In the petitioner's Complaint, it was prayed thus:

WHEREFORE, plaintiff respectfully prays that:

1. Upon the filing of this Complaint, this Court issue a temporary restraining order enjoining defendants and all persons and entities
employed or under contract with them, including actors, actresses and members of the production staff and crew, as well as all persons
and entities acting on defendants' behalf, from producing, filming, distributing and exhibiting the aforesaid mini-series and from making
any reference whatsoever to plaintiff or his family or creating any fictitious character in lieu of plaintiff which nevertheless is based on, or
bear remote, substantial or marked resemblance or similarity to, or is otherwise identifiable with, plaintiff, in the production, filming,
distribution, promotion, airing or exhibition of any similar film or photoplay.

2. After notice and hearing, and the filing of such bond as may be required, this Court convert the foregoing temporary restraining order
into a writ of preliminary injunction.

3. After trial of the issues, this Court convert the writ of preliminary injunction into a permanent injunction and, further, order defendants
to pay plaintiff the following:

a) P1 Million by way of moral damages;

b) P1 Million by way of exemplary damages; and

c) P300,000.00 by way of attomey's fees and costs of litigation

Plaintiff prays for such further and other relief as may be deemed just or equitable. 35

Again, when this Court declared that the petitioner had no cause of action for injunction because, first, of an insufficient showing of invasion of his privacy,
and second, because injunction operated as a prior restraint to the guaranty of free expression, we declared to all intents and purposes, that he, the
petitioner, had no right of relief whatsoever, preliminary or permanent injunction or damages. And when we declared so, there was therefore absolutely
 17

nothing else for Judge Capulong to hear and decide. Certainly, His Honor could not have further acted on petitioner Enrile's right to stop the of the motion
picture in question, when we had already spoken: petitioner Enrile had no right.

It is not indeed surprising that in its "Motion to Resolve" (the Motion to Dismiss)  36 the private respondent relied on our very Decision to portray the invalidity
of the Complaint, thus:

ASSUMING THAT THE FILM THE FOUR-DAY REVOLUTION HAS BEEN COMPLETED, NEVERTHELESS THE COMPLAINT WOULD STATE NO
CAUSE OF ACTION. 37

For if there was indeed something left for the court a quo to try, the private respondent should have asked for trial. Obviously, however, this would have been
poor strategy because in that event, it would have been hard put to justify a request for trial after having moved for dismissal from the beginning.

The Court's ruling, therefore, is that the private respondent's claim for damages brought about by a wrongful function should have been commenced prior to
June 20, 1988 (the date Ayer judgment was entered) either with this Court or with the court below. What is plain is that it had neglected to file its claim
speedily and seasonably, and for what clearly emerges as an effort to revive a lost opportunity, it sought a court order to raise the case long decided by this
Court as having had no leg on which to stand.

The private respondent can not deny the application of Rivera v. Talavera, 38 where we said that the request for damages arising from injunction may be
ventilated in the Appellate Court, because although  Talavera involved an appeal, whereas Ayer was one for certiorari (special civil action), the distinction is,
for purposes hereof, tenuous because, in both cases, there was a final resolution on the merits that left nothing for the trial court to adjudicate.

Because the case had achieved a character of finality, it follows that all proceedings below, including the request for deposition, after June 20, 1988, are void
and of no effect. The challenged Orders, dated May 2,1989 and June 1, 1989, respectively, are equally null and inexistent.

WHEREFORE the Petition is GRANTED. The Order, dated May 2, 1989, and the Order, dated June 1, 1989, are declared NULL AND VOID.

Costs against the private respondents.

SO ORDERED.

Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Padilla, Bidin, Cortes, Griño-Aquino and Regalado, JJ., concur.

Medialdea, J., took no part.

Gancayco, J., is on leave.

Separate Opinions 

NARVASA, J., dissenting:

I regret my inability to give my concurrence to the well written  ponencia of my esteemed colleague, Mr. Justice Abraham F. Sarmiento. I feel however that
what I take to be the applicable legal and jurisprudential principles suggest conclusions different from those reached by him.

There can, of course, be no quarrel with Mr. Justice Sarmiento's succinct statement' of the rule, "firmly settled in this jurisdiction, . . . that a claim for
damages arising from a wrongful injunction should be filed in the main case with notice to the surety, 29" and that —

. . . If the lower court's decision, denying injunction, is however appealed to the Appellate Court, and the latter affirms the denial, the
application may be commenced in the Appellate Court, which may either direct a remand of the case for reception of evidence or
otherwise hear the claim itself 30 So also, it must be commenced before judgment attains finality. 31 Otherwise, it is barred * . . .

It has been held that this procedure is mandatory, and the failure to observe it deprives the aggrieved party the right to proceed against
the surety bond. 32

Application of the rule presents no difficulty in a situation where judgment is rendered by the Court of Appeals or this Court on an appeal from the decision
on the merits of a Trial Court.

The case at bar, however, treats not of an appeal, but of special civil actions of  certiorari instituted in this Court 2 by parties defendant aggrieved by a
preliminary injunction issued by a Regional Trial Court shortly after commencement of suit against them and before presentation of any answer and/or
counterclaim. The suit was commenced by Senator Juan Ponce Enrile in the Regional Trial Court at Makati, and was there docketed as Civil Case No. 88-
151, and sought to perpetually enjoin the defendants, Ayer Productions Pty. Ltd. and Hal McElroy, from producing a (so-called mini-series) movie, "The Four
Day Revolution," it being claimed that production, undertaken without Enrile's consent and over his objection, was a violation of his constitutional right of
privacy.

The special civil actions of certiorari in this Court resulted in a judgment setting aside the Trial Court's order of injunction and permanently enjoining its
implementation, and directing the Trial Judge in Civil Case No. 88-413 to dismiss the action itself.  3 The judgment became final, and entry thereof was made
on June 20, 1988.

On remand of the case, Civil Case No. 88-151 was dismissed by Order rendered on January 19, 1989 by the Trial Court, acting on a pending motion for
such dismissal filed shortly after commencement of the suit by one of the defendants Ayer Productions Pty., Ltd.).

Before the expiration of 15 days from notice of the Order of dismissal of January 19, 1989, one of the defendants Ayer Productions — claiming to have
suffered damages by reason of the preliminary injunction earlier issued — moved, with notice to the surety on the injunction bond, for leave to present
 18

evidence on said damages, with a view to holding the surety liable therefor. Senator Enrile opposed the motion, as well as Ayers attempts to take the
depositions of certain witnesses in Australia. After an exchange of pleadings, the Trial Judge ruled, by Order dated June 1, 1989, that Senator Enrile's
objections should be overruled and his motion for reconsideration denied; that Ayer Productions' "right . . . to file its application and claim for damages under
the injunction bond" should be recognized; and that the application had been timely filed, i.e., before finality of its order of dismissal of January 19, 1989. This
is the Order that Senator Enrile now impugns (in G.R. No. 88373).

As Mr. Justice Sarmiento puts it, the "single most important question that (arises is) whether or not the claim for damages was filed before finality of
judgment . . . (and) (c)orollarily, whose 'judgment' is to be considered, ours or the respondent court's (order of January 19, 1989 dismissing the action,
supra )?"

There can be no doubt that this Court's decision of April 29, 1988 in G.R. Nos. 82380 and 82398, was a definite pronouncement that Senator Enrile had no
cause of action in Civil Case No. 88-151 of the Makati RTC, which should therefore be dismissed on that account. The decision was  res judicata inso far as
concerned Senator Enrile's cause of action. But it could not be so considered as regards Senator Enrile's liability to the defendants for damages. That
decision could not be construed as absolving Senator Enrile from liability for such damages as might have been caused to Ayer Productions Pty. Ltd (or its
co-defendant, Hal McElroy) by his unfounded action and the preliminary injunction wrongly obtained by him. That liability could be claimed and enforced
against him independently of that of the surety which posted the injunction bond in his behalf in accordance with Rule 58.

The posting of a bond in connection with a preliminary injunction (or attachment [under Rule 571], or receivership [under Rule 591, or seizure or delivery of
personal property [under Rule 60]) does not operate to relieve the party obtaining an injunction from any and all responsibility for the damages that the writ
may thereby cause. It merely gives additional protection to the party against whom the injunction is directed. It gives the latter a right of recourse against
either the applicant or his surety, or against both.

The liabilities of the party obtaining the injunction and of his surety, although usually spoken of conjointly are in truth distinct and separate. While those
liabilities have a common origin — according to the main  ponencia "demands for damages customarily shadow actions for injunction they" — are not
identical. The surety's liability is limited by the amount set out in its bond; the principal's is not. The principal's liability must be ascertained at a trial on the
merits; the surety's, either at such trial, or at a summary hearing prior to the finality of judgment.

If the damages resulting from an injunction wrongfully issued exceed the amount set forth in the injunction bond, the balance may be recovered from the
party at whose instance the injunction issued. In fact, it may well happen that the surety becomes bankrupt during the pendency of the action, resulting in its
inability to pay for the damages caused by the injunction; this would have no effect on the plaintiffs own liability for those damages.

When entry of the judgment in G.R. Nos. 82380 and 82398 was made on June 20, 1988, Civil Case No. 88-151 was still pending. Indeed, it was not
dismissed until January 19, 1989 as above mentioned. Since said judgment did not settle Senator Enrile's liability to the defendants for damages, it does not
seem correct to state that it "left nothing for the trial court to adjudicate." At that time, defendant Ayer Productions had, theoretically at least, the option either
(1) to file its answer with counterclaim, withdrawing its pending motion to dismiss, and claim from the plaintiff, Senator Enrile, whatever damages it might
have suffered by reason of the unfounded suit and the wrongful injunction, or, as was the quicker way, (2) to waive its claim against the plaintiff itself and
attempt to hold only the surety liable upon its injunction bond. It would appear that Ayer Productions availed of the latter course of action. It stood on its
pending motion to dismiss, thus in effect waiving the filing of a counterclaim against Senator Enrile personally; but it did make known that it was pursuing its
claim against the surety upon its bond; and it did file its claim against the surety before the Order of dismissal of January 19, 1989 became final.

The special civil action of certiorari in this Court, docketed as G.R. Nos. 82380 and 82398, was not the proper action in which the matter of the surety's
liability upon an injunction bond posted by it in Civil Case No. 88-151 could be ventilated and resolved. The  certiorari action was separate from and
independent of Civil Case No. 88-151. It dealt chiefly only with the propriety of the issuance of a preliminary injunction in said Civil Case No. 88-151. The
issue of liabilities of the parties on the merits in Civil Case No. 88-151, as among themselves, was peculiarly within the Trial Court's competence. It was not
an issue in the certiorari action in this Court. The Trial Court acquired jurisdiction over the surety when it voluntarily submitted itself to that Court's authority
by posting the injunction bond undertaking to indemnify the parties against whom the injunction was issued for the damages thereby caused to them. This
Court, on the other hand, never acquired jurisdiction over the surety. No final judgment or order of the RTC was ever appealed to this Court. No bond was
ever filed by the surety in this Court in relation to the Trial Court's injunction. The surety never voluntarily appeared in the certiorari action; and no summons
or other process emanating from this Court was ever served on it so as to bring it within this Court's jurisdiction. Upon these premises, it would appear that it
is in the action before the Trial Court (Civil Case No. 88-151), rather than in the certiorari suit in this Court, that the damages resulting from the injunction
may be recovered, upon application with due notice to the applicant and his surety or sureties, in accordance with Section 20, Rule 57 in relation to Section
9, Rule 58 of the Rules of Court.

I therefore vote to DISMISS the petition, and to sustain the respondent Court's challenged Orders of May 2, and June 1, 1989.

Fernan, C.J. and Feliciano, JJ., concur. 

4. G.R. No. 133486           January 28, 2000

ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

PANGANIBAN, J.:

The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press.
Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary, exit polls — properly
conducted and publicized — can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by
the Comelec so as to minimize or suppress the incidental problems in the conduct of exit polls, without transgressing in any manner the fundamental rights
of our people.

The Case and the Facts

 19

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections (Comelec) en banc Resolution No. 98-
14191 dated April 21, 1998. In the said Resolution, the poll body RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other
groups, its agents or representatives from conducting such exit survey and to authorize the Honorable Chairman to issue the same.

The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-CBN (Lopez Group) has prepared a project, with
PR groups, to conduct radio-TV coverage of the elections . . . and to make [an] exit survey of the . . . vote during the elections for national officials
particularly for President and Vice President, results of which shall be [broadcast] immediately." 2 The electoral body believed that such project might conflict
with the official Comelec count, as well as the unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted that it had not
authorized or deputized Petitioner ABS-CBN to undertake the exit survey.

On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We directed the Comelec to cease and desist, until further
orders, from implementing the assailed Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were actually conducted and
reported by media without any difficulty or problem.

The Issues

Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of discretion amounting to a lack or excess of
jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any [other group], its agents or representatives from conducting
exit polls during the . . . May 11 elections."3

In his Memorandum,4 the solicitor general, in seeking to dismiss the Petition, brings up additional issues: (1) mootness and (2) prematurity, because of
petitioner's failure to seek a reconsideration of the assailed Comelec Resolution.

The Court's Ruling

The Petition5 is meritorious.

Procedural Issues:

Mootness and Prematurity

The solicitor general contends that the petition is moot and academic, because the May 11, 1998 election has already been held and done with. Allegedly,
there is no longer any actual controversy before us.

The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998 election, its implications on the people's fundamental
freedom of expression transcend the past election. The holding of periodic elections is a basic feature of our democratic government. By its very nature, exit
polling is tied up with elections. To set aside the resolution of the issue now will only postpone a task that could well crop up again in future elections. 6

In any event, in Salonga v. Cruz Paño, the Court had occasion to reiterate that it "also has the duty to formulate guiding and controlling constitutional
principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional
guarantees."7 Since the fundamental freedoms of speech and of the press are being invoked here, we have resolved to settle, for the guidance of posterity,
whether they likewise protect the holding of exit polls and the dissemination of data derived therefrom.

The solicitor general further contends that the Petition should be dismissed for petitioner's failure to exhaust available remedies before the issuing forum,
specifically the filing of a motion for reconsideration.

This Court, however, has ruled in the past that this procedural requirement may be glossed over to prevent a miscarriage of justice, 8 when the issue involves
the principle of social justice or the protection of labor, 9 when the decision or resolution sought to be set aside is a nullity, 10 or when the need for relief is
extremely urgent and certiorari is the only adequate and speedy remedy available.11

The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only twenty (20) days before the election itself. Besides, the
petitioner got hold of a copy thereof only on May 4, 1998. Under the circumstances, there was hardly enough opportunity to move for a reconsideration and
to obtain a swift resolution in time or the May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves transcendental
constitutional issues. Direct resort to this Court through a special civil action for certiorari is therefore justified.

Main Issue:

Validity of Conducting Exit Polls

An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an
election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. The results of
the survey are announced to the public, usually through the mass media, to give an advance overview of how, in the opinion of the polling individuals or
organizations, the electorate voted. In our electoral history, exit polls had not been resorted to until the recent May 11, 1998 elections.

In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the mass media, committed to report balanced election-
related data, including "the exclusive results of Social Weather Station (SWS) surveys conducted in fifteen administrative regions."

It argues that the holding of exit polls and the nationwide reporting their results are valid exercises of the freedoms of speech and of the press. It submits
that, in precipitately and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely abused its discretion and grossly violated
the petitioner's constitutional rights.
 20

Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it gravely abused its discretion. It insists that the issuance
thereof was "pursuant to its constitutional and statutory powers to promote a clean, honest, orderly and credible May 11, 1998 elections"; and "to protect,
preserve and maintain the secrecy and sanctity of the ballot." It contends that "the conduct of exit surveys might unduly confuse and influence the voters,"
and that the surveys were designed "to condition the minds of people and cause confusion as to who are the winners and the [losers] in the election," which
in turn may result in "violence and anarchy."

Public respondent further argues that "exit surveys indirectly violate the constitutional principle to preserve the sanctity of the ballots," as the "voters are lured
to reveal the contents of ballots," in violation of Section 2, Article V of the Constitution; 12 and relevant provisions of the Omnibus Election Code. 13 It submits
that the constitutionally protected freedoms invoked by petitioner "are not immune to regulation by the State in the legitimate exercise of its police power,"
such as in the present case.

The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and present danger of destroying the credibility and integrity
of the electoral process," considering that they are not supervised by any government agency and can in general be manipulated easily. He insists that these
polls would sow confusion among the voters and would undermine the official tabulation of votes conducted by the Commission, as well as the quick count
undertaken by the Namfrel.

Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more narrowly defined: May the Comelec, in the exercise of
its powers, totally ban exit polls? In answering this question, we need to review quickly our jurisprudence on the freedoms of speech and of the press.

Nature and Scope of Freedoms of Speech and of the Press

The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred' right and, therefore, stands on a higher level than
substantive economic or other liberties. . . . [T]his must be so because the lessons of history, both political and legal, illustrate that freedom of thought and
speech is the indispensable condition of nearly every other form of freedom." 14

Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press. 15 In the landmark case Gonzales
v. Comelec,16 this Court enunciated that at the very least, free speech and a free press consist of the liberty to discuss publicly and truthfully any matter of
public interest without prior restraint.

The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the people in social and political
decision-making, and of maintaining the balance between stability and change. 17 It represents a profound commitment to the principle that debates on public
issues should be uninhibited, robust, and wide open. 18 It means more than the right to approve existing political beliefs or economic arrangements, to lend
support to official measures, or to take refuge in the existing climate of opinion on any of public consequence. And paraphrasing the eminent Justice Oliver
Wendell Holmes,19 we stress that the freedom encompasses the thought we hate, no less than the thought we agree with.

Limitations

The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of the press. Such freedoms could not
remain unfettered and unrestrained at all times and under all circumstances. 20 They are not immune to regulation by the State in the exercise of its police
power.21 While the liberty to think is absolute, the power to express such thought in words and deeds has limitations.

In Cabansag v. Fernandez22 this Court had occasion to discuss two theoretical test in determining the validity of restrictions to such freedoms, as follows:

These are the "clear and present danger" rule and the "dangerous tendency" rule. The first, as interpreted in a number of cases, means that the
evil consequence of the comment or utterance must be "extremely serious and the degree of imminence extremely high" before the utterance can
be punished. The danger to be guarded against is the "substantive evil" sought to be prevented. . . . 23

The "dangerous tendency" rule, on the other hand, . . . may be epitomized as follows: if the words uttered create a dangerous tendency which the
state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or
unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably
calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be
to bring about the substantive evil which the legislative body seeks to prevent. 24

Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias v. Fugoso 25 and American Bible
Society v. City of Manila;26 as well as in later ones, Vera v. Arca,27 Navarro v. Villegas,28 Imbong v. Ferrer,29 Blo Umpar Adiong v. Comelec30 and, more
recently, in Iglesia ni Cristo v. MTRCB.31 In setting the standard or test for the "clear and present danger" doctrine, the Court echoed the words of Justice
Holmes: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." 32

A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a right to prevent. Unlike in the
"dangerous tendency" doctrine, the danger must not only be clear but also present. "Present" refers to the time element; the danger must not only be
probable but very likely to be inevitable. 33 The evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a
writing instrument.34

Justification for a Restriction

Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption. The power to exercise prior
restraint is not to be presumed; rather the presumption is against its validity. 35 And it is respondent's burden to overthrow such presumption. Any act that
restrains speech should be greeted with furrowed brows, 36 so it has been said.

To justify a restriction, the promotion of a substantial government interest must be clearly shown. 37 Thus:
 21

A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an important or substantial
government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the furtherance of that interest. 38

Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal
liberties, when the end can be more narrowly achieved. 39

The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the dissemination of information meant. to add
meaning to the equally vital right of suffrage. 40 We cannot support any ruling or order "the effect of which would be to nullify so vital a constitutional right as
free speech."41 When faced with borderline situations in which the freedom of a candidate or a party to speak or the freedom of the electorate to know is
invoked against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom. For in the ultimate analysis, the freedom
of the citizen and the State's power to regulate should not be antagonistic. There can be no free and honest elections if, in the efforts to maintain them, the
freedom to speak and the right to know are unduly curtailed. 42

True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe and accessible. It has the duty to
secure the secrecy of the ballot and to preserve the sanctity and the integrity of the electoral process. However, in order to justify a restriction of the people's
freedoms of speech and of the press, the state's responsibility of ensuring orderly voting must far outweigh them.

These freedoms have additional importance, because exit polls generate important research data which may be used to study influencing factors and trends
in voting behavior. An absolute prohibition would thus be unreasonably restrictive, because it effectively prevents the use of exit poll data not only for
election-day projections, but also for long-term research. 43

Comelec Ban on Exit Polling

In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its constitutional mandate to ensure a free, orderly,
honest, credible and peaceful election. While admitting that "the conduct of an exit poll and the broadcast of the results thereof [are] . . . an exercise of press
freedom," it argues that "[p]ress freedom may be curtailed if the exercise thereof creates a clear and present danger to the community or it has a dangerous
tendency." It then contends that "an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees, which further make[s]
the exit poll highly unreliable. The probability that the results of such exit poll may not be in harmony with the official count made by the Comelec . . . is ever
present. In other words, the exit poll has a clear and present danger of destroying the credibility and integrity of the electoral process."

Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees or participants are selected at random,
so that the results will as much as possible be representative or reflective of the general sentiment or view of the community or group polled. Second, the
survey result is not meant to replace or be at par with the official Comelec count. It consists merely of the opinion of the polling group as to who the
electorate in general has probably voted for, based on the limited data gathered from polled individuals. Finally, not at stake here are the credibility and the
integrity of the elections, which are exercises that are separate and independent from the exit polls. The holding and the reporting of the results of exit polls
cannot undermine those of the elections, since the former is only part of the latter. If at all, the outcome of one can only be indicative of the other.

The Comelec's concern with the possible noncommunicative effect of exit polls — disorder and confusion in the voting centers — does not justify a total ban
on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without qualification as to whether the polling is disruptive or
not.44 Concededly, the Omnibus Election Code prohibits disruptive behavior around the voting centers. 45 There is no showing, however, that exit polls or the
means to interview voters cause chaos in voting centers. Neither has any evidence been presented proving that the presence of exit poll reporters near an
election precinct tends to create disorder or confuse the voters.

Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable information and ideas that could be
derived from them, based on the voters' answer to the survey questions will forever remain unknown and unexplored. Unless the ban is restrained,
candidates, researchers, social scientists and the electorate in general would be deprived of studies on the impact of current events and of election-day and
other factors on voters' choices.1âwphi1.nêt

In Daily Herald Co. v. Munro,46 the US Supreme Court held that a statute, one of the purposes of which was to prevent the broadcasting of early returns, was
unconstitutional because such purpose was impermissible, and the statute was neither narrowly tailored to advance a state interest nor the least restrictive
alternative. Furthermore, the general interest of the State in insulating voters from outside influences is insufficient to justify speech regulation. Just as
curtailing election-day broadcasts and newspaper editorials for the reason that they might indirectly affect the voters' choices is impermissible, so is
impermissible, so is regulating speech via an exit poll restriction. 47

The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel of communication to gather the type
of information obtained through exit polling. On the other hand, there are other valid and reasonable ways and means to achieve the Comelec end of
avoiding or minimizing disorder and confusion that may be brought about by exit surveys.

For instance, a specific limited area for conducting exit polls may be designated. Only professional survey groups may be allowed to conduct the same.
Pollsters may be kept at a reasonable distance from the voting center. They may be required to explain to voters that the latter may refuse interviewed, and
that the interview is not part of the official balloting process. The pollsters may further be required to wear distinctive clothing that would show they are not
election officials.48 Additionally, they may be required to undertake an information campaign on the nature of the exercise and the results to be obtained
therefrom. These measures, together with a general prohibition of disruptive behavior, could ensure a clean, safe and orderly election.

For its part, petitioner ABS-CBN explains its survey methodology as follows: (1) communities are randomly selected in each province; (2) residences to be
polled in such communities are also chosen at random; (3) only individuals who have already voted, as shown by the indelible ink on their fingers, are
interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results are released to the public only on the day after the elections. 49 These
precautions, together with the possible measures earlier stated, may be undertaken to abate the Comelec's fear, without consequently and unjustifiably
stilling the people's voice.

With the foregoing premises, we conclude that the interest of the state in reducing disruption is outweighed by the drastic abridgment of the constitutionally
guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting elections, exit polls — properly conducted and publicized — can
be vital tools for the holding of honest, orderly, peaceful and credible elections; and for the elimination of election-fixing, fraud and other electoral ills.
 22

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is off-tangent to the real issue. Petitioner
does not seek access to the ballots cast by the voters. The ballot system of voting is not at issue here.

The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited from exhibiting the contents
of their official ballots to other persons, from making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also proscribed is
finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is
forbidden is the association of voters with their respective votes, for the purpose of assuring that the votes have been cast in accordance with the
instructions of a third party. This result cannot, however, be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom they
have voted for.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory, but
voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to
minimize or suppress incidental problems in the conduct of exit polls, without transgressing the fundamental rights of our people.

WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on May 9, 1998 is made PERMANENT. Assailed
Minute Resolution No. 98-1419 issued by the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Quisumbing, Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Kapunan, J., see dissenting opinion.
Vitug, J., please see separate opinion.
Melo and Mendoza, JJ., are join the separate opinion of Justice Vitug.
Pardo, J., took no part.

Separate Opinions

KAPUNAN, J., dissenting opinion;

I share the view of Justice Jose C. Vitug in his Separate Opinion that the case is technically moot. Since the Comelec has not declared exit polls to be illegal
and neither did the petitioner present its methodology or system of conducting the exit polls to the poll body, the nullification of the Comelec's questioned
resolution is bereft of empirical basis. The decision of this Court constitutes a mere academic exercise in view of the premature nature of the issues and the
lack of "concreteness" of the controversy. I wish however, to express my thoughts on a few material points.

The majority opinion cites the general rules that any restrictions to freedom of expression would be burdened with a presumption of invalidity and should be
greeted with "furrowed brews."1 While this has been the traditional approach, this rules does not apply where, as in this case, the Comelec exercised its
Constitutional functions of securing the secrecy and sanctity of the ballots and ensuring the integrity of the elections. Thus, Mr. Justice Feliciano in  National
Press (NPC) v. Comelec2 wrote:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of supervisory or
regulatory authority on the part of the COMELEC for the purpose of securing equal opportunity among candidates for political office, although such
supervision or regulation may result in some limitation of the right of free speech and free press. For supervision or regulation of the operations of
media enterprises is scarcely conceivable without such accompanying limitation. Thus, the applicable rule is the general, time honored one — that
a statute is presumed to be constitutional and that the party asserting its unconstitutionality must discharge the burden of clearly and convincingly
proving that assertion.3

The NPC decision holds that if the right to free speech collides with a norm of constitutional stature, 4 the rule on heavy presumption of invalidity does not
apply.

Our Constitution mandates the Comelec to enforce and administer laws and regulations relative to the conduct of elections and to secure the secrecy and
sanctity of the ballots to ensure orderly, honest, credible and peaceful elections. 5 This Constitutional provision effectively displaces the general presumption
of invalidity in favor of the presumption that Comelec acted in the exercise of its constitutionally mandated powers. If no presumption of invalidity arises, I see
no occasion for the application of the "clear and present danger test." As this Court, through Mr. Justice Mendoza, succinctly observed:

. . . the clear-and-present danger test is not, however, a sovereign remedy for all free speech problems. As has been pointed out by a thoughtful
student of constitutional law, it was originally formulated for the criminal law and only later appropriated for free speech cases. For the criminal law
is necessarily concerned with the line at which innocent preparation ends and guilty conspiracy or attempt begins. Clearly, it is inappropriate as a
test for determining the constitutional validity of law which, like §11(b) of R.A. No. 6646, are not concerned with the content of political ads but only
with their incidents. To apply the clear-and-present danger test to such regulatory measures would be like using a sledgehammer to drive a nail
when a regular hammer is all that is needed.6

On the matter of methodology in conducting polls, petitioner gave assurance that the exit poll results will only be made public a day after the elections, in
order to allay fears of "trending," "bandwagon-effect" or disruption. This offers little comfort considering the state of our country's electoral system. Unlike in
other countries where voting and counting are computerized, our elections are characterized by snail-paced counting. It is not infrequent that postponement,
failure or annulment of elections occur in some areas designated as election hot spots. 7 Such being the case, exit poll results made public after the day of
voting in the regular elections but before the conduct of special elections in these areas may potentially pose the danger of "trending," "bandwagon-effect"
and disruption of elections.

In view of the foregoing discussion, I believe the Comelec committed no abuse of discretion in issuing the assailed temporary restraining order stopping
petitioner from conducting exit polls. I, therefore, vote to DENY the petition.
 23

VITUG, J., separate opinion;

The instant petition, now technically moot, presents issues so significantly that a slights change of circumstances can have a decisive effect on, and possibly
spell a difference in, the final outcome of the case. I am not inclined to take the case in an academic fashion and pass upon the views expressed by either
party in preemptive judgment.

While I understand what the ponencia is saying quite laudably, I also appreciate, upon the other hand, the concern of the Commission on Elections, i.e., that
the conduct of exit polls can have some adverse effects on the need to preserve the sanctity of the ballot. The Commission performs an indispensable task
of ensuring free, honest, and orderly elections and of guarding against any frustration of the true will of the people. Expectedly, it utilizes all means available
within its power and authority to prevent the electoral process from being manipulated and rendered an absurdity. Like my colleagues, I greatly prize the
freedom of expression but, so also, I cherish no less the right of the people to express their will by means of the ballot. In any case, I must accept the reality
that the right to information and free speech is not illimitable and immune from the valid exercise of an ever demanding and pervasive police power. Whether
any kind of restraint should be upheld or declared invalid in the proper balancing of interest is one that must be resolved at any given moment, not on
perceived circumstances, but on prevailing facts.

Neither of the advocations proffered by the parties in this instance, I believe, should be foreclosed by the Court at this time.

I vote, therefore, to dismiss the petition on the foregoing thesis.

5. G.R. No. 159751             December 6, 2006

GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners, vs. COURT OF APPEALS, respondent.

DECISION

QUISUMBING, J.:

This petition for review on certiorari assails the Decision 1 dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of Appeals in CA-
G.R. CR No. 25796, which affirmed the Decision of the Regional Trial Court of Manila (RTC), Branch 21, in Criminal Case No. 99-176582.

The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article 201 2 of the Revised Penal Code, as amended by Presidential
Decree Nos. 960 and 969, and sentenced each to imprisonment of four (4) years and one (1) day to six (6) years of  prision correccional, and to pay the fine
of P6,000 and cost of suit.

The facts as culled from the records are as follows.

Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National Police Criminal Investigation and Detection Group in
the National Capital Region (PNP-CIDG NCR) conducted police surveillance on the store bearing the name of Gaudencio E. Fernando Music Fair (Music
Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch 19, issued Search Warrant No. 99-1216 for violation of Article
201 of the Revised Penal Code against petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered the search of Gaudencio E.
Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street, Quiapo, Manila, and the seizure of the following items:

a. Copies of New Rave Magazines with nude obscene pictures;

b. Copies of IOU Penthouse Magazine with nude obscene pictures;

c. Copies of Hustler International Magazine with nude obscene pictures; and

d. Copies of VHS tapes containing pornographic shows. 3

On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who, according to the prosecution, introduced himself as
the store attendant of Music Fair. The police searched the premises and confiscated twenty-five (25) VHS tapes and ten (10) different magazines, which they
deemed pornographic.

On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information which reads as follows:

That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did then and there willfully, unlawfully, feloniously, publicly and
jointly exhibit indecent or immoral acts, scenes or shows at Music Fair, located at 564 Quezon Blvd., corner Zigay [S]t., Quiapo[,] this City[,] by
then and there selling and exhibiting obscene copies of x-rated VHS Tapes, lewd films depicting men and women having sexual intercourse[,] lewd
photographs of nude men and women in explicating (sic) positions which acts serve no other purpose but to satisfy the market for lust or
pornography to public view.

Contrary to law.4

When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter, trial ensued.

The prosecution offered the confiscated materials in evidence and presented the following witnesses: Police Inspector Rodolfo L. Tababan, SPO4 Rolando
Buenaventura and Barangay Chairperson Socorro Lipana, who were all present during the raid. After the prosecution presented its evidence, the counsel for
 24

the accused moved for leave of court to file a demurrer to evidence, which the court granted. On October 5, 2000, the RTC however denied the demurrer to
evidence and scheduled the reception of evidence for the accused. A motion for reconsideration was likewise denied.

Thereafter, the accused waived their right to present evidence and instead submitted the case for decision. 5

The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners as follows:

WHEREFORE, premises considered, the Court finds accused GAUDENCIO FERNANDO and RUDY ESTORNINOS GUILTY beyond reasonable
doubt of the crime charged and are hereby sentenced to suffer the indeterminate penalty of FOUR (4) YEARS and ONE (1) DAY as minimum to
SIX (6) YEARS of prision correccional as maximum, to pay fine of P6,000.00 each and to pay the cost.

For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY beyond reasonable doubt, he is hereby ACQUITTED of the crime
charged.

The VHS tapes and the nine (9) magazines utilized as evidence in this case are hereby confiscated in favor of the government.

SO ORDERED.6

Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the decision of the trial court, as follows,

WHEREFORE, finding no reversible error on the part of the trial court, the decision appealed from is AFFIRMED IN TOTO.

Costs against accused-appellants.

SO ORDERED.7

Hence the instant petition assigning the following errors:

I. Respondent court erred in convicting petitioner Fernando even if he was not present at the time of the raid

II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at the time of the raid. 8

Simply, the issue in this case is whether the appellate court erred in affirming the petitioners’ conviction.

Petitioners contend that the prosecution failed to prove that at the time of the search, they were selling pornographic materials. Fernando contends that since
he was not charged as the owner of an establishment selling obscene materials, the prosecution must prove that he was present during the raid and that he
was selling the said materials. Moreover, he contends that the appellate court’s reason for convicting him, on a presumption of continuing ownership shown
by an expired mayor’s permit, has no sufficient basis since the prosecution failed to prove his ownership of the establishment. Estorninos, on the other hand,
insists that he was not an attendant in Music Fair, nor did he introduce himself so. 9

The Solicitor General counters that owners of establishments selling obscene publications are expressly held liable under Article 201, and petitioner
Fernando’s ownership was sufficiently proven. As the owner, according to the Solicitor General, Fernando was naturally a seller of the prohibited materials
and liable under the Information. The Solicitor General also maintains that Estorninos was identified by Barangay Chairperson Socorro Lipana as the store
attendant, thus he was likewise liable.10

At the outset, we note that the trial court gave petitionersthem the opportunity to adduce present their evidence to disprove refute the prosecution’s
evidence.11 . Instead, they waived their right to present evidence and opted to submitted the case for decision .a1 12 The trial court therefore resolved the case
on the basis of prosecution’s evidence against the petitioners.

As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect, as  parens patriae, the public
from obscene, immoral and indecent materials must justify the regulation or limitation.

One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution must prove that (a) the materials, publication, picture or
literature are obscene; and (b) the offender sold, exhibited, published or gave away such materials. 13 Necessarily, that the confiscated materials are obscene
must be proved.

Almost a century has passed since the Court first attempted to define obscenity in People v. Kottinger.14 There the Court defined obscenity as something
which is offensive to chastity, decency or delicacy. The test to determine the existence of obscenity is, whether the tendency of the matter charged as
obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as
being obscene may fall.15 Another test according to Kottinger is "that which shocks the ordinary and common sense of men as an
indecency."16 But, Kottinger hastened to say that whether a picture is obscene or indecent must depend upon the circumstances of the case, and that
ultimately, the question is to be decided by the judgment of the aggregate sense of the community reached by it. 17

Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al., 19 involving a prosecution under Article 201 of the Revised Penal Code, laid
the tests which did little to clearly draw the fine lines of obscenity.

In People v. Go Pin, the Court said:

If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people
interested in art, there would be no offense committed. However, the pictures here in question were used not exactly for art’s sake but rather for
commercial purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so that the cause of art was of
secondary or minor importance. Gain and profit would appear to have been the main, if not the exclusive consideration in their exhibition; and it
 25

would not be surprising if the persons who went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists
and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather people
desirous of satisfying their morbid curiosity and taste, and lust, and for love [of] excitement, including the youth who because of their immaturity are
not in a position to resist and shield themselves from the ill and perverting effects of these pictures. 20

People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its own test of "redeeming feature." The Court therein said that:

[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can
see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust
and lewdness, and exerting a corrupting influence specially on the youth of the land. 21

Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion pictures, still applied the "contemporary community standards"
of Kottinger but departed from the rulings of Kottinger, Go Pin and Padan y Alova in that the Court measures obscenity in terms of the "dominant theme" of
the material taken as a "whole" rather than in isolated passages.

Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized that Kottinger failed to afford a conclusive definition of
obscenity, and that both Go Pin and Padan y Alova raised more questions than answers such as, whether the absence or presence of artists and persons
interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, determine what art is; or that if they find
inspiration in the exhibitions, whether such exhibitions cease to be obscene. 23 Go Pin and Padan y Alova gave too much latitude for judicial arbitrament,
which has permitted ad lib of ideas and "two-cents worths" among judges as to what is obscene or what is art. 24

The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence is on obscenity and how jurisprudence actually failed
to settle questions on the matter. Significantly, the dynamism of human civilization does not help at all. It is evident that individual tastes develop, adapt to
wide-ranging influences, and keep in step with the rapid advance of civilization. 25 It seems futile at this point to formulate a perfect definition of obscenity that
shall apply in all cases.

There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which established basic guidelines, to wit: (a) whether to the
average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value. 26 But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled
discretion in determining what is "patently offensive." 27 No one will be subject to prosecution for the sale or exposure of obscene materials unless these
materials depict or describe patently offensive "hard core" sexual conduct. 28 Examples included (a) patently offensive representations or descriptions of
ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representations or descriptions of masturbation, excretory functions,
and lewd exhibition of the genitals. 29 What remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to
case basis and on the judge’s sound discretion.

In this case, the trial court found the confiscated materials obscene and the Court of Appeals affirmed such findings. The trial court in ruling that the
confiscated materials are obscene, reasoned as follows:

Are the magazines and VHS tapes confiscated by the raiding team obscene or offensive to morals? . . .

Pictures of men and women in the nude doing the sexual act appearing in the nine (9) confiscated magazines namely Dalaga, Penthouse, Swank,
Erotic, Rave, Playhouse, Gallery and two (2) issues of QUI are offensive to morals and are made and shown not for the sake of art but rather for
commercial purposes, that is gain and profit as the exclusive consideration in their exhibition. The pictures in the magazine exhibited indecent and
immoral scenes and acts…The exhibition of the sexual act in their magazines is but a clear and unmitigated obscenity, indecency and an offense
to public morals, inspiring…lust and lewdness, exerting a corrupting influence especially on the youth. (Citations omitted)

The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape entitled "Kahit sa Pangarap Lang" with Myra Manibog
as the actress shows the naked body of the actress. The tape exhibited indecent and immoral scenes and acts. Her dancing movements excited
the sexual instinct of her male audience. The motive may be innocent, but the performance was revolting and shocking to good minds...

In one (1) case the Supreme Court ruled:

Since the persons who went to see those pictures and paid entrance fees were usually not artists or persons interested in art to satisfy
and inspire their artistic tastes but persons who are desirous of satisfying their morbid curiosity, taste and lust and for [love] of
excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves from the ill and
perverting effects of the pictures, the display of such pictures for commercial purposes is a violation of Art. 201. If those pictures were
shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no
offense committed (People vs. Go Pin, 97 Phil 418).

[B]ut this is not so in this case.30

Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect, even by this Court, unless such findings are patently
unsupported by the evidence on record or the judgment itself is based on misapprehension of facts. 31 In this case, petitioners neither presented contrary
evidence nor questioned the trial court’s findings. There is also no showing that the trial court, in finding the materials obscene, was arbitrary.

Did petitioners participate in the distribution and exhibition of obscene materials?

We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under Article 201,
considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The offense in any of the forms under Article 201 is
committed only when there is publicity.32 The law does not require that a person be caught in the act of selling, giving away or exhibiting obscene materials
to be liable, for as long as the said materials are offered for sale, displayed or exhibited to the public. In the present case, we find that petitioners are
engaged in selling and exhibiting obscene materials.
 26

Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair, named after petitioner Fernando. 33 The mayor’s permit was
under his name. Even his bail bond shows that Hhe lives in the same place. 34 Moreover, the mayor’s permit dated August 8, 1996, shows that he is the
owner/operator of the store.35 While the mayor’s permit had already expired, it does not negate the fact that Fernando owned and operated the
establishment. It would be absurd to make his failure to renew his business permit and illegal operation a shield from prosecution of an unlawful act.
Furthermore, when he preferred not to present contrary evidence, the things which he possessed were presumptively his. 36

Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and exhibiting the obscene materials. Prosecution witness Police
Inspector Tababan, who led the PNP-CIDG NCR that conducted the search, identified him as the store attendant upon whom the search warrant was
served.37 Tababan had no motive for testifying falsely against Estorninos and we uphold the presumption of regularity in the performance of his duties.
Lastly, this Court accords great respect to and treats with finality the findings of the trial court on the matter of credibility of witnesses, absent any palpable
error or arbitrariness in their findings. 38 In our view, no reversible error was committed by the appellate court as well as the trial court in finding the herein
petitioners guilty as charged.

WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of Appeals affirming the Decision of the
Regional Trial Court of Manila, Branch 21, in Criminal Case No. 99-176582 are hereby AFFIRMED.

SO ORDERED.

Carpio, Carpio Morales, Tinga, and Velasco, Jr., JJ., concur.

6. G.R. No. 127930               December 15, 2000

MIRIAM COLLEGE FOUNDATION, INC., petitioner, vs. HON. COURT OF APPEALS, JASPER BRIONES, JEROME GOMEZ, RELLY CARPIO,
ELIZABETH VALDEZCO, JOSE MARI RAMOS, CAMILLE PORTUGAL, JOEL TAN and GERALD GARY RENACIDO, respondents.

KAPUNAN, J.:

"Obscene," "vulgar," "indecent," "gross," "sexually explicit," "injurious to young readers," and devoid of all moral values." 1 This was now some members of
the Miriam College community allegedly described the contents of the September-October 1994 issue (Vol. 41, No. 14) of Miriam College's school
paper (Chi-Rho), and magazine (Ang Magasing Pampanitikan ng Chi-Rho). The articles in the Chi-Rho included:

. . . a story, clearly fiction, entitled 'Kaskas' written by one Gerald Garry Renacido . . . Kaskas, written in Tagalog, treats of the experience of a
group of young, male, combo players who, one evening, after their performance went to see a bold show in a place called "Flirtation". This was the
way the author described the group's exposure during that stage show:

"Sige, sa Flirtation tayo. Happy hour na halos . . . he! he! he! sambit ng kanilang bokalistang kanina pa di maitago ang pagkahayok sa
karneng babae na kanyang pinananabikan nuong makalawa pa, susog naman ang tropa.

". . . Pumasok ang unang mananayaw. Si 'Red Raven' ayon sa emcee. Nakasuot lamang ng bikining pula na may palamuting dilaw sa
gilid-gilid at sa bandang utong. Nagsimula siya sa kanyang pag-giling nang tumugtog na ang unang tono ng "Goodbye" ng Air Supply.
Dahan-dahan ang kanyang mga malalantik at mapang-akit na galaw sa una. Mistulang sawa na nililingkis ang hangin, paru-parong
padapo-dapo sa mga bulaklak na lamesa, di-upang umamoy o kumuha ng nektar, ngunit para ipaglantaran ang sariling bulaklak at ang
angkin nitong malansang nektar.

"Kaskas mo babe, sige . . . kaskas."

Napahaling ang tingin ng balerinang huwad kay Mike. Mistulang natipuhan, dahil sa harap niya'y nagtagal. Nag-akmang mag-aalis ng
pangitaas na kapirasong tela. Hindi nakahinga si Mike, nanigas sa kanyang kinauupuan, nanigas pati ang nasa gitna ng kanyang hita.
Ang mga mata niya'y namagnet sa kayamanang ngayo'y halos isang pulgada lamang mula sa kanyang naglalaway na bunganga.
Naputol-putol ang kanyang hininga nang kandungan ni 'Red Raven' ang kanyang kanang hita. Lalo naghingalo siya nang kabayuhin ito
ng dahan dahan . . . Pabilis ng pabilis.'

The author further described Mike's responses to the dancer as follows (quoted in part):

. . . Nagsimulang lumaban na ng sabayan si Mike sa dancer. Hindi nagpatalo ang ibong walang pakpak, inipit ng husto ang hita ni Mike
at pinag-udyukan ang kanyang dibdib sa mukha nito.

"Kaskas mo pa, kaskas mo pa!"

Palpakan at halagpakan na tawanan ang tumambad sa kanya ng biglang halikan siya nito sa labi at iniwang bigla, upang kanyang
muniin ang naudlot niyang pagtikim ng karnal na nektar. Hindi niya maanto kung siya ay nanalo o natalo sa nangyaring sagupaan ng
libog. Ang alam lang niya ay nanlata na siya."

After the show the group went home in a car with the bokalista driving. A pedestrian happened to cross the street and the driver deliberately hit him
with these words:

"Pare tingnan natin kung immortal itong baboy na ito. He! He! He! He! Sabad ng sabog nilang drayber/bokalista."

The story ends (with their car about to hit a truck) in these words: . . . "Pare . . . trak!!! Put . . .!!!!
 27

Ang Magasing Pampanitikan, October, 1994 issue, was in turn, given the cover title of "Libog at iba pang tula."

In his foreword which Jerome Gomez entitled "Foreplay", Jerome wrote: "Alam ko, nakakagulat ang aming pamagat." Jerome then proceeded to
write about previous reactions of readers to women-writers writing about matters erotic and to gay literature. He justified the Magazine's erotic
theme on the ground that many of the poems passed on to the editors were about "sekswalidad at iba't ibang karanasan nito." Nakakagulat ang
tapang ng mga manunulat . . . tungkol sa maselang usaping ito . . . at sa isang institusyon pang katulad ng Miriam!"

Mr. Gomez quoted from a poem entitled "Linggo" written by himself:

may mga palangganang nakatiwangwang -

mga putang biyak na sa gitna,

'di na puwedeng paglabhan,

'di na maaaring pagbabaran . . ."

Gomez stated that the poems in the magazine are not "garapal" and "sa mga tulang ito namin maipagtatanggol ang katapangan (o pagka-
sensasyonal) ng pamagat na "Libog at iba pang Tula." He finished "Foreplay" with these words: "Dahil para saan pa ang libog kung hindi ilalabas?"

The cover title in question appears to have been taken from a poem written by Relly Carpio of the same title. The poem dealt on a woman and a
man who met each other, gazed at each other, went up close and "Naghalikan, Shockproof." The poem contained a background drawing of a
woman with her two mammary and nipples exposed and with a man behind embracing her with the woman in a pose of passion-filled mien.

Another poem entitled 'Virgin Writes Erotic' was about a man having fantasies in his sleep. The last verse said: "At zenith I pull it out and find
myself alone in this fantasy." Opposite the page where this poem appeared was a drawing of a man asleep and dreaming of a naked woman
(apparently of his dreams) lying in bed on her buttocks with her head up (as in a hospital bed with one end rolled up). The woman's right nipple can
be seen clearly. Her thighs were stretched up with her knees akimbo on the bed.

In the next page (page 29) one finds a poem entitled "Naisip ko Lang" by Belle Campanario. It was about a young student who has a love-selection
problem: ". . . Kung sinong pipiliin: ang teacher kong praning, o ang boyfriend kong bading." The word "praning" as the court understands it, refers
to a paranoid person; while the word "bading" refers to a sward or "bakla" or "badidang". This poem also had an illustration behind it: of a young
girl with large eyes and sloping hair cascading down her curves and holding a peeled banana whose top the illustrator shaded up with downward-
slanting strokes. In the poem, the girl wanted to eat banana topped by peanut butter. In line with Jerome's "Foreplay" and by the way it was drawn
that banana with peanut butter top was meant more likely than not, to evoke a spiritedly mundane, mental reaction from a young audience.

Another poem entitled "Malas ang Tatlo" by an unknown author went like this:

'Na picture mo na ba

no'ng magkatabi tayong dalawa

sa pantatluhang sofa -

ikaw, the legitimate asawa

at ako, biro mo, ang kerida?

tapos, tumabi siya, shit!

kumpleto na:

ikaw, ako at siya

kulang na lang, kamera."

A poem "Sa Gilid ng Itim" by Gerald Renacido in the Chi-Rho broadsheet spoke of a fox (lobo) yearning for "karneng sariwa, karneng bata,
karneng may kalambutan . . . isang bahid ng dugong dalaga, maamo't malasa, ipahid sa mga labing sakim sa romansa' and ended with 'hinog na
para himukin bungang bibiyakin."2

Following the publication of the paper and the magazine, the members of the editorial board, 3 and Relly Carpio, author of Libog, all students of Miriam
College, received a letter signed by Dr. Aleli Sevilla, Chair of the Miriam College Discipline Committee. The Letter dated 4 November 1994 stated:

This is to inform you that the letters of complain filed against you by members of the Miriam Community and a concerned Ateneo grade five
student have been forwarded to the Discipline Committee for inquiry and investigation. Please find enclosed complaints.

As expressed in their complaints you have violated regulations in the student handbook specifically Section 2 letters B and R, pages 30 and 32,
Section 4 (Major offenses) letter j, page 36 letters m, n, and p, page 37 and no. 2 (minor offenses) letter a, page 37.

You are required to submit a written statement in answer to the charge/s on or before the initial date of hearing to be held on November 15, 1994,
Tuesday, 1:00 in the afternoon at the DSA Conference Room. 4
 28

None of the students submitted their respective answers. They instead requested Dr. Sevilla to transfer the case to the Regional Office of the Department of
Education, Culture and Sports (DECS) which under Rule XII of DECS Order No. 94, Series of 1992, supposedly had jurisdiction over the case. 5

In a Letter dated 21 November 1994, Dr. Sevilla again required the students to file their written answers.

In response, Atty. Ricardo Valmonte, lawyer for the students, submitted a letter 6 to the Discipline Committee reiterating his clients' position that said
Committee had no jurisdiction over them. According to Atty. Valmonte, the Committee was "trying to impose discipline on his clients on account of their
having written articles and poems in their capacity as campus journalists." Hence, he argued that "what applies is Republic Act No. 7079 The Campus
Journalism Act and its implementing rules and regulations." He also questioned the partiality of the members of said Committee who allegedly "had already
articulated their position" against his clients.

The Discipline Committee proceeded with its investigation ex parte. Thereafter, the Discipline Board, after a review of the Discipline Committee's report,
imposed disciplinary sanctions upon the students, thus:

1. Jasper Briones Expulsion. Briones is the Editor-in-Chief of Chi-Rho and a 4th year student;
2. Daphne Cowper suspension up to (summer) March, 1995;
3. Imelda Hilario suspension for two (2) weeks to expire on February 2, 1995;
4. Deborah Ligon suspension up to May, 1995. Miss Ligon is a 4th year student and could graduate as
summa cum laude;
5. Elizabeth Valdezco suspension up to (summer) March, 1995;
6. Camille Portugal graduation privileges withheld, including diploma. She is an Octoberian;
7. Joel Tan suspension for two (2) weeks to expire on February 2, 1995;
8. Gerald Gary Renacido Expelled and given transfer credentials. He is a 2nd year student. He wrote the
fiction story "Kaskas";
9. Relly Carpio Dismissed and given transfer credentials. He is in 3rd year and wrote the poem
"Libog";
10. Jerome Gomez Dismissed and given transfer credentials. He is in 3rd year. He wrote the foreword
"Foreplay" to the questioned Anthology of Poems; and
11. Jose Mari Ramos Expelled and given transfer papers. He is a 2nd year student and art editor of Chi-
Rho.7

The above students thus filed a petition for prohibition and certiorari with preliminary injunction/restraining order before the Regional Trial Court of Quezon
City questioning the jurisdiction of the Discipline Board of Miriam College over them.

On 17 January 1995, the Regional Trial Court, Branch CIII, presided by Judge Jaime N. Salazar, Jr., issued an order denying the plaintiffs' prayer for a
Temporary Restraining Order. It held:

There is nothing in the DECS Order No. 94, S. 1992 dated August 19, 1992 that excludes school Administrators from exercising jurisdiction over
cases of the nature involved in the instant petition. R.A. 7079 also does not state anything on the matter of jurisdiction. The DECS undoubtedly
cannot determine the extent of the nature of jurisdiction of schools over disciplinary cases. Moreover, as this Court reads that DECS Order No. 94,
S. of 1992, it merely prescribes for purposes of internal administration which DECS officer or body shall hear cases arising from R A. 7079 if and
when brought to it for resolution. The said order never mentioned that it has exclusive jurisdiction over cases falling under R.A. 707.8

The students thereafter filed a "Supplemental Petition and Motion for Reconsideration." The College followed with its Answer.

Subsequently, the RTC issued an Order dated 10 February 1995 granting the writ of preliminary injunction.

ACCORDINGLY, so as not to render the issues raised moot and academic, let a writ of preliminary injunction issue enjoining the defendants,
including the officers and members of the Disciplinary Committee, the Disciplinary Board, or any similar body and their agents, and the officers and
members of the Security Department, Division, or Security Agency securing the premises and campus of Miriam College Foundation, Inc. from:

1. Enforcing and/or implementing the expulsion or dismissal resolutions or orders complained of against herein plaintiffs (a) Jasper
Briones; (b) Gerald Gary Renacido; (c) Relly Carpio; (d) Jerome Gomez; and (e) Jose Mari Ramos, but otherwise allowing the
defendants to impose lesser sanctions on aforementioned plaintiffs; and

2. Disallowing, refusing, barring or in any way preventing the herein plaintiffs (all eleven of them) from taking tests or exams and entering
the Miriam campus for such purpose as extended to all students of Miriam College Foundation, Inc.; neither should their respective
course or subject teachers or professors withhold their grades, including final grades, if and when they meet the requirements similarly
prescribed for all other students, this current 2nd Semester of 1994-95.

The sanctions imposed on the other plaintiffs, namely, Deborah Ligon, Imelda Hilario, Elizabeth Valdezco, Camille Portugal and Daphne Cowper,
shall remain in force and shall not be covered by this Injunction: Provided, that Camille Portugal now a graduate, shall have the right to receive her
diploma, but defendants are not hereby prevented from refusing her the privilege of walking on the graduation stage so as to prevent any likely
public tumults.

The plaintiffs are required to post an injunction bond in the sum of Four Thousand Pesos (P4,000.00) each.
 29

SO ORDERED.9

Both parties moved for a reconsideration of the above order. In an Order dated 22 February 1995, the RTC dismissed the petition, thus:

4. On the matter raised by both parties that it is the DECS which has jurisdiction, inasmuch as both parties do not want this court to assume
jurisdiction here then this court will not be more popish than the Pope and in fact is glad that it will have one more case out of its docket.

ACCORDINGLY, the instant case is hereby DISMISSED without prejudice to the parties going to another forum.

All orders heretofore issued here are hereby recalled and set aside.

SO ORDERED.10

The students, excluding Deborah Ligon, Imelda Hilario and Daphne Cowper, sought relief in this Court through a petition for certiorari and prohibition of
preliminary injunction/restraining order11 questioning the Orders of the RTC dated 10 and 24 February 1995.

On 15 March 1995, the Court resolved to refer the case to the Court of Appeals (CA) for disposition. 12 On 19 May 1995, the CA issued a resolution stating:

The respondents are hereby required to file comment on the instant petition and to show cause why no writ of preliminary injunction should be
issued, within ten (10) days from notice hereof, and the petitioners may file reply thereto within five (5) days from receipt of former's comment.

In order not to render ineffectual the instant petition, let a Temporary Restraining Order be issued enjoining the public respondents from enforcing
letters of dismissal/suspension dated January 19, 1995.

SO ORDERED.13

In its Decision dated 26 September 1996, respondent court granted the students' petition. The CA declared the RTC Order dated 22 February 1995, as well
as the students' suspension and dismissal, void.

Hence, this petition by Miriam College.

We limit our decision to the resolution of the following issues:

(1) The alleged moot character of the case.

(2) The jurisdiction of the trial court to entertain the petition for certiorari filed by the students.

(3) The power of petitioner to suspend or dismiss respondent students.

(4) The jurisdiction of petitioner over the complaints against the students.

We do not tackle the alleged obscenity of the publication, the propriety of the penalty imposed or the manner of the imposition thereof. These issues, though
touched upon by the parties in the proceedings below, were not fully ventilated therein.

Petitioner asserts the Court of Appeals found the case moot thus:

While this petition may be considered moot and academic since more than one year have passed since May 19, 1995 when this court issued a
temporary restraining order enjoining respondents from enforcing the dismissal and suspension on petitioners . . . 14

Since courts do not adjudicate moot cases, petitioner argues that the CA should not have proceeded with the adjudication of the merits of the case.

We find that the case is not moot.

It may be noted that what the court issued in 19 May 1995 was a temporary restraining order, not a preliminary injunction. The records do not show that the
CA ever issued a preliminary injunction.

Preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a
person to perform to refrain from performing a particular act or acts. 15 As an extraordinary remedy, injunction is calculated to preserve or maintain the status
quo of things and is generally availed of to prevent actual or threatened acts, until the merits of the case can be heard. 16 A preliminary injunction persists until
it is dissolved or until the termination of the action without the court issuing a final injunction.

The basic purpose of restraining order, on the other hand, is to preserve the  status quo until the hearing of the application for preliminary injunction. 17 Under
the former 5, Rule 58 of the Rules of Court, as amended by 5, Batas Pambansa Blg. 224, a judge (or justice) may issue a temporary restraining order with a
limited life of twenty days from date of issue. 18 If before the expiration of the 20-day period the application for preliminary injunction is denied, the temporary
order would thereby be deemed automatically vacated. If no action is taken by the judge on the application for preliminary injunction within the said 20 days,
the temporary restraining order would automatically expire on the 20th day by the sheer force of law, no judicial declaration to that effect being
necessary.19 In the instant case, no such preliminary injunction was issued; hence, the TRO earlier issued automatically expired under the aforesaid
provision of the Rules of Court.20
 30

This limitation as to the duration of the temporary restraining order was the rule prevailing when the CA issued its TRO dated 19 May 1995. 21 By that time
respondents Elizabeth Valdezco and Joel Tan had already served their respective suspensions. The TRO was applicable only to respondents Jasper
Briones, Jerome Gomez, Relly Carpio, Jose Mari Ramos and Gerald Gary Renacido all of whom were dismissed, and respondent Camille Portugal whose
graduation privileges were withheld. The TRO, however, lost its effectivity upon the lapse of the twenty days. It can hardly be said that in that short span of
time, these students had already graduated as to render the case moot.

Either the CA was of the notion that its TRO was effective throughout the pendency of the case or that what is issued was a preliminary injunction. In either
case, it was error on the part of the CA to assume that its order supposedly enjoining Miriam from enforcing the dismissal and suspension was complied
with. A case becomes moot and academic when there is no more actual controversy between the parties or no useful purpose can be served in passing
upon the merits.22 To determine the moot character of a question before it, the appellate court may receive proof or take notice of facts appearing outside the
record.23 In the absence of such proof or notice of facts, the Court of Appeals should not have assumed that its TRO was enforced, and that the case was
rendered moot by the mere lapse of time.

Indeed, private respondents in their Comment herein 24 deny that the case has become moot since Miriam refused them readmission in violation of the TRO.
This fact is unwittingly conceded by Miriam itself when, to counter this allegation by the students, it says that private respondents never sought readmission
after the restraining order was issued.25 In truth, Miriam relied on legal technicalities to subvert the clear intent of said order, which states:

In order not to render ineffectual the instant petition, let a Temporary Restraining Order be issued enjoining the public respondents from enforcing
letters of dismissal/suspension dated January 19, 1995.

Petitioner says that the above order is "absurd" since the order "incorrectly directs public respondent, the Hon. Jaime Salazar, presiding judge of the
Regional Trial Court of Quezon City not to dismiss or suspend the students." 26

We do not agree. Padua vs. Robles27 lays down the rules in construing judgments. We find these rules to be applicable to court orders as well:

The sufficiency and efficacy of a judgment must be tested by its substance rather than its form. In construing a judgment, its legal effects including
such effects that necessarily follow because of legal implications, rather than the language used, govern. Also, its meaning, operation, and
consequences must be ascertained like any other written instrument. Thus, a judgment rests on the intent of the court as gathered from every part
thereof, including the situation to which it applies and attendant circumstances. (Emphasis supplied.)

Tested by such standards, we find that the order was indeed intended for private respondents (in the appellate court) Miriam College, et al., and not public
respondent Judge. In dismissing the case, the trial judge recalled and set aside all orders it had previously issued, including the writ of preliminary injunction.
In doing so, the trial court allowed the dismissal and suspension of the students to remain in force. Thus, it would indeed be absurd to construe the order as
being directed to the RTC. Obviously, the TRO was intended for Miriam College.

True, respondent-students should have asked for a clarification of the above order. They did not. Nevertheless, if Miriam College found the order "absurd,"
then it should have sought a clarification itself so the Court of Appeals could have cleared up any confusion. It chose not to. Instead, it took advantage of the
supposed vagueness of the order and used the same to justify its refusal to readmit the students.

As Miriam never readmitted the students, the CA's ruling that the case is moot has no basis. How then can Miriam argue in good faith that the case had
become moot when it knew all along that the facts on which the purported moot character of the case were based did not exist? Obviously, Miriam is
clutching to the CA's wrongful assumption that the TRO it issued was enforced to justify the reversal of the CA's decision.

Accordingly, we hold that the case is not moot, Miriam's pretensions to the contrary notwithstanding.

II

"To uphold and protect the freedom of the press even at the campus level and to promote the development and growth of campus journalism as a means of
strengthening ethical values, encouraging critical and creative thinking, and developing moral character and personal discipline of the Filipino
youth,"28 Congress enacted in 1991 Republic Act No. 7079. Entitled "AN ACT PROVIDING FOR THE DEVELOPMENT AND PROMOTION OF CAMPUS
JOURNALISM AND FOR OTHER PURPOSES,"29 the law contains provisions for the selection of the editorial board 30 and publication adviser,31 the funding of
the school publication,32 and the grant of exemption to donations used actually, directly and exclusively for the promotion of campus journalism from donor's
or gift tax.33

Noteworthy are provisions clearly intended to provide autonomy to the editorial board and its members. Thus, the second paragraph of Section 4 states that
"(o)nce the publication is established, its editorial board shall freely determine its editorial policies and-manage the publication's funds."

Section 7, in particular, provides:

A member of the publication staff must maintain his or her status as student in order to retain membership in the publication staff. A student shall
not be expelled or suspended solely on the basis of articles he or she has written, or on the basis of the performance of his or her duties in the
student publication.

Section 9 of the law mandates the DECS to "promulgate the rules and regulations necessary for the effective implementation of this Act." 34 Pursuant to said
authority, then DECS Secretary Armand Fabella, issued DECS Order No. 94, Series of 1992, providing under Rule XII that:

GENERAL PROVISIONS

SECTION 1. The Department of Education, Culture and Sports (DECS) shall help ensure and facilitate the proper carrying out of the Implementing Rules
and Regulations of Republic Act No. 7079. It shall also act on cases on appeal brought before it.
 31

The DECS regional office shall have the original jurisdiction over cases as a result of the decisions, actions and policies of the editorial board of a school
within its area of administrative responsibility . It shall conduct investigations and hearings on the these cases within fifteen (15) days after the completion of
the resolution of each case. (Emphasis supplied.)

The latter two provisions of law appear to be decisive of the present case.

It may be recalled that after the Miriam Disciplinary Board imposed disciplinary sanctions upon the students, the latter filed a petition for certiorari and
prohibition in the Regional Trial Court raising, as grounds therefor, that:

DEFENDANT'S DISCIPLINARY COMMITTEE AND DISCIPLINARY BOARD OF DEFENDANT SCHOOL HAVE NO JURISDICTION OVER THE
CASE.35

II

DEFENDANT SCHOOL'S DISCIPLINARY COMMITTEE AND THE DISCIPLINARY BOARD DO NOT HAVE THE QUALIFICATION OF AN
IMPARTIAL AND NEUTRAL ARBITER AND, THEREFORE THEIR TAKING COGNIZANCE OF THE CASE AGAINST PLAINTIFFS WILL DENY
THE LATTER OF THEIR RIGHT TO DUE PROCESS.36

Anent the first ground, the students theorized that under Rule XII of the Rules and Regulations for the Implementation of R.A. No. 7079, the DECS Regional
Office, and not the school, had jurisdiction over them. The second ground, on the other hand, alleged lack of impartiality of the Miriam Disciplinary Board,
which would thereby deprive them of due process. This contention, if true, would constitute grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the trial court. These were the same grounds invoked by the students in their refusal to answer the charges against them. The
issues were thus limited to the question of jurisdiction - a question purely legal in nature and well within the competence and the jurisdiction of the trial court,
not the DECS Regional Office. This is an exception to the doctrine of primary jurisdiction. As the Court held in Phil. Global Communications, Inc. vs.
Relova.37

Absent such clarity as to the scope and coverage of its franchise, a legal question arises which is more appropriate for the judiciary than for an
administrative agency to resolve. The doctrine of primary jurisdiction calls for application when there is such competence to act on the part of an
administrative body. Petitioner assumes that such is the case. That is to beg the question. There is merit, therefore, to the approach taken by
private respondents to seek judicial remedy as to whether or not the legislative franchise could be so interpreted as to enable the National
Telecommunications Commission to act on the matter. A jurisdictional question thus arises and calls for an answer.

However, when Miriam College in its motion for reconsideration contended that the DECS Regional Office, not the RTC, had jurisdiction, the trial court,
refusing to "be more popish than the Pope," dismissed the case. Indeed, the trial court could hardly contain its glee over the fact that "it will have one more
case out of its docket." We remind the trial court that a court having jurisdiction of a case has not only the right and the power or authority, but also  the duty,
to exercise that jurisdiction and to render a decision in a case properly submitted to it. 38 Accordingly, the trial court should not have dismissed the petition
without settling the issues presented before it.

III

Before we address the question of which between the DECS Regional Office and Miriam College has jurisdiction over the complaints against the students,
we first delve into the power of either to impose disciplinary sanctions upon the students. Indeed, the resolution of the issue of jurisdiction would be reduced
to an academic exercise if neither the DECS Regional Office nor Miriam College had the power to impose sanctions upon the students.

Recall, for purposes of this discussion, that Section 7 of the Campus Journalism Act prohibits the expulsion or suspension of a student solely on the basis of
articles he or she has written.

A.

Section 5 (2), Article XIV of the Constitution guarantees all institutions of higher learning academic freedom. This institutional academic freedom includes the
right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly
when the overriding public welfare calls for some restraint. 39 The essential freedoms subsumed in the term "academic freedom" encompasses the freedom to
determine for itself on academic grounds:

(1) Who may teach,

(2) What may be taught,

(3) How it shall be taught, and

(4) Who may be admitted to study.40

The right of the school to discipline its students is at once apparent in the third freedom, i.e., "how it shall be taught." A school certainly cannot function in an
atmosphere of anarchy.

Thus, there can be no doubt that the establishment of an educational institution requires rules and regulations necessary for the maintenance of an
orderly educational program and the creation of an educational environment conducive to learning. Such rules and regulations are equally
necessary for the protection of the students, faculty, and property. 41
 32

Moreover, the school has an interest in teaching the student discipline, a necessary, if not indispensable, value in any field of learning. By instilling discipline,
the school teaches discipline. Accordingly, the right to discipline the student likewise finds basis in the freedom "what to teach."

Incidentally, the school not only has the right but the duty to develop discipline in its students. The Constitution no less imposes such duty.

All educational institutions shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of
national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual
values, develop moral character and personal discipline , encourage critical and creative thinking, broaden scientific and technological knowledge,
and promote vocational efficiency.42

In Angeles vs. Sison, we also said that discipline was a means for the school to carry out its responsibility to help its students "grow and develop into mature,
responsible, effective and worthy citizens of the community." 43

Finally, nowhere in the above formulation is the right to discipline more evident than in "who may be admitted to study." If a school has the freedom to
determine whom to admit, logic dictates that it also has the right to determine whom to exclude or expel, as well as upon whom to impose lesser sanctions
such as suspension and the withholding of graduation privileges.

Thus, in Ateneo de Manila vs. Capulong,44 the Court upheld the expulsion of students found guilty of hazing by petitioner therein, holding that:

No one can be so myopic as to doubt that the immediate reinstatement of respondent students who have been investigated and found guilty by the
Disciplinary Board to have violated petitioner university's disciplinary rules and standards will certainly undermine the authority of the administration
of the school. This we would be most loathe to do.

More importantly, it will seriously impair petitioner university's academic freedom which has been enshrined in the 1935, 1973 and the present
1987 Constitution.45

Tracing the development of academic freedom, the Court continued:

Since Garcia vs. Loyola School of Theology , we have consistently upheld the salutary proposition that admission to an institution of higher learning
is discretionary upon a school, the same being a privilege on the part of the student rather than a right. While under the Education Act of 1982,
students have a right "to freely choose their field of study, subject to existing curricula and to continue their course therein up to graduation," such
right is subject, as all rights are, to the established academic and disciplinary standards laid down by the academic institution.

"For private schools have the right to establish reasonable rules and regulations for the admission, discipline and promotion of students. This right .
. . extends as well to parents . . . as parents under a social and moral (if not legal) obligation, individually and collectively, to assist and cooperate
with the schools."

Such rules are "incident to the very object of incorporation and indispensable to the successful management of the college. The rules may include
those governing student discipline." Going a step further, the establishment of the rules governing university-student relations, particularly those
pertaining to student discipline, may be regarded as vital, not merely to the smooth and efficient operation of the institution, but to its very survival.

Within memory of the current generation is the eruption of militancy in the academic groves as collectively, the students demanded and plucked for
themselves from the panoply of academic freedom their own rights encapsulized under the rubric of "right to education" forgetting that, In
Hohfeldian terms, they have the concomitant duty, and that is, their duty to learn under the rules laid down by the school.

. . . It must be borne in mind that universities are established, not merely to develop the intellect and skills of the studentry, but to inculcate lofty
values, ideals and attitudes; may, the development, or flowering if you will, of the total man.

In essence, education must ultimately be religious - not in the sense that the founders or charter members of the institution are sectarian or profess
a religious ideology. Rather, a religious education, as the renowned philosopher Alfred North Whitehead said, is 'an education which inculcates
duty and reverence.' It appears that the particular brand of religious education offered by the Ateneo de Manila University has been lost on the
respondent students.

Certainly, they do not deserve to claim such a venerable institution as the Ateneo de Manila University as their own a minute longer, for they may
foreseeably cast a malevolent influence on the students currently enrolled, as well as those who come after them. 1avvphi1

Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court of Appeals that: "The maintenance of a morally conducive and orderly
educational environment will be seriously imperilled, if, under the circumstances of this case, Grace Christian is forced to admit petitioner's children
and to reintegrate them to the student body." Thus, the decision of petitioner university to expel them is but congruent with the gravity of their
misdeeds.46

B.

Section 4 (1), Article XIV of the Constitution recognizes the State's power to regulate educational institution:

The State recognizes the complementary roles of public and private institutions in the educational system and shall exercise reasonable
supervision and regulation of all educational institutions.

As may be gleaned from the above provision, such power to regulate is subject to the requirement of  reasonableness. Moreover, the Constitution allows
merely the regulation and supervision of educational institutions, not the deprivation of their rights.

C.
 33

In several cases, this Court has upheld the right of the students to free speech in school premises. In the landmark case of  Malabanan vs.
Ramento,47 students of the Gregorio Araneta University Foundation, believing that the merger of the Institute of Animal Science with the Institute of
Agriculture would result in the increase in their tuition, held a demonstration to protest the proposed merger. The rally however was held at a place other
than that specified in the school permit and continued longer than the time allowed. The protest, moreover, disturbed the classes and caused the stoppage
of the work of non-academic personnel. For the illegal assembly, the university suspended the students for one year. In affirming the students' rights to
peaceable assembly and free speech, the Court through Mr. Chief Justice Enrique Fernando, echoed the ruling of the US Supreme Court in  Tinker v. Des
Moines School District.48

Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to do so. They enjoy like the rest of the citizens the
freedom to express their views and communicate their thoughts to those disposed to listen in gatherings such as was held in this case. They do
not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community School District, 'shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate.' While, therefore, the authority of educational institutions over the conduct of students must be
recognized, it cannot go so far as to be violative of constitutional safeguards. On a more specific level there is persuasive force to this Fortas
opinion. "The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types
of activities. Among those activities is personal intercommunication among the students. This is not only inevitable part of the educational process.
A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus
during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without
'materially and substantially interfering with the requirements of appropriate discipline in the operation of the school' and without colliding with the
rights of others. . . . But conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior -
materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional
guarantee of freedom of speech.49

The Malabanan ruling was followed in Villar vs. Technological Institute of the Philippines ,50 Arreza vs. Gregorio Araneta University Foundation ,51 and Non vs.
Dames II.52

The right of the students to free speech in school premises, however, is not absolute. The right to free speech must always be applied in light of the special
characteristics of the school environment. 53 Thus, while we upheld the right of the students to free expression in these cases, we did not rule out disciplinary
action by the school for "conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior - which
materially disrupts classwork or involves substantial disorder or invasion of the rights of others." 54 Thus, in Malabanan, we held:

6. Objection is made by private respondents to the tenor of the speeches by the student leaders. That there would be a vigorous presentation of
view opposed to the proposed merger of the Institute of Animal Science with the Institute of Agriculture was to be expected. There was no
concealment of the fact that they were against such a move as it confronted them with a serious problem (" isang malaking suliranin.") They
believed that such a merger would result in the increase in tuition fees, an additional headache for their parents (" isa na naman sakit sa ulo ng
ating mga magulang.") If in the course of such demonstration, with an enthusiastic audience goading them on, utterances extremely critical at
times, even vitriolic, were let loose, that is quite understandable. Student leaders are hardly the timid, different types. They are likely to be
assertive and dogmatic. They would be ineffective if during a rally they speak in the guarded and judicious language of the academe. At any rate,
even a sympathetic audience is not disposed to accord full credence to their fiery exhortations. They take into account the excitement of the
occasion, the propensity of speakers to exaggerate, the exuberance of youth. They may give the speakers the benefit of their applause, but with
the activity taking place in the school premises and during the daytime, no clear and present danger of public disorder is discernible.  This is without
prejudice to the taking of disciplinary action for conduct, which, to borrow from Tinker, "materially disrupts classwork or involves substantial
disorder or invasion of the rights of others."55

It is in the light of this standard that we read Section 7 of the Campus Journalism Act. Provisions of law should be construed in harmony with those of the
Constitution; acts of the legislature should be construed, wherever possible, in a manner that would avoid their conflicting with the fundamental law. 56 A
statute should not be given a broad construction if its validity can be saved by a narrower one. 57 Thus, Section 7 should be read in a manner as not to
infringe upon the school's right to discipline its students. At the same time, however, we should not construe said provision as to unduly restrict the right of
the students to free speech. Consistent with jurisprudence, we read Section 7 of the Campus Journalism Act to mean that the school cannot suspend or
expel a student solely on the basis of the articles he or she has written, except when such article materially disrupt class work or involve substantial disorder
or invasion of the rights of others.

IV.

From the foregoing, the answer to the question of who has jurisdiction over the cases filed against respondent students becomes self-evident. The power of
the school to investigate is an adjunct of its power to suspend or expel. It is a necessary corollary to the enforcement of rules and regulations and the
maintenance of a safe and orderly educational environment conducive to learning. 58 That power, like the power to suspend or expel, is an inherent part of the
academic freedom of institutions of higher learning guaranteed by the Constitution. We therefore rule that Miriam College has the authority to hear and
decide the cases filed against respondent students.

WHEREFORE, the decision of the Court of Appeals is REVERSED and SET ASIDE. Petitioner Miriam College is ordered to READMIT private respondent
Joel Tan whose suspension has long lapsed.

SO ORDERED.

7. G.R. No. 126183 March 25, 1999

LUZVIMINDA DE LA CRUZ, MERCY DE LEON, TERESITA EUGENIO, CORAZON GOMEZ, ELENA GUEVARRA, ROSALINA JINGCO, LOIDA IGNACIO,
and EMERITA PIZARRO, petitioners, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION and THE SECRETARY OF THE DEPARTMENT OF
EDUCATION, CULTURE AND SPORTS, respondents.

G.R. No. 129221 March 25, 1999

 34

ROLANDO ALURA,CLARA ALVAREZ, POFIRIO AUSTRIA, VICENTE CARRANZA, ELMER DALIDA, ROSALINDA DALIDA, NELSON DUL-DULAO, LEA
POCONG, ENRICO RAYMUNDO, MARGIE SERRANO, SUSAN SIERTE, JESSIE VILLANUEVA, NORBERTO ABAD, MARIA ACEJO, ELVIRA ALANO,
SUSANA BANUA, CAROLINA BULACLAC, DANILO CABALLES, ECHELITA CALMA, JESUSA CARAIG, CECILIA CASTILLO, ANACLETA CORRALES,
GLORIA CUEVAS, CONCORDIA DE GUZMAN, ROWENA DEL ROSARIO, MATILDE DINGLE, ROSARIO DULDULAO, CONRADA ENDRINA,
LUZVIMINDA ESPINO, VIRGILIO ESTRADA, DAMIAN FETIZANAN, DEMOCRITO FLORES, ROSALIA GARCENILA, CORAZON GONZALES, VIOLETA
GUANIZO, SURENA GUNDRAN, HILARIA HALAGO, NERISSA IGNACIO, LEONOR LACERNA, TERESITA LAGUMBAY, TERESTTA LAURENTE,
CARMELITA LEGION, LEONARDO LIMBO, EDGARDO LIWANAG, ERLINA MAGALLANES, NEDA MAGSULIT, AMELITA MANGAHAS, GUIA MORRIS,
HIPOLITA NATIVIDAD, NATIVIDAD NEPOMUCENO, ROSALINA NOCUM, MAXIMA NON, ESTELA PALILEO, ANA PALMA, GLICERIA PANGINDIAN,
MA. LUZ PEREZ, LYDIA QUINTANA, LORENZA REAL, BERNARDITA RINO, CELIA RONQUILLO, GLORIA SALVADOR, CATHERINE SAN AGUSTIN,
LIBERTY SISON, ERLINDA SOLAMO, ALMA TALAMANTE, GINA TIMBAS, BENJAMIN VALBUENA, DONATO VALDEMORO, ROSEMARIE VEDEJA,
RIZALINA VICTORIO, MYRNA VILLAMIN, FLORENDA VILLAREAL, WILSON PEREZ, ENRICO PILANDE, JOSEPHINE PARMISANO, FELIPE ALACAR,
JOSE FETAL ALVERO, JR., MYRNA BARLISO, CAROLINA COLIGADO, ROLANDO CERBO and LORA CLEMENCIA, petitioners,
vs.
COURT OF APPEALS, CIVIL SERVICE COMMISSION, and SECRETARY OF EDUCATION CULTURE AND SPORTS, respondents.

BELLOSILLO, J.:

These consolidated petitions 1 are among several petitions filed with this Court arising from the much-publicized public school teachers' mass actions of
September/October 1990.

Petitioners are public school teachers from various schools in Metro Manila who were simultaneously charged, preventively suspended, and eventually
dismissed in October 1990 by then Secretary Isidro D. Cariño of the Department of Education, Culture and Sports (DECS), in decisions issued by him which
uniformly read —

This is a mutu-propio administrative complaint separately filed by the Secretary of Education, Culture and Sports against the following
public school teachers . . . . based on the report submitted by their respective school principals wherein it was alleged that the above-
named teachers participated in the mass action/illegal strike in Sept. 19-21, 1990 and subsequently defied the return-to-work order dated
September 17, 1990 issued by this Office, which acts constitute grave misconduct, gross neglect of duty, gross violation of Civil Service
Law, Rules and Regulations and reasonable office regulations, refusal to perform official duty, gross insubordination conduct prejudicial
to the best interest of the service and absence without official leave (AWOL), in violation of Presidential Decree 807, otherwise known as
the Civil Service Decree of the Philippines.

Required to explain within a period of not less than 72 hours but not more than 5 days from receipt of the complaint, respondents failed
to submit the required answer within the given time up to the present, and despite the denial of their request for extension of 30 days
within which to submit their answers dated September 25, 1990 filed by their counsel, Atty. Gregorio Fabros, in a letter of this Office to
him dated Septmber 28, 1990, respondents failed to submit the same, which failure, is considered a waiver on their part of their right to
answer the charges and to controvert the same.

Wherefore, after a careful evaluation of the records, this Office finds the respondents guilty as charged.

In accordance with Memorandum Circular 30 s. 1989 of the Civil Service Commission on Guidelines in the Application of Penalty in
Administrative Cases, the herein respondents are dismissed from Office effective immediately.

The decisions dismissing petitioners were immediately implemented.

Petitioners appealed to the Merit Systems Protection Board (MSPB) and then to the Civil Service Commission (CSC). In 1993 the CSC found petitioners
guilty of "conduct prejudicial to the best interest of the service" for having participated in the mass actions and imposed upon them the reduced penalty of six
(6) months' suspension. However, in view of the length of time that petitioners had been out of the service by reason of the immediate implementation of the
dismissal orders of Secretary Cariño, the CSC likewise ordered petitioners' automatic reinstatement in the service without back wages.

Petitioners were unhappy with the CSC decision. They initially filed petitions for certiorari with this Court, docketed as G.R. Nos. 111998, 2 114435-
5506, 3 and 116312-19, 4 which were all referred to the Court of Appeals pursuant to Revised Administrative Circular No. 1-95  5 and there re-docketed as
CA-G.R. SP No. 37620, CA-G.R. SP No. 37619 and CA-G.R. SP Nos. 37784, 37808-37014, respectively.

On 29 November 1995 the Special Third Division of the Court of Appeals 6 rendered a joint decision in CA-G.R. SP Nos. 37619-20 dismissing the petitions
for lack of merit. 7 The appellate court ruled that the questioned resolutions of the Civil Service Commission finding petitioners guilty of conduct prejudicial to
the best interest of the service were based on reasonable and justifiable grounds; that petitioners' perceived grievances were no excuse for them not to
conduct classes and defy the return-to-work order issued by their superiors; that the immediate execution of the dismissal orders of Secretary Cariño was
sanctioned by Sec. 47, par. (2), of the Administrative Code of 1987 (E.O. No. 292) as well as Sec. 37, par. (b), Art. IX of PD No. 807,  8 and Sec. 32, Rule XIV
of the Omnibus Rules Implementing Book V of E. O. No. 292. Their motion for reconsideration having been denied on 15 May 1997, 9 petitioners then
appealed by certiorari to this Court on 26 June 1997, docketed as G.R. No. 129221.

Meanwhile, on 24 April 1998 the Tenth Division of the Court of Appeals 10 rendered a joint decision in CA-G.R. SP No. 37784 and Nos. 37808-14 likewise
dismissing the petitions for lack of merit. 11 The appellate court rejected petitioners' contention that they should not have been penalized for participating in
the September/October 1990 mass actions because they were merely exercising their constitutional right to free assembly. In so ruling the Court of Appeals
cited Manila Public School Teachers Association v . Laguio, Jr. 12 wherein this Court ruled that the public school teachers' mass actions of
September/October 1990 were "to all intents and purposes a strike . . . constitut[ing] a concealed and unauthorized stoppage of, or absence from, work
which it was the teachers' duty to perform, undertaken for essentially economic reasons." Petitioners' contention that secretary Cariño's decision to dismiss
them was not supported by evidence was likewise rejected in view of petitioners' admissions and/or failure to refute the factual finding that petitioners
actually joined the mass actions based on the report of absences submitted by their respective school principals. Their motion for reconsideration having
been denied in the resolution of 20 August 1996, 13 petitioners then filed a petition for review on certiorari with this Court on 1 October 1996, docketed as
G.R. No. 126183.
 35

By resolution of 7 October 1997 we granted petitioners' motion for the consolidation of G.R. Nos. 126183 and 129221 involving as they did common
questions of fact and law.

Petitioners contend that the Court of Appeals grievously erred in affirming the CSC resolutions finding them guilty of conduct prejudicial to the best interest of
the service when their only "offense" was to exercise their constitutional right to peaceably assemble and petition the government for redress of their
grievances. Moreover, petitioners insist that the mass actions of September/October 1990 were not "strikes" as there was no actual disruption of classes.
Petitioners therefore ask for exoneration or, in the alternative, award of back wages for the period of three (3) years when they were not allowed to work
while awaiting resolution of their appeals by the MSPB and CSC, deducting the period of six (6) months' suspension eventually meted them.

The petitions must be denied in view of previous rulings of this Court already settling all the issues raised by petitioners. It is a very desirable and necessary
judicial practice that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all
future cases where the facts are substantially the same. 14 Stare decisis et non quieta movere. Stand by the decisions and disturb not what is settled. 15

As early as 18 December 1990 we have categorically ruled in the consolidated cases of Manila Public School Teachers Association v.
Laguio Jr., 16 and Alliance of Concerned Teachers v. Hon. Isidro Cariño 17 that the mass actions of September/October 1990 staged by Metro Manila public
school teachers "amounted to a strike in every sense of the term, constituting as they did, a concerted and unauthorized stoppage of or absence from work
which it was said teachers' sworn duty to perform, carried out for essentially economic reasons — to protest and pressure the Government to correct what,
among other grievances, the strikers perceived to be the unjust or prejudicial implementation of the salary standardization law insofar as they were
concerned, the non-payment or delay in payment of various fringe benefits and allowances to which they were entitled, and the imposition of additional
teaching loads and longer teaching hours." In Rolando Gan v. Civil Service Commission, 18 we denied the claim that the teachers were thereby denied their
rights to peaceably assemble and petition the government for redress of grievances reasoning that this constitutional liberty to be upheld, like any other
liberty, must be exercised within reasonable limits so as not to prejudice the public welfare. But the public school teachers in the case of the 1990 mass
actions did not exercise their constitutional rights within reasonable limits. On the contrary, they committed acts prejudicial to the best interest of the service
by staging the mass protests on regular school days, abandoning their classes and refusing to go back even after they had been ordered to do so. Had the
teachers availed of their free time — recess, after classes, weekends or holidays — to dramatize their grievances and to dialogue with the proper authorities
within the bounds of law, no one — not the DECS, the CSC or even the Supreme Court — could have held them liable for their participation in the mass
actions.19

With respect to our ruling in PBM Employees Organization v. Philippine Blooming Mills Co., Inc., 20 invoked by petitioners, we have likewise already ruled in
the Rolando Gan case 21 that the PBM ruling — that the rights of free expression and assembly could not be lightly disregarded as they occupy a preferred
position in the hierarchy of civil liberties — was not applicable to defend the validity of the 1990 mass actions because what were pitted therein against the
rights of free expression and of assembly were inferior property rights while the higher consideration involved in the case of the striking teachers was the
education of the youth which must, at the very least, be equated with the freedom of assembly and to petition the government for redress of grievances. 22

We affirmed the foregoing rulings in Bagana v. Court of Appeals 23 by denying a similar petition filed by another group of teachers who participated in the
1990 mass actions but who claimed to have been merely exercising their constitutional right to free assembly. We held in Bagana that the Court of Appeals
committed no reversible error in affirming the CSC resolutions finding the teachers guilty of conduct prejudicial to the best interest of the service and
imposing penalties of six (6) months' suspension without pay. In Bangalisan v. Court of Appeals 24 we added that the persistent refusal of the striking
teachers to call the mass actions by the conventional term "strike" did not erase the true nature of the mass actions as unauthorized stoppages of work the
purpose of which was to obtain a favorable response to the teachers' economic grievances. We again stressed that the teachers were penalized not
because they exercised their right to peaceably assemble but because of the manner by which such right was exercised, i.e., going on unauthorized and
unilateral absences thus disrupting classes in various schools in Metro Manila which produced adverse effects upon the students for whose education the
teachers were responsible. But herein petitioners contend that classes were not actually disrupted because substitute teachers were immediately appointed
by Secretary Cariño. Besides being a purely factual assertion which this Court cannot take cognizance of in a petition for review, the fact that the prompt
remedial action taken by Secretary Cariño might have partially deflected the adverse effects of the mass protests did not erase the administrative liability of
petitioners for the intended consequences thereof which were the very reason why such prompt remedial action became necessary.

Considering the foregoing, we find that respondent Court of Appeals did not err in sustaining the CSC resolutions finding petitioners guilty of conduct
prejudicial to the best interest of the service.

As an alternative prayer, petitioners ask that in the event their exoneration is not decreed they be awarded back wages for the period when they were not
allowed to work by reason of the supposed unjustified immediate implementation of the dismissal orders of Secretary Cariño while awaiting resolution of their
appeals by the MSPB and CSC.

The issue of whether back wages may be awarded to teachers ordered reinstated to the service after the dismissal orders of Secretary Cariño were
commuted by the CSC to six (6) months' suspension is already settled.

In Bangalisan v. Court of Appeals 25 we resolved the issue in the negative on the ground that the teachers were neither exonerated nor unjustifiably
suspended, two (2) circumstances necessary for the grant of back wages in administrative disciplinary cases. Like herein petitioners, those in Bangalisan
were also teachers who participated in the 1990 mass actions for which they were dismissed by Secretary Cariño but ordered merely suspended for six (6)
months by the Civil Service Commission. On a plea that the immediate implementation of the dismissal orders of Secretary Cariño was unjustified, thus
warranting an award of back wages the Court said —

As to the immediate execution of the decision of the Secretary against petitioners, the same is authorized by Section 47, paragraph (2),
of Executive Order No. 292, thus: "The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall
have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction.
Their decision shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding
thirty days' salary. In case the decision rendered by a bureau or office is appealable to the Commission, the same shall be executory
except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned.

And since it was already the final dismissal orders of Secretary Cariño which were being carried out, immediate implementation even pending
appeal was clearly sanctioned by the aforequoted provision of the Administrative Code of 1987. 26 Hence, being legal, the immediate execution of
the dismissal orders could not be considered unjustified.
 36

The cases cited by petitioners to support their prayer for back salaries, namely,  Abellera v. City of Baguio 27 and Bautista v. Peralta 28 being cases which
involved the unjustified immediate execution of the dismissal orders of the then Civil Service Commissioner pending appeal to the Civil Service Board of
Appeals are therefore not applicable to justify petitioners' prayer. Neither could petitioners be considered to have been exonerated from the charges levelled
against them by Secretary Cariño from the mere fact that they were found guilty only of conduct prejudicial to the best interest of the service by the CSC. It
must be remembered that Secretary Cariño charged petitioners with grave misconduct, gross neglect of duty, gross violation of civil service law, rules and
regulations, etc., for having participated in the 1990 illegal mass actions. On appeal the CSC while affirming the factual finding that petitioners indeed
participated in the mass the factual finding that petitioners indeed participated in the mass actions found them liable only for conduct prejudicial to the best
interest of the service. Clearly the CSC decision did not proceed from a finding that petitioners did not commit the acts complained of. Having been found to
have actually participated in the illegal mass actions although found answerable for a lesser offense, petitioners could not be considered as fully innocent of
the charges against them. 29 Being found liable for a lesser offense is not equivalent to exoneration. 30

Thus in Bangalisan we denied the claim for back wages of those teachers who were found to have actually participated in the 1990 mass actions but granted
the claim of one Rodolfo Mariano who was absent only because he attended the wake and interment of his grandmother. In  Jacinto v. Court of Appeals 31 we
again denied the claim for back wages of teachers found to have given cause for their suspension i.e., their unjustified abandonment of classes to the
prejudice of their students but granted the claim of Merlinda Jacinto who was absent because of illness.

Petitioners do not deny, nay they even admit, having participated in the 1990 mass actions. Thus having given cause for their supension, their prayer for
backwages must be denied conformably with settled rulings of this Court.

WHEREFORE, the petitions are DENIED and the assailed Decisions of the Court of Appeals dated 29 November 1995 and 24 April 1996 are AFFIRMED.
No costs.

SO ORDERED.

Davide, Jr., C.J., Romero, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.

8. G.R. No. 170132             December 6, 2006

GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA, in his capacity as GSIS President & General Manager, petitioners, vs.
KAPISANAN NG MGA MANGGAGAWA SA GSIS, respondents.

DECISION

GARCIA, J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, the Government Service Insurance System (GSIS) and its President and General
Manager Winston F. Garcia (Garcia, for short) assail and seek to nullify the Decision 1 dated June 16, 2005 of the Court of Appeals (CA) in CA-G.R. SP No.
87220, as reiterated in its Resolution2 of October 18, 2005 denying Garcia's motion for reconsideration.

The recourse is cast against the following setting:

A four-day October 2004 concerted demonstration, rallies and en masse walkout waged/held in front of the GSIS main office in Roxas Boulevard, Pasay
City, started it all. Forming a huge part of the October 4 to October 7, 2004 mass action participants were GSIS personnel, among them members of the
herein respondent Kapisanan Ng Mga Manggagawa sa GSIS ("KMG" or the "Union"), a public sector union of GSIS rank-and-file employees. Contingents
from other government agencies joined causes with the GSIS group. The mass action's target appeared to have been herein petitioner Garcia and his
management style. While the Mayor of Pasay City allegedly issued a rally permit, the absence of the participating GSIS employees was not covered by a
prior approved leave.3

On or about October 10, 2004, the manager of the GSIS Investigating Unit issued a memorandum directing 131 union and non-union members to show
cause why they should not be charged administratively for their participation in said rally. In reaction, KMG's counsel, Atty. Manuel Molina, sought
reconsideration of said directive on the ground, among others, that the subject employees resumed work on October 8, 2004 in obedience to the return-to-
work order thus issued. The plea for reconsideration was, however, effectively denied by the filing, on October 25, 2004, of administrative charges against
some 110 KMG members for grave misconduct and conduct prejudicial to the best interest of the service. 4

What happened next is summarized by the CA in its challenged decision of June 16, 2005, albeit the herein petitioners would except from some of the
details of the appellate court's narration:

Ignoring said formal charges, KMG, thru its President, Albert Velasco, commenced the instant suit on November 2, 2004, with the filing of the
Petition for Prohibition at bench. On the ground that its members should not be made to explain why they supported their union's cause, petitioner
[KMG] faulted respondent [Garcia] with blatant disregard of Civil Service Resolution No. 021316, otherwise known as the Guidelines for Prohibited
Mass Action, Section 10 of which exhorts government agencies to "harness all means within their capacity to accord due regard and attention to
employees' grievances and facilitate their speedy and amicable disposition through the use of grievance machinery or any other modes of
settlement sanctioned by law and existing civil service rules." Two supplements to the foregoing petition were eventually filed by KMG. The first, …
apprised [the CA] of the supposed fact that its Speaker, Atty. Molina, had been placed under preventive suspension for 90 days and that the formal
charges thus filed will not only deprive its members of the privileges and benefits due them but will also disqualify them from promotion, step
increment adjustments and receipt of monetary benefits, including their 13th month pay and Christmas bonuses. The second, xxx manifested that,
on December 17, 2004, respondent [Garcia] served a spate of additional formal charges against 230 of KMG's members for their participation in
the aforesaid grievance demonstrations.

In his December 14, 2004 comment to the foregoing petition, respondent [Garcia] averred that the case at bench was filed by an unauthorized
representative in view of the fact that Albert Velasco had already been dropped from the GSIS rolls and, by said token, had ceased to be a
 37

member – much less the President – of KMG. Invoking the rule against forum shopping, respondent [Garcia] called [the CA's] attention to the
supposed fact that the allegations in the subject petition merely duplicated those already set forth in two petitions for certiorari and prohibition
earlier filed by Albert Velasco …. Because said petitions are, in point of fact, pending before this court as CA-G.R. SP Nos. 86130 and 86365,
respondent [Garcia] prayed for the dismissal of the petition at bench …. 5 (Words in bracket added.)

It appears that pending resolution by the CA of the KMG petition for prohibition in this case, the GSIS management proceeded with the investigation of the
administrative cases filed. As represented in a pleading before the CA, as of May 18, 2005, two hundred seven (207) out of the two hundred seventy eight
(278) cases filed had been resolved, resulting in the exoneration of twenty (20) respondent-employees, the reprimand of one hundred eighty two (182) and
the suspension for one month of five (5).6

On June 16, 2005, the CA rendered the herein assailed decision 7 holding that Garcia's "filing of administrative charges against 361 of [KMG's] members is
tantamount to grave abuse of discretion which may be the proper subject of the writ of prohibition ." Dispositively, the decision reads:

WHEREFORE, premises considered, the petition [of KMG] is GRANTED and respondent [Winston F. Garcia] is
hereby PERPETUALLY ENJOINED from implementing the issued formal charges and from issuing other formal charges arising from the same
facts and events.

SO ORDERED. (Emphasis in the original)

Unable to accept the above ruling and the purported speculative factual and erroneous legal premises holding it together, petitioner Garcia sought
reconsideration. In its equally assailed Resolution 8 of October 18, 2005, however, the appellate court denied reconsideration of its decision.

Hence, this recourse by the petitioners ascribing serious errors on the appellate court in granting the petition for prohibition absent an instance of grave
abuse of authority on their part.

We resolve to GRANT the petition.

It should be stressed right off that the civil service encompasses all branches and agencies of the Government, including government-owned or controlled
corporations (GOCCs) with original charters, like the GSIS, 9 or those created by special law.10 As such, employees of covered GOCCs are part of the civil
service system and are subject to circulars, rules and regulations issued by the Civil Service Commission (CSC) on discipline, attendance and general
terms/conditions of employment, inclusive of matters involving self-organization, strikes, demonstrations and like concerted actions. In fact, policies
established on public sector unionism and rules issued on mass action have been noted and cited by the Court in at least a case. 11 Among these issuances
is Executive Order (EO) No. 180, series of 1987, providing guidelines for the exercise of the right to organize of government employees. Relevant also is
CSC Resolution No. 021316 which provides rules on prohibited concerted mass actions in the public sector.

There is hardly any dispute about the formal charges against the 278 affected GSIS employees – a mix of KMG union and non-union members - having
arose from their having gone on unauthorized leave of absence (AWOL) for at least a day or two in the October 4 to 7, 2004 stretch to join the ranks of the
demonstrators /rallyists at that time. As stated in each of the formal charges, the employee's act of attending, joining, participating and taking part in the
strike/rally is a transgression of the rules on strike in the public sector. The question that immediately comes to the fore, therefore, is whether or not the mass
action staged by or participated in by said GSIS employees partook of a strike or prohibited concerted mass action. If in the affirmative, then the denounced
filing of the administrative charges would be prima facie tenable, inasmuch as engaging in mass actions resulting in work stoppage or service disruption
constitutes, in the minimum, the punishable offense of acting prejudicial to the best interest of the service. 12 If in the negative, then such filing would indeed
smack of arbitrariness and justify the issuance of a corrective or preventive writ.

Petitioners assert that the filing of the formal charges are but a natural consequence of the service-disrupting rallies and demonstrations staged during office
hours by the absenting GSIS employees, there being appropriate issuances outlawing such kinds of mass action. On the other hand, the CA, agreeing with
the respondent's argument, assumed the view and held that the organized demonstrating employees did nothing more than air their grievances in the
exercise of their "broader rights of free expression" 13 and are, therefore, not amenable to administrative sanctions. For perspective, following is what the CA
said:

Although the filing of administrative charges against [respondent KMG's] members is well within [petitioner Garcia's] official [disciplinary]
prerogatives, [his] exercise of the power vested under Section 45 of Republic Act No. 8291 was tainted with arbitrariness and vindictiveness
against which prohibition was sought by [respondent]. xxx the fact that the subject mass demonstrations were directed against [Garcia's] supposed
mismanagement of the financial resources of the GSIS, by and of itself, renders the filing of administrative charges against [KMG's] member
suspect. More significantly, we find the gravity of the offenses and the sheer number of persons … charged administratively to be, at the very least,
antithetical to the best interest of the service….

It matters little that, instead of the 361 alleged by petitioner, only 278 charges were actually filed [and] in the meantime, disposed of and of the said
number, 20 resulted to exoneration, 182 to reprimand and 5 to the imposition of a penalty of one month suspension. Irrespective of their outcome,
the severe penalties prescribed for the offense with which petitioner's members were charged, to our mind, bespeak of bellicose and castigatory
reaction …. The fact that most of the employees [Garcia] administratively charged were eventually meted with what appears to be a virtual slap on
the wrist even makes us wonder why respondent even bothered to file said charges at all. xxx.

Alongside the consequences of the right of government employees to form, join or assist employees organization, we have already mentioned how
the broader rights of free expression cast its long shadow over the case. xxx we find [petitioner Garcia's] assailed acts, on the whole, anathema to
said right which has been aptly characterized as preferred, one which stands on a higher level than substantive economic and other liberties, the
matrix of other important rights of our people. xxx. 14 (Underscoring and words in bracket added; citations omitted.)

While its decision and resolution do not explicitly say so, the CA equated the right to form associations with the right to engage in strike and similar activities
available to workers in the private sector. In the concrete, the appellate court concluded that inasmuch as GSIS employees are not barred from forming,
joining or assisting employees' organization, petitioner Garcia could not validly initiate charges against GSIS employees waging or joining rallies and
demonstrations notwithstanding the service-disruptive effect of such mass action. Citing what Justice Isagani Cruz said in Manila Public School Teachers
Association [MPSTA] v. Laguio, Jr.,15 the appellate court declared:
 38

It is already evident from the aforesaid provisions of Resolution No. 021316 that employees of the GSIS are not among those specifically barred
from forming, joining or assisting employees organization such as [KMG]. If only for this ineluctable fact, the merit of the petition at bench is readily
discernible.16

We are unable to lend concurrence to the above CA posture. For, let alone the fact that it ignores what the Court has uniformly held all along, the appellate
court's position is contrary to what Section 4 in relation to Section 5 of CSC Resolution No. 021316 17 provides. Besides, the appellate court's invocation of
Justice Cruz's opinion in MPSTA is clearly off-tangent, the good Justice's opinion thereat being a dissent. It may be, as the appellate court urged¸ that the
freedom of expression and assembly and the right to petition the government for a redress of grievances stand on a level higher than economic and other
liberties. Any suggestion, however, about these rights as including the right on the part of government personnel to strike ought to be, as it has been,
trashed. We have made this abundantly clear in our past determinations. For instance, in  Alliance of Government Workers v. Minister of Labor and
Employment,18 a case decided under the aegis of the 1973 Constitution, an en banc Court declared that it would be unfair to allow employees of government
corporations to resort to concerted activity with the ever present threat of a strike to wring benefits from Government. Then came the 1987 Constitution
expressly guaranteeing, for the first time, the right of government personnel to self-organization 19 to complement the provision according workers the right to
engage in "peaceful concerted activities, including the right to strike in accordance with law ."20

It was against the backdrop of the aforesaid provisions of the 1987 Constitution that the Court resolved  Bangalisan v. Court of Appeals.21 In it, we held,
citing MPSTA v. Laguio, Jr.,22 that employees in the public service may not engage in strikes or in concerted and unauthorized stoppage of work; that the
right of government employees to organize is limited to the formation of unions or associations, without including the right to strike.

Jacinto v. Court of Appeals23 came next and there we explained:

Specifically, the right of civil servants to organize themselves was positively recognized in Association of Court of Appeals Employees vs. Ferrer-
Caleja. But, as in the exercise of the rights of free expression and of assembly, there are standards for allowable limitations such as the legitimacy
of the purpose of the association, [and] the overriding considerations of national security . . . .

As regards the right to strike, the Constitution itself qualifies its exercise with the provision "in accordance with law." This is a clear manifestation
that the state may, by law, regulate the use of this right, or even deny certain sectors such right. Executive Order 180 which provides guidelines for
the exercise of the right of government workers to organize, for instance, implicitly endorsed an earlier CSC circular which "enjoins under pain of
administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walkouts and other forms of
mass action which will result in temporary stoppage or disruption of public service" by stating that the Civil Service law and rules governing
concerted activities and strikes in government service shall be observed. (Emphasis and words in bracket added; citations omitted)

And in the fairly recent case of Gesite v. Court of Appeals,24 the Court defined the limits of the right of government employees to organize in the following
wise:

It is relevant to state at this point that the settled rule in this jurisdiction is that employees in the public service may not engage in strikes, mass
leaves, walkouts, and other forms of mass action that will lead in the temporary stoppage or disruption of public service. The right of government
employees to organize is limited to the formation of unions or associations only, without including the right to strike,

adding that public employees going on disruptive unauthorized absences to join concerted mass actions may be held liable for conduct prejudicial to the best
interest of the service.

Significantly, 1986 Constitutional Commission member Eulogio Lerum, answering in the negative the poser of whether or not the right of government
employees to self-organization also includes the right to strike, stated:

When we proposed this amendment providing for self organization of government employees, it does not mean that because they have the right to
organize, they have also the right to strike. That is a different matter. xxx 25

With the view we take of the events that transpired on October 4-7, 2004, what respondent's members launched or participated in during that time partook of
a strike or, what contextually amounts to the same thing, a prohibited concerted activity. The phrase " prohibited concerted activity" refers to any collective
activity undertaken by government employees, by themselves or through their employees' organization, with the intent of effecting work stoppage or service
disruption in order to realize their demands or force concessions, economic or otherwise; it includes mass leaves, walkouts, pickets and acts of similar
nature.26 Indeed, for four straight days, participating KMG members and other GSIS employees staged a walk out and waged or participated in a mass
protest or demonstration right at the very doorstep of the GSIS main office building. The record of attendance 27 for the period material shows that, on the first
day of the protest, 851 employees, or forty eight per cent (48%) of the total number of employees  in the main office (1,756) took to the streets during office
hours, from 6 a.m. to 2 p.m., 28 leaving the other employees to fend for themselves in an office where a host of transactions take place every business day.
On the second day, 707 employees left their respective work stations, while 538 participated in the mass action on the third day. A smaller number, i.e.,  306
employees, but by no means an insignificant few, joined the fourth day activity.

To say that there was no work disruption or that the delivery of services remained at the usual level of efficiency at the GSIS main office during those four (4)
days of massive walkouts and wholesale absences would be to understate things. And to place the erring employees beyond the reach of administrative
accountability would be to trivialize the civil service rules, not to mention the compelling spirit of professionalism exacted of civil servants by the Code of
Conduct and Ethical Standards for Public Officials and Employees. 29

The appellate court made specific reference to the "parliament of the streets," obviously to lend concurrence to respondent's pretension that the gathering of
GSIS employees on October 4-7, 2004 was an "assembly of citizens" out only to air grievances, not a striking crowd. According to the respondent, a strike
presupposes a mass action undertaken to press for some economic demands or secure additional material employment benefits.

We are not convinced.

In whatever name respondent desires to call the four-day mass action in October 2004, the stubborn fact remains that the erring employees, instead of
exploring non-crippling activities during their free time, had taken a disruptive approach to attain whatever it was they were specifically after. As events
evolved, they assembled in front of the GSIS main office building during office hours and staged rallies and protests, and even tried to convince others to join
 39

their cause, thus provoking work stoppage and service-delivery disruption, the very evil sought to be forestalled by the prohibition against strikes by
government personnel.30

The Court can concede hypothetically that the protest rally and gathering in question did not involve some specific material demand. But then the absence of
such economic-related demand, even if true, did not, under the premises, make such mass action less of a prohibited concerted activity. For, as articulated
earlier, any collective activity undertaken by government employees with the intent of effecting work stoppage or service disruption in order to realize their
demands or force concessions, economic or otherwise, is a prohibited concerted mass action 31 and doubtless actionable administratively. Bangalisan even
went further to say the following: "[i]n the absence of statute, public employees do not have the right to engage in concerted work stoppages for any
purpose."

To petitioner Garcia, as President and General Manager of GSIS, rests the authority and responsibility, under Section 45 of Republic Act No. 8291, the  GSIS
Act of 1997, to remove, suspend or otherwise discipline GSIS personnel for cause. 32 At bottom then, petitioner Garcia, by filing or causing the filing of
administrative charges against the absenting participants of the October 4-7, 2004 mass action, merely performed a duty expected of him and enjoined by
law. Regardless of the mood petitioner Garcia was in when he signed the charge sheet, his act can easily be sustained as legally correct and doubtless
within his jurisdiction.

It bears to reiterate at this point that the GSIS employees concerned were proceeded against - and eventually either exonerated, reprimanded or meted a
one-month suspension, as the case may be - not for the exercise of their right to assemble peacefully and to petition for redress of grievance, but for
engaging in what appeared to be a prohibited concerted activity. Respondent no less admitted that its members and other GSIS employees might have
disrupted public service.33

To be sure, arbitrariness and whimsical exercise of power or, in fine, grave abuse of discretion on the part of petitioner Garcia cannot be simplistically
inferred from the sheer number of those charged as well as the gravity or the dire consequences of the charge of grave misconduct and conduct prejudicial
to the best interest of the service, as the appellate court made it to appear. The principle of accountability demands that every erring government employee
be made answerable for any malfeasance or misfeasance committed. And lest it be overlooked, the mere filing of formal administrative case, regardless of
the gravity of the offense charged, does not overcome the presumptive innocence of the persons complained of nor does it shift the burden of evidence to
prove guilt of an administrative offense from the complainant.

Moreover, the Court invites attention to its holding in MPSTA v. Laguio, Jr., a case involving over 800 public school teachers who took part in mass actions
for which the then Secretary of Education filed administrative complaints on assorted charges, such as gross misconduct. Of those charged, 650 were
dismissed and 195 suspended for at least six (6) months The Court, however, did not consider the element of number of respondents thereat and/or the dire
consequences of the charge/s as fatally vitiating or beclouding the bona fides of the Secretary of Education's challenged action. Then as now, the Court finds
the filing of charges against a large number of persons and/or the likelihood that they will be suspended or, worse, dismissed from the service for the offense
as indicating a strong and clear case of grave abuse of authority to justify the issuance of a writ of prohibition.

The appellate court faulted petitioner Garcia for not first taping existing grievance machinery and other modes of settlement agreed upon in the GSIS-KMG
Collective Negotiations Agreement (CAN) before going full steam ahead with his formal charges. 34

The Court can plausibly accord cogency to the CA's angle on grievance procedure but for the fact that it conveniently disregarded what appears to be the
more relevant provision of the CNA. We refer to Article VI which reads:

The GSIS Management and the KMG have mutually agreed to promote the principle of shared responsibility … on all matters and decisions
affecting the rights, benefits and interests of all GSIS employees …. Accordingly, … the parties also mutually agree that  the KMG shall not declare
a strike nor stage any concerted action which will disrupt public service and the GSIS management shall not lockout  employees who are members
of the KMG during the term of this agreement. GSIS Management shall also respect the rights of the employees to air their sentiments through
peaceful concerted activities during allowable hours, subject to reasonable office rules .... 35 (Underscoring added)

If the finger of blame, therefore, is to be pointed at someone for non-exhaustion of less confrontational remedies, it should be at the respondent union for
spearheading a concerted mass action without resorting to available settlement mechanism. As it were, it was KMG, under Atty. Alberto Velasco, which
opened fire first. That none of the parties bothered to avail of the grievance procedures under the GSIS-KMG CNA should not be taken against the GSIS. At
best, both GSIS management and the Union should be considered as in pari delicto.

With the foregoing disquisitions, the Court finds it unnecessary to discuss at length the legal standing of Alberto Velasco to represent the herein respondent
union and to initiate the underlying petition for prohibition. Suffice it to state that Velasco, per Joint Resolution No. 04-10-01 approved on October 5, 2004 by
the KMG Joint Executive-Legislative Assembly, had ceased to be member, let alone president, of the KMG, having previously been dropped from the rolls of
GSIS employees.36 While the dropping from the rolls is alleged to have been the subject of a CA-issued temporary restraining order (TRO), the injunction
came after Atty. Velasco had in fact been separated from the service and it appears that the TRO had already expired.

As a final consideration, the Court notes or reiterates the following relevant incidents surrounding the disposition of the case below:

1. The CA had invoked as part of its ratio decidendi a dissenting opinion in MPSTA, even going to the extent of describing as "instructive and
timely" a portion, when the majority opinion thereat, which the appellate court ignored, is the controlling jurisprudence.

2. The CA gave prominence to dispositions and rattled off holdings 37 of the Court, which appropriately apply only to strikes in the private industry
labor sector, and utilized the same as springboard to justify an inference of grave abuse of discretion. On the other hand, it only gave perfunctory
treatment if not totally ignored jurisprudence that squarely dealt with strikes in the public sector, as if the right to strike given to unions in private
corporations/entities is necessarily applicable to civil service employees.

3. As couched, the assailed CA decision perpetually bars respondent Garcia – and necessarily whoever succeeds him as GSIS President – not
only from implementing the formal charges against GSIS employees who participated in the October 4 - 7, 2004 mass action but also from issuing
other formal charges arising from the same events. The injunction was predicated on a finding that grave abuse of discretion attended the exercise
of petitioner Garcia's disciplinary power vested him under Section 45 of RA 8291. 38 At bottom then, the assailed decision struck down as a nullity,
owing to the alleged attendant arbitrariness, not only acts that have already been done, but those yet to be done. In net effect, any formal charge
 40

arising from the October 4-7, 2004 incident is, under any and all circumstances, prejudged as necessarily tainted with arbitrariness to be slain at
sight.

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

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

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals are REVERSED and SET ASIDE and the writ of prohibition issued by that court
is NULLIFIED.

No Cost.

SO ORDERED.

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

Corona, J., On Leave.

9. G.R. No. 107566             November 25, 2004

BAGUIO MIDLAND COURIER, REPRESENTED BY ITS PRESIDENT AND GENERAL MANAGER, OSEO HAMADA AND CECILLE AFABLE, EDITOR-IN-
CHIEF, petitioners, vs. THE COURT OF APPEALS (FORMER SP, 6TH DIVISION) AND RAMON LABO, JR., respondents.

DECISION

CHICO-NAZARIO, J.:

This is a petition for review on certiorari seeking to set aside the Decision 1 of the Court of Appeals, dated 07 January 1992, and the Resolution, 2 dated 29
September 1992, reversing the decision of the Regional Trial Court (RTC), dated 14 June 1990, which dismissed herein private respondent's claim for
damages.

Culled from the records are the following facts:

During the time material to this case, petitioner Oseo C. Hamada (Hamada) was the president and general manager of the Baguio Printing and Publishing
Co., Inc., which publishes the Baguio Midland Courier, a weekly newspaper published and circulated in Baguio City and other provinces within the Cordillera
region. He was also, at that time, the business manager of said newsweekly. Petitioner Cecille Afable (Afable) was Baguio Midland Courier's editor-in-chief
and one of its columnists who ran the column "In and Out of Baguio."

On the other hand, private respondent Ramon L. Labo, Jr., was among the mayoralty candidates in Baguio City for the 18 January 1988 local
elections.3 Prior to this, in 1984, private respondent had already embarked on a political career by running for a seat in the former Batasang Pambansa
during which time he appointed a certain Benedicto Carantes (Carantes) as his campaign manager. It appears that as part of the campaign propaganda for
private respondent in the 1984 local elections, political ads appeared in the various issues of Baguio Midland Courier and campaign paraphernalia were
printed by Baguio Printing and Publishing Co., Inc., on his behalf.

Apart from his political endeavors, private respondent was also an active member of the civic group Lions Club having been elected governor of said
organization in 1984, 1986, and 1988.

Before the 18 January 1988 local elections, petitioner Afable wrote in her column a series of articles dealing with the candidates for the various elective
positions in Baguio City. Quoted hereunder are excerpts from said articles, as well as the respective dates when they were published in the Baguio Midland
Courier –

January 3, 1988

. . . Of all the candidates for mayor, Labo has the most imponderables about him, people would ask, "Can he read and write?" Why is he always talking
about his Japanese father-in-law? Is he really a Japanese Senator or a barrio kapitan? Is it true that he will send P18 million aid to Baguio? Somebody
wanted to put an advertisement of Labo in the Midland Courier but was refused because he has not yet paid his account of the last time he was a candidate
for Congress. We will accept all advertisements for him if he pays his old accounts first. 4

January 10, 1988

I heard that the "Dumpty in the egg" is campaigning for Cortes. Not fair. Some real doctors are also busy campaigning against Labo, because he has not
also paid their medical services with them. Since he is donating millions he should settle his small debts like the reportedly insignificant amount of P27,000
only. If he wins several teachers were signifying to resign and leave Baguio forever, and Pangasinan will be the franca-liqua of Baguio. 5

Claiming that the aforequoted portions of petitioner Afable's column were tainted with malice, private respondent instituted separate criminal and civil actions
for libel against herein petitioners. In a resolution, dated 26 December 1988, the Department of Justice dismissed the criminal case due to insufficiency of
evidence6 while the civil suit was raffled off to RTC, Branch 6, Baguio City.

In the complaint for damages, private respondent alleged that in her 03 January 1988 and 10 January 1988 columns, petitioner Afable made it appear that
he (private respondent) could not comply with his financial obligations; that Yuko Narukawa Labo (Narukawa Labo), his co-plaintiff in the case before the trial
court, was accused of misrepresenting her social status to the general public thereby subjecting her to public ridicule; that the subject articles were written
solely for the purpose of destroying his reputation, integrity, and personality as well as that of Ms. Narukawa Labo; and that said articles were false, untrue,
 41

libelous, and published with evil intent. Private respondent and Ms. Narukawa Labo, therefore, prayed for moral damages, exemplary damages, litigation
expenses, attorney's fees, and costs of litigation.

Prior to filing their respective answers, petitioners filed separate motions to dismiss 7 upon the ground that there was failure to comply with Section 6 of
Presidential Decree (P.D.) No. 1508, 8 otherwise known as the Katarungang Pambarangay Law, which required the referral of certain disputes to the
barangay conciliation process before they are filed in court. Petitioner Hamada also claimed that the complaint stated no cause of action.

On 05 April 1988, private respondent and Ms. Narukawa Labo filed a motion with leave of court to amend and admit attached amended
complaint.9 Impleaded in the amended complaint10 was the Baguio Printing and Publishing Co., Inc., as the publisher of the Baguio Midland Courier.

In its Order, dated 12 April 1988,11 the trial court denied petitioners' motions to dismiss. According to the trial court, as one of the parties to this case was a
corporation, P.D. No. 1508 was not applicable as said statute pertained only to actions involving natural persons. In the same order, the trial court granted
private respondent and Ms. Narukawa Labo's motion to admit their amended complaint and directed the petitioners to file their answers.

In their answer,12 petitioners Baguio Midland Courier and Hamada denied that petitioner Afable's 03 and 10 January 1988 articles were libelous. They also
claimed that per their company's records, private respondent still owed them a certain sum of money for the political ads and campaign paraphernalia printed
by Baguio Printing and Publishing Co., Inc., during private respondent's 1984 campaign, and that the 03 January 1988 column did not accuse Ms. Narukawa
Labo of misrepresenting herself before the public. Moreover, they asserted that petitioner Afable's write-ups were fair comments on facts and reports that
were of public interest as private respondent was a mayoralty candidate at that time. Finally, petitioners Baguio Midland Courier and Hamada interposed
counterclaims for moral damages, exemplary damages, attorney's fees, and costs.

In her answer,13 petitioner Afable also denied that the quoted portions of her 03 and 10 January 1988 column were libelous, insisting that they were devoid of
malice and "at most contained valid and timely doubts." 14 She also contended that the contents of her column were protected by the constitutional
guarantees of freedom of speech and of the press and that the same were privileged as they dealt with a public figure. Petitioner Afable likewise sought
counterclaims for moral damages, exemplary damages, and attorney's fees.

During the pre-trial of the case on 31 March 1989, the parties agreed to limit the issues to the following: (1) whether the published items were libelous, false
and malicious; (2) whether plaintiffs below were entitled to damages; and (3) whether petitioners (defendants therein) were entitled to damages as claimed in
their respective counterclaims.

On 17 July 1989, private respondent's counsel manifested before the trial court that Ms. Narukawa Labo would no longer testify in support of the allegations
in the amended complaint as far as they pertain to her. 15 In addition, the 03 January 1988 article was no longer offered in evidence by the private
respondent's counsel thus, the trial court interpreted this development to mean that the same ceased to be a part of this suit. The court a quo thereafter
proceeded with the trial of the case taking into consideration only the 10 January 1988 column.

In the trial that ensued, private respondent testified that he felt that the phrase "dumpty in the egg" referred to him, interpreting the same to mean someone
who is a failure in his business undertakings. 16 Private respondent asserted that such allegation was baseless as he was successful in his various endeavors
abroad. With regard to the remainder of the article, private respondent insisted that petitioner Afable made it appear to the public that he owed P27,000 in
unpaid medical expenses while in truth, he could not remember having been hospitalized. 17

Subsequently, private respondent presented Dr. Pedro Rovillos, his fellow Lions Club member, who testified that he understood the term "dumpty in the egg"
to mean "a zero or a big lie." 18 He further testified that the 10 January 1988 article painted private respondent as a "balasubas" 19 due to the latter's alleged
failure to pay his medical expenses.

On the other hand, the petitioners presented Ms. Sylvia Lambino (Lambino), Baguio Printing and Publishing Co., Inc.'s, bookkeeper and accountant, as their
first witness. According to Lambino, Baguio Printing and Publishing Co., Inc., sent several statements of accounts and demand letters to private respondent
pertaining to his unpaid obligations amounting to P27,415 which he incurred during his campaign for the Batasang Pambansa in 1984. 20 She further testified
that despite the repeated demands to private respondent, the aforementioned obligations remained unpaid. 21

Thereafter, petitioner Hamada himself took the witness stand. In his testimony, petitioner Hamada stated that as the president and general manager of the
Baguio Printing and Publishing Co., Inc., and as the business manager of the Baguio Midland Courier, he only dealt with the business and advertising
aspects of their newspaper business and that the contents of the articles appearing in the pages of the Baguio Midland Courier were overseen by the rest of
the staff.22 In addition, petitioner Hamada also corroborated the earlier testimony of Lambino with respect to the outstanding obligations of private
respondent.

On 20 December 1989, Carantes took the witness stand for the petitioners. Carantes testified that he was appointed as private respondent's campaign
manager when the latter ran for assemblyman in Batasang Pambansa in 1984 and that in his capacity as campaign manager, 23 he hired the services of a
certain Noli Balatero to oversee the printing of campaign paraphernalia and publication of political advertisements of private respondent. 24 Carantes further
testified that the P27,415 indebtedness to Baguio Printing and Publishing Co., Inc., had remained unpaid because the campaign funds private respondent
entrusted to him were already fully exhausted. Besides, according to Carantes, the campaign materials printed by the Baguio Printing and Publishing Co.,
Inc., and political advertisements published in Baguio Midland Courier were no longer covered by the agreement he had with Balatero. However, these
materials were printed and published upon the instructions of one Atty. Conrado Bueno who acted as private respondent's "unofficial campaign manager"
during the said election. Carantes thus concluded that private respondent was supposed to pay for these campaign materials and advertisements before or
after the 1984 election.

For her part, petitioner Afable acknowledged having written the 10 January 1988 article but denied that the same was malicious and intended to destroy
private respondent's reputation and integrity; that the phrase "dumpty in the egg" referred to Horato Aquino who was among the candidates for the 1988
local elections in Baguio City; and that the P27,000 pertained to private respondent's unpaid obligation to Baguio Printing and Publishing Co., Inc., the exact
amount of which was P27,415.

In its decision, dated 14 June 1990, the trial court dismissed the complaint for lack of merit. According to the trial court, the article in question was privileged
and constituted fair comment on matters of public interest as it dealt with the integrity, reputation, and honesty of private respondent who was a candidate for
local elective office at that time.

This decision of the trial court was, however, reversed by the appellate court in a decision, dated 07 January 1992, the dispositive portion of which reads:
 42

Construed in the light of the facts and the principles on the matter, and under the plain language of the applicable law, We hold that the evidence was
sufficient to prove by preponderance of evidence that the defendants were GUILTY of committing libel on the person of the complainant Ramon Labo, Jr.
and should be liable to pay damages. The decision of the trial court is hereby REVERSED and SET ASIDE and the defendants are hereby ordered to pay
the plaintiffs as follows:

1) The amount of P200,000.00 as moral damages;

2) The amount of P100,000.00 as exemplary damages;

3) The amount of P50,000.00 for attorney's fees plus costs of litigation. 25

In brushing aside the conclusion reached by the trial court, the Court of Appeals noted that private respondent was, at the time the article in question was
published, not a public official but a private citizen seeking an elective office and petitioner Afable's article was intended to impeach his honesty, virtue or
reputation and to make him appear in the eyes of the public as unfit for public office.

The appellate court also declared that the malicious nature of the article may be deduced from the fact that it was published in the Baguio Midland Courier a
few days before the scheduled local elections and from the style and tone of writing employed by petitioner Afable. According to the Court of Appeals, while
the entire article was composed of ten paragraphs and referred to several unnamed personalities, it was only in the disputed paragraph where a specific
individual was named – herein private respondent. The appellate court therefore concluded that the phrase "dumpty in the egg" could only refer to private
respondent and the claimed P27,000 indebtedness is imputable solely to him.

Petitioners thereafter filed their respective motions for reconsideration 26 of the aforementioned decision of the Court of Appeals but these were denied
through a resolution27 of the appellate court, dated 29 September 1992. Thus, petitioners now come before us raising the following issues:

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT "THERE IS GOOD REASON AND REASONABLE GROUND TO
ASSUME THAT THE PUBLICATION OF THE LIBELOUS ARTICLES WAS A MANIFESTATION OF THE SPOUSES' (DEFENDANTS OSEO HAMADA and
CECILLE AFABLE) THINKING ON THE MERIT OR DEMERIT OF CANDIDATES FOR BAGUIO CITY MAYOR FOR THE JANUARY 18, 1988 ELECTIONS"
SINCE THEY ARE NOT SPOUSES NOR RELATED TO ONE ANOTHER.

II

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT PLAINTIFF-APPELLANT RAMON LABO, JR. WAS THE ONE
REFERRED TO AS THE "DUMPTY IN THE EGG."

III

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT THE PORTION OF THE SUBJECT ARTICLE WHICH STATES
THAT "SINCE HE IS DONATING MILLIONS HE SHOULD SETTLE HIS SMALL DEBTS LIKE THE REPORTEDLY INSIGNIFICANT AMOUNT OF
P27,000.00" REFERS TO AN INDEBTEDNESS OF LABO TO THE REAL DOCTORS AND NOT TO THE BAGUIO MIDLAND COURIER.

IV

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THERE WAS MALICE WHEN THE DEFENDANT-APPELL(ANT)
CECILLE AFABLE INVITED PUBLIC ATTENTION ON LABO'S PRIVATE LIFE BEING A CANDIDATE FOR THE HIGHEST PUBLIC OFFICE IN THE CITY
OF BAGUIO OR THAT THE DEFENDANTS "WERE ACTUALLY NOT MOTIVATED BY GOOD AND JUSTIFIABLE ENDS" IN PUBLISHING SAID
ARTICLES ABOUT THE PRIVATE RESPONDENT.

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN REVERSING THE DECISION OF THE TRIAL COURT DISMISSING THE COMPLAINT
FOR LACK OF MERIT.28

In a manifestation dated 10 November 1993, we were informed of the death of petitioner Hamada. In our resolution of 08 December 1993, we resolved to
substitute the estate of Oseo C. Hamada, for the deceased petitioner Hamada. 29

The Court's Ruling

We shall first address the contention of petitioners with regard to alleged errors of facts committed by the Court of Appeals. While we adhere to the principle
that findings of fact of the appellate court are binding and conclusive upon us, 30 such adherence has not prevented this Court from setting aside the findings
of fact of the Court of Appeals when circumstances so warrant. In the recent case of The Insular Life Assurance Company, Ltd. v. Court of Appeals and Sun
Brothers & Company,31 this Court had the occasion to enumerate the exceptions to the general rule as regards the conclusiveness of the findings of fact of
the appellate court, to wit: "(1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly
mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the
findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation
of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by
the respondent; (10) when the findings of facts are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11)
when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different
conclusion."32

In the case at bar, except for numbers (1), (6), (9), and (10), all of the above exceptions are present.

First. Contrary to the findings of the Court of Appeals that private respondent was the only candidate named in petitioner Afable's column on 10 January
1988, said article actually dealt with the other named candidates for the 1988 local elections in Baguio City and Benguet. A perusal of said article would
likewise reveal that it contained not only the opinion of petitioner Afable regarding private respondent but also her take on the other issues involving the other
candidates. It would be grave error to impute malice on the subject article based upon a finding that private respondent was unduly singled out by petitioner
Afable in her column. In this regard, we dismiss the following conclusion of the appellate court:
 43

. . . Malice may also be inferred from the style and tone of the publication. The entire column on "In and Out of Baguio" on January 10 was composed of ten
paragraphs and each paragraph featured or referred to a single person without knowing the person; however, in the second paragraph which mentions the
non-payment of P27,000.00, the complainant [private respondent herein] was specifically mentioned in name; hence, no amount of reasoning would erase
the fact that the dumpty in the egg was referring to Labo. 33 (Emphasis supplied)

Second. From the abovequoted portion of the Court of Appeals' ruling, it is daylight clear that the appellate court assumed that since the name of private
respondent and the phrase "dumpty in the egg" appeared in the same paragraph, the epithet referred only to the former. We cannot, however, subscribe to
such simplistic deduction. A perusal of the paragraph in question easily reveals that the person alluded to by petitioner Afable in her use of "dumpty in the
egg" was someone who was campaigning for a certain Atty. Reynaldo Cortes - one of the mayoralty candidates in Baguio City at that time. If, indeed,
"dumpty in the egg" referred to private respondent, it follows that he campaigned for his own opponent during the 1988 local elections. Although such
gracious attitude on the part of private respondent towards his political opponent would have been commendable, nevertheless, the same is totally contrary
to human experience. On this score, we uphold the following argument of petitioners:

Clearly, the private respondent was hallucinating when he claims himself as the person referred to as the "Dumpty in the egg." Otherwise, he would be the
one making a mockery out of himself for campaigning against himself and in favor of his political opponent. Had he done that, it is doubtful whether he could
have won as City Mayor of Baguio in the 1988 elections, which he actually did. 34

Third. In its assailed decision, the Court of Appeals likewise highlighted the fact that petitioners Hamada and Afable were husband and wife and went on to
conclude, albeit erroneously, that "(t)here is good reason and reasonable ground to assume that the publication of the libelous article was a manifestation of
the spouses' thinking on the merit or demerit of candidates for Baguio City mayor for the 18 January 1988 elections." 35 Again, we disagree in this conclusion
of the appellate court. The records of this case clearly establish the fact that petitioners Hamada and Afable were siblings and not spouses in that during his
testimony on 19 December 1989, petitioner Hamada referred to petitioner Afable as his sister. 36 The Court of Appeals' supposition, therefore, that the article
subject of this petition reflected the stance of the "husband and wife team" of the petitioners utterly lacks factual support.

Having addressed the factual issues of this case, we shall now proceed to discuss its substantive question of whether the 10 January 1988 article of
petitioner Afable was defamatory.

It is a basic precept that in cases involving claims for damages arising out of alleged defamatory articles, it is essential that the alleged victim be identifiable
although it is not necessary that he be named. 37 It is enough if by intrinsic reference the allusion is apparent or if the publication contains matters of
descriptions or reference to facts and circumstances from which others reading the article may know the plaintiff was intended, or if extraneous
circumstances point to him such that persons knowing him could and did understand that he was the person referred to. 38

In the case of Borjal v. Court of Appeals, 39 this Court declared that "[i]t is also not sufficient that the offended party recognized himself as the person attacked
or defamed, but it must be shown that at least a third person could identify him as the object of the libelous publication." 40 Plainly, private respondent has the
bounden duty to present before the court evidence that a third person could easily identify him as the person libeled. In this case, private respondent has
utterly failed to dispose of this responsibility.

To be sure, private respondent's lone witness, Dr. Rovillos, was able to offer his own understanding of what the phrase "dumpty in the egg"
meant.41 However, during his cross-examination, he failed to sufficiently explain before the court a quo how he arrived at the conclusion that the term referred
to private respondent, thus:

Q Now, you said you read this first sentence that says: "I heard that the Dumpty in the egg is campaigning for Cortes." Then you gave us what you thought
was the meaning of "Dumpty in the egg." You did not tell us, however, whether you thought that was Ramon Labo or somebody else. Could you tell us,
Doctor, when you heard that, you understood that to be Ramon Labo?

A That is what I understand.

Q You understood that to be Ramon Labo because a dumpty in the egg means a big zero. Why? You consider Labo a big zero that is why you understood
him to be referred to when Cecille C. Afable said "dumpty in the egg?"

A That is what I understand.

Q You also said a "dumpty in the egg" is a big lie. You consider Ramon Labo a big lie that you also thought he was referred to as "dumpty in the egg?"

A No, sir.

Q In fact, Ramon Labo, in your assessment, is the exact opposite of a dumpty [in] the egg?

A That I cannot answer.

A So, from your honest perception, some – this this Labo (sic) is a big zero or a big lie that is why you cannot say he is the exact opposite?

A Maybe.42

This Court finds Dr. Rovillos's proposition as to what "dumpty in the egg" meant is insufficient to support any finding of liability on the part of the petitioners
as he was unable to offer an iota of justification for his conclusion that it pertained to private respondent.

The Court of Appeals also maintained that petitioners could not invoke "public interest" in their defense. It ruled that "[a]n abuse of the freedom of speech
and the press should not be tolerated and encouraged if the article published transcends the limit of decent, fair and impartial news reporting and instead
becomes a bludgeon or a scalpel to brow beat or slice into shreds a private citizen, of his rights to his good name." 43

We do not agree.

Concededly, private respondent was not yet a public official at the time the 10 January 1988 article was published. Nevertheless, this fact does not remove
said article from the mantle of protection guaranteed by the freedom of expression provision of the Constitution. Indeed, as early as 1909, in the case of
United States v. Sedano,44 this Court had recognized the public's right to be informed on the mental, moral, and physical fitness of candidates for public
office.

Subsequently, in the leading case of New York Times Co. vs. Sullivan, 45 the US Supreme Court expounded on this principle, viz:
 44

. . . It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the
state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of
private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times
such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be
privileged.

...

In such a case the occasion gives rise to a privilege, qualified to this extent: any one claiming to be defamed by the communication must show actual malice
or go remediless. The privilege extends to a great variety of subjects, and includes matters of public concern, public men, and candidates for office. 46

Plainly, the rule only applies to fair comment on matters of public interest, fair comment being that which is true, or which if false, expresses the real opinion
of the author based upon reasonable degree of care and on reasonable grounds. 47 The principle, therefore, does not grant an absolute license to authors or
writers to destroy the persons of candidates for public office by exposing the latter to public contempt or ridicule by providing the general public with
publications tainted with express or actual malice. In the latter case, the remedy of the person allegedly libeled is to show proof that an article was written
with the author's knowledge that it was false or with reckless disregard of whether it was false or not. While the law itself creates the presumption that every
defamatory imputation is malicious, 48 nevertheless, the privileged character of a communication destroys said presumption. The burden of proving actual
malice shall then rest on the plaintiff, private respondent herein. 49

In the present case, private respondent was unable to prove that petitioner Afable's column was tainted with actual malice. Verily, the records are replete
with evidence that, indeed, private respondent incurred an obligation which had remained unpaid until the time the questioned article was published. While
counsel for private respondent persistently harped at the difference between the P27,000 which appeared in petitioner Afable's column and the P27,415
actual indebtedness of private respondent to Baguio Printing and Publishing Co., Inc., the minuscule difference in the amount fails to establish reckless
disregard for truth on the part of petitioners. As held by this Court in the Borjal case –

Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements
are inevitable in any scheme of truly free expression and debate. Consistent with good faith and reasonable care, the press should not be held to account, to
a point of suppression, for honest mistakes or imperfections in the choice of language. There must be some room for misstatement of fact as well as for
misjudgment. Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy. 50

Lastly, we hold that petitioner Afable's article constitutes a fair comment on a matter of public interest as it dealt with the character of private respondent who
was running for the top elective post in Baguio City at the time. Considering that private respondent assured his would-be constituents that he would be
donating millions of his own money, petitioner Afable's column with respect to private respondent's indebtedness provided the public with information as
regards his financial status which, in all probability, was still unbeknownst to them at that time. Indeed, the information might have dissuaded some members
of the electorate from voting in favor of private respondent but such is the inevitable result of the application of the law. The effect would have been adverse
to the private respondent but public interest in this case far outweighs the interest of private respondent.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals, dated 07 January 1992, and its Resolution, dated 29 September 1992,
denying reconsideration are REVERSED and SET ASIDE, and the trial court's Decision of 14 June 1990 is AFFIRMED. No costs.

SO ORDERED.

Puno, (Acting C.J.), Austria-Martinez, Callejo, Sr., and Tinga, JJ.,  concur.

10. 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 halal 2 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'an 3 and the Sunnah4 for the analysis of food, inspection thereof and issuance of halal certifications. In
that same year, petitioner began to issue, for a fee, certifications to qualified products and food manufacturers. Petitioner even adopted for use on its halal
certificates a distinct sign or logo registered in the Philippine Patent Office under Patent No. 4-2000-03664.

On October 26, 2001, respondent Office of the Executive Secretary issued EO 46 5 creating the Philippine Halal Certification Scheme and designating
respondent OMA to oversee its implementation. Under the EO, respondent OMA has the exclusive authority to issue halal certificates and perform other
related regulatory activities.
 45

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
 46

One such government agency designated by RA 7394 is the Bureau of Food and Drugs (BFD) of the Department of Health (DOH). Under Article 22 of said
law, BFD has the duty to promulgate and enforce rules and regulations fixing and establishing a reasonable definition and standard of identity, a standard of
quality and a standard of fill of containers for food. The BFD also ensures that food products released in the market are not adulterated. 14

Furthermore, under Article 48 of RA 7394, the Department of Trade and Industry (DTI) is tasked to protect the consumer against deceptive, unfair and
unconscionable sales acts or practices as defined in Article 50. 15 DTI also enforces compulsory labeling and fair packaging to enable the consumer to obtain
accurate information as to the nature, quality and quantity of the contents of consumer products and to facilitate his comparison of the value of such
products.16

With these regulatory bodies given detailed functions on how to screen and check the quality and safety of food products, the perceived danger against the
health of muslim and non-muslim Filipinos alike is totally avoided. Of great help are the provisions on labeling of food products (Articles 74 to 85) 17 of RA
7394. In fact, through these labeling provisions, the State ably informs the consuming public of the contents of food products released in the market. Stiff
sanctions are imposed on violators of said labeling requirements.

Through the laws on food safety and quality, therefore, the State indirectly aids muslim consumers in differentiating food from non-food products. The NMIC
guarantees that the meat sold in the market has been thoroughly inspected and fit for consumption. Meanwhile, BFD ensures that food products are properly
categorized and have passed safety and quality standards. Then, through the labeling provisions enforced by the DTI, muslim consumers are adequately
apprised of the products that contain substances or ingredients that, according to their Islamic beliefs, are not fit for human intake. These are the non-secular
steps put in place by the State to ensure that the muslim consumers' right to health is protected. The halal certifications issued by petitioner and similar
organizations come forward as the official religious approval of a food product fit for muslim consumption.

We do not share respondents' apprehension that the absence of a central administrative body to regulate halal certifications might give rise to schemers
who, for profit, will issue certifications for products that are not actually halal. Aside from the fact that muslim consumers can actually verify through the labels
whether a product contains non-food substances, we believe that they are discerning enough to know who the reliable and competent certifying
organizations in their community are. Before purchasing a product, they can easily avert this perceived evil by a diligent inquiry on the reliability of the
concerned certifying organization.

WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2000, is hereby declared NULL AND VOID. Consequently, respondents are prohibited from
enforcing the same.

SO ORDERED.

Davide, Jr., C .J ., Bellosillo, Panganiban, Ynares-Santiago, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr ., Azcuna and Tinga, JJ.,  concur.

Quisumbing and Sandoval-Gutierrez, JJ ., on official leave.

Separate Opinions

VITUG, J.:

I concur, with the understanding as so explained during the deliberations, that the halal certification, which herein petitioner and other similar organizations
have been accredited to issue, is not taken as a compulsory requirement for muslim food manufacturers to secure. Adequate safeguards being already in
place to ensure the safety of all food products, food manufacturers would thus have the option, decided solely on the basis of marketing advantage, whether
or not to obtain the certification on their food products. In fine, the acquisition of halal certificates should remain optional or only on a voluntary basis on the
part of manufacturers of muslim food products.

Puno, J ., concurs.

11. G.R. No. 144801. March 10, 2005

DOMINADOR L. TARUC, WILBERTO DACERA, NICANOR GALANIDA, RENERIO CANTA, JERRY CANTA, CORDENCIO CONSIGNA, SUSANO
ALCALA, LEONARDO DIZON, SALVADOR GELSANO and BENITO LAUGO, Petitioners, vs. BISHOP PORFIRIO B. DE LA CRUZ, REV. FR. RUSTOM
FLORANO and DELFIN BORDAS, Respondents.

DECISION

CORONA, J.:

This is an appeal under Rule 45 of the Revised Rules of Court of the decision of the Court of Appeals in CA-G.R. SP No. 45480 which reversed and set
aside the decision of the Regional Trial Court of Surigao City, Branch 32 in Civil Case No. 4907 and ordered said case dismissed for lack of jurisdiction.

The antecedents show that petitioners were lay members of the Philippine Independent Church (PIC) in Socorro, Surigao del Norte. Respondents Porfirio de
la Cruz and Rustom Florano were the bishop and parish priest, respectively, of the same church in that locality. Petitioners, led by Dominador Taruc,
clamored for the transfer of Fr. Florano to another parish but Bishop de la Cruz denied their request. It appears from the records that the family of Fr.
Florano’s wife belonged to a political party opposed to petitioner Taruc’s, thus the animosity between the two factions with Fr. Florano being identified with
his wife’s political camp. Bishop de la Cruz, however, found this too flimsy a reason for transferring Fr. Florano to another parish.

Meanwhile, hostility among the members of the PIC in Socorro, Surigao del Norte worsened when petitioner Taruc tried to organize an open mass to be
celebrated by a certain Fr. Renato Z. Ambong during the town fiesta of Socorro. When Taruc informed Bishop de la Cruz of his plan, the Bishop tried to
 47

dissuade him from pushing through with it because Fr. Ambong was not a member of the clergy of the diocese of Surigao and his credentials as a parish
priest were in doubt. The Bishop also appealed to petitioner Taruc to refrain from committing acts inimical and prejudicial to the best interests of the PIC. He
likewise advised petitioners to air their complaints before the higher authorities of PIC if they believed they had valid grievances against him, the parish
priest, the laws and canons of the PIC.

Bishop de la Cruz, however, failed to stop Taruc from carrying out his plans. On June 19, 1993, at around 3:00 p.m., Taruc and his sympathizers proceeded
to hold the open mass with Fr. Ambong as the celebrant.

On June 28, 1993, Bishop de la Cruz declared petitioners expelled/excommunicated from the Philippine Independent Church for reasons of:

(1) disobedience to duly constituted authority in the Church;

(2) inciting dissension, resulting in division in the Parish of Our Mother of Perpetual Help, Iglesia Filipina Independiente, Socorro, Surigao del Norte when
they celebrated an open Mass at the Plaza on June 19, 1996; and

(3) for threatening to forcibly occupy the Parish Church causing anxiety and fear among the general membership. 1

Petitioners appealed to the Obispo Maximo and sought reconsideration of the above decision. In his letter to Bishop de la Cruz, the Obispo Maximo opined
that Fr. Florano should step down voluntarily to avert the hostility and enmity among the members of the PIC parish in Socorro but stated that:

… I do not intervene in your diocesan decision in asking Fr. Florano to vacate Socorro parish…. 2

In the meantime, Bishop de la Cruz was reassigned to the diocese of Odmoczan and was replaced by Bishop Rhee M. Timbang. Like his predecessor,
Bishop Timbang did not find a valid reason for transferring Fr. Florano to another parish. He issued a circular denying petitioners’ persistent clamor for the
transfer/re-assignment of Fr. Florano. Petitioners were informed of such denial but they continued to celebrate mass and hold other religious activities
through Fr. Ambong who had been restrained from performing any priestly functions in the PIC parish of Socorro, Surigao del Norte.

Because of the order of expulsion/excommunication, petitioners filed a complaint for damages with preliminary injunction against Bishop de la Cruz before
the Regional Trial Court of Surigao City, Branch 32. They impleaded Fr. Florano and one Delfin T. Bordas on the theory that they conspired with the Bishop
to have petitioners expelled and excommunicated from the PIC. They contended that their expulsion was illegal because it was done without trial thus
violating their right to due process of law.

Respondents filed a motion to dismiss the case before the lower court on the ground of lack of jurisdiction but it was denied. Their motion for reconsideration
was likewise denied so they elevated the case to the Court of Appeals.

The appellate court reversed and set aside the decision of the court a quo and ordered the dismissal of the case without prejudice to its being refiled before
the proper forum. It held:

… We find it unnecessary to deal on the validity of the excommunication/expulsion of the private respondents (Taruc,  et al.), said acts being purely
ecclesiastical matters which this Court considers to be outside the province of the civil courts.

"Civil Courts will not interfere in the internal affairs of a religious organization except for the protection of civil or property rights. Those rights may be the
subject of litigation in a civil court, and the courts have jurisdiction to determine controverted claims to the title, use, or possession of church property." ( Ibid.,
p.466)

Obviously, there was no violation of a civil right in the present case.

Ergo, this Court is of the opinion and so holds that the instant case does not involve a violation and/or protection of a civil or property rights in order for the
court a quo to acquire jurisdiction in the instant case.3

Petitioners appealed from the above decision but their petition was denied. Their motion for reconsideration was likewise denied, hence, this appeal.

The only issue to be resolved in this case is whether or not the courts have jurisdiction to hear a case involving the expulsion/excommunication of members
of a religious institution.

We rule that the courts do not.

Section 5, Article III or the Bill of Rights of the 1987 Constitution specifically provides that:

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

In our jurisdiction, we hold the Church and the State to be separate and distinct from each other. "Give to Ceasar what is Ceasar’s and to God what is
God’s." We have, however, observed as early as 1928 that:
 48

upon the examination of the decisions it will be readily apparent that cases involving questions relative to ecclesiastical rights have always received the
profoundest attention from the courts, not only because of their inherent interest, but because of the far reaching effects of the decisions in human society.
[However,] courts have learned the lesson of conservatism in dealing with such matters, it having been found that,  in a form of government where the
complete separation of civil and ecclesiastical authority is insisted upon, the civil courts must not allow themselves to intrude unduly in matters of an
ecclesiastical nature.4 (italics ours)

We agree with the Court of Appeals that the expulsion/excommunication of members of a religious institution/organization is a matter best left to the
discretion of the officials, and the laws and canons, of said institution/organization. It is not for the courts to exercise control over church authorities in the
performance of their discretionary and official functions. Rather, it is for the members of religious institutions/organizations to conform to just church
regulations. In the words of Justice Samuel F. Miller 5:

… all who unite themselves to an ecclesiastical body do so with an implied consent to submit to the Church government and they are bound to submit to it.

In the leading case of Fonacier v. Court of Appeals,6 we enunciated the doctrine that in disputes involving religious institutions or organizations, there is one
area which the Court should not touch: doctrinal and disciplinary differences. 7 Thus,

The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration alleged by appellant, having to do with faith,
practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference  to the power of excluding from the church those
allegedly unworthy of membership, are unquestionably ecclesiastical matters which are outside the province of the civil courts. (emphasis ours)

We would, however, like to comment on petitioners’ claim that they were not heard before they were expelled from their church. The records show that
Bishop de la Cruz pleaded with petitioners several times not to commit acts inimical to the best interests of PIC. They were also warned of the consequences
of their actions, among them their expulsion/excommunication from PIC. Yet, these pleas and warnings fell on deaf ears and petitioners went ahead with
their plans to defy their Bishop and foment hostility and disunity among the members of PIC in Socorro, Surigao del Norte. They should now take full
responsibility for the chaos and dissension they caused.

WHEREFORE, the petition is herby DENIED for lack of merit.

Costs against petitioners.

SO ORDERED.

Panganiban, (Chairman), and Sandoval-Gutierrez, JJ., concur.

Carpio-Morales, J., on leave.

Garcia, J., no part.

12. A.M. No. P-02-1651            August 4, 2003

ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR, respondent.

PUNO, J.:

The case at bar takes us to a most difficult area of constitutional law where man stands accountable to an authority higher than the state. To be held on
balance are the state's interest and the respondent's religious freedom. In this highly sensitive area of law, the task of balancing between authority and
liberty is most delicate because to the person invoking religious freedom, the consequences of the case are not only temporal. The task is not made easier
by the American origin of our religion clauses and the wealth of U.S. jurisprudence on these clauses for in the United States, there is probably no more
intensely controverted area of constitutional interpretation than the religion clauses. 1 The U.S. Supreme Court itself has acknowledged that in this
constitutional area, there is "considerable internal inconsistency in the opinions of the Court." 2 As stated by a professor of law, "(i)t is by now notorious that
legal doctrines and judicial decisions in the area of religious freedom are in serious disarray. In perhaps no other area of constitutional law have confusion
and inconsistency achieved such undisputed sovereignty." 3 Nevertheless, this thicket is the only path to take to conquer the mountain of a legal problem the
case at bar presents. Both the penetrating and panoramic view this climb would provide will largely chart the course of religious freedom in Philippine
jurisdiction. That the religious freedom question arose in an administrative case involving only one person does not alter the paramount importance of the
question for the "constitution commands the positive protection by government of religious freedom -not only for a minority, however small- not only for a
majority, however large- but for each of us."4

I. Facts

The facts of the case will determine whether respondent will prevail in her plea of religious freedom. It is necessary therefore to lay down the facts in detail,
careful not to omit the essentials.

In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional
Trial Court of Las Piñas City, requesting for an investigation of rumors that respondent Soledad Escritor, court interpreter in said court, is living with a man
not her husband. They allegedly have a child of eighteen to twenty years old. Estrada is not personally related either to Escritor or her partner and is a
resident not of Las Piñas City but of Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he believes that she is committing an immoral act
that tarnishes the image of the court, thus she should not be allowed to remain employed therein as it might appear that the court condones her act. 5

Judge Caoibes referred the letter to Escritor who stated that "there is no truth as to the veracity of the allegation" and challenged Estrada to "appear in the
open and prove his allegation in the proper forum." 6 Judge Caoibes set a preliminary conference on October 12, 2000. Escritor moved for the inhibition of
 49

Judge Caoibes from hearing her case to avoid suspicion and bias as she previously filed an administrative complaint against him and said case was still
pending in the Office of the Court Administrator (OCA). Escritor's motion was denied. The preliminary conference proceeded with both Estrada and Escritor
in attendance. Estrada confirmed that he filed the letter-complaint for immorality against Escritor because in his frequent visits to the Hall of Justice of Las
Piñas City, he learned from conversations therein that Escritor was living with a man not her husband and that she had an eighteen to twenty-year old son by
this man. This prompted him to write to Judge Caoibes as he believed that employees of the judiciary should be respectable and Escritor's live-in
arrangement did not command respect.7

Respondent Escritor testified that when she entered the judiciary in 1999, 8 she was already a widow, her husband having died in 1998. 9 She admitted that
she has been living with Luciano Quilapio, Jr. without the benefit of marriage for twenty years and that they have a son. But as a member of the religious
sect known as the Jehovah's Witnesses and the Watch Tower and Bible Tract Society, their conjugal arrangement is in conformity with their religious beliefs.
In fact, after ten years of living together, she executed on July 28, 1991 a "Declaration of Pledging Faithfulness," viz:

DECLARATION OF PLEDGING FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my mate in marital relationship; that I have done all
within my ability to obtain legal recognition of this relationship by the proper public authorities and that it is because of having been unable to do so
that I therefore make this public declaration pledging faithfulness in this marital relationship.

I recognize this relationship as a binding tie before 'Jehovah' God and before all persons to be held to and honored in full accord with the principles
of God's Word. I will continue to seek the means to obtain legal recognition of this relationship by the civil authorities and if at any future time a
change in circumstances make this possible, I promise to legalize this union.

Signed this 28th day of July 1991.10

Escritor's partner, Quilapio, executed a similar pledge on the same day. 11 Both pledges were executed in Atimonan, Quezon and signed by three witnesses.
At the time Escritor executed her pledge, her husband was still alive but living with another woman. Quilapio was likewise married at that time, but had been
separated in fact from his wife. During her testimony, Escritor volunteered to present members of her congregation to confirm the truthfulness of their
"Declarations of Pledging Faithfulness," but Judge Caoibes deemed it unnecessary and considered her identification of her signature and the signature of
Quilapio sufficient authentication of the documents. 12

Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in turn, endorsed the same to Court Administrator Alfredo L.
Benipayo. On July 17, 2001, the Court, upon recommendation of Acting Court Administrator Zenaida N. Elepaño, directed Escritor to comment on the charge
against her. In her comment, Escritor reiterated her religious congregation's approval of her conjugal arrangement with Quilapio, viz:

Herein respondent does not ignore alleged accusation but she reiterates to state with candor that there is no truth as to the veracity of same
allegation. Included herewith are documents denominated as Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both
respondent and her mate in marital relationship with the witnesses concurring their acceptance to the arrangement as approved by the WATCH
TOWER BIBLE and TRACT SOCIETY, Philippine Branch.

Same marital arrangement is recognized as a binding tie before "JEHOVAH" God and before all persons to be held to and honored in full accord
with the principles of God's Word.

xxx           xxx           xxx

Undersigned submits to the just, humane and fair discretion of the Court with verification from the WATCH TOWER BIBLE and TRACT SOCIETY,
Philippine Branch . . . to which undersigned believes to be a high authority in relation to her case. 13

Deputy Court Administrator Christopher O. Lock recommended that the case be referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las
Piñas City for investigation, report and recommendation. In the course of Judge Maceda's investigation, Escritor again testified that her congregation allows
her conjugal arrangement with Quilapio and it does not consider it immoral. She offered to supply the investigating judge some clippings which explain the
basis of her congregation's belief and practice regarding her conjugal arrangement. Escritor started living with Quilapio twenty years ago when her husband
was still alive but living with another woman. She met this woman who confirmed to her that she was living with her (Escritor's) husband. 14

Gregorio Salazar, a member of the Jehovah's Witnesses since 1985, also testified. He had been a presiding minister since 1991 and in such capacity is
aware of the rules and regulations of their congregation. He explained the import of and procedure for executing a "Declaration of Pledging Faithfulness", viz:

Q:         Now, insofar as the pre-marital relationship is concern (sic), can you cite some particular rules and regulations in your congregation?

A:         Well, we of course, talk to the persons with regards (sic) to all the parties involved and then we request them to execute a Public
Declaration of Pledge of faithfulness.

Q:         What is that document?

A:         Declaration of Pledge of faithfulness.

Q:         What are the relations of the document Declaration of Pledge of faithfulness, who are suppose (sic) to execute this document?

A:         This must be signed, the document must be signed by the elders of the congregation; the couple, who is a member (sic) of the
congregation, baptized member and true member of the congregation.

Q:         What standard rules and regulations do you have in relation with this document?
 50

A:         Actually, sir, the signing of that document, ah, with the couple has consent to marital relationship (sic) gives the Christian Congregation
view that the couple has put themselves on record before God and man that they are faithful to each other. As if that relation is validated by God.

Q:         From your explanation, Minister, do you consider it a pledge or a document between the parties, who are members of the congregation?

A:         It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of faithfulness.

Q:         And what does pledge mean to you?

A:         It means to me that they have contracted, let us say, I am the one who contracted with the opposite member of my congregation, opposite
sex, and that this document will give us the right to a marital relationship.

Q:         So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for you to enter a marriage?

A:         Yes, Sir.

Q:         But it does not necessarily mean that the parties, cohabiting or living under the same roof?

A:         Well, the Pledge of faithfulness document is (sic) already approved as to the marital relationship.

Q:         Do you mean to say, Minister, by executing this document the contracting parties have the right to cohabit?

A:         Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we Christians follow. The basis is herein stated in the Book
of Matthew, Chapter Five, Verse Twenty-two. So, in that verse of the Bible, Jesus said "that everyone divorcing his wife, except on account of
fornication, makes her a subject for adultery, and whoever marries a divorced woman commits adultery. 15

Escritor and Quilapio transferred to Salazar's Congregation, the Almanza Congregation in Las Piñas, in May 2001. The declarations having been executed in
Atimonan, Quezon in 1991, Salazar had no personal knowledge of the personal circumstances of Escritor and Quilapio when they executed their
declarations. However, when the two transferred to Almanza, Salazar inquired about their status from the Atimonan Congregation, gathered comments of
the elders therein, and requested a copy of their declarations. The Almanza Congregation assumed that the personal circumstances of the couple had been
considered by the Atimonan Congregation when they executed their declarations.

Escritor and Quilapio's declarations are recorded in the Watch Tower Central office. They were executed in the usual and approved form prescribed by the
Watch Tower Bible and Tract Society which was lifted from the article, "Maintaining Marriage in Honor Before God and Men," 16 in the March 15, 1977 issue
of the Watch Tower magazine, entitled The Watchtower.

The declaration requires the approval of the elders of the Jehovah's Witnesses congregation and is binding within the congregation all over the world except
in countries where divorce is allowed. The Jehovah's congregation requires that at the time the declarations are executed, the couple cannot secure the civil
authorities' approval of the marital relationship because of legal impediments. It is thus standard practice of the congregation to check the couple's marital
status before giving imprimatur to the conjugal arrangement. The execution of the declaration finds scriptural basis in Matthew 5:32 that when the spouse
commits adultery, the offended spouse can remarry. The marital status of the declarants and their respective spouses' commission of adultery are
investigated before the declarations are executed. Thus, in the case of Escritor, it is presumed that the Atimonan Congregation conducted an investigation
on her marital status before the declaration was approved and the declaration is valid everywhere, including the Almanza Congregation. That Escritor's and
Quilapio's declarations were approved are shown by the signatures of three witnesses, the elders in the Atimonan Congregation. Salazar confirmed from the
congregation's branch office that these three witnesses are elders in the Atimonan Congregation. Although in 1998 Escritor was widowed, thereby lifting the
legal impediment to marry on her part, her mate is still not capacitated to remarry. Thus, their declarations remain valid. Once all legal impediments for both
are lifted, the couple can already register their marriage with the civil authorities and the validity of the declarations ceases. The elders in the congregations
can then solemnize their marriage as authorized by Philippine law. In sum, therefore, insofar as the congregation is concerned, there is nothing immoral
about the conjugal arrangement between Escritor and Quilapio and they remain members in good standing in the congregation. 17

Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovah's Witnesses since 1974 and member of the headquarters
of the Watch Tower Bible and Tract Society of the Philippines, Inc., presented the original copy of the magazine article entitled, "Maintaining Marriage Before
God and Men" to which Escritor and Minister Salazar referred in their testimonies. The article appeared in the March 15, 1977 issue of the Watchtower
magazine published in Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower Bible and Tract Society of the Philippines, Inc., authorized
Reyes to represent him in authenticating the article. The article is distributed to the Jehovah's Witnesses congregations which also distribute them to the
public.18

The parties submitted their respective memoranda to the investigating judge. Both stated that the issue for resolution is whether or not the relationship
between respondent Escritor and Quilapio is valid and binding in their own religious congregation, the Jehovah's Witnesses. Complainant Estrada adds
however, that the effect of the relationship to Escritor's administrative liability must likewise be determined. Estrada argued, through counsel, that the
Declaration of Pledging Faithfulness recognizes the supremacy of the "proper public authorities" such that she bound herself "to seek means to . . . legalize
their union." Thus, even assuming arguendo that the declaration is valid and binding in her congregation, it is binding only to her co-members in the
congregation and serves only the internal purpose of displaying to the rest of the congregation that she and her mate are a respectable and morally upright
couple. Their religious belief and practice, however, cannot override the norms of conduct required by law for government employees. To rule otherwise
would create a dangerous precedent as those who cannot legalize their live-in relationship can simply join the Jehovah's Witnesses congregation and use
their religion as a defense against legal liability. 19

On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with Quilapio based on the belief and practice of her religion, the
Jehovah's Witnesses. She quoted portions of the magazine article entitled, "Maintaining Marriage Before God and Men," in her memorandum signed by
herself, viz:

The Declaration of Pledging of Faithfulness (Exhibits "1" and "2") executed by the respondent and her mate greatly affect the administrative liability
of respondent. Jehovah's Witnesses admit and recognize (sic) the supremacy of the proper public authorities in the marriage arrangement.
 51

However, it is helpful to understand the relative nature of Caesar's authority regarding marriage. From country to country, marriage and divorce
legislation presents a multitude of different angles and aspects. Rather than becoming entangled in a confusion of technicalities, the Christian, or
the one desiring to become a disciple of God's Son, can be guided by basic Scriptural principles that hold true in all cases.

God's view is of first concern. So, first of all the person must consider whether that one's present relationship, or the relationship into which he or
she contemplates entering, is one that could meet with God's approval, or whether in itself, it violates the standards of God's Word. Take, for
example, the situation where a man lives with a wife but also spends time living with another woman as a concubine. As long as such a state of
concubinage prevails, the relationship of the second woman can never be harmonized with Christian principles, nor could any declaration on the
part of the woman or the man make it so. The only right course is cessation of the relationship. Similarly with an incestuous relationship with a
member of one's immediate family, or a homosexual relationship or other such situation condemned by God's Word. It is not the lack of any legal
validation that makes such relationships unacceptable; they are in themselves unscriptural and hence, immoral. Hence, a person involved in such
a situation could not make any kind of "Declaration of Faithfulness," since it would have no merit in God's eyes.

If the relationship is such that it can have God's approval, then, a second principle to consider is that one should do all one can to establish the
honorableness of one's marital union in the eyes of all. (Heb. 13:4). If divorce is possible, then such step should now be taken so that, having
obtained the divorce (on whatever legal grounds may be available), the present union can receive civil validation as a recognized marriage.

Finally, if the marital relationship is not one out of harmony with the principles of God's Word, and if one has done all that can reasonably be done
to have it recognized by civil authorities and has been blocked in doing so, then, a Declaration Pledging Faithfulness can be signed. In some
cases, as has been noted, the extreme slowness of official action may make accomplishing of legal steps a matter of many, many years of effort.
Or it may be that the costs represent a crushingly heavy burden that the individual would need years to be able to meet. In such cases, the
declaration pledging faithfulness will provide the congregation with the basis for viewing the existing union as honorable while the individual
continues conscientiously to work out the legal aspects to the best of his ability.

Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah God, should be able to approach the matter in a balanced
way, neither underestimating nor overestimating the validation offered by the political state. She always gives primary concern to God's view of the
union. Along with this, every effort should be made to set a fine example of faithfulness and devotion to one's mate, thus, keeping the marriage
"honorable among all." Such course will bring God's blessing and result to the honor and praise of the author of marriage, Jehovah God. (1 Cor.
10:31-33)20

Respondent also brought to the attention of the investigating judge that complainant's Memorandum came from Judge Caoibes' chambers 21 whom she
claims was merely using petitioner to malign her.

In his Report and Recommendation, investigating judge Maceda found Escritor's factual allegations credible as they were supported by testimonial and
documentary evidence. He also noted that "(b)y strict Catholic standards, the live-in relationship of respondent with her mate should fall within the definition
of immoral conduct, to wit: 'that which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable
members of the community' (7 C.J.S. 959)' (Delos Reyes vs. Aznar, 179 SCRA, at p. 666)." He pointed out, however, that "the more relevant question is
whether or not to exact from respondent Escritor, a member of 'Jehovah's Witnesses,' the strict moral standards of the Catholic faith in determining her
administrative responsibility in the case at bar." 22 The investigating judge acknowledged that "religious freedom is a fundamental right which is entitled to the
highest priority and the amplest protection among human rights, for it involves the relationship of man to his Creator (at p. 270, EBRALINAG supra, citing
Chief Justice Enrique M. Fernando's separate opinion in German vs. Barangan, 135 SCRA 514, 530-531)" and thereby recommended the dismissal of the
complaint against Escritor.23

After considering the Report and Recommendation of Executive Judge Maceda, the Office of the Court Administrator, through Deputy Court Administrator
(DCA) Lock and with the approval of Court Administrator Presbitero Velasco, concurred with the factual findings of Judge Maceda but departed from his
recommendation to dismiss the complaint. DCA Lock stressed that although Escritor had become capacitated to marry by the time she joined the judiciary as
her husband had died a year before, "it is due to her relationship with a married man, voluntarily carried on, that respondent may still be subject to
disciplinary action."24 Considering the ruling of the Court in Dicdican v. Fernan, et al. 25 that "court personnel have been enjoined to adhere to the exacting
standards of morality and decency in their professional and private conduct in order to preserve the good name and integrity of the court of justice," DCA
Lock found Escritor's defense of freedom of religion unavailing to warrant dismissal of the charge of immorality. Accordingly, he recommended that
respondent be found guilty of immorality and that she be penalized with suspension of six months and one day without pay with a warning that a repetition of
a similar act will be dealt with more severely in accordance with the Civil Service Rules. 26

II. Issue

Whether or not respondent should be found guilty of the administrative charge of "gross and immoral conduct." To resolve this issue, it is necessary to
determine the sub-issue of whether or not respondent's right to religious freedom should carve out an exception from the prevailing jurisprudence on illicit
relations for which government employees are held administratively liable.

III. Applicable Laws

Respondent is charged with committing "gross and immoral conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code
which provides, viz:

Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as
provided by law and after due process.

(b) The following shall be grounds for disciplinary action:

xxx           xxx           xxx

(5) Disgraceful and immoral conduct; xxx.

 52

Not represented by counsel, respondent, in layman's terms, invokes the religious beliefs and practices and moral standards of her religion, the Jehovah's
Witnesses, in asserting that her conjugal arrangement with a man not her legal husband does not constitute disgraceful and immoral conduct for which she
should be held administratively liable. While not articulated by respondent, she invokes religious freedom under Article III, Section 5 of the Constitution,
which provides, viz:

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

IV. Old World Antecedents of the American Religion Clauses

To understand the life that the religion clauses have taken, it would be well to understand not only its birth in the United States, but its conception in the Old
World. One cannot understand, much less intelligently criticize the approaches of the courts and the political branches to religious freedom in the recent past
in the United States without a deep appreciation of the roots of these controversies in the ancient and medieval world and in the American experience. 27 This
fresh look at the religion clauses is proper in deciding this case of first impression.

In primitive times, all of life may be said to have been religious. Every significant event in the primitive man's life, from birth to death, was marked by religious
ceremonies. Tribal society survived because religious sanctions effectively elicited adherence to social customs. A person who broke a custom violated a
taboo which would then bring upon him "the wrathful vengeance of a superhuman mysterious power." 28 Distinction between the religious and non-religious
would thus have been meaningless to him. He sought protection from all kinds of evil - whether a wild beast or tribe enemy and lightning or wind - from the
same person. The head of the clan or the Old Man of the tribe or the king protected his wards against both human and superhuman enemies. In time, the
king not only interceded for his people with the divine powers, but he himself was looked upon as a divine being and his laws as divine decrees. 29

Time came, however, when the function of acting as intermediary between human and spiritual powers became sufficiently differentiated from the
responsibility of leading the tribe in war and policing it in peace as to require the full-time services of a special priest class. This saw the birth of the social
and communal problem of the competing claims of the king and priest. Nevertheless, from the beginning, the king and not the priest was superior. The head
of the tribe was the warrior, and although he also performed priestly functions, he carried out these functions because he was the head and representative of
the community.30

There being no distinction between the religious and the secular, the same authority that promulgated laws regulating relations between man and man
promulgated laws concerning man's obligations to the supernatural. This authority was the king who was the head of the state and the source of all law and
who only delegated performance of rituals and sacrifice to the priests. The Code of Hammurabi, king of Babylonia, imposed penalties for homicide, larceny,
perjury, and other crimes; regulated the fees of surgeons and the wages of masons and tailors and prescribed rules for inheritance of property; 31 and also
catalogued the gods and assigned them their places in the divine hierarchy so as to put Hammurabi's own god to a position of equality with existing
gods.32 In sum, the relationship of religion to the state (king) in pre-Hebreic times may be characterized as a union of the two forces, with the state almost
universally the dominant partner.33

With the rise of the Hebrew state, a new term had to be coined to describe the relation of the Hebrew state with the Mosaic religion: theocracy. The authority
and power of the state was ascribed to God. 34 The Mosaic creed was not merely regarded as the religion of the state, it was (at least until Saul) the state
itself. Among the Hebrews, patriarch, prophet, and priest preceded king and prince. As man of God, Moses decided when the people should travel and when
to pitch camp, when they should make war and when peace. Saul and David were made kings by the prophet Samuel, disciple of Eli the priest. Like the
Code of Hammurabi, the Mosaic code combined civil laws with religious mandates, but unlike the Hammurabi Code, religious laws were not of secondary
importance. On the contrary, religious motivation was primary and all-embracing: sacrifices were made and Israel was prohibited from exacting usury,
mistreating aliens or using false weights, all because God commanded these.

Moses of the Bible led not like the ancient kings. The latter used religion as an engine to advance the purposes of the state. Hammurabi unified
Mesopotamia and established Babylon as its capital by elevating its city-god to a primary position over the previous reigning gods. 35 Moses, on the other
hand, capitalized on the natural yearnings of the Hebrew slaves for freedom and independence to further God's purposes. Liberation and Exodus were
preludes to Sinai and the receipt of the Divine Law. The conquest of Canaan was a preparation for the building of the temple and the full worship of God. 36

Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism, more than anything else, charted not only the future of religion in
western civilization, but equally, the future of the relationship between religion and state in the west. This fact is acknowledged by many writers, among
whom is Northcott who pointed out, viz:

Historically it was the Hebrew and Christian conception of a single and universal God that introduced a religious exclusivism leading to compulsion
and persecution in the realm of religion. Ancient religions were regarded as confined to each separate people believing in them, and the question
of change from one religious belief to another did not arise. It was not until an exclusive fellowship, that the questions of proselytism, change of
belief and liberty of religion arose.37 (emphasis supplied)

The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was not only superior to the state, but it was all of the state. The
Law of God as transmitted through Moses and his successors was the whole of government.

With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and David each received their kingdom from Samuel the
prophet and disciple of Eli the priest, but soon the king dominated prophet and priest. Saul disobeyed and even sought to slay Samuel the prophet of
God.38 Under Solomon, the subordination of religion to state became complete; he used religion as an engine to further the state's purposes. He reformed
the order of priesthood established by Moses because the high priest under that order endorsed the claim of his rival to the throne. 39

The subordination of religion to the state was also true in pre-Christian Rome which engaged in emperor-worship. When Augustus became head of the
Roman state and the priestly hierarchy, he placed religion at a high esteem as part of a political plan to establish the real religion of pre-Christian Rome - the
worship of the head of the state. He set his great uncle Julius Caesar among the gods, and commanded that worship of Divine Julius should not be less than
worship of Apollo, Jupiter and other gods. When Augustus died, he also joined the ranks of the gods, as other emperors before him. 40

The onset of Christianity, however, posed a difficulty to the emperor as the Christians' dogmatic exclusiveness prevented them from paying homage to
publicly accepted gods. In the first two centuries after the death of Jesus, Christians were subjected to persecution. By the time of the emperor Trajan,
 53

Christians were considered outlaws. Their crime was "hatred of the human race", placing them in the same category as pirates and brigands and other
"enemies of mankind" who were subject to summary punishments. 41

In 284, Diocletian became emperor and sought to reorganize the empire and make its administration more efficient. But the closely-knit hierarchically
controlled church presented a serious problem, being a state within a state over which he had no control. He had two options: either to force it into
submission and break its power or enter into an alliance with it and procure political control over it. He opted for force and revived the persecution, destroyed
the churches, confiscated sacred books, imprisoned the clergy and by torture forced them to sacrifice. 42 But his efforts proved futile.

The later emperor, Constantine, took the second option of alliance. Constantine joined with Galerius and Licinius, his two co-rulers of the empire, in issuing
an edict of toleration to Christians "on condition that nothing is done by them contrary to discipline." 43 A year later, after Galerius died, Constantine and Licius
jointly issued the epochal Edict of Milan (312 or 313), a document of monumental importance in the history of religious liberty. It provided "that liberty of
worship shall not be denied to any, but that the mind and will of every individual shall be free to manage divine affairs according to his own choice."
(emphasis supplied) Thus, all restrictive statutes were abrogated and it was enacted "that every person who cherishes the desire to observe the Christian
religion shall freely and unconditionally proceed to observe the same without let or hindrance." Furthermore, it was provided that the "same free and open
power to follow their own religion or worship is granted also to others, in accordance with the tranquillity of our times, in order that every person may have
free opportunity to worship the object of his choice."(emphasis supplied) 44

Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige, and eventually, exclusive power. Religion became an engine
of state policy as Constantine considered Christianity a means of unifying his complex empire. Within seven years after the Edict of Milan, under the
emperor's command, great Christian edifices were erected, the clergy were freed from public burdens others had to bear, and private heathen sacrifices
were forbidden.

The favors granted to Christianity came at a price: state interference in religious affairs. Constantine and his successors called and dismissed church
councils, and enforced unity of belief and practice. Until recently the church had been the victim of persecution and repression, but this time it welcomed the
state's persecution and repression of the nonconformist and the orthodox on the belief that it was better for heretics to be purged of their error than to die
unsaved.

Both in theory as in practice, the partnership between church and state was not easy. It was a constant struggle of one claiming dominance over the other. In
time, however, after the collapse and disintegration of the Roman Empire, and while monarchical states were gradually being consolidated among the
numerous feudal holdings, the church stood as the one permanent, stable and universal power. Not surprisingly, therefore, it claimed not merely equality but
superiority over the secular states. This claim, symbolized by Pope Leo's crowning of Charlemagne, became the church's accepted principle of its
relationship to the state in the Middle Ages. As viewed by the church, the union of church and state was now a union of the state in the church. The rulers of
the states did not concede to this claim of supremacy. Thus, while Charlemagne received his crown from the Pope, he himself crowned his own son as
successor to nullify the inference of supremacy. 45 The whole history of medieval Europe was a struggle for supremacy between prince and Pope and the
resulting religious wars and persecution of heretics and nonconformists. At about the second quarter of the 13th century, the Inquisition was established, the
purpose of which was the discovery and extermination of heresy. Accused heretics were tortured with the approval of the church in the bull Ad extirpanda
issued by Pope Innocent IV in 1252.

The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the Catholic Church and resulting in the establishment of
Protestant churches. While Protestants are accustomed to ascribe to the Reformation the rise of religious liberty and its acceptance as the principle
governing the relations between a democratic state and its citizens, history shows that it is more accurate to say that the "same causes that gave rise to the
Protestant revolution also resulted in the widespread acceptance of the principle of religious liberty, and ultimately of the principle of separation of church
and state."46 Pleas for tolerance and freedom of conscience can without doubt be found in the writings of leaders of the Reformation. But just as Protestants
living in the countries of papists pleaded for toleration of religion, so did the papists that lived where Protestants were dominant. 47 Papist and Protestant
governments alike accepted the idea of cooperation between church and state and regarded as essential to national unity the uniformity of at least the
outward manifestations of religion. 48 Certainly, Luther, leader of the Reformation, stated that "neither pope, nor bishop, nor any man whatever has the right of
making one syllable binding on a Christian man, unless it be done with his own consent." 49 But when the tables had turned and he was no longer the hunted
heretic, he likewise stated when he made an alliance with the secular powers that "(h)eretics are not to be disputed with, but to be condemned unheard, and
whilst they perish by fire, the faithful ought to pursue the evil to its source, and bathe their hands in the blood of the Catholic bishops, and of the Pope, who is
a devil in disguise."50 To Luther, unity among the peoples in the interests of the state was an important consideration. Other personalities in the Reformation
such as Melanchton, Zwingli and Calvin strongly espoused theocracy or the use of the state as an engine to further religion. In establishing theocracy in
Geneva, Calvin made absence from the sermon a crime, he included criticism of the clergy in the crime of blasphemy punishable by death, and to eliminate
heresy, he cooperated in the Inquisition.51

There were, however, those who truly advocated religious liberty. Erasmus, who belonged to the Renaissance than the Reformation, wrote that "(t)he terrible
papal edict, the more terrible imperial edict, the imprisonments, the confiscations, the recantations, the fagots and burnings, all these things I can see
accomplish nothing except to make the evil more widespread." 52 The minority or dissident sects also ardently advocated religious liberty. The Anabaptists,
persecuted and despised, along with the Socinians (Unitarians) and the Friends of the Quakers founded by George Fox in the 17th century, endorsed the
supremacy and freedom of the individual conscience. They regarded religion as outside the realm of political governments. 53 The English Baptists
proclaimed that the "magistrate is not to meddle with religion or matters of conscience, nor compel men to this or that form of religion." 54

Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished: the Erastian (after the German doctor Erastus), the
theocratic, and the separatist. The first assumed state superiority in ecclesiastical affairs and the use of religion as an engine of state policy as demonstrated
by Luther's belief that civic cohesion could not exist without religious unity so that coercion to achieve religious unity was justified. The second was founded
on ecclesiastical supremacy and the use of state machinery to further religious interests as promoted by Calvin. The third, which was yet to achieve ultimate
and complete expression in the New World, was discernibly in its incipient form in the arguments of some dissident minorities that the magistrate should not
intermeddle in religious affairs.55 After the Reformation, Erastianism pervaded all Europe except for Calvin's theocratic Geneva. In England, perhaps more
than in any other country, Erastianism was at its height. To illustrate, a statute was enacted by Parliament in 1678, which, to encourage woolen trade,
imposed on all clergymen the duty of seeing to it that no person was buried in a shroud made of any substance other than wool. 56 Under Elizabeth,
supremacy of the crown over the church was complete: ecclesiastical offices were regulated by her proclamations, recusants were fined and imprisoned,
Jesuits and proselytizing priests were put to death for high treason, the thirty-nine Articles of the Church of England were adopted and English Protestantism
attained its present doctrinal status.57 Elizabeth was to be recognized as "the only Supreme Governor of this realm . . . as well in all spiritual or ecclesiastical
things or causes as temporal." She and her successors were vested, in their dominions, with "all manner of jurisdictions, privileges, and preeminences, in
any wise touching or concerning any spiritual or ecclesiastical jurisdiction." 58 Later, however, Cromwell established the constitution in 1647 which granted full
liberty to all Protestant sects, but denied toleration to Catholics. 59 In 1689, William III issued the Act of Toleration which established a de facto toleration for
 54

all except Catholics. The Catholics achieved religious liberty in the 19th century when the Roman Catholic Relief Act of 1829 was adopted. The Jews
followed suit in 1858 when they were finally permitted to sit in Parliament. 60

When the representatives of the American states met in Philadelphia in 1787 to draft the constitutional foundation of the new republic, the theocratic state
which had flourished intermittently in Israel, Judea, the Holy Roman Empire and Geneva was completely gone. The prevailing church-state relationship in
Europe was Erastianism embodied in the system of jurisdictionalism whereby one faith was favored as the official state-supported religion, but other faiths
were permitted to exist with freedom in various degrees. No nation had yet adopted as the basis of its church-state relations the principle of the mutual
independence of religion and government and the concomitant principle that neither might be used as an engine to further the policies of the other, although
the principle was in its seminal form in the arguments of some dissident minorities and intellectual leaders of the Renaissance. The religious wars of 16th
and 17th century Europe were a thing of the past by the time America declared its independence from the Old World, but their memory was still vivid in the
minds of the Constitutional Fathers as expressed by the United States Supreme Court, viz:

The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecution
generated in large part by established sects determined to maintain their absolute political and religious supremacy. With the power of government
supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had
persecuted other protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from
time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a
particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these
punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, non-
attendance at those churches, expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them. 61

In 1784, James Madison captured in this statement the entire history of church-state relations in Europe up to the time the United States Constitution was
adopted, viz:

Torrents of blood have been spilt in the world in vain attempts of the secular arm to extinguish religious discord, by proscribing all differences in
religious opinions.62

In sum, this history shows two salient features: First, with minor exceptions, the history of church-state relationships was characterized by persecution,
oppression, hatred, bloodshed, and war, all in the name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history
witnessed the unscrupulous use of religion by secular powers to promote secular purposes and policies, and the willing acceptance of that role by the
vanguards of religion in exchange for the favors and mundane benefits conferred by ambitious princes and emperors in exchange for religion's invaluable
service. This was the context in which the unique experiment of the principle of religious freedom and separation of church and state saw its birth in
American constitutional democracy and in human history. 63

V. Factors Contributing to the Adoption of the American Religion Clauses

Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated England, established many of the American colonies. British thought
pervaded these colonies as the immigrants brought with them their religious and political ideas from England and English books and pamphlets largely
provided their cultural fare.64 But although these settlers escaped from Europe to be freed from bondage of laws which compelled them to support and attend
government favored churches, some of these settlers themselves transplanted into American soil the oppressive practices they escaped from. The charters
granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized
them to erect religious establishments, which all, whether believers or not, were required to support or attend. 65 At one time, six of the colonies established a
state religion. Other colonies, however, such as Rhode Island and Delaware tolerated a high degree of religious diversity. Still others, which originally
tolerated only a single religion, eventually extended support to several different faiths. 66

This was the state of the American colonies when the unique American experiment of separation of church and state came about. The birth of the
experiment cannot be attributed to a single cause or event. Rather, a number of interdependent practical and ideological factors contributed in bringing it
forth. Among these were the "English Act of Toleration of 1689, the multiplicity of sects, the lack of church affiliation on the part of most Americans, the rise
of commercial intercourse, the exigencies of the Revolutionary War, the Williams-Penn tradition and the success of their experiments, the writings of Locke,
the social contract theory, the Great Awakening, and the influence of European rationalism and deism." 67 Each of these factors shall be briefly discussed.

First, the practical factors. England's policy of opening the gates of the American colonies to different faiths resulted in the multiplicity of sects in the colonies.
With an Erastian justification, English lords chose to forego protecting what was considered to be the true and eternal church of a particular time in order to
encourage trade and commerce. The colonies were large financial investments which would be profitable only if people would settle there. It would be
difficult to engage in trade with persons one seeks to destroy for religious belief, thus tolerance was a necessity. This tended to distract the colonies from
their preoccupations over their religion and its exclusiveness, encouraging them "to think less of the Church and more of the State and of commerce." 68 The
diversity brought about by the colonies' open gates encouraged religious freedom and non-establishment in several ways. First, as there were too many
dissenting sects to abolish, there was no alternative but to learn to live together. Secondly, because of the daily exposure to different religions, the
passionate conviction in the exclusive rightness of one's religion, which impels persecution for the sake of one's religion, waned. Finally, because of the
great diversity of the sects, religious uniformity was not possible, and without such uniformity, establishment could not survive. 69

But while there was a multiplicity of denomination, paradoxically, there was a scarcity of adherents. Only about four percent of the entire population of the
country had a church affiliation at the time the republic was founded. 70 This might be attributed to the drifting to the American colonies of the skepticism that
characterized European Enlightenment.71 Economic considerations might have also been a factor. The individualism of the American colonist, manifested in
the multiplicity of sects, also resulted in much unaffiliated religion which treated religion as a personal non-institutional matter. The prevalence of lack of
church affiliation contributed to religious liberty and disestablishment as persons who were not connected with any church were not likely to persecute others
for similar independence nor accede to compulsory taxation to support a church to which they did not belong. 72

However, for those who were affiliated to churches, the colonial policy regarding their worship generally followed the tenor of the English Act of Toleration of
1689. In England, this Act conferred on Protestant dissenters the right to hold public services subject to registration of their ministers and places of
worship.73 Although the toleration accorded to Protestant dissenters who qualified under its terms was only a modest advance in religious freedom, it
nevertheless was of some influence to the American experiment. 74 Even then, for practical considerations, concessions had to be made to other dissenting
churches to ensure their cooperation in the War of Independence which thus had a unifying effect on the colonies.
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Next, the ideological factors. First, the Great Awakening in mid-18th century, an evangelical religious revival originating in New England, caused a break with
formal church religion and a resistance to coercion by established churches. This movement emphasized an emotional, personal religion that appealed
directly to the individual, putting emphasis on the rights and duties of the individual conscience and its answerability exclusively to God. Thus, although they
had no quarrel with orthodox Christian theology as in fact they were fundamentalists, this group became staunch advocates of separation of church and
state.75

Then there was the Williams-Penn tradition. Roger Williams was the founder of the colony of Rhode Island where he established a community of Baptists,
Quakers and other nonconformists. In this colony, religious freedom was not based on practical considerations but on the concept of mutual independence
of religion and government. In 1663, Rhode Island obtained a charter from the British crown which declared that settlers have it "much on their heart to hold
forth a livelie experiment that a most flourishing civil state may best be maintained . . . with full libertie in religious concernments." 76 In Williams' pamphlet,
The Bloudy Tenent of Persecution for cause of Conscience, discussed in a Conference between Truth and Peace, 77 he articulated the philosophical basis for
his argument of religious liberty. To him, religious freedom and separation of church and state did not constitute two but only one principle. Religious
persecution is wrong because it "confounds the Civil and Religious" and because "States . . . are proved essentially Civil. The "power of true discerning the
true fear of God" is not one of the powers that the people have transferred to Civil Authority. 78 Williams' Bloudy Tenet is considered an epochal milestone in
the history of religious freedom and the separation of church and state. 79

William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of toleration, having been imprisoned for his religious
convictions as a member of the despised Quakers. He opposed coercion in matters of conscience because "imposition, restraint and persecution for
conscience sake, highly invade the Divine prerogative." Aside from his idealism, proprietary interests made toleration in Pennsylvania necessary. He
attracted large numbers of settlers by promising religious toleration, thus bringing in immigrants both from the Continent and Britain. At the end of the
colonial period, Pennsylvania had the greatest variety of religious groups. Penn was responsible in large part for the "Concessions and agreements of the
Proprietors, Freeholders, and inhabitants of West Jersey, in America", a monumental document in the history of civil liberty which provided among others, for
liberty of conscience.80 The Baptist followers of Williams and the Quakers who came after Penn continued the tradition started by the leaders of their
denominations. Aside from the Baptists and the Quakers, the Presbyterians likewise greatly contributed to the evolution of separation and freedom. 81 The
Constitutional fathers who convened in Philadelphia in 1787, and Congress and the states that adopted the First Amendment in 1791 were very familiar with
and strongly influenced by the successful examples of Rhode Island and Pennsylvania. 82

Undeniably, John Locke and the social contract theory also contributed to the American experiment. The social contract theory popularized by Locke was so
widely accepted as to be deemed self-evident truth in America's Declaration of Independence. With the doctrine of natural rights and equality set forth in the
Declaration of Independence, there was no room for religious discrimination. It was difficult to justify inequality in religious treatment by a new nation that
severed its political bonds with the English crown which violated the self-evident truth that all men are created equal. 83

The social contract theory was applied by many religious groups in arguing against establishment, putting emphasis on religion as a natural right that is
entirely personal and not within the scope of the powers of a political body. That Locke and the social contract theory were influential in the development of
religious freedom and separation is evident from the memorial presented by the Baptists to the Continental Congress in 1774, viz:

Men unite in society, according to the great Mr. Locke, with an intention in every one the better to preserve himself, his liberty and property. The
power of the society, or Legislature constituted by them, can never be supposed to extend any further than the common good, but is obliged to
secure every one's property. To give laws, to receive obedience, to compel with the sword, belong to none but the civil magistrate; and on this
ground we affirm that the magistrate's power extends not to establishing any articles of faith or forms of worship, by force of laws; for laws are of no
force without penalties. The care of souls cannot belong to the civil magistrate, because his power consists only in outward force; but pure and
saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God. 84 (emphasis supplied)

The idea that religion was outside the jurisdiction of civil government was acceptable to both the religionist and rationalist. To the religionist, God or Christ
did not desire that government have that jurisdiction ("render unto Caesar that which is Caesar's"; "my kingdom is not of this world") and to the rationalist, the
power to act in the realm of religion was not one of the powers conferred on government as part of the social contract. 85

Not only the social contract theory drifted to the colonies from Europe. Many of the leaders of the Revolutionary and post-revolutionary period were also
influenced by European deism and rationalism, 86 in general, and some were apathetic if not antagonistic to formal religious worship and institutionalized
religion. Jefferson, Paine, John Adams, Washington, Franklin, Madison, among others were reckoned to be among the Unitarians or Deists. Unitarianism
and Deism contributed to the emphasis on secular interests and the relegation of historic theology to the background. 87 For these men of the enlightenment,
religion should be allowed to rise and fall on its own, and the state must be protected from the clutches of the church whose entanglements has caused
intolerance and corruption as witnessed throughout history. 88 Not only the leaders but also the masses embraced rationalism at the end of the eighteenth
century, accounting for the popularity of Paine's Age of Reason. 89

Finally, the events leading to religious freedom and separation in Virginia contributed significantly to the American experiment of the First Amendment.
Virginia was the "first state in the history of the world to proclaim the decree of absolute divorce between church and state." 90 Many factors contributed to
this, among which were that half to two-thirds of the population were organized dissenting sects, the Great Awakening had won many converts, the
established Anglican Church of Virginia found themselves on the losing side of the Revolution and had alienated many influential laymen with its
identification with the Crown's tyranny, and above all, present in Virginia was a group of political leaders who were devoted to liberty generally, 91 who had
accepted the social contract as self-evident, and who had been greatly influenced by Deism and Unitarianism. Among these leaders were Washington,
Patrick Henry, George Mason, James Madison and above the rest, Thomas Jefferson.

The first major step towards separation in Virginia was the adoption of the following provision in the Bill of Rights of the state's first constitution:

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by
force or violence; and therefore, all men are equally entitled to the free exercise of religion according to the dictates of conscience; and that it is the
mutual duty of all to practice Christian forbearance, love, and charity towards each other. 92 (emphasis supplied)

The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists, Presbyterians and Lutherans flooded the first legislative
assembly with petitions for abolition of establishment. While the majority of the population were dissenters, a majority of the legislature were churchmen. The
legislature compromised and enacted a bill in 1776 abolishing the more oppressive features of establishment and granting exemptions to the dissenters, but
not guaranteeing separation. It repealed the laws punishing heresy and absence from worship and requiring the dissenters to contribute to the support of the
establishment.93 But the dissenters were not satisfied; they not only wanted abolition of support for the establishment, they opposed the compulsory support
of their own religion as others. As members of the established church would not allow that only they would pay taxes while the rest did not, the legislature
 56

enacted in 1779 a bill making permanent the establishment's loss of its exclusive status and its power to tax its members; but those who voted for it did so in
the hope that a general assessment bill would be passed. Without the latter, the establishment would not survive. Thus, a bill was introduced in 1779
requiring every person to enroll his name with the county clerk and indicate which "society for the purpose of Religious Worship" he wished to support. On
the basis of this list, collections were to be made by the sheriff and turned over to the clergymen and teachers designated by the religious congregation. The
assessment of any person who failed to enroll in any society was to be divided proportionately among the societies. 94 The bill evoked strong opposition.

In 1784, another bill, entitled "Bill Establishing a Provision for Teachers of the Christian Religion" was introduced requiring all persons "to pay a moderate tax
or contribution annually for the support of the Christian religion, or of some Christian church, denomination or communion of Christians, or for some form of
Christian worship."95 This likewise aroused the same opposition to the 1779 bill. The most telling blow against the 1784 bill was the monumental "Memorial
and Remonstrance against Religious Assessments" written by Madison and widely distributed before the reconvening of legislature in the fall of 1785. 96 It
stressed natural rights, the government's lack of jurisdiction over the domain of religion, and the social contract as the ideological basis of separation while
also citing practical considerations such as loss of population through migration. He wrote, viz:

Because we hold it for a 'fundamental and undeniable truth,' that religion, or the duty which we owe to our creator, and the manner of discharging
it, can be directed only by reason and conviction, not by force or violence. The religion, then, of every man, must be left to the conviction and
conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is, in its nature, an unalienable right. It is
unalienable, because the opinions of men, depending only on the evidence contemplated in their own minds, cannot follow the dictates of other
men; it is unalienable, also, because what is here a right towards men, is a duty towards the creator. It is the duty of every man to render the
creator such homage, and such only as he believes to be acceptable to him; this duty is precedent, both in order of time and degree of obligation,
to the claims of civil society. Before any man can be considered as a member of civil society, he must be considered as a subject of the governor
of the universe; and if a member of civil society, who enters into any subordinate association, must always do it with a reservation of his duty to the
general authority, much more must every man who becomes a member of any particular civil society do it with the saving his allegiance to the
universal sovereign.97 (emphases supplied)

Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the great number of signatures appended to the Memorial. The
assessment bill was speedily defeated.

Taking advantage of the situation, Madison called up a much earlier 1779 bill of Jefferson which had not been voted on, the "Bill for Establishing Religious
Freedom", and it was finally passed in January 1786. It provided, viz:

Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil
incapacitations, tend not only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who
being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do;

xxx           xxx           xxx

Be it therefore enacted by the General Assembly. That no man shall be compelled to frequent or support any religious worship, place or ministry
whatsoever, nor shall be enforced, restrained, molested or burdened in his body or goods, nor shall otherwise suffer on account of his religious
opinions or beliefs, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same
shall in no wise diminish, enlarge or affect their civil capacities. 98 (emphases supplied)

This statute forbade any kind of taxation in support of religion and effectually ended any thought of a general or particular establishment in Virginia. 99 But the
passage of this law was obtained not only because of the influence of the great leaders in Virginia but also because of substantial popular support coming
mainly from the two great dissenting sects, namely the Presbyterians and the Baptists. The former were never established in Virginia and an underprivileged
minority of the population. This made them anxious to pull down the existing state church as they realized that it was impossible for them to be elevated to
that privileged position. Apart from these expediential considerations, however, many of the Presbyterians were sincere advocates of separation 100 grounded
on rational, secular arguments and to the language of natural religion. 101 Influenced by Roger Williams, the Baptists, on the other hand, assumed that religion
was essentially a matter of concern of the individual and his God, i.e., subjective, spiritual and supernatural, having no relation with the social order. 102 To
them, the Holy Ghost was sufficient to maintain and direct the Church without governmental assistance and state-supported religion was contrary ti the spirit
of the Gospel.103 Thus, separation was necessary. 104 Jefferson's religious freedom statute was a milestone in the history of religious freedom. The United
States Supreme Court has not just once acknowledged that the provisions of the First Amendment of the U.S. Constitution had the same objectives and
intended to afford the same protection against government interference with religious liberty as the Virginia Statute of Religious Liberty.

Even in the absence of the religion clauses, the principle that government had no power to legislate in the area of religion by restricting its free exercise or
establishing it was implicit in the Constitution of 1787. This could be deduced from the prohibition of any religious test for federal office in Article VI of the
Constitution and the assumed lack of power of Congress to act on any subject not expressly mentioned in the Constitution. 105 However, omission of an
express guaranty of religious freedom and other natural rights nearly prevented the ratification of the Constitution. 106 In the ratifying conventions of almost
every state, some objection was expressed to the absence of a restriction on the Federal Government as regards legislation on religion. 107 Thus, in 1791, this
restriction was made explicit with the adoption of the religion clauses in the First Amendment as they are worded to this day, with the first part usually
referred to as the Establishment Clause and the second part, the Free Exercise Clause, viz:

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

VI. Religion Clauses in the United States: Concept, Jurisprudence, Standards

With the widespread agreement regarding the value of the First Amendment religion clauses comes an equally broad disagreement as to what these clauses
specifically require, permit and forbid. No agreement has been reached by those who have studied the religion clauses as regards its exact meaning and the
paucity of records in Congress renders it difficult to ascertain its meaning. 108 Consequently, the jurisprudence in this area is volatile and fraught with
inconsistencies whether within a Court decision or across decisions.

One source of difficulty is the difference in the context in which the First Amendment was adopted and in which it is applied today. In the 1780s, religion
played a primary role in social life - i.e., family responsibilities, education, health care, poor relief, and other aspects of social life with significant moral
dimension - while government played a supportive and indirect role by maintaining conditions in which these activities may be carried out by religious or
religiously-motivated associations. Today, government plays this primary role and religion plays the supportive role. 109 Government runs even family
 57

planning, sex education, adoption and foster care programs. 110 Stated otherwise and with some exaggeration, "(w)hereas two centuries ago, in matters of
social life which have a significant moral dimension, government was the handmaid of religion, today religion, in its social responsibilities, as contrasted with
personal faith and collective worship, is the handmaid of government." 111 With government regulation of individual conduct having become more pervasive,
inevitably some of those regulations would reach conduct that for some individuals are religious. As a result, increasingly, there may be inadvertent collisions
between purely secular government actions and religion clause values. 112

Parallel to this expansion of government has been the expansion of religious organizations in population, physical institutions, types of activities undertaken,
and sheer variety of denominations, sects and cults. Churches run day-care centers, retirement homes, hospitals, schools at all levels, research centers,
settlement houses, halfway houses for prisoners, sports facilities, theme parks, publishing houses and mass media programs. In these activities, religious
organizations complement and compete with commercial enterprises, thus blurring the line between many types of activities undertaken by religious groups
and secular activities. Churches have also concerned themselves with social and political issues as a necessary outgrowth of religious faith as witnessed in
pastoral letters on war and peace, economic justice, and human life, or in ringing affirmations for racial equality on religious foundations. Inevitably, these
developments have brought about substantial entanglement of religion and government. Likewise, the growth in population density, mobility and diversity
has significantly changed the environment in which religious organizations and activities exist and the laws affecting them are made. It is no longer easy for
individuals to live solely among their own kind or to shelter their children from exposure to competing values. The result is disagreement over what laws
should require, permit or prohibit;113 and agreement that if the rights of believers as well as non-believers are all to be respected and given their just due, a
rigid, wooden interpretation of the religion clauses that is blind to societal and political realities must be avoided. 114

Religion cases arise from different circumstances. The more obvious ones arise from a government action which purposely aids or inhibits religion. These
cases are easier to resolve as, in general, these actions are plainly unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof of intent to
aid or inhibit religion.115 The more difficult religion clause cases involve government action with a secular purpose and general applicability which incidentally
or inadvertently aids or burdens religious exercise. In Free Exercise Clause cases, these government actions are referred to as those with "burdensome
effect" on religious exercise even if the government action is not religiously motivated. 116 Ideally, the legislature would recognize the religions and their
practices and would consider them, when practical, in enacting laws of general application. But when the legislature fails to do so, religions that are
threatened and burdened turn to the courts for protection. 117 Most of these free exercise claims brought to the Court are for exemption, not invalidation of the
facially neutral law that has a "burdensome" effect.118

With the change in political and social context and the increasing inadvertent collisions between law and religious exercise, the definition of religion for
purposes of interpreting the religion clauses has also been modified to suit current realities. Defining religion is a difficult task for even theologians,
philosophers and moralists cannot agree on a comprehensive definition. Nevertheless, courts must define religion for constitutional and other legal
purposes.119 It was in the 1890 case of Davis v. Beason120 that the United States Supreme Court first had occasion to define religion, viz:

The term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and
character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the
latter. The First Amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or forbidding
the free exercise thereof, was intended to allow everyone under the jurisdiction of the United States to entertain such notions respecting his
relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form
of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the
modes of worship of any sect.121

The definition was clearly theistic which was reflective of the popular attitudes in 1890.

In 1944, the Court stated in United States v. Ballard 122 that the free exercise of religion "embraces the right to maintain theories of life and of death and of the
hereafter which are rank heresy to followers of the orthodox faiths." 123 By the 1960s, American pluralism in religion had flourished to include non-theistic
creeds from Asia such as Buddhism and Taoism. 124 In 1961, the Court, in Torcaso v. Watkins,125 expanded the term "religion" to non-theistic beliefs such as
Buddhism, Taoism, Ethical Culture, and Secular Humanism. Four years later, the Court faced a definitional problem in United States v. Seeger 126 which
involved four men who claimed "conscientious objector" status in refusing to serve in the Vietnam War. One of the four, Seeger, was not a member of any
organized religion opposed to war, but when specifically asked about his belief in a Supreme Being, Seeger stated that "you could call (it) a belief in a
Supreme Being or God. These just do not happen to be the words that I use." Forest Peter, another one of the four claimed that after considerable
meditation and reflection "on values derived from the Western religious and philosophical tradition," he determined that it would be "a violation of his moral
code to take human life and that he considered this belief superior to any obligation to the state." The Court avoided a constitutional question by broadly
interpreting not the Free Exercise Clause, but the statutory definition of religion in the Universal Military Training and Service Act of 1940 which exempt from
combat anyone "who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form." Speaking for the Court,
Justice Clark ruled, viz:

Congress, in using the expression 'Supreme Being' rather than the designation 'God,' was merely clarifying the meaning of religious tradition and
belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views (and) the test of belief 'in relation to a
Supreme Being' is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to the orthodox belief
in God. (emphasis supplied)

The Court was convinced that Seeger, Peter and the others were conscientious objectors possessed of such religious belief and training.

Federal and state courts have expanded the definition of religion in Seeger to include even non-theistic beliefs such as Taoism or Zen Buddhism. It has been
proposed that basically, a creed must meet four criteria to qualify as religion under the First Amendment. First, there must be belief in God or some parallel
belief that occupies a central place in the believer's life. Second, the religion must involve a moral code transcending individual belief, i.e., it cannot be purely
subjective. Third, a demonstrable sincerity in belief is necessary, but the court must not inquire into the truth or reasonableness of the belief. 127 Fourth, there
must be some associational ties,128 although there is also a view that religious beliefs held by a single person rather than being part of the teachings of any
kind of group or sect are entitled to the protection of the Free Exercise Clause. 129

Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having hurdled the issue of definition, the court then has to draw
lines to determine what is or is not permissible under the religion clauses. In this task, the purpose of the clauses is the yardstick. Their purpose is singular;
they are two sides of the same coin. 130 In devoting two clauses to religion, the Founders were stating not two opposing thoughts that would cancel each other
out, but two complementary thoughts that apply in different ways in different circumstances. 131 The purpose of the religion clauses - both in the restriction it
imposes on the power of the government to interfere with the free exercise of religion and the limitation on the power of government to establish, aid, and
support religion - is the protection and promotion of religious liberty. 132 The end, the goal, and the rationale of the religion clauses is this liberty. 133 Both
 58

clauses were adopted to prevent government imposition of religious orthodoxy; the great evil against which they are directed is government-induced
homogeneity.134 The Free Exercise Clause directly articulates the common objective of the two clauses and the Establishment Clause specifically addresses
a form of interference with religious liberty with which the Framers were most familiar and for which government historically had demonstrated a
propensity.135 In other words, free exercise is the end, proscribing establishment is a necessary means to this end to protect the rights of those who might
dissent from whatever religion is established. 136 It has even been suggested that the sense of the First Amendment is captured if it were to read as
"Congress shall make no law respecting an establishment of religion or otherwise prohibiting the free exercise thereof" because the fundamental and single
purpose of the two religious clauses is to "avoid any infringement on the free exercise of religions" 137 Thus, the Establishment Clause mandates separation of
church and state to protect each from the other, in service of the larger goal of preserving religious liberty. The effect of the separation is to limit the
opportunities for any religious group to capture the state apparatus to the disadvantage of those of other faiths, or of no faith at all 138 because history has
shown that religious fervor conjoined with state power is likely to tolerate far less religious disagreement and disobedience from those who hold different
beliefs than an enlightened secular state. 139 In the words of the U.S. Supreme Court, the two clauses are interrelated, viz: "(t)he structure of our government
has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from
the invasion of the civil authority."140

In upholding religious liberty as the end goal in religious clause cases, the line the court draws to ensure that government does not establish and instead
remains neutral toward religion is not absolutely straight. Chief Justice Burger explains, viz:

The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these
provisions, which is to insure that no religion be sponsored or favored, none commanded and none inhibited. 141 (emphasis supplied)

Consequently, U.S. jurisprudence has produced two identifiably different, 142 even opposing, strains of jurisprudence on the religion clauses: separation (in
the form of strict separation or the tamer version of strict neutrality or separation) and benevolent neutrality or accommodation. A view of the landscape of
U.S. religion clause cases would be useful in understanding these two strains, the scope of protection of each clause, and the tests used in religious clause
cases. Most of these cases are cited as authorities in Philippine religion clause cases.

A. Free Exercise Clause

The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v. United States. 143 This landmark case involved Reynolds, a Mormon who
proved that it was his religious duty to have several wives and that the failure to practice polygamy by male members of his religion when circumstances
would permit would be punished with damnation in the life to come. Reynolds' act of contracting a second marriage violated Section 5352, Revised Statutes
prohibiting and penalizing bigamy, for which he was convicted. The Court affirmed Reynolds' conviction, using what in jurisprudence would be called the
belief-action test which allows absolute protection to belief but not to action. It cited Jefferson's Bill Establishing Religious Freedom which, according to the
Court, declares "the true distinction between what properly belongs to the Church and what to the State." 144 The bill, making a distinction between belief and
action, states in relevant part, viz:

That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on
supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty;

that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace
and good order.145 (emphasis supplied)

The Court then held, viz:

Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or
subversive of good order. . .

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.
Suppose one believed that human sacrifice were a necessary part of religious worship, would it be seriously contended that the civil government
under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile
of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be
allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines
of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in
name under such circumstances.146

The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause from regulating individual religious beliefs, but placed no
restriction on the ability of the state to regulate religiously motivated conduct. It was logical for belief to be accorded absolute protection because any statute
designed to prohibit a particular religious belief unaccompanied by any conduct would most certainly be motivated only by the legislature's preference of a
competing religious belief. Thus, all cases of regulation of belief would amount to regulation of religion for religious reasons violative of the Free Exercise
Clause. On the other hand, most state regulations of conduct are for public welfare purposes and have nothing to do with the legislature's religious
preferences. Any burden on religion that results from state regulation of conduct arises only when particular individuals are engaging in the generally
regulated conduct because of their particular religious beliefs. These burdens are thus usually inadvertent and did not figure in the belief-action test. As long
as the Court found that regulation address action rather than belief, the Free Exercise Clause did not pose any problem. 147 The Free Exercise Clause thus
gave no protection against the proscription of actions even if considered central to a religion unless the legislature formally outlawed the belief itself. 148

This belief-action distinction was held by the Court for some years as shown by cases where the Court upheld other laws which burdened the practice of the
Mormon religion by imposing various penalties on polygamy such as the Davis case and Church of Latter Day Saints v. United States. 149 However, more
than a century since Reynolds was decided, the Court has expanded the scope of protection from belief to speech and conduct. But while the belief-action
test has been abandoned, the rulings in the earlier Free Exercise cases have gone unchallenged. The belief-action distinction is still of some importance
though as there remains an absolute prohibition of governmental proscription of beliefs. 150

The Free Exercise Clause accords absolute protection to individual religious convictions and beliefs 151 and proscribes government from questioning a
person's beliefs or imposing penalties or disabilities based solely on those beliefs. The Clause extends protection to both beliefs and unbelief. Thus,
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in Torcaso v. Watkins,152 a unanimous Court struck down a state law requiring as a qualification for public office an oath declaring belief in the existence of
God. The protection also allows courts to look into the good faith of a person in his belief, but prohibits inquiry into the truth of a person's religious beliefs. As
held in United States v. Ballard,153 "(h)eresy trials are foreign to the Constitution. Men may believe what they cannot prove. They may not be put to the proof
of their religious doctrines or beliefs."

Next to belief which enjoys virtually absolute protection, religious speech and expressive religious conduct are accorded the highest degree of protection.
Thus, in the 1940 case of Cantwell v. Connecticut,154 the Court struck down a state law prohibiting door-to-door solicitation for any religious or charitable
cause without prior approval of a state agency. The law was challenged by Cantwell, a member of the Jehovah's Witnesses which is committed to active
proselytizing. The Court invalidated the state statute as the prior approval necessary was held to be a censorship of religion prohibited by the Free Exercise
Clause. The Court held, viz:

In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one may seem the rankest error to
his neighbor. To persuade others to his point of view, the pleader, as we know, resorts to exaggeration, to vilification of men who have been, or
are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the
probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of citizens of
a democracy.155

Cantwell took a step forward from the protection afforded by the Reynolds case in that it not only affirmed protection of belief but also freedom to act for the
propagation of that belief, viz:

Thus the Amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second
cannot be. Conduct remains subject to regulation for the protection of society. . . In every case, the power to regulate must be so exercised as not,
in attaining a permissible end, unduly to infringe the protected freedom. (emphasis supplied) 156

The Court stated, however, that government had the power to regulate the times, places, and manner of solicitation on the streets and assure the peace and
safety of the community.

Three years after Cantwell, the Court in Douglas v. City of Jeanette,157 ruled that police could not prohibit members of the Jehovah's Witnesses from
peaceably and orderly proselytizing on Sundays merely because other citizens complained. In another case likewise involving the Jehovah's
Witnesses, Niemotko v. Maryland,158 the Court unanimously held unconstitutional a city council's denial of a permit to the Jehovah's Witnesses to use the city
park for a public meeting. The city council's refusal was because of the "unsatisfactory" answers of the Jehovah's Witnesses to questions about Catholicism,
military service, and other issues. The denial of the public forum was considered blatant censorship. While protected, religious speech in the public forum is
still subject to reasonable time, place and manner regulations similar to non-religious speech. Religious proselytizing in congested areas, for example, may
be limited to certain areas to maintain the safe and orderly flow of pedestrians and vehicular traffic as held in the case of  Heffron v. International Society for
Krishna Consciousness.159

The least protected under the Free Exercise Clause is religious conduct, usually in the form of unconventional religious practices. Protection in this realm
depends on the character of the action and the government rationale for regulating the action. 160 The Mormons' religious conduct of polygamy is an example
of unconventional religious practice. As discussed in the Reynolds case above, the Court did not afford protection to the practice. Reynolds was reiterated in
the 1890 case of Davis again involving Mormons, where the Court held, viz: "(c)rime is not the less odious because sanctioned by what any particular sect
may designate as religion."161

The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test, regulation of religiously dictated conduct would be upheld no matter how
central the conduct was to the exercise of religion and no matter how insignificant was the government's non-religious regulatory interest so long as the
government is proscribing action and not belief. Thus, the Court abandoned the simplistic belief-action distinction and instead recognized the deliberate-
inadvertent distinction, i.e., the distinction between deliberate state interference of religious exercise for religious reasons which was plainly unconstitutional
and government's inadvertent interference with religion in pursuing some secular objective. 162 In the 1940 case of Minersville School District v. Gobitis,163 the
Court upheld a local school board requirement that all public school students participate in a daily flag salute program, including the Jehovah's Witnesses
who were forced to salute the American flag in violation of their religious training, which considered flag salute to be worship of a "graven image." The Court
recognized that the general requirement of compulsory flag salute inadvertently burdened the Jehovah Witnesses' practice of their religion, but justified the
government regulation as an appropriate means of attaining national unity, which was the "basis of national security." Thus, although the Court was already
aware of the deliberate-inadvertent distinction in government interference with religion, it continued to hold that the Free Exercise Clause presented no
problem to interference with religion that was inadvertent no matter how serious the interference, no matter how trivial the state's non-religious objectives,
and no matter how many alternative approaches were available to the state to pursue its objectives with less impact on religion, so long as government was
acting in pursuit of a secular objective.

Three years later, the Gobitis decision was overturned in West Virginia v. Barnette164 which involved a similar set of facts and issue. The Court recognized
that saluting the flag, in connection with the pledges, was a form of utterance and the flag salute program was a compulsion of students to declare a belief.
The Court ruled that "compulsory unification of opinions leads only to the unanimity of the graveyard" and exempt the students who were members of the
Jehovah's Witnesses from saluting the flag. A close scrutiny of the case, however, would show that it was decided not on the issue of religious conduct as
the Court said, "(n)or does the issue as we see it turn on one's possession of particular religious views or the sincerity with which they are held. While
religion supplies appellees' motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold
such a compulsory rite to infringe constitutional liberty of the individual." (emphasis supplied) 165 The Court pronounced, however, that, "freedoms of speech
and of press, of assembly, and of worship . . . are susceptible only of restriction only to prevent grave and immediate danger to interests which the state may
lawfully protect."166 The Court seemed to recognize the extent to which its approach in Gobitis subordinated the religious liberty of political minorities - a
specially protected constitutional value - to the common everyday economic and public welfare objectives of the majority in the legislature. This time, even
inadvertent interference with religion must pass judicial scrutiny under the Free Exercise Clause with only grave and immediate danger sufficing to override
religious liberty. But the seeds of this heightened scrutiny would only grow to a full flower in the 1960s. 167

Nearly a century after Reynolds employed the belief-action test, the Warren Court began the modern free exercise jurisprudence. 168 A two-part balancing test
was established in Braunfeld v. Brown169 where the Court considered the constitutionality of applying Sunday closing laws to Orthodox Jews whose beliefs
required them to observe another day as the Sabbath and abstain from commercial activity on Saturday. Chief Justice Warren, writing for the Court, found
that the law placed a severe burden on Sabattarian retailers. He noted, however, that since the burden was the indirect effect of a law with a secular
purpose, it would violate the Free Exercise Clause only if there were alternative ways of achieving the state's interest. He employed a two-part balancing test
of validity where the first step was for plaintiff to show that the regulation placed a real burden on his religious exercise. Next, the burden would be upheld
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only if the state showed that it was pursuing an overriding secular goal by the means which imposed the least burden on religious practices. 170 The Court
found that the state had an overriding secular interest in setting aside a single day for rest, recreation and tranquility and there was no alternative means of
pursuing this interest but to require Sunday as a uniform rest day.

Two years after came the stricter compelling state interest test in the 1963 case of  Sherbert v. Verner.171 This test was similar to the two-part balancing test
in Braunfeld,172 but this latter test stressed that the state interest was not merely any colorable state interest, but must be paramount and compelling to
override the free exercise claim. In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as her employment
was terminated for refusal to work on Saturdays on religious grounds. Her claim was denied. She sought recourse in the Supreme Court. In laying down the
standard for determining whether the denial of benefits could withstand constitutional scrutiny, the Court ruled, viz:

Plainly enough, appellee's conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a kind within the
reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court is to withstand appellant's constitutional challenge, it must
be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or
because any incidental burden on the free exercise of appellant's religion may be justified by a 'compelling state interest in the regulation of a
subject within the State's constitutional power to regulate. . .' NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328. 173 (emphasis
supplied)

The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a rational relationship of the substantial infringement to
the religious right and a colorable state interest. "(I)n this highly sensitive constitutional area, '[o]nly the gravest abuses, endangering paramount interests,
give occasion for permissible limitation.' Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315." 174 The Court found that there was no such
compelling state interest to override Sherbert's religious liberty. It added that even if the state could show that Sherbert's exemption would pose serious
detrimental effects to the unemployment compensation fund and scheduling of work, it was incumbent upon the state to show that no alternative means of
regulations would address such detrimental effects without infringing religious liberty. The state, however, did not discharge this burden. The Court thus
carved out for Sherbert an exemption from the Saturday work requirement that caused her disqualification from claiming the unemployment benefits. The
Court reasoned that upholding the denial of Sherbert's benefits would force her to choose between receiving benefits and following her religion. This choice
placed "the same kind of burden upon the free exercise of religion as would a fine imposed against (her) for her Saturday worship." This germinal case of
Sherbert firmly established the exemption doctrine,175 viz:

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

Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early as Braunfeld), the Court moved from the doctrine that inadvertent or
incidental interferences with religion raise no problem under the Free Exercise Clause to the doctrine that such interferences violate the Free Exercise
Clause in the absence of a compelling state interest - the highest level of constitutional scrutiny short of a holding of a per se violation. Thus, the problem
posed by the belief-action test and the deliberate-inadvertent distinction was addressed. 176

Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court, the rationale in Sherbert continued to be applied. In  Thomas v.
Review Board177 and Hobbie v. Unemployment Appeals Division,178 for example, the Court reiterated the exemption doctrine and held that in the absence of
a compelling justification, a state could not withhold unemployment compensation from an employee who resigned or was discharged due to unwillingness to
depart from religious practices and beliefs that conflicted with job requirements. But not every governmental refusal to allow an exemption from a regulation
which burdens a sincerely held religious belief has been invalidated, even though strict or heightened scrutiny is applied. In  United States v. Lee,179 for
instance, the Court using strict scrutiny and referring to Thomas, upheld the federal government's refusal to exempt Amish employers who requested for
exemption from paying social security taxes on wages on the ground of religious beliefs. The Court held that "(b)ecause the broad public interest in
maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax." 180 It
reasoned that unlike in Sherbert, an exemption would significantly impair government's achievement of its objective - "the fiscal vitality of the social security
system;" mandatory participation is indispensable to attain this objective. The Court noted that if an exemption were made, it would be hard to justify not
allowing a similar exemption from general federal taxes where the taxpayer argues that his religious beliefs require him to reduce or eliminate his payments
so that he will not contribute to the government's war-related activities, for example.

The strict scrutiny and compelling state interest test significantly increased the degree of protection afforded to religiously motivated conduct. While not
affording absolute immunity to religious activity, a compelling secular justification was necessary to uphold public policies that collided with religious
practices. Although the members of the Court often disagreed over which governmental interests should be considered compelling, thereby producing
dissenting and separate opinions in religious conduct cases, this general test established a strong presumption in favor of the free exercise of religion. 181

Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder182 where the Court upheld the religious practice of the Old Order Amish faith over
the state's compulsory high school attendance law. The Amish parents in this case did not permit secular education of their children beyond the eighth
grade. Chief Justice Burger, writing for the majority, held, viz:

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

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

. . . our decisions have rejected the idea that that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is
true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power
to promote the health, safety, and general welfare, or the Federal government in the exercise of its delegated powers . . . But to agree that
religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected
by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general
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applicability. . . .This case, therefore, does not become easier because respondents were convicted for their "actions" in refusing to send their
children to the public high school; in this context belief and action cannot be neatly confined in logic-tight compartments. . . 183

The onset of the 1990s, however, saw a major setback in the protection afforded by the Free Exercise Clause. In Employment Division, Oregon Department
of Human Resources v. Smith,184 the sharply divided Rehnquist Court dramatically departed from the heightened scrutiny and compelling justification
approach and imposed serious limits on the scope of protection of religious freedom afforded by the First Amendment. In this case, the well-established
practice of the Native American Church, a sect outside the Judeo-Christian mainstream of American religion, came in conflict with the state's interest in
prohibiting the use of illicit drugs. Oregon's controlled substances statute made the possession of peyote a criminal offense. Two members of the church,
Smith and Black, worked as drug rehabilitation counselors for a private social service agency in Oregon. Along with other church members, Smith and Black
ingested peyote, a hallucinogenic drug, at a sacramental ceremony practiced by Native Americans for hundreds of years. The social service agency fired
Smith and Black citing their use of peyote as "job-related misconduct". They applied for unemployment compensation, but the Oregon Employment Appeals
Board denied their application as they were discharged for job-related misconduct. Justice Scalia, writing for the majority, ruled that "if prohibiting the
exercise of religion . . . is . . . merely the incidental effect of a generally applicable and otherwise valid law, the First Amendment has not been offended." In
other words, the Free Exercise Clause would be offended only if a particular religious practice were singled out for proscription. The majority opinion relied
heavily on the Reynolds case and in effect, equated Oregon's drug prohibition law with the anti-polygamy statute in Reynolds. The relevant portion of the
majority opinion held, viz:

We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation.

Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require
exemptions from a generally applicable criminal law. . .

We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such
challenges. The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public
policy, "cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development." . . .To make an individual's
obligation to obey such a law contingent upon the law's coincidence with his religious beliefs except where the State's interest is "compelling" - permitting
him, by virtue of his beliefs, "to become a law unto himself," . . . - contradicts both constitutional tradition and common sense.

Justice O'Connor wrote a concurring opinion pointing out that the majority's rejection of the compelling governmental interest test was the most controversial
part of the decision. Although she concurred in the result that the Free Exercise Clause had not been offended, she sharply criticized the majority opinion as
a dramatic departure "from well-settled First Amendment jurisprudence. . . and . . . (as) incompatible with our Nation's fundamental commitment to religious
liberty." This portion of her concurring opinion was supported by Justices Brennan, Marshall and Blackmun who dissented from the Court's decision. Justice
O'Connor asserted that "(t)he compelling state interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it
occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and
compelling government interest 'of the highest order'." Justice Blackmun registered a separate dissenting opinion, joined by Justices Brennan and Marshall.
He charged the majority with "mischaracterizing" precedents and "overturning. . . settled law concerning the Religion Clauses of our Constitution." He
pointed out that the Native American Church restricted and supervised the sacramental use of peyote. Thus, the state had no significant health or safety
justification for regulating the sacramental drug use. He also observed that Oregon had not attempted to prosecute Smith or Black, or any Native Americans,
for that matter, for the sacramental use of peyote. In conclusion, he said that "Oregon's interest in enforcing its drug laws against religious use of peyote
(was) not sufficiently compelling to outweigh respondents' right to the free exercise of their religion."

The Court went back to the Reynolds and Gobitis doctrine in Smith. The Court's standard in Smith virtually eliminated the requirement that the government
justify with a compelling state interest the burdens on religious exercise imposed by laws neutral toward religion. The Smith doctrine is highly unsatisfactory
in several respects and has been criticized as exhibiting a shallow understanding of free exercise jurisprudence. 185 First, the First amendment was intended
to protect minority religions from the tyranny of the religious and political majority. A deliberate regulatory interference with minority religious freedom is the
worst form of this tyranny. But regulatory interference with a minority religion as a result of ignorance or sensitivity of the religious and political majority is no
less an interference with the minority's religious freedom. If the regulation had instead restricted the majority's religious practice, the majoritarian legislative
process would in all probability have modified or rejected the regulation. Thus, the imposition of the political majority's non-religious objectives at the expense
of the minority's religious interests implements the majority's religious viewpoint at the expense of the minority's. Second, government impairment of religious
liberty would most often be of the inadvertent kind as in Smith considering the political culture where direct and deliberate regulatory imposition of religious
orthodoxy is nearly inconceivable. If the Free Exercise Clause could not afford protection to inadvertent interference, it would be left almost meaningless.
Third, the Reynolds-Gobitis-Smith doctrine simply defies common sense. The state should not be allowed to interfere with the most deeply held fundamental
religious convictions of an individual in order to pursue some trivial state economic or bureaucratic objective. This is especially true when there are
alternative approaches for the state to effectively pursue its objective without serious inadvertent impact on religion. 186

Thus, the Smith decision has been criticized not only for increasing the power of the state over religion but as discriminating in favor of mainstream religious
groups against smaller, more peripheral groups who lack legislative clout, 187 contrary to the original theory of the First Amendment. 188 Undeniably, claims for
judicial exemption emanate almost invariably from relatively politically powerless minority religions and Smith virtually wiped out their judicial recourse for
exemption.189 Thus, the Smith decision elicited much negative public reaction especially from the religious community, and commentaries insisted that the
Court was allowing the Free Exercise Clause to disappear. 190 So much was the uproar that a majority in Congress was convinced to enact the Religious
Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited government at all levels from substantially burdening a person's free exercise of religion,
even if such burden resulted from a generally applicable rule, unless the government could demonstrate a compelling state interest and the rule constituted
the least restrictive means of furthering that interest. 191 RFRA, in effect, sought to overturn the substance of the Smith ruling and restore the status quo prior
to Smith. Three years after the RFRA was enacted, however, the Court, dividing 6 to 3, declared the RFRA unconstitutional in  City of Boerne v.
Flores.192 The Court ruled that "RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance." It emphasized the
primacy of its role as interpreter of the Constitution and unequivocally rejected, on broad institutional grounds, a direct congressional challenge of final
judicial authority on a question of constitutional interpretation.

After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 193 which was ruled consistent with the Smith doctrine. This case involved animal
sacrifice of the Santeria, a blend of Roman Catholicism and West African religions brought to the Carribean by East African slaves. An ordinance made it a
crime to "unnecessarily kill, torment, torture, or mutilate an animal in public or private ritual or ceremony not for the primary purpose of food consumption."
The ordinance came as a response to the local concern over the sacrificial practices of the Santeria. Justice Kennedy, writing for the majority, carefully
pointed out that the questioned ordinance was not a generally applicable criminal prohibition, but instead singled out practitioners of the Santeria in that it
forbade animal slaughter only insofar as it took place within the context of religious rituals.
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It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is absolutely protected, religious speech and proselytizing are
highly protected but subject to restraints applicable to non-religious speech, and unconventional religious practice receives less protection; nevertheless
conduct, even if its violates a law, could be accorded protection as shown in Wisconsin. 194

B. Establishment Clause

The Court's first encounter with the Establishment Clause was in the 1947 case of Everson v. Board of Education.195 Prior cases had made passing
reference to the Establishment Clause 196 and raised establishment questions but were decided on other grounds. 197 It was in the Everson case that the U.S.
Supreme Court adopted Jefferson's metaphor of "a wall of separation between church and state" as encapsulating the meaning of the Establishment Clause.
The often and loosely used phrase "separation of church and state" does not appear in the U.S. Constitution. It became part of U.S. jurisprudence when the
Court in the 1878 case of Reynolds v. United States198 quoted Jefferson's famous letter of 1802 to the Danbury Baptist Association in narrating the history of
the religion clauses, viz:

Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his
worship; that the legislative powers of the Government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the
whole American people which declared that their Legislature should 'make no law respecting an establishment of religion or prohibiting the free
exercise thereof,' thus building a wall of separation between Church and State. 199 (emphasis supplied)

Chief Justice Waite, speaking for the majority, then added, "(c)oming as this does from an acknowledged leader of the advocates of the measure, it may be
accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured." 200

The interpretation of the Establishment Clause has in large part been in cases involving education, notably state aid to private religious schools and prayer in
public schools.201 In Everson v. Board of Education, for example, the issue was whether a New Jersey local school board could reimburse parents for
expenses incurred in transporting their children to and from Catholic schools. The reimbursement was part of a general program under which all parents of
children in public schools and nonprofit private schools, regardless of religion, were entitled to reimbursement for transportation costs. Justice Hugo Black,
writing for a sharply divided Court, justified the reimbursements on the child benefit theory, i.e., that the school board was merely furthering the state's
legitimate interest in getting children "regardless of their religion, safely and expeditiously to and from accredited schools." The Court, after narrating the
history of the First Amendment in Virginia, interpreted the Establishment Clause, viz:

The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church.
Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to
or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining
or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support
any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state
nor the Federal Government can, openly or secretly participate in the affairs of any religious organizations or groups and vice versa. In the words
of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between Church and State." 202

The Court then ended the opinion, viz:

The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the
slightest breach. New Jersey has not breached it here.203

By 1971, the Court integrated the different elements of the Court's Establishment Clause jurisprudence that evolved in the 1950s and 1960s and laid down a
three-pronged test in Lemon v. Kurtzman204 in determining the constitutionality of policies challenged under the Establishment Clause. This case involved a
Pennsylvania statutory program providing publicly funded reimbursement for the cost of teachers' salaries, textbooks, and instructional materials in secular
subjects and a Rhode Island statute providing salary supplements to teachers in parochial schools. The Lemon test requires a challenged policy to meet the
following criteria to pass scrutiny under the Establishment Clause. "First, the statute must have a secular legislative purpose; second, its primary or principal
effect must be one that neither advances nor inhibits religion (Board of Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]);
finally, the statute must not foster 'an excessive entanglement with religion.' (Walz v.Tax Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409
[1970])" (emphasis supplied)205 Using this test, the Court held that the Pennsylvania statutory program and Rhode Island statute were unconstitutional as
fostering excessive entanglement between government and religion.

The most controversial of the education cases involving the Establishment Clause are the school prayer decisions. "Few decisions of the modern Supreme
Court have been criticized more intensely than the school prayer decisions of the early 1960s." 206 In the 1962 case of Engel v. Vitale,207 the Court invalidated
a New York Board of Regents policy that established the voluntary recitation of a brief generic prayer by children in the public schools at the start of each
school day. The majority opinion written by Justice Black stated that "in this country it is no part of the business of government to compose official prayers for
any group of the American people to recite as part of a religious program carried on by government." In fact, history shows that this very practice of
establishing governmentally composed prayers for religious services was one of the reasons that caused many of the early colonists to leave England and
seek religious freedom in America. The Court called to mind that the first and most immediate purpose of the Establishment Clause rested on the belief that
a union of government and religion tends to destroy government and to degrade religion. The following year, the Engel decision was reinforced in  Abington
School District v. Schempp208 and Murray v. Curlett209 where the Court struck down the practice of Bible reading and the recitation of the Lord's prayer in the
Pennsylvania and Maryland schools. The Court held that to withstand the strictures of the Establishment Clause, a statute must have a secular legislative
purpose and a primary effect that neither advances nor inhibits religion. It reiterated, viz:

The wholesome 'neutrality' of which this Court's cases speak thus stems from a recognition of the teachings of history that powerful sects or
groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official
support of the State of Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause
prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and
observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from
the state.210

The school prayer decisions drew furious reactions. Religious leaders and conservative members of Congress and resolutions passed by several state
legislatures condemned these decisions.211 On several occasions, constitutional amendments have been introduced in Congress to overturn the school
prayer decisions. Still, the Court has maintained its position and has in fact reinforced it in the 1985 case of  Wallace v. Jaffree212 where the Court struck
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down an Alabama law that required public school students to observe a moment of silence "for the purpose of meditation or voluntary prayer" at the start of
each school day.

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

In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. . .
We follow the McCollum case. But we cannot expand it to cover the present released time program unless separation of Church and State means
that public institutions can make no adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the Bill
of Rights such a philosophy of hostility to religion. 215

In the area of government displays or affirmations of belief, the Court has given leeway to religious beliefs and practices which have acquired a secular
meaning and have become deeply entrenched in history. For instance, in McGowan v. Maryland,216 the Court upheld laws that prohibited certain businesses
from operating on Sunday despite the obvious religious underpinnings of the restrictions. Citing the secular purpose of the Sunday closing laws and treating
as incidental the fact that this day of rest happened to be the day of worship for most Christians, the Court held, viz:

It is common knowledge that the first day of the week has come to have special significance as a rest day in this country. People of all religions
and people with no religion regard Sunday as a time for family activity, for visiting friends and relatives, for later sleeping, for passive and active
entertainments, for dining out, and the like. 217

In the 1983 case of Marsh v. Chambers,218 the Court refused to invalidate Nebraska's policy of beginning legislative sessions with prayers offered by a
Protestant chaplain retained at the taxpayers' expense. The majority opinion did not rely on the Lemon test and instead drew heavily from history and the
need for accommodation of popular religious beliefs, viz:

In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions
with prayer has become the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these
circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgement of beliefs widely held
among the people of this country. As Justice Douglas observed, "(w)e are a religious people whose institutions presuppose a Supreme Being."
(Zorach c. Clauson, 343 US 306, 313 [1952])219 (emphasis supplied)

Some view the Marsh ruling as a mere aberration as the Court would "inevitably be embarrassed if it were to attempt to strike down a practice that occurs in
nearly every legislature in the United States, including the U.S. Congress." 220 That Marsh was not an aberration is suggested by subsequent cases. In the
1984 case of Lynch v. Donnelly,221 the Court upheld a city-sponsored nativity scene in Rhode Island. By a 5-4 decision, the majority opinion hardly employed
the Lemon test and again relied on history and the fact that the creche had become a "neutral harbinger of the holiday season" for many, rather than a
symbol of Christianity.

The Establishment Clause has also been interpreted in the area of tax exemption. By tradition, church and charitable institutions have been exempt from
local property taxes and their income exempt from federal and state income taxes. In the 1970 case of  Walz v. Tax Commission,222 the New York City Tax
Commission's grant of property tax exemptions to churches as allowed by state law was challenged by Walz on the theory that this required him to subsidize
those churches indirectly. The Court upheld the law stressing its neutrality, viz:

It has not singled out one particular church or religious group or even churches as such; rather, it has granted exemptions to all houses of religious
worship within a broad class of property owned by non-profit, quasi-public corporations . . . The State has an affirmative policy that considers these
groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest. 223

The Court added that the exemption was not establishing religion but "sparing the exercise of religion from the burden of property taxation levied on private
profit institutions"224 and preventing excessive entanglement between state and religion. At the same time, the Court acknowledged the long-standing
practice of religious tax exemption and the Court's traditional deference to legislative bodies with respect to the taxing power, viz:

(f)ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than for the
government to exercise . . . this kind of benevolent neutrality toward churches and religious exercise generally so long as none was favored over
others and none suffered interference.225 (emphasis supplied)

C. Strict Neutrality v. Benevolent Neutrality

To be sure, the cases discussed above, while citing many landmark decisions in the religious clauses area, are but a small fraction of the hundreds of
religion clauses cases that the U.S. Supreme Court has passed upon. Court rulings contrary to or making nuances of the above cases may be cited.
Professor McConnell poignantly recognizes this, viz:
 64

Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead the legislature in daily prayers (Marsh v. Chambers, 463
US783, 792-93[1983]), but unconstitutional for a state to set aside a moment of silence in the schools for children to pray if they want to (Wallace
v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a state to require employers to accommodate their employees' work schedules to their
sabbath observances (Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but constitutionally mandatory for a state to require
employers to pay workers compensation when the resulting inconsistency between work and sabbath leads to discharge (. . .Sherbert v. Verner,
374 US 398, 403-4 [1963]). It is constitutional for the government to give money to religiously-affiliated organizations to teach adolescents about
proper sexual behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not to teach them science or history (Lemon v. Kurtzman, 403 US 602,
618-619 [1971]). It is constitutional for the government to provide religious school pupils with books (Board of Education v. Allen, 392 US 236, 238
[1968]), but not with maps (Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to religious schools (Everson v. Board of Education, 330
US 1, 17 [1947]), but not from school to a museum on a field trip (Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for state-
mandated standardized tests (Committee for Pub. Educ. and Religious Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-
related maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess. 226

But the purpose of the overview is not to review the entirety of the U.S. religion clause jurisprudence nor to extract the prevailing case law regarding
particular religious beliefs or conduct colliding with particular government regulations. Rather, the cases discussed above suffice to show that, as legal
scholars observe, this area of jurisprudence has demonstrated two main standards used by the Court in deciding religion clause cases: separation (in the
form of strict separation or the tamer version of strict neutrality or separation) and benevolent neutrality or accommodation. The weight of current authority,
judicial and in terms of sheer volume, appears to lie with the separationists, strict or tame. 227 But the accommodationists have also attracted a number of
influential scholars and jurists.228 The two standards producing two streams of jurisprudence branch out respectively from the history of the First Amendment
in England and the American colonies and climaxing in Virginia as narrated in this opinion and officially acknowledged by the Court in Everson, and from
American societal life which reveres religion and practices age-old religious traditions. Stated otherwise, separation - strict or tame - protects the principle of
church-state separation with a rigid reading of the principle while benevolent neutrality protects religious realities, tradition and established practice with a
flexible reading of the principle.229 The latter also appeals to history in support of its position, viz:

The opposing school of thought argues that the First Congress intended to allow government support of religion, at least as long as that support
did not discriminate in favor of one particular religion. . . the Supreme Court has overlooked many important pieces of history. Madison, for
example, was on the congressional committee that appointed a chaplain, he declared several national days of prayer and fasting during his
presidency, and he sponsored Jefferson's bill for punishing Sabbath breakers; moreover, while president, Jefferson allowed federal support of
religious missions to the Indians. . . And so, concludes one recent book, 'there is no support in the Congressional records that either the First
Congress, which framed the First Amendment, or its principal author and sponsor, James Madison, intended that Amendment to create a state of
complete independence between religion and government. In fact, the evidence in the public documents goes the other way. 230 (emphasis
supplied)

To succinctly and poignantly illustrate the historical basis of benevolent neutrality that gives room for accommodation, less than twenty-four hours after
Congress adopted the First Amendment's prohibition on laws respecting an establishment of religion, Congress decided to express its thanks to God
Almighty for the many blessings enjoyed by the nation with a resolution in favor of a presidential proclamation declaring a national day of Thanksgiving and
Prayer. Only two members of Congress opposed the resolution, one on the ground that the move was a "mimicking of European customs, where they made
a mere mockery of thanksgivings", the other on establishment clause concerns. Nevertheless, the salutary effect of thanksgivings throughout Western
history was acknowledged and the motion was passed without further recorded discussion. 231 Thus, accommodationists also go back to the framers to
ascertain the meaning of the First Amendment, but prefer to focus on acts rather than words. Contrary to the claim of separationists that rationalism
pervaded America in the late 19th century and that America was less specifically Christian during those years than at any other time before or
since,232 accommodationaists claim that American citizens at the time of the Constitution's origins were a remarkably religious people in particularly Christian
terms.233

The two streams of jurisprudence - separationist or accommodationist - are anchored on a different reading of the "wall of separation." The strict separtionist
view holds that Jefferson meant the "wall of separation" to protect the state from the church. Jefferson was a man of the Enlightenment Era of the eighteenth
century, characterized by the rationalism and anticlericalism of that philosophic bent. 234 He has often been regarded as espousing Deism or the rationalistic
belief in a natural religion and natural law divorced from its medieval connection with divine law, and instead adhering to a secular belief in a universal
harmony.235 Thus, according to this Jeffersonian view, the Establishment Clause being meant to protect the state from the church, the state's hostility
towards religion allows no interaction between the two. 236 In fact, when Jefferson became President, he refused to proclaim fast or thanksgiving days on the
ground that these are religious exercises and the Constitution prohibited the government from intermeddling with religion. 237 This approach erects an
absolute barrier to formal interdependence of religion and state. Religious institutions could not receive aid, whether direct or indirect, from the state. Nor
could the state adjust its secular programs to alleviate burdens the programs placed on believers. 238 Only the complete separation of religion from politics
would eliminate the formal influence of religious institutions and provide for a free choice among political views thus a strict "wall of separation" is
necessary.239 Strict separation faces difficulties, however, as it is deeply embedded in history and contemporary practice that enormous amounts of aid, both
direct and indirect, flow to religion from government in return for huge amounts of mostly indirect aid from religion. Thus, strict separationists are caught in an
awkward position of claiming a constitutional principle that has never existed and is never likely to. 240

A tamer version of the strict separationist view, the strict neutrality or separationist view is largely used by the Court, showing the Court's tendency to press
relentlessly towards a more secular society. 241 It finds basis in the Everson case where the Court declared that Jefferson's "wall of separation" encapsulated
the meaning of the First Amendment but at the same time held that the First Amendment "requires the state to be neutral in its relations with groups of
religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it
is to favor them." (emphasis supplied) 242 While the strict neutrality approach is not hostile to religion, it is strict in holding that religion may not be used as a
basis for classification for purposes of governmental action, whether the action confers rights or privileges or imposes duties or obligations. Only secular
criteria may be the basis of government action. It does not permit, much less require, accommodation of secular programs to religious belief. 243 Professor
Kurland wrote, viz:

The thesis proposed here as the proper construction of the religion clauses of the first amendment is that the freedom and separation clauses
should be read as a single precept that government cannot utilize religion as a standard for action or inaction because these clauses prohibit
classification in terms of religion either to confer a benefit or to impose a burden. 244

The Court has repeatedly declared that religious freedom means government neutrality in religious matters and the Court has also repeatedly interpreted this
policy of neutrality to prohibit government from acting except for secular purposes and in ways that have primarily secular effects. 245
 65

Prayer in public schools is an area where the Court has applied strict neutrality and refused to allow any form of prayer, spoken or silent, in the public
schools as in Engel and Schempp. 246 The McCollum case prohibiting optional religious instruction within public school premises during regular class hours
also demonstrates strict neutrality. In these education cases, the Court refused to uphold the government action as they were based not on a secular but on
a religious purpose. Strict neutrality was also used in Reynolds and Smith which both held that if government acts in pursuit of a generally applicable law
with a secular purpose that merely incidentally burdens religious exercise, the First Amendment has not been offended. However, if the strict neutrality
standard is applied in interpreting the Establishment Clause, it could de facto void religious expression in the Free Exercise Clause. As pointed out by
Justice Goldberg in his concurring opinion in Schempp, strict neutrality could lead to "a brooding and pervasive devotion to the secular and a passive, or
even active, hostility to the religious" which is prohibited by the Constitution. 247 Professor Laurence Tribe commented in his authoritative treatise, viz:

To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise clause. The Framers, whatever specific
applications they may have intended, clearly envisioned religion as something special; they enacted that vision into law by guaranteeing the free
exercise of religion but not, say, of philosophy or science. The strict neutrality approach all but erases this distinction. Thus it is not surprising that
the Supreme Court has rejected strict neutrality, permitting and sometimes mandating religious classifications. 248

The separationist approach, whether strict or tame, is caught in a dilemma because while the Jeffersonian wall of separation "captures the spirit of the
American ideal of church-state separation", in real life church and state are not and cannot be totally separate. 249 This is all the more true in contemporary
times when both the government and religion are growing and expanding their spheres of involvement and activity, resulting in the intersection of
government and religion at many points.250

Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent neutrality which gives room for accommodation is buttressed
by a different view of the "wall of separation" associated with Williams, founder of the Rhode Island colony. In Mark DeWolfe Howe's classic, The Garden
and the Wilderness, he asserts that to the extent the Founders had a wall of separation in mind, it was unlike the Jeffersonian wall that is meant to protect
the state from the church; instead, the wall is meant to protect the church from the state, 251 i.e., the "garden" of the church must be walled in for its own
protection from the "wilderness" of the world 252 with its potential for corrupting those values so necessary to religious commitment. 253 Howe called this the
"theological" or "evangelical" rationale for church-state separation while the wall espoused by "enlightened" statesmen such as Jefferson and Madison, was
a "political" rationale seeking to protect politics from intrusions by the church. 254 But it has been asserted that this contrast between the Williams and
Jeffersonian positions is more accurately described as a difference in kinds or styles of religious thinking, not as a conflict between "religious" and "secular
(political)"; the religious style was biblical and evangelical in character while the secular style was grounded in natural religion, more generic and
philosophical in its religious orientation.255

The Williams wall is, however, breached for the church is in the state and so the remaining purpose of the wall is to safeguard religious liberty. Williams' view
would therefore allow for interaction between church and state, but is strict with regard to state action which would threaten the integrity of religious
commitment.256 His conception of separation is not total such that it provides basis for certain interactions between church and state dictated by apparent
necessity or practicality.257 This "theological" view of separation is found in Williams' writings, viz:

. . . when they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath
ever broke down the wall itself, removed the candlestick, and made his garden a wilderness, as this day. And that therefore if He will eer please to
restore His garden and paradise again, it must of necessity be walled in peculiarly unto Himself from the world. . . 258

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

The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either
governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is
room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without
interference.259 (emphasis supplied)

The Zorach case expressed the doctrine of accommodation, 260 viz:

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

xxx           xxx           xxx

We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. . . When the
state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events, it follows the best of our
traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may
not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. . . But we find no
constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen their
effective scope of religious influence.261 (emphases supplied)

Benevolent neutrality is congruent with the sociological proposition that religion serves a function essential to the survival of society itself, thus there is no
human society without one or more ways of performing the essential function of religion. Although for some individuals there may be no felt need for religion
and thus it is optional or even dispensable, for society it is not, which is why there is no human society without one or more ways of performing the essential
function of religion. Even in ostensibly atheistic societies, there are vigorous underground religion(s) and surrogate religion(s) in their ideology. 262 As one
sociologist wrote:
 66

It is widely held by students of society that there are certain functional prerequisites without which society would not continue to exist. At first
glance, this seems to be obvious - scarcely more than to say that an automobile could not exist, as a going system, without a carburetor. . . Most
writers list religion among the functional prerequisites. 263

Another noted sociologist, Talcott Parsons, wrote: "There is no known human society without something which modern social scientists would classify as a
religion…Religion is as much a human universal as language." 264

Benevolent neutrality thus recognizes that religion plays an important role in the public life of the United States as shown by many traditional government
practices which, to strict neutrality, pose Establishment Clause questions. Among these are the inscription of "In God We Trust" on American currency, the
recognition of America as "one nation under God" in the official pledge of allegiance to the flag, the Supreme Court's time-honored practice of opening oral
argument with the invocation "God save the United States and this honorable Court," and the practice of Congress and every state legislature of paying a
chaplain, usually of a particular Protestant denomination to lead representatives in prayer. 265 These practices clearly show the preference for one theological
viewpoint -the existence of and potential for intervention by a god - over the contrary theological viewpoint of atheism. Church and government agencies also
cooperate in the building of low-cost housing and in other forms of poor relief, in the treatment of alcoholism and drug addiction, in foreign aid and other
government activities with strong moral dimension. 266 The persistence of these de facto establishments are in large part explained by the fact that throughout
history, the evangelical theory of separation, i.e., Williams' wall, has demanded respect for these de facto establishments. 267 But the separationists have a
different explanation. To characterize these as de jure establishments according to the principle of the Jeffersonian wall, the U.S. Supreme Court, the many
dissenting and concurring opinions explain some of these practices as "' de minimis' instances of government endorsement or as historic governmental
practices that have largely lost their religious significance or at least have proven not to lead the government into further involvement with religion. 268

With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically into account not to promote the government's favored form of religion, but to allow
individuals and groups to exercise their religion without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a
person's or institution's religion. As Justice Brennan explained, the "government [may] take religion into account…to exempt, when possible, from generally
applicable governmental regulation individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish." 269 (emphasis supplied) Accommodation is forbearance and not alliance. it
does not reflect agreement with the minority, but respect for the conflict between the temporal and spiritual authority in which the minority finds itself. 270

Accommodation is distinguished from strict neutrality in that the latter holds that government should base public policy solely on secular considerations,
without regard to the religious consequences of its actions. The debate between accommodation and strict neutrality is at base a question of means: "Is the
freedom of religion best achieved when the government is conscious of the effects of its action on the various religious practices of its people, and seeks to
minimize interferences with those practices? Or is it best advanced through a policy of 'religious blindness' - keeping government aloof from religious
practices and issues?" An accommodationist holds that it is good public policy, and sometimes constitutionally required, for the state to make conscious and
deliberate efforts to avoid interference with religious freedom. On the other hand, the strict neutrality adherent believes that it is good public policy, and also
constitutionally required, for the government to avoid religion-specific policy even at the cost of inhibiting religious exercise. 271

There are strong and compelling reasons, however, to take the accommodationist position rather than the strict neutrality position. First, the
accommodationist interpretation is most consistent with the language of the First Amendment. The religion clauses contain two parallel provisions, both
specifically directed at "religion." The government may not "establish" religion and neither may government "prohibit" it. Taken together, the religion clauses
can be read most plausibly as warding off two equal and opposite threats to religious freedom - government action that promotes the (political) majority's
favored brand of religion and government action that impedes religious practices not favored by the majority. The substantive end in view is the preservation
of the autonomy of religious life and not just the formal process value of ensuring that government does not act on the basis of religious bias. On the other
hand, strict neutrality interprets the religion clauses as allowing government to do whatever it desires to or for religion, as long as it does the same to or for
comparable secular entities. Thus, for example, if government prohibits all alcoholic consumption by minors, it can prohibit minors from taking part in
communion. Paradoxically, this view would make the religion clauses violate the religion clauses, so to speak, since the religion clauses single out religion by
name for special protection. Second, the accommodationist position best achieves the purposes of the First Amendment. The principle underlying the First
Amendment is that freedom to carry out one's duties to a Supreme Being is an inalienable right, not one dependent on the grace of legislature. Although
inalienable, it is necessarily limited by the rights of others, including the public right of peace and good order. Nevertheless it is a substantive right and not
merely a privilege against discriminatory legislation. The accomplishment of the purpose of the First Amendment requires more than the "religion blindness"
of strict neutrality. With the pervasiveness of government regulation, conflicts with religious practices become frequent and intense. Laws that are suitable for
secular entities are sometimes inappropriate for religious entities, thus the government must make special provisions to preserve a degree of independence
for religious entities for them to carry out their religious missions according to their religious beliefs. Otherwise, religion will become just like other secular
entities subject to pervasive regulation by majoritarian institutions. Third, the accommodationist interpretation is particularly necessary to protect adherents of
minority religions from the inevitable effects of majoritarianism, which include ignorance and indifference and overt hostility to the minority. In a democratic
republic, laws are inevitably based on the presuppositions of the majority, thus not infrequently, they come into conflict with the religious scruples of those
holding different world views, even in the absence of a deliberate intent to interfere with religious practice. At times, this effect is unavoidable as a practical
matter because some laws are so necessary to the common good that exceptions are intolerable. But in other instances, the injury to religious conscience is
so great and the advancement of public purposes so small or incomparable that only indifference or hostility could explain a refusal to make exemptions.
Because of plural traditions, legislators and executive officials are frequently willing to make such exemptions when the need is brought to their attention, but
this may not always be the case when the religious practice is either unknown at the time of enactment or is for some reason unpopular. In these cases, a
constitutional interpretation that allows accommodations prevents needless injury to the religious consciences of those who can have an influence in the
legislature; while a constitutional interpretation that requires accommodations extends this treatment to religious faiths that are less able to protect
themselves in the political arena. Fourth, the accommodationist position is practical as it is a commonsensical way to deal with the various needs and beliefs
of different faiths in a pluralistic nation. Without accommodation, many otherwise beneficial laws would interfere severely with religious freedom. Aside from
laws against serving alcoholic beverages to minors conflicting with celebration of communion, regulations requiring hard hats in construction areas can
effectively exclude Amish and Sikhs from the workplace, or employment anti-discrimination laws can conflict with the Roman Catholic male priesthood,
among others. Exemptions from such laws are easy to craft and administer and contribute much to promoting religious freedom at little cost to public policy.
Without exemptions, legislature would be frequently forced to choose between violating religious conscience of a segment of the population or dispensing
with legislation it considers beneficial to society as a whole. Exemption seems manifestly more reasonable than either of the alternative: no exemption or no
law.272

Benevolent neutrality gives room for different kinds of accommodation: those which are constitutionally compelled, i.e., required by the Free Exercise
Clause; and those which are discretionary or legislative, i.e., and those not required by the Free Exercise Clause but nonetheless permitted by the
Establishment Clause.273 Some Justices of the Supreme Court have also used the term accommodation to describe government actions that acknowledge or
express prevailing religious sentiments of the community such as display of a religious symbol on public property or the delivery of a prayer at public
ceremonial events.274 Stated otherwise, using benevolent neutrality as a standard could result to three situations of accommodation: those where
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accommodation is required, those where it is permissible, and those where it is prohibited. In the first situation, accommodation is required to preserve free
exercise protections and not unconstitutionally infringe on religious liberty or create penalties for religious freedom. Contrary to the Smith declaration that
free exercise exemptions are "intentional government advancement", these exemptions merely relieve the prohibition on the free exercise thus allowing the
burdened religious adherent to be left alone. The state must create exceptions to laws of general applicability when these laws threaten religious convictions
or practices in the absence of a compelling state interest. 275 By allowing such exemptions, the Free Exercise Clause does not give believers the right or
privilege to choose for themselves to override socially-prescribed decision; it allows them to obey spiritual rather than temporal authority 276 for those who
seriously invoke the Free Exercise Clause claim to be fulfilling a solemn duty. Religious freedom is a matter less of rights than duties; more precisely, it is a
matter of rights derived from duties. To deny a person or a community the right to act upon such a duty can be justified only by appeal to a yet more
compelling duty. Of course, those denied will usually not find the reason for the denial compelling. "Because they may turn out to be right about the duty in
question, and because, even if they are wrong, religion bears witness to that which transcends the political order, such denials should be rare and painfully
reluctant."277

The Yoder case is an example where the Court held that the state must accommodate the religious beliefs of the Amish who objected to enrolling their
children in high school as required by law. The Sherbert case is another example where the Court held that the state unemployment compensation plan
must accommodate the religious convictions of Sherbert. 278 In these cases of "burdensome effect", the modern approach of the Court has been to apply strict
scrutiny, i.e., to declare the burden as permissible, the Court requires the state to demonstrate that the regulation which burdens the religious exercise
pursues a particularly important or compelling government goal through the least restrictive means. If the state's objective could be served as well or almost
as well by granting an exemption to those whose religious beliefs are burdened by the regulation, such an exemption must be given. 279 This approach of the
Court on "burdensome effect" was only applied since the 1960s. Prior to this time, the Court took the separationist view that as long as the state was acting
in pursuit of non-religious ends and regulating conduct rather than pure religious beliefs, the Free Exercise Clause did not pose a hindrance such as in
Reynolds.280 In the second situation where accommodation is permissible, the state may, but is not required to, accommodate religious interests. The Walz
case illustrates this situation where the Court upheld the constitutionality of tax exemption given by New York to church properties, but did not rule that the
state was required to provide tax exemptions. The Court declared that "(t)he limits of permissible state accommodation to religion are by no means co-
extensive with the noninterference mandated by the Free Exercise Clause." 281 The Court held that New York could have an interest in encouraging religious
values and avoiding threats to those values through the burden of property taxes. Other examples are the Zorach case allowing released time in public
schools and Marsh allowing payment of legislative chaplains from public funds. Finally, in the situation where accommodation is prohibited, establishment
concerns prevail over potential accommodation interests. To say that there are valid exemptions buttressed by the Free Exercise Clause does not mean that
all claims for free exercise exemptions are valid. 282 An example where accommodation was prohibited is McCollum where the Court ruled against optional
religious instruction in the public school premises.283 In effect, the last situation would arrive at a strict neutrality conclusion.

In the first situation where accommodation is required, the approach follows this basic framework:

If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs, the burden shifts to the government to
demonstrate that the law or practice is necessary to the accomplishment of some important (or 'compelling') secular objective and that it is the
least restrictive means of achieving that objective. If the plaintiff meets this burden and the government does not, the plaintiff is entitled to
exemption from the law or practice at issue. In order to be protected, the claimant's beliefs must be 'sincere', but they need not necessarily be
consistent, coherent, clearly articulated, or congruent with those of the claimant's religious denomination. 'Only beliefs rooted in religion are
protected by the Free Exercise Clause'; secular beliefs, however sincere and conscientious, do not suffice. 284

In other words, a three-step process (also referred to as the "two-step balancing process" supra when the second and third steps are combined) as in
Sherbert is followed in weighing the state's interest and religious freedom when these collide. Three questions are answered in this process. First, "(h)as the
statute or government action created a burden on the free exercise of religion?" The courts often look into the sincerity of the religious belief, but without
inquiring into the truth of the belief because the Free Exercise Clause prohibits inquiring about its truth as held in Ballard and Cantwell. The sincerity of the
claimant's belief is ascertained to avoid the mere claim of religious beliefs to escape a mandatory regulation. As evidence of sincerity, the U.S. Supreme
Court has considered historical evidence as in Wisconsin where the Amish people had held a long-standing objection to enrolling their children in ninth and
tenth grades in public high schools. In another case, Dobkin v. District of Columbia,285 the Court denied the claim of a party who refused to appear in court on
Saturday alleging he was a Sabbatarian, but the Court noted that he regularly conducted business on Saturday. Although it is true that the Court might
erroneously deny some claims because of a misjudgment of sincerity, this is not as argument to reject all claims by not allowing accommodation as a rule.
There might be injury to the particular claimant or to his religious community, but for the most part, the injustice is done only in the particular case. 286 Aside
from the sincerity, the court may look into the centrality of those beliefs, assessing them not on an objective basis but in terms of the opinion and belief of the
person seeking exemption. In Wisconsin, for example, the Court noted that the Amish people's convictions against becoming involved in public high schools
were central to their way of life and faith. Similarly, in Sherbert, the Court concluded that the prohibition against Saturday work was a "cardinal
principle."287 Professor Lupu puts to task the person claiming exemption, viz:

On the claimant's side, the meaning and significance of the relevant religious practice must be demonstrated. Religious command should outweigh
custom, individual conscience should count for more than personal convenience, and theological principle should be of greater significance than
institutional ease. Sincerity matters, (footnote omitted) and longevity of practice - both by the individual and within the individual's religious tradition
- reinforces sincerity. Most importantly, the law of free exercise must be inclusive and expansive, recognizing non-Christian religions - eastern,
Western, aboriginal and otherwise - as constitutionally equal to their Christian counterparts, and accepting of the intensity and scope of
fundamentalist creed.288

Second, the court asks: "(i)s there a sufficiently compelling state interest to justify this infringement of religious liberty?" In this step, the government has to
establish that its purposes are legitimate for the state and that they are compelling. Government must do more than assert the objectives at risk if exemption
is given; it must precisely show how and to what extent those objectives will be undermined if exemptions are granted. 289 The person claiming religious
freedom, on the other hand, will endeavor to show that the interest is not legitimate or that the purpose, although legitimate, is not compelling compared to
infringement of religious liberty. This step involves balancing, i.e., weighing the interest of the state against religious liberty to determine which is more
compelling under the particular set of facts. The greater the state's interests, the more central the religious belief would have to be to overcome it. In
assessing the state interest, the court will have to determine the importance of the secular interest and the extent to which that interest will be impaired by an
exemption for the religious practice. Should the court find the interest truly compelling, there will be no requirement that the state diminish the effectiveness
of its regulation by granting the exemption.290

Third, the court asks: "(h)as the state in achieving its legitimate purposes used the least intrusive means possible so that the free exercise is not infringed
any more than necessary to achieve the legitimate goal of the state?" 291 The analysis requires the state to show that the means in which it is achieving its
legitimate state objective is the least intrusive means, i.e., it has chosen a way to achieve its legitimate state end that imposes as little as possible on
religious liberties. In Cantwell, for example, the Court invalidated the license requirement for the door-to-door solicitation as it was a forbidden burden on
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religious liberty, noting that less drastic means of insuring peace and tranquility existed. As a whole, in carrying out the compelling state interest test, the
Court should give careful attention to context, both religious and regulatory, to achieve refined judgment. 292

In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular government and religious freedom create tensions that
make constitutional law on the subject of religious liberty unsettled, mirroring the evolving views of a dynamic society. 293

VII. Religion Clauses in the Philippines

A. History

Before our country fell under American rule, the blanket of Catholicism covered the archipelago. There was a union of church and state and Catholicism was
the state religion under the Spanish Constitution of 1876. Civil authorities exercised religious functions and the friars exercised civil powers. 294 Catholics
alone enjoyed the right of engaging in public ceremonies of worship. 295 Although the Spanish Constitution itself was not extended to the Philippines,
Catholicism was also the established church in our country under the Spanish rule. Catholicism was in fact protected by the Spanish Penal Code of 1884
which was in effect in the Philippines. Some of the offenses in chapter six of the Penal Code entitled "Crimes against Religion and Worship" referred to
crimes against the state religion.296 The coming of the Americans to our country, however, changed this state-church scheme for with the advent of this
regime, the unique American experiment of "separation of church and state" was transported to Philippine soil.

Even as early as the conclusion of the Treaty of Paris between the United States and Spain on December 10, 1898, the American guarantee of religious
freedom had been extended to the Philippines. The Treaty provided that "the inhabitants of the territories over which Spain relinquishes or cedes her
sovereignty shall be secured in the free exercise of religion." 297 Even the Filipinos themselves guaranteed religious freedom a month later or on January 22,
1899 upon the adoption of the Malolos Constitution of the Philippine Republic under General Emilio Aguinaldo. It provided that "the State recognizes the
liberty and equality of all religion (de todos los cultos) in the same manner as the separation of the Church and State." But the Malolos Constitution and
government was short-lived as the Americans took over the reigns of government. 298

With the Philippines under the American regime, President McKinley issued Instructions to the Second Philippine Commission, the body created to take over
the civil government in the Philippines in 1900. The Instructions guaranteed religious freedom, viz:

That no law shall be made respecting the establishment of religion or prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without discrimination or preference shall forever be allowed ... that no form of religion and no
minister of religion shall be forced upon the community or upon any citizen of the Islands, that, on the other hand, no minister of religion shall be
interfered with or molested in following his calling. 299

This provision was based on the First Amendment of the United States Constitution. Likewise, the Instructions declared that "(t)he separation between State
and Church shall be real, entire and absolute."300

Thereafter, every organic act of the Philippines contained a provision on freedom of religion. Similar to the religious freedom clause in the Instructions, the
Philippine Bill of 1902 provided that:

No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that free exercise and enjoyment of religious
worship, without discrimination or preference, shall forever be allowed.

In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of 1902 "caused the complete separation of church and state, and the abolition of all special
privileges and all restrictions theretofor conferred or imposed upon any particular religious sect." 302

The Jones Law of 1916 carried the same provision, but expanded it with a restriction against using public money or property for religious purposes, viz:

That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment
of religious profession and worship without discrimination or preference, shall forever be allowed; and no religious test shall be required for the
exercise of civil or political rights. No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the
use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or for the use, benefit or support of any priest,
preacher, minister, or other religious teachers or dignitary as such.

This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934 which guaranteed independence to the Philippines and
authorized the drafting of a Philippine constitution. It enjoined Filipinos to include freedom of religion in drafting their constitution preparatory to the
grant of independence. The law prescribed that "(a)bsolute toleration of religious sentiment shall be secured and no inhabitant or religious
organization shall be molested in person or property on account of religious belief or mode of worship." 303

The Constitutional Convention then began working on the 1935 Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman of the Committee on
Bill of Rights acknowledged that "(i)t was the Treaty of Paris of December 10, 1898, which first introduced religious toleration in our country. President
McKinley's Instructions to the Second Philippine Commission reasserted this right which later was incorporated into the Philippine Bill of 1902 and in the
Jones Law."304 In accordance with the Tydings-McDuffie Law, the 1935 Constitution provided in the Bill of Rights, Article IV, Section 7, viz:

Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and the free exercise and enjoyment
of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.

This provision, borrowed from the Jones Law, was readily approved by the Convention. 305 In his speech as Chairman of the Committee on Bill of
Rights, Delegate Laurel said that modifications in phraseology of the Bill of Rights in the Jones Law were avoided whenever possible because "the
principles must remain couched in a language expressive of their historical background, nature, extent and limitations as construed and interpreted
by the great statesmen and jurists that vitalized them."306
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The 1973 Constitution which superseded the 1935 Constitution contained an almost identical provision on religious freedom in the Bill of Rights in Article IV,
Section 8, viz:

Sec. 8. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise
of civil or political rights.

This time, however, the General Provisions in Article XV added in Section 15 that "(t)he separation of church and state shall be inviolable."

Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were reproduced in the 1987 Constitution under the Bill of Rights in
Article III, Section 5.307 Likewise, the provision on separation of church and state was included verbatim in the 1987 Constitution, but this time as a principle
in Section 6, Article II entitled Declaration of Principles and State Policies.

Considering the American origin of the Philippine religion clauses and the intent to adopt the historical background, nature, extent and limitations of the First
Amendment of the U.S. Constitution when it was included in the 1935 Bill of Rights, it is not surprising that nearly all the major Philippine cases involving the
religion clauses turn to U.S. jurisprudence in explaining the nature, extent and limitations of these clauses. However, a close scrutiny of these cases would
also reveal that while U.S. jurisprudence on religion clauses flows into two main streams of interpretation - separation and benevolent neutrality - the well-
spring of Philippine jurisprudence on this subject is for the most part, benevolent neutrality which gives room for accommodation.

B. Jurisprudence

In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin with the definition of "religion". "Religion" is derived from the Middle
English religioun, from Old French religion, from Latin religio, vaguely referring to a "bond between man and the gods." 308 This pre-Christian term for the cult
and rituals of pagan Rome was first Christianized in the Latin translation of the Bible. 309 While the U.S. Supreme Court has had to take up the challenge of
defining the parameters and contours of "religion" to determine whether a non-theistic belief or act is covered by the religion clauses, this Court has not been
confronted with the same issue. In Philippine jurisprudence, religion, for purposes of the religion clauses, has thus far been interpreted as theistic. In 1937,
the Philippine case of Aglipay v. Ruiz 310 involving the Establishment Clause, defined "religion" as a "profession of faith to an active power that binds and
elevates man to his Creator." Twenty years later, the Court cited the Aglipay definition in American Bible Society v. City of Manila,311 a case involving the
Free Exercise clause. The latter also cited the American case of Davis in defining religion, viz: "(i)t has reference to one's views of his relations to His
Creator and to the obligations they impose of reverence to His being and character and obedience to His Will." The Beason definition, however, has been
expanded in U.S. jurisprudence to include non-theistic beliefs.

1. Free Exercise Clause

Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion or burden, whether direct or indirect, in the
practice of one's religion. The Free Exercise Clause principally guarantees voluntarism, although the Establishment Clause also assures voluntarism by
placing the burden of the advancement of religious groups on their intrinsic merits and not on the support of the state. 312

In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The early case of  Gerona v. Secretary of Education 313 is instructive on the
matter, viz:

The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought. So is the freedom of belief, including religious
belief, limitless and without bounds. One may believe in most anything, however strange, bizarre and unreasonable the same may appear to
others, even heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said
belief, there is quite a stretch of road to travel. 314

The difficulty in interpretation sets in when belief is externalized into speech and action.

Religious speech comes within the pale of the Free Exercise Clause as illustrated in the American Bible Society case. In that case, plaintiff American Bible
Society was a foreign, non-stock, non-profit, religious missionary corporation which sold bibles and gospel portions of the bible in the course of its ministry.
The defendant City of Manila required plaintiff to secure a mayor's permit and a municipal license as ordinarily required of those engaged in the business of
general merchandise under the city's ordinances. Plaintiff argued that this amounted to "religious censorship and restrained the free exercise and enjoyment
of religious profession, to wit: the distribution and sale of bibles and other religious literature to the people of the Philippines."

After defining religion, the Court, citing Tanada and Fernando, made this statement, viz:

The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious
information. Any restraint of such right can only be justified like other restraints of freedom of expression on the grounds that there is a clear and
present danger of any substantive evil which the State has the right to prevent. (Tanada and Fernando on the Constitution of the Philippines, vol.
1, 4th ed., p. 297) (emphasis supplied)

This was the Court's maiden unequivocal affirmation of the "clear and present danger" rule in the religious freedom area, and in Philippine jurisprudence, for
that matter.315 The case did not clearly show, however, whether the Court proceeded to apply the test to the facts and issues of the case, i.e., it did not
identify the secular value the government regulation sought to protect, whether the religious speech posed a clear and present danger to this or other secular
value protected by government, or whether there was danger but it could not be characterized as clear and present. It is one thing to apply the test and find
that there is no clear and present danger, and quite another not to apply the test altogether.

Instead, the Court categorically held that the questioned ordinances were not applicable to plaintiff as it was not engaged in the business or occupation of
selling said "merchandise" for profit. To add, the Court, citing Murdock v. Pennsylvania,316 ruled that applying the ordinance requiring it to secure a license
and pay a license fee or tax would impair its free exercise of religious profession and worship and its right of dissemination of religious beliefs "as the power
to tax the exercise of a privilege is the power to control or suppress its enjoyment." Thus, in American Bible Society, the "clear and present danger" rule was
laid down but it was not clearly applied.
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In the much later case of Tolentino v. Secretary of Finance,317 also involving the sale of religious books, the Court distinguished the American Bible Society
case from the facts and issues in Tolentino and did not apply the American Bible Society ruling. In Tolentino, the Philippine Bible Society challenged the
validity of the registration provisions of the Value Added Tax (VAT) Law as a prior restraint. The Court held, however, that the fixed amount of registration fee
was not imposed for the exercise of a privilege like a license tax which American Bible Society ruled was violative of religious freedom. Rather, the
registration fee was merely an administrative fee to defray part of the cost of registration which was a central feature of the VAT system. Citing Jimmy
Swaggart Ministries v. Board of Equalization,318 the Court also declared prefatorily that "the Free Exercise of Religion Clause does not prohibit imposing a
generally applicable sales and use tax on the sale of religious materials by a religious organization." In the Court's resolution of the motion for
reconsideration of the Tolentino decision, the Court noted that the burden on religious freedom caused by the tax was just similar to any other economic
imposition that might make the right to disseminate religious doctrines costly.

Two years after American Bible Society came the 1959 case of Gerona v. Secretary of Education,319 this time involving conduct expressive of religious belief
colliding with a rule prescribed in accordance with law. In this case, petitioners were members of the Jehovah's Witnesses. They challenged a Department
Order issued by the Secretary of Education implementing Republic Act No. 1265 which prescribed compulsory flag ceremonies in all public schools. In
violation of the Order, petitioner's children refused to salute the Philippine flag, sing the national anthem, or recite the patriotic pledge, hence they were
expelled from school. Seeking protection under the Free Exercise Clause, petitioners claimed that their refusal was on account of their religious belief that
the Philippine flag is an image and saluting the same is contrary to their religious belief. The Court stated, viz:

. . . If the exercise of religious belief clashes with the established institutions of society and with the law, then the former must yield to the latter.
The Government steps in and either restrains said exercise or even prosecutes the one exercising it. (emphasis supplied) 320

The Court then proceeded to determine if the acts involved constituted a religious ceremony in conflict with the beliefs of the petitioners with the following
justification:

After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts. It cannot be left to a religious group or sect,
much less to a follower of said group or sect; otherwise, there would be confusion and misunderstanding for there might be as many interpretations and
meaning to be given to a certain ritual or ceremony as there are religious groups or sects or followers, all depending upon the meaning which they, though in
all sincerity and good faith, may want to give to such ritual or ceremony. 321

It was held that the flag was not an image, the flag salute was not a religious ceremony, and there was nothing objectionable about the singing of the
national anthem as it speaks only of love of country, patriotism, liberty and the glory of suffering and dying for it. The Court upheld the questioned Order and
the expulsion of petitioner's children, stressing that:

Men may differ and do differ on religious beliefs and creeds, government policies, the wisdom and legality of laws, even the correctness of judicial
decisions and decrees; but in the field of love of country, reverence for the flag, national unity and patriotism, they can hardly afford to differ, for
these are matters in which they are mutually and vitally interested, for to them, they mean national existence and survival as a nation or national
extinction.322

In support of its ruling, the Court cited Justice Frankfurter's dissent in the Barnette case, viz:

The constitutional protection of religious freedom x x x gave religious equality, not civil immunity. Its essence is freedom from conformity to
religious dogma, not freedom from conformity to law because of religious dogma. 323

It stated in categorical terms, viz:

The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or non-compliance with reasonable and non-
discriminatory laws, rules and regulations promulgated by competent authority. 324

Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon the Court to determine whether a certain ritual is religious or
not; (2) religious freedom will not be upheld if it clashes with the established institutions of society and with the law such that when a law of general
applicability (in this case the Department Order) incidentally burdens the exercise of one's religion, one's right to religious freedom cannot justify exemption
from compliance with the law. The Gerona ruling was reiterated in Balbuna, et al. v. Secretary of Education, et al. 325

Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union.[326] In this unanimously decided en banc case, Victoriano
was a member of the Iglesia ni Cristo which prohibits the affiliation of its members with any labor organization. He worked in the Elizalde Rope Factory, Inc.
and was a member of the Elizalde Rope Workers Union which had with the company a closed shop provision pursuant to Republic Act No. 875 allowing
closed shop arrangements. Subsequently, Republic Act No. 3350 was enacted exempting from the application and coverage of a closed shop agreement
employees belonging to any religious sect which prohibits affiliation of their members with any labor organization. Victoriano resigned from the union after
Republic Act No. 3350 took effect. The union notified the company of Victoriano's resignation, which in turn notified Victoriano that unless he could make a
satisfactory arrangement with the union, the company would be constrained to dismiss him from the service. Victoriano sought to enjoin the company and
the union from dismissing him. The court having granted the injunction, the union came to this Court on questions of law, among which was whether
Republic Act No. 3350 was unconstitutional for impairing the obligation of contracts and for granting an exemption offensive of the Establishment Clause.
With respect to the first issue, the Court ruled, viz:

Religious freedom, although not unlimited, is a fundamental personal right and liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164,
60 S.Ct. 146) and has a preferred position in the hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only where
unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious
freedom may be justified, and only to the smallest extent necessary. 327 (emphasis supplied)

As regards the Establishment Clause issue, the Court after citing the constitutional provision on establishment and free exercise of religion, declared, viz:

The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of worship of any sect, thus
forestalling compulsion by law of the acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148,
1153), but also assures the free exercise of one's chosen form of religion within limits of utmost amplitude. It has been said that the religion
clauses of the Constitution are all designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience
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directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. (footnote
omitted). Any legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously between the
religions, is invalid, even though the burden may be characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S.
Ct. 1970) But if the state regulates conduct by enacting, within its power, a general law which has for its purpose and effect to advance the state's
secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing
such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449) 328 (emphasis
supplied)

Quoting Aglipay v. Ruiz,329 the Court held that "government is not precluded from pursuing valid objectives secular in character even if the incidental result
would be favorable to a religion or sect." It also cited Board of Education v. Allen,330 which held that in order to withstand the strictures of constitutional
prohibition, a statute must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Using these criteria in upholding
Republic Act No. 3350, the Court pointed out, viz:

(Republic Act No. 3350) was intended to serve the secular purpose of advancing the constitutional right to the free exercise of religion, by averting
that certain persons be refused work, or be dismissed from work, or be dispossessed of their right to work and of being impeded to pursue a
modest means of livelihood, by reason of union security agreements. . . . The primary effects of the exemption from closed shop agreements in
favor of members of religious sects that prohibit their members from affiliating with a labor organization, is the protection of said employees against
the aggregate force of the collective bargaining agreement, and relieving certain citizens of a burden on their religious beliefs, and . . . eliminating
to a certain extent economic insecurity due to unemployment. 331

The Court stressed that "(a)lthough the exemption may benefit those who are members of religious sects that prohibit their members from joining labor
unions, the benefit upon the religious sects is merely incidental and indirect." 332 In enacting Republic Act No. 3350, Congress merely relieved the exercise of
religion by certain persons of a burden imposed by union security agreements which Congress itself also imposed through the Industrial Peace Act. The
Court concluded the issue of exemption by citing Sherbert which laid down the rule that when general laws conflict with scruples of conscience, exemptions
ought to be granted unless some "compelling state interest" intervenes. The Court then abruptly added that "(i)n the instant case, We see no compelling
state interest to withhold exemption."333

A close look at Victoriano would show that the Court mentioned several tests in determining when religious freedom may be validly limited. First, the Court
mentioned the test of "immediate and grave danger to the security and welfare of the community" and "infringement of religious freedom only to the smallest
extent necessary" to justify limitation of religious freedom. Second, religious exercise may be indirectly burdened by a general law which has for its purpose
and effect the advancement of the state's secular goals, provided that there is no other means by which the state can accomplish this purpose without
imposing such burden. Third, the Court referred to the "compelling state interest" test which grants exemptions when general laws conflict with religious
exercise, unless a compelling state interest intervenes.

It is worth noting, however, that the first two tests were mentioned only for the purpose of highlighting the importance of the protection of religious freedom as
the secular purpose of Republic Act No. 3350. Upholding religious freedom was a secular purpose insofar as it relieved the burden on religious freedom
caused by another law, i.e, the Industrial Peace Act providing for union shop agreements. The first two tests were only mentioned in Victoriano but were not
applied by the Court to the facts and issues of the case. The third, the "compelling state interest" test was employed by the Court to determine whether the
exemption provided by Republic Act No. 3350 was not unconstitutional. It upheld the exemption, stating that there was no "compelling state interest" to strike
it down. However, after careful consideration of the Sherbert case from which Victoriano borrowed this test, the inevitable conclusion is that the "compelling
state interest" test was not appropriate and could not find application in the Victoriano case. In Sherbert, appellant Sherbert invoked religious freedom in
seeking exemption from the provisions of the South Carolina Unemployment Compensation Act which disqualified her from claiming unemployment benefits.
It was the appellees, members of the South Carolina Employment Commission, a government agency, who propounded the state interest to justify overriding
Sherbert's claim of religious freedom. The U.S. Supreme Court, considering Sherbert's and the Commission's arguments, found that the state interest was
not sufficiently compelling to prevail over Sherbert's free exercise claim. This situation did not obtain in the Victoriano case where it was the government
itself, through Congress, which provided the exemption in Republic Act No. 3350 to allow Victoriano's exercise of religion. Thus, the government could not
argue against the exemption on the basis of a compelling state interest as it would be arguing against itself; while Victoriano would not seek exemption from
the questioned law to allow the free exercose of religion as the law in fact provides such an exemption. In sum, although Victoriano involved a religious belief
and conduct, it did not involve a free exercise issue where the Free Exercise Clause is invoked to exempt him from the burden imposed by a law on his
religious freedom.

Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et al. v. Federacion Obrera de la Industria Tabaquera y Otros
Trabajadores de Filipinas,334 Anucension v. National Labor Union, et al.,335 and Gonzales, et al. v. Central Azucarera de Tarlac Labor Union.336

Then came German v. Barangan in 1985 at the height of the anti-administration rallies. Petitioners were walking to St. Jude Church within the Malacanang
security area to pray for "an end to violence" when they were barred by the police. Invoking their constitutional freedom of religious worship and locomotion,
they came to the Court on a petition for mandamus to allow them to enter and pray inside the St. Jude Chapel. The Court was divided on the issue. The slim
majority of six recognized their freedom of religion but noted their absence of good faith and concluded that they were using their religious liberty to express
their opposition to the government. Citing Cantwell, the Court distinguished between freedom to believe and freedom to act on matters of religion, viz:

. . . Thus the (First) amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute, but in the nature of things,
the second cannot be.337

The Court reiterated the Gerona ruling, viz:

In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but only in the manner by which they
had attempted to translate the same to action. This curtailment is in accord with the pronouncement of this Court in Gerona v. Secretary of
Education (106 Phil. 2), thus:

. . . But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the exercise of said religious belief
clashes with the established institutions of society and with the law, then the former must yield and give way to the latter. The government steps in
and either restrains said exercise or even prosecutes the one exercising it. (italics supplied)
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The majority found that the restriction imposed upon petitioners was "necessary to maintain the smooth functioning of the executive branch of the
government, which petitioners' mass action would certainly disrupt" 338 and denied the petition. Thus, without considering the tests mentioned in Victoriano,
German went back to the Gerona rule that religious freedom will not be upheld if it clashes with the established institutions of society and the law.

Then Associate Justice Teehankee registered a dissent which in subsequent jurisprudence would be cited as a test in religious freedom cases. His dissent
stated in relevant part, viz:

A brief restatement of the applicable constitutional principles as set forth in the landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983])
should guide us in resolving the issues.

1. The right to freely exercise one's religion is guaranteed in Section 8 of our Bill of Rights. (footnote omitted) Freedom of worship, alongside with
freedom of expression and speech and peaceable assembly "along with the other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on the judiciary - even more so than on the other departments - rests the grave and
delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course,
dispense with what has been so felicitously termed by Justice Holmes 'as the sovereign prerogative of judgment.' Nonetheless, the presumption
must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy.' (J.B.L. Reyes, 125
SCRA at pp. 569-570)

2. In the free exercise of such preferred rights, there is to be no prior restraint although there may be subsequent punishment of any illegal acts
committed during the exercise of such basic rights. The sole justification for a prior restraint or limitation on the exercise of these basic rights is the
existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or
any other legitimate public interest, that the State has a right (and duty) to prevent (Idem, at pp. 560-561). 339 (emphasis supplied)

The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankee's dissent was taken involved the rights to free speech and assembly, and
not the exercise of religious freedom. At issue in that case was a permit sought by retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, from
the City of Manila to hold a peaceful march and rally from the Luneta to the gates of the U.S. Embassy. Nevertheless Bagatsing was used by Justice
Teehankee in his dissent which had overtones of petitioner German and his companions' right to assemble and petition the government for redress of
grievances.340

In 1993, the issue on the Jehovah's Witnesses' participation in the flag ceremony again came before the Court in  Ebralinag v. The Division Superintendent of
Schools.341 A unanimous Court overturned the Gerona ruling after three decades. Similar to Gerona, this case involved several Jehovah's Witnesses who
were expelled from school for refusing to salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the Administrative Code of
1987. In resolving the same religious freedom issue as in Gerona, the Court this time transported the "grave and imminent danger" test laid down in Justice
Teehankee's dissent in German, viz:

The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late Chief Justice Claudio Teehankee in
his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty)
to prevent. Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified. 342 (emphasis supplied)

The Court added, viz:

We are not persuaded that by exempting the Jehovah's Witnesses from saluting the flag, singing the national anthem and reciting the patriotic
pledge, this religious group which admittedly comprises a 'small portion of the school population' will shake up our part of the globe and suddenly
produce a nation 'untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and admiration for national
heroes' (Gerona v. Secretary of Education, 106 Phil. 224). After all, what the petitioners seek only is exemption from the flag ceremony, not
exclusion from the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not only the
arts, sciences, Philippine history and culture but also receive training for a vocation or profession and be taught the virtues of 'patriotism, respect
for human rights, appreciation of national heroes, the rights and duties of citizenship, and moral and spiritual values' (Sec. 3[2], Art. XIV, 1987
Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court
has feared in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious
beliefs, will hardly be conducive to love of country or respect for duly constituted authorities. 343

Barnette also found its way to the opinion, viz:

Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x- assuming that such unity and loyalty can be attained through
coercion- is not a goal that is constitutionally obtainable at the expense of religious liberty. A desirable end cannot be promoted by prohibited
means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046). 344

Towards the end of the decision, the Court also cited the Victoriano case and its use of the "compelling state interest" test in according exemption to the
Jehovah's Witnesses, viz:

In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the Iglesia ni Cristo, from the
coverage of a closed shop agreement between their employer and a union because it would violate the teaching of their church not to join any
group:

'x x x It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with
scruples of conscience, exemptions ought to be granted unless some 'compelling state interest' intervenes.' (Sherbert vs. Verner, 374
U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)'

We hold that a similar exemption may be accorded to the Jehovah's Witnesses with regard to the observance of the flag ceremony out of respect
for their religious beliefs, however 'bizarre' those beliefs may seem to others. 345
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The Court annulled the orders expelling petitioners from school.

Thus, the "grave and imminent danger" test laid down in a dissenting opinion in German which involved prior restraint of religious worship with overtones of
the right to free speech and assembly, was transported to Ebralinag which did not involve prior restraint of religious worship, speech or assembly. Although,
it might be observed that the Court faintly implied that Ebralinag also involved the right to free speech when in its preliminary remarks, the Court stated that
compelling petitioners to participate in the flag ceremony "is alien to the conscience of the present generation of Filipinos who cut their teeth on the Bill of
Rights which guarantees their rights to free speech and the free exercise of religious profession and worship;" the Court then stated in a footnote that the
"flag salute, singing the national anthem and reciting the patriotic pledge are all forms of utterances." 346

The "compelling state interest" test was not fully applied by the Court in Ebralinag. In the Solicitor General's consolidated comment, one of the grounds cited
to defend the expulsion orders issued by the public respondents was that "(t)he State's compelling interests being pursued by the DEC's lawful regulations in
question do not warrant exemption of the school children of the Jehovah's Witnesses from the flag salute ceremonies on the basis of their own self-perceived
religious convictions."347 The Court, however, referred to the test only towards the end of the decision and did not even mention what the Solicitor General
argued as the compelling state interest, much less did the Court explain why the interest was not sufficiently compelling to override petitioners' religious
freedom.

Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v. Court of Appeals, et al.348 Although there was a dissent with respect to the
applicability of the "clear and present danger" test in this case, the majority opinion in unequivocal terms applied the "clear and present danger" test to
religious speech. This case involved the television program, "Ang Iglesia ni Cristo," regularly aired over the television. Upon petitioner Iglesia ni Cristo's
submission of the VTR tapes of some of its episodes, respondent Board of Review for Motion Pictures and Television classified these as "X" or not for public
viewing on the ground that they "offend and constitute an attack against other religions which is expressly prohibited by law." Invoking religious freedom,
petitioner alleged that the Board acted without jurisdiction or with grave abuse of discretion in requiring it to submit the VTR tapes of its television program
and x-rating them. While upholding the Board's power to review the Iglesia television show, the Court was emphatic about the preferred status of religious
freedom. Quoting Justice Cruz' commentary on the constitution, the Court held that freedom to believe is absolute but freedom to act on one's belief, where it
affects the public, is subject to the authority of the state. The commentary quoted Justice Frankfurter's dissent in Barnette which was quoted in Gerona, viz:
"(t)he constitutional provision on religious freedom terminated disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its
essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma." 349 Nevertheless, the Court was
quick to add the criteria by which the state can regulate the exercise of religious freedom, that is, when the exercise will bring about the "clear and present
danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public
morals, or public welfare."350

In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile to all prior restraints on speech, including religious speech and the x-
rating was a suppression of petitioner's freedom of speech as much as it was an interference with its right to free exercise of religion. Citing Cantwell, the
Court recognized that the different religions may criticize one another and their tenets may collide, but the Establishment Clause prohibits the state from
protecting any religion from this kind of attack.

The Court then called to mind the "clear and present danger" test first laid down in the American Bible Society case and the test of "immediate and grave
danger" with "infringement only to the smallest extent necessary to avoid danger" in Victoriano and pointed out that the reviewing board failed to apply the
"clear and present danger" test. Applying the test, the Court noted, viz:

The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is completely bereft of findings of facts to
justify the conclusion that the subject video tapes constitute impermissible attacks against another religion. There is no showing whatsoever of the
type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious
speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality
already on ground.

Replying to the challenge on the applicability of the "clear and present danger" test to the case, the Court acknowledged the permutations that the test has
undergone, but stressed that the test is still applied to four types of speech: "speech that advocates dangerous ideas, speech that provokes a hostile
audience reaction, out of court contempt and release of information that endangers a fair trial" 351 and ruled, viz:

. . . even allowing the drift of American jurisprudence, there is reason to apply the clear and present danger test to the case at bar which concerns
speech that attacks other religions and could readily provoke hostile audience reaction. It cannot be doubted that religious truths disturb and
disturb terribly.352

In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom cannot be invoked to seek exemption from compliance with a
law that burdens one's religious exercise. It also reiterated the "clear and present danger" test in American Bible Society and the "grave and imminent
danger" in Victoriano, but this time clearly justifying its applicability and showing how the test was applied to the case.

In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law offensive to religious freedom, but carving out an exception or
upholding an exception to accommodate religious exercise where it is justified. 353

2. Establishment Clause

In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the Establishment Clause, namely, voluntarism and
insulation of the political process from interfaith dissension. The first, voluntarism, has both a personal and a social dimension. As a personal value, it refers
to the inviolability of the human conscience which, as discussed above, is also protected by the free exercise clause. From the religious perspective, religion
requires voluntarism because compulsory faith lacks religious efficacy. Compelled religion is a contradiction in terms. 354 As a social value, it means that the
"growth of a religious sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society
will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage. Such voluntarism cannot be achieved unless
the political process is insulated from religion and unless religion is insulated from politics." 355 Non-establishment thus calls for government neutrality in
religious matters to uphold voluntarism and avoid breeding interfaith dissension. 356

The neutrality principle was applied in the first significant non-establishment case under the 1935 Constitution. In the 1937 case of  Aglipay v. Ruiz,357 the
Philippine Independent Church challenged the issuance and sale of postage stamps commemorating the Thirty-Third International Eucharistic Congress of
 74

the Catholic Church on the ground that the constitutional prohibition against the use of public money for religious purposes has been violated. It appears that
the Director of Posts issued the questioned stamps under the provisions of Act No. 4052 358 which appropriated a sum for the cost of plates and printing of
postage stamps with new designs and authorized the Director of Posts to dispose of the sum in a manner and frequency "advantageous to the Government."
The printing and issuance of the postage stamps in question appears to have been approved by authority of the President. Justice Laurel, speaking for the
Court, took pains explaining religious freedom and the role of religion in society, and in conclusion, found no constitutional infirmity in the issuance and sale
of the stamps, viz:

The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the necessity of adverting to the
historical background of this principle in our country, it is sufficient to say that our history, not to speak of the history of mankind, has taught us that
the union of church and state is prejudicial to both, for occasions might arise when the state will use the church, and the church the state, as a
weapon in the furtherance of their respective ends and aims . . . It is almost trite to say now that in this country we enjoy both religious and civil
freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the Constitution, bind
themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It
should be stated that what is guaranteed by our Constitution is religious liberty, not mere toleration.

Religious freedom, however, as a constitutional mandate is not an inhibition of profound reverence for religion and is not a denial of its influence in human
affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds
the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution, implored
"the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote
the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy," they
thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides the destinies of men and nations. The elevating
influence of religion in human society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects
and denominations. . .359

xxx           xxx           xxx

It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character,
the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the opinion
that the Government should not be embarrassed in its activities simply because of incidental results, more or less religious in character, if the
purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its
subordination to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed.,
168)360 (emphases supplied)

In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or government action with a legitimate secular purpose does
not offend the Establishment Clause even if it incidentally aids a particular religion.

Almost forty-five years after Aglipay came Garces v. Estenzo.361 Although the Court found that the separation of church and state was not at issue as the
controversy was over who should have custody of a saint's image, it nevertheless made pronouncements on the separation of church and state along the
same line as the Aglipay ruling. The Court held that there was nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio. It
adhered to the barrio resolutions of the barangay involved in the case stating that the barrio fiesta is a socio-religious affair, the celebration of which is an
"ingrained tradition in rural communities" that "relieves the monotony and drudgery of the lives of the masses." Corollarily, the Court found nothing illegal
about any activity intended to facilitate the worship of the patron saint such as the acquisition and display of his image bought with funds obtained through
solicitation from the barrio residents. The Court pointed out that the image of the patron saint was "purchased in connection with the celebration of the barrio
fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with religious matters or the religious
beliefs of the barrio residents." Citing the Aglipay ruling, the Court declared, viz:

Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional
provisions regarding separation of church and state, freedom of worship and banning the use of public money or property.

Then came the 1978 case of Pamil v. Teleron, et al.362 which presented a novel issue involving the religion clauses. In this case, Section 2175 of the Revised
Administrative Code of 1917 disqualifying ecclesiastics from appointment or election as municipal officer was challenged. After protracted deliberation, the
Court was sharply divided on the issue. Seven members of the Court, one short of the number necessary to declare a law unconstitutional, approached the
problem from a free exercise perspective and considered the law a religious test offensive of the constitution. They were Justices Fernando, Teehankee,
Muñoz-Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero. Then Associate Justice Fernando, the ponente, stated, viz: "The challenged
Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office, is, on its face, inconsistent with the
religious freedom guaranteed by the Constitution." Citing Torcaso v. Watkins,363 the ponencia held, viz:

Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was there involved was the validity of a provision in the
Maryland Constitution prescribing that 'no religious test ought ever to be required as a disqualification for any office or profit or trust in this State,
other than a declaration of belief in the existence of God ***.' Such a constitutional requirement was assailed as contrary to the First Amendment of
the United States Constitution by an appointee to the office of notary public in Maryland, who was refused a commission as he would not declare a
belief in God. He failed in the Maryland Court of Appeals but prevailed in the United States Supreme Court, which reversed the state court
decision. It could not have been otherwise. As emphatically declared by Justice Black: 'this Maryland religious test for public office
unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be enforced against him.

The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here being an ecclesiastic and therefore
professing a religious faith suffices to disqualify for a public office. There is thus an incompatibility between the Administrative Code provision relied
upon by petitioner and an express constitutional mandate. 364

On the other hand, the prevailing five other members of the Court - Chief Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino - approached the
case from a non-establishment perspective and upheld the law as a safeguard against the constant threat of union of church and state that has marked
Philippine history. Justice Makasiar stated: "To allow an ecclesiastic to head the executive department of a municipality is to permit the erosion of the
principle of separation of Church and State and thus open the floodgates for the violation of the cherished liberty of religion which the constitutional provision
seeks to enforce and protect." Consequently, the Court upheld the validity of Section 2175 of the Revised Administrative Code and declared respondent
priest ineligible for the office of municipal mayor.
 75

Another type of cases interpreting the establishment clause deals with intramural religious disputes. Fonacier v. Court of Appeals365 is the leading case. The
issue therein was the right of control over certain properties of the Philippine Independent Church, the resolution of which necessitated the determination of
who was the legitimate bishop of the church. The Court cited American Jurisprudence, 366 viz:

Where, however, a decision of an ecclesiastical court plainly violates the law it professes to administer, or is in conflict with the law of the land, it
will not be followed by the civil courts. . . In some instances, not only have the civil courts the right to inquire into the jurisdiction of the religious
tribunals and the regularity of their procedure, but they have subjected their decisions to the test of fairness or to the test furnished by the
constitution and the law of the church. . .367

The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de los Reyes was the duly elected head of the Church, based on their
internal laws. To finally dispose of the property issue, the Court, citing Watson v. Jones,368 declared that the rule in property controversies within religious
congregations strictly independent of any other superior ecclesiastical association (such as the Philippine Independent Church) is that the rules for resolving
such controversies should be those of any voluntary association. If the congregation adopts the majority rule then the majority should prevail; if it adopts
adherence to duly constituted authorities within the congregation, then that should be followed. Applying these rules, Fonacier lost the case. While the Court
exercised jurisdiction over the case, it nevertheless refused to touch doctrinal and disciplinary differences raised, viz:

The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration alleged by appellant, having to do
with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference to the power of excluding from
the church those allegedly unworthy of membership, are unquestionably ecclesiastical matters which are outside the province of the civil courts. 369

VIII. Free Exercise Clause vis-à-vis Establishment Clause

In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free Exercise Clause and the Establishment Clause in their
application. There is a natural antagonism between a command not to establish religion and a command not to inhibit its practice; this tension between the
religion clauses often leaves the courts with a choice between competing values in religion cases. 370

One set of facts, for instance, can be differently viewed from the Establishment Clause perspective and the Free Exercise Clause point of view, and decided
in opposite directions. In Pamil, the majority gave more weight to the religious liberty of the priest in holding that the prohibition of ecclesiastics to assume
elective or appointive government positions was violative of the Free Exercise Clause. On the other hand, the prevailing five justices gave importance to the
Establishment Clause in stating that the principle of separation of church and state justified the prohibition.

Tension is also apparent when a case is decided to uphold the Free Exercise Clause and consequently exemptions from a law of general applicability are
afforded by the Court to the person claiming religious freedom; the question arises whether the exemption does not amount to support of the religion in
violation of the Establishment Clause. This was the case in the Free Exercise Clause case of Sherbert where the U.S. Supreme Court ruled, viz:

In holding as we do, plainly we are not fostering the "establishment" of the Seventh-day Adventist religion in South Carolina, for the extension of
unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality
in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the
Establishment Clause to forestall.371 (emphasis supplied)

Tension also exists when a law of general application provides exemption in order to uphold free exercise as in the Walz case where the appellant argued
that the exemption granted to religious organizations, in effect, required him to contribute to religious bodies in violation of the Establishment Clause. But the
Court held that the exemption was not a case of establishing religion but merely upholding the Free Exercise Clause by "sparing the exercise of religion from
the burden of property taxation levied on private profit institutions." Justice Burger wrote, viz:

(t)he Court has struggled to find a neutral course between the two religion clauses, both of which are cast in absolute terms, and either of which, if
expanded to a logical extreme, would tend to clash with the other. 372

Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption afforded by law to religious sects who prohibit their members from
joining unions did not offend the Establishment Clause. We ruled, viz:

We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the constitutional provision. It acted merely to
relieve the exercise of religion, by certain persons, of a burden that is imposed by union security agreements. 373 (emphasis supplied)

Finally, in some cases, a practice is obviously violative of the Establishment Clause but the Court nevertheless upholds it. In Schempp, Justice Brennan
stated: "(t)here are certain practices, conceivably violative of the Establishment Clause, the striking down of which might seriously interfere with certain
religious liberties also protected by the First Amendment."

How the tension between the Establishment Clause and the Free Exercise Clause will be resolved is a question for determination in the actual cases that
come to the Court. In cases involving both the Establishment Clause and the Free Exercise Clause, the two clauses should be balanced against each other.
The courts must review all the relevant facts and determine whether there is a sufficiently strong free exercise right that should prevail over the
Establishment Clause problem. In the United States, it has been proposed that in balancing, the free exercise claim must be given an edge not only because
of abundant historical evidence in the colonial and early national period of the United States that the free exercise principle long antedated any broad-based
support of disestablishment, but also because an Establishment Clause concern raised by merely accommodating a citizen's free exercise of religion seems
far less dangerous to the republic than pure establishment cases. Each time the courts side with the Establishment Clause in cases involving tension
between the two religion clauses, the courts convey a message of hostility to the religion that in that case cannot be freely exercised. 374 American professor
of constitutional law, Laurence Tribe, similarly suggests that the free exercise principle "should be dominant in any conflict with the anti-establishment
principle." This dominance would be the result of commitment to religious tolerance instead of "thwarting at all costs even the faintest appearance of
establishment."375 In our jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of the religion clauses does not suffice. Modern society is
characterized by the expanding regulatory arm of government that reaches a variety of areas of human conduct and an expanding concept of religion. To
adequately meet the demands of this modern society, the societal values the religion clauses are intended to protect must be considered in their
interpretation and resolution of the tension. This, in fact, has been the approach followed by the Philippine Court. 376
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IX. Philippine Religion Clauses: Nature, Purpose, Tests Based on Philippine and American Religion Clause History, Law and Jurisprudence

The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted from the First Amendment of the U.S.
Constitution. The religion clauses in the First Amendment were contained in every organic Act of the Philippines under the American regime. When the
delegates of the 1934 Constitutional Convention adopted a Bill of Rights in the 1935 Constitution, they purposely retained the phraseology of the religion
clauses in the First Amendment as contained in the Jones Law in order to adopt its historical background, nature, extent and limitations. At that time, there
were not too many religion clause cases in the United States as the U.S. Supreme Court decided an Establishment Clause issue only in the 1947 Everson
case. The Free Exercise Clause cases were also scarce then. Over the years, however, with the expanding reach of government regulation to a whole
gamut of human actions and the growing plurality and activities of religions, the number of religion clause cases in the U.S. exponentially increased. With this
increase came an expansion of the interpretation of the religion clauses, at times reinforcing prevailing case law, at other times modifying it, and still at other
times creating contradictions so that two main streams of jurisprudence had become identifiable. The first stream employs separation while the second
employs benevolent neutrality in interpreting the religious clauses. Alongside this change in the landscape of U.S. religion clause jurisprudence, the
Philippines continued to adopt the 1935 Constitution religion clauses in the 1973 Constitution and later, the 1987 Constitution. Philippine jurisprudence and
commentaries on the religious clauses also continued to borrow authorities from U.S. jurisprudence without articulating the stark distinction between the two
streams of U.S. jurisprudence. One might simply conclude that the Philippine Constitutions and jurisprudence also inherited the disarray of U.S. religion
clause jurisprudence and the two identifiable streams; thus, when a religion clause case comes before the Court, a separationist approach or a benevolent
neutrality approach might be adopted and each will have U.S. authorities to support it. Or, one might conclude that as the history of the First Amendment as
narrated by the Court in Everson supports the separationist approach, Philippine jurisprudence should also follow this approach in light of the Philippine
religion clauses' history. As a result, in a case where the party claims religious liberty in the face of a general law that inadvertently burdens his religious
exercise, he faces an almost insurmountable wall in convincing the Court that the wall of separation would not be breached if the Court grants him an
exemption. These conclusions, however, are not and were never warranted by the 1987, 1973 and 1935 Constitutions as shown by other provisions on
religion in all three constitutions. It is a cardinal rule in constitutional construction that the constitution must be interpreted as a whole and apparently
conflicting provisions should be reconciled and harmonized in a manner that will give to all of them full force and effect. 377 From this construction, it will be
ascertained that the intent of the framers was to adopt a benevolent neutrality approach in interpreting the religious clauses in the Philippine constitutions,
and the enforcement of this intent is the goal of construing the constitution. 378

We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the same time that the 1935 Constitution provided for an Establishment Clause,
it also provided for tax exemption of church property in Article VI, Section 22, par. 3(b), viz:

(3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all lands, buildings, and improvements used exclusively for
religious, charitable, or educational purposes shall be exempt from taxation.

Before the advent of the 1935 Constitution, Section 344 of the Administrative Code provided for a similar exemption. To the same effect, the Tydings-
McDuffie Law contained a limitation on the taxing power of the Philippine government during the Commonwealth period. 379 The original draft of the
Constitution placed this provision in an ordinance to be appended to the Constitution because this was among the provisions prescribed by the Tydings-
McDuffie Law. However, in order to have a constitutional guarantee for such an exemption even beyond the Commonwealth period, the provision was
introduced in the body of the Constitution on the rationale that "if churches, convents [rectories or parsonages] and their accessories are always necessary
for facilitating the exercise of such [religious] freedom, it would also be natural that their existence be also guaranteed by exempting them from
taxation."380 The amendment was readily approved with 83 affirmative votes against 15 negative votes. 381

The Philippine constitutional provision on tax exemption is not found in the U.S. Constitution. In the U.S. case of Walz, the Court struggled to justify this kind
of exemption to withstand Establishment Clause scrutiny by stating that church property was not singled out but was exempt along with property owned by
non-profit, quasi-public corporations because the state upheld the secular policy "that considers these groups as beneficial and stabilizing influences in
community life and finds this classification useful, desirable, and in the public interest." The Court also stated that the exemption was meant to relieve the
burden on free exercise imposed by property taxation. At the same time, however, the Court acknowledged that the exemption was an exercise of
benevolent neutrality to accommodate a long-standing tradition of exemption. With the inclusion of the church property tax exemption in the body of the 1935
Constitution and not merely as an ordinance appended to the Constitution, the benevolent neutrality referred to in the Walz case was given constitutional
imprimatur under the regime of the 1935 Constitution. The provision, as stated in the deliberations, was an acknowledgment of the necessity of the exempt
institutions to the exercise of religious liberty, thereby evincing benevolence towards religious exercise.

Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:

(3) No public money, or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution or system of religion, for the use, benefit or support of any priest, preacher, ministers or other religious
teacher or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal institution,
orphanage, or leprosarium. (emphasis supplied)

The original draft of this provision was a reproduction of a portion of section 3 of the Jones Law which did not contain the above exception, viz:

No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church
denomination, sectarian institution, or system of religion, or for the use, benefit or support of any priest, preacher, minister, or dignitary as such… 382

In the deliberations of this draft provision, an amendment was proposed to strike down everything after "church denomination." 383 The proposal intended to
imitate the silence of the U.S. Constitution on the subject of support for priests and ministers. It was also an imitation of the silence of the Malolos
Constitution to restore the situation under the Malolos Constitution and prior to the Jones Law, when chaplains of the revolutionary army received pay from
public funds with no doubt about its legality. It was pointed out, however, that even with the prohibition under the Jones Law, appropriations were made to
chaplains of the national penitentiary and the Auditor General upheld its validity on the basis of a similar United States practice. But it was also pointed out
that the U.S. Constitution did not contain a prohibition on appropriations similar to the Jones Law. 384 To settle the question on the constitutionality of payment
of salaries of religious officers in certain government institutions and to avoid the feared situation where the enumerated government institutions could not
employ religious officials with compensation, the exception in the 1935 provision was introduced and approved. The provision garnered 74 affirmative votes
against 34 negative votes.385 As pointed out in the deliberations, the U.S. Constitution does not provide for this exemption. However, the U.S. Supreme Court
in Cruz v. Beto, apparently taking a benevolent neutrality approach, implicitly approved the state of Texas' payment of prison chaplains' salaries as
reasonably necessary to permit inmates to practice their religion. Also, in the Marsh case, the U.S. Supreme Court upheld the long-standing tradition of
beginning legislative sessions with prayers offered by legislative chaplains retained at taxpayers' expense. The constitutional provision exempting religious
officers in government institutions affirms the departure of the Philippine Constitution from the U.S. Constitution in its adoption of benevolent neutrality in
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Philippine jurisdiction. While the provision prohibiting aid to religion protects the wall of separation between church and state, the provision at the same time
gives constitutional sanction to a breach in the wall.

To further buttress the thesis that benevolent neutrality is contemplated in the Philippine Establishment Clause, the 1935 Constitution provides for optional
religious instruction in public schools in Article XIII, Section 5, viz:

. . . Optional religious instruction shall be maintained in the public schools as now authorized by law. . .

The law then applicable was Section 928 of the Administrative Code, viz:

It shall be lawful, however, for the priest or minister of any church established in the town where a public school is situated, either in person or by a
designated teacher of religion, to teach religion for one-half hour three times a week, in the school building, to those public-school pupils whose
parents or guardians desire it and express their desire therefor in writing filed with the principal of the school . . .

During the debates of the Constitutional Convention, there were three positions on the issue of religious instruction in public schools. The first held that the
teaching of religion in public schools should be prohibited as this was a violation of the principle of separation of church and state and the prohibition against
the use of public funds for religious purposes. The second favored the proposed optional religious instruction as authorized by the Administrative Code and
recognized that the actual practice of allowing religious instruction in the public schools was sufficient proof that religious instruction was not and would not
be a source of religious discord in the schools. 386 The third wanted religion to be included as a course in the curriculum of the public schools but would only
be taken by pupils at the option of their parents or guardians. After several rounds of debate, the second camp prevailed, thus raising to constitutional stature
the optional teaching of religion in public schools, despite the opposition to the provision on the ground of separation of church and state. 387 As in the
provisions on church property tax exemption and compensation of religious officers in government institutions, the U.S. Constitution does not provide for
optional religious instruction in public schools. In fact, in the McCollum case, the Court, using strict neutrality, prohibited this kind of religious instruction
where the religion teachers would conduct class within the school premises. The constitutional provision on optional religious instruction shows that
Philippine jurisdiction rejects the strict neutrality approach which does not allow such accommodation of religion.

Finally, to make certain the Constitution's benevolence to religion, the Filipino people "implored (ing) the aid of Divine Providence (,) in order to establish a
government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and
their posterity the blessings of independence under a regime of justice, liberty, and democracy, (in) ordain(ing) and promulgat(ing) this Constitution." A
preamble is a "key to open the mind of the authors of the constitution as to the evil sought to be prevented and the objects sought to be accomplished by the
provisions thereof."388 There was no debate on the inclusion of a "Divine Providence" in the preamble. In Aglipay, Justice Laurel noted that when the Filipino
people implored the aid of Divine Providence, "(t)hey thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides
the destinies of men and nations." 389 The 1935 Constitution's religion clauses, understood alongside the other provisions on religion in the Constitution,
indubitably shows not hostility, but benevolence, to religion. 390

The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on exemption of
church property from taxation, with the modification that the property should not only be used directly, but also actually and exclusively for religious or
charitable purposes. Parallel to Article VI, Section 23(3) of the 1935 Constitution, the 1973 Constitution also contained a similar provision on salaries of
religious officials employed in the enumerated government institutions. Article XIII, Section 5 of the 1935 Constitution on optional religious instruction was
also carried to the 1973 Constitution in Article XV, Section 8(8) with the modification that optional religious instruction shall be conducted "as may be
provided by law" and not "as now authorized by law" as stated in the 1935 Constitution. The 1973 counterpart, however, made explicit in the constitution that
the religious instruction in public elementary and high schools shall be done "(a)t the option expressed in writing by the parents or guardians, and without
cost to them and the government." With the adoption of these provisions in the 1973 Constitution, the benevolent neutrality approach continued to enjoy
constitutional sanction. In Article XV, Section 15 of the General Provisions of the 1973 Constitution this provision made its maiden appearance: "(t)he
separation of church and state shall be inviolable." The 1973 Constitution retained the portion of the preamble "imploring the aid of Divine Providence."

In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on Church and State of the 1971 Constitutional
Convention, the question arose as to whether the "absolute" separation of Church and State as enunciated in the Everson case and reiterated in Schempp -
i.e., neutrality not only as between one religion and another but even as between religion and non-religion - is embodied in the Philippine Constitution. The
sub-committee's answer was that it did not seem so. Citing the Aglipay case where Justice Laurel recognized the "elevating influence of religion in human
society" and the Filipinos' imploring of Divine Providence in the 1935 Constitution, the sub-committee asserted that the state may not prefer or aid one
religion over another, but may aid all religions equally or the cause of religion in general. 391 Among the position papers submitted to the Committee on
Church on State was a background paper for reconsideration of the religion provisions of the constitution by Fr. Bernas, S.J. He stated therein that the
Philippine Constitution is not hostile to religion and in fact recognizes the value of religion and accommodates religious values. 392 Stated otherwise, the
Establishment Clause contemplates not a strict neutrality but benevolent neutrality. While the Committee introduced the provision on separation of church
and state in the General Provisions of the 1973 Constitution, this was nothing new as according to it, this principle was implied in the 1935 Constitution even
in the absence of a similar provision.393

Then came the 1987 Constitution. The 1973 Constitutional provision on tax exemption of church property was retained with minor modification in Article VI,
Section 28(3) of the 1987 Constitution. The same is true with respect to the prohibition on the use of public money and property for religious purposes and
the salaries of religious officers serving in the enumerated government institutions, now contained in Article VI, Section 29(2). Commissioner Bacani,
however, probed into the possibility of allowing the government to spend public money for purposes which might have religious connections but which would
benefit the public generally. Citing the Aglipay case, Commissioner Rodrigo explained that if a public expenditure would benefit the government directly,
such expense would be constitutional even if it results to an incidental benefit to religion. With that explanation, Commissioner Bacani no longer pursued his
proposal.394

The provision on optional religious instruction was also adopted in the 1987 Constitution in Article XIV, Section 3(3) with the modification that it was
expressly provided that optional instruction shall be conducted "within the regular class hours" and "without additional cost to the government". There were
protracted debates on what additional cost meant, i.e., cost over and above what is needed for normal operations such as wear and tear, electricity, janitorial
services,395 and when during the day instruction would be conducted. 396 In deliberating on the phrase "within the regular class hours," Commissioner Aquino
expressed her reservations to this proposal as this would violate the time-honored principle of separation of church and state. She cited the McCullom case
where religious instruction during regular school hours was stricken down as unconstitutional and also cited what she considered the most liberal
interpretation of separation of church and state in Surach v. Clauson where the U.S. Supreme Court allowed only release time for religious instruction. Fr.
Bernas replied, viz:
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. . . the whole purpose of the provision was to provide for an exception to the rule on non-establishment of religion, because if it were not
necessary to make this exception for purposes of allowing religious instruction, then we could just drop the amendment. But, as a matter of fact,
this is necessary because we are trying to introduce something here which is contrary to American practices. 397 (emphasis supplied)

"(W)ithin regular class hours" was approved.

he provision on the separation of church and state was retained but placed under the Principles in the Declaration of Principles and State Policies in Article
II, Section 6. In opting to retain the wording of the provision, Fr. Bernas stated, viz:

. . . It is true, I maintain, that as a legal statement the sentence 'The separation of Church and State is inviolable,' is almost a useless statement;
but at the same time it is a harmless statement. Hence, I am willing to tolerate it there, because, in the end, if we look at the jurisprudence on
Church and State, arguments are based not on the statement of separation of church and state but on the non-establishment clause in the Bill of
Rights.398

The preamble changed "Divine Providence" in the 1935 and 1973 Constitutions to "Almighty God." There was considerable debate on whether to use
"Almighty God" which Commissioner Bacani said was more reflective of Filipino religiosity, but Commissioner Rodrigo recalled that a number of atheistic
delegates in the 1971 Constitutional Convention objected to reference to a personal God. 399 "God of History", "Lord of History" and "God" were also
proposed, but the phrase "Almighty God" prevailed. Similar to the 1935 and 1971 Constitutions, it is obvious that the 1987 Constitution is not hostile nor
indifferent to religion;400 its wall of separation is not a wall of hostility or indifference. 401

The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church property, salary of religious officers in government institutions, optional
religious instruction and the preamble all reveal without doubt that the Filipino people, in adopting these constitutions, did not intend to erect a high and
impregnable wall of separation between the church and state. 402 The strict neutrality approach which examines only whether government action is for a
secular purpose and does not consider inadvertent burden on religious exercise protects such a rigid barrier. By adopting the above constitutional provisions
on religion, the Filipinos manifested their adherence to the benevolent neutrality approach in interpreting the religion clauses, an approach that looks further
than the secular purposes of government action and examines the effect of these actions on religious exercise. Benevolent neutrality recognizes the
religious nature of the Filipino people and the elevating influence of religion in society; at the same time, it acknowledges that government must pursue its
secular goals. In pursuing these goals, however, government might adopt laws or actions of general applicability which inadvertently burden religious
exercise. Benevolent neutrality gives room for accommodation of these religious exercises as required by the Free Exercise Clause. It allows these breaches
in the wall of separation to uphold religious liberty, which after all is the integral purpose of the religion clauses. The case at bar involves this first type of
accommodation where an exemption is sought from a law of general applicability that inadvertently burdens religious exercise.

Although our constitutional history and interpretation mandate benevolent neutrality, benevolent neutrality does not mean that the Court ought to grant
exemptions every time a free exercise claim comes before it. But it does mean that the Court will not look with hostility or act indifferently towards religious
beliefs and practices and that it will strive to accommodate them when it can within flexible constitutional limits; it does mean that the Court will not simply
dismiss a claim under the Free Exercise Clause because the conduct in question offends a law or the orthodox view for this precisely is the protection
afforded by the religion clauses of the Constitution, i.e., that in the absence of legislation granting exemption from a law of general applicability, the Court can
carve out an exception when the religion clauses justify it. While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of
judgment in determining the degree of burden on religious practice or importance of the state interest or the sufficiency of the means adopted by the state to
pursue its interest, the Court can set a doctrine on the ideal towards which religious clause jurisprudence should be directed. 403 We here lay down the
doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of its merits as discussed above, but more importantly,
because our constitutional history and interpretation indubitably show that benevolent neutrality is the launching pad from which the Court should take off in
interpreting religion clause cases. The ideal towards which this approach is directed is the protection of religious liberty "not only for a minority, however
small- not only for a majority, however large- but for each of us" to the greatest extent possible within flexible constitutional limits.

Benevolent neutrality is manifest not only in the Constitution but has also been recognized in Philippine jurisprudence, albeit not expressly called "benevolent
neutrality" or "accommodation". In Aglipay, the Court not only stressed the "elevating influence of religion in human society" but acknowledged the
Constitutional provisions on exemption from tax of church property, salary of religious officers in government institutions, and optional religious instruction as
well as the provisions of the Administrative Code making Thursday and Friday of the Holy Week, Christmas Day and Sundays legal holidays. In Garces, the
Court not only recognized the Constitutional provisions indiscriminately granting concessions to religious sects and denominations, but also acknowledged
that government participation in long-standing traditions which have acquired a social character - "the barrio fiesta is a socio-religious affair" - does not
offend the Establishment Clause. In Victoriano, the Court upheld the exemption from closed shop provisions of members of religious sects who prohibited
their members from joining unions upon the justification that the exemption was not a violation of the Establishment Clause but was only meant to relieve the
burden on free exercise of religion. In Ebralinag, members of the Jehovah's Witnesses were exempt from saluting the flag as required by law, on the basis
not of a statute granting exemption but of the Free Exercise Clause without offending the Establishment Clause.

While the U.S. and Philippine religion clauses are similar in form and origin, Philippine constitutional law has departed from the U.S. jurisprudence of
employing a separationist or strict neutrality approach. The Philippine religion clauses have taken a life of their own, breathing the air of benevolent neutrality
and accommodation. Thus, the wall of separation in Philippine jurisdiction is not as high and impregnable as the wall created by the U.S. Supreme Court in
Everson.404 While the religion clauses are a unique American experiment which understandably came about as a result of America's English background and
colonization, the life that these clauses have taken in this jurisdiction is the Philippines' own experiment, reflective of the Filipinos' own national soul, history
and tradition. After all, "the life of the law. . . has been experience."

But while history, constitutional construction, and earlier jurisprudence unmistakably show that benevolent neutrality is the lens with which the Court ought to
view religion clause cases, it must be stressed that the interest of the state should also be afforded utmost protection. To do this, a test must be applied to
draw the line between permissible and forbidden religious exercise. It is quite paradoxical that in order for the members of a society to exercise their
freedoms, including their religious liberty, the law must set a limit when their exercise offends the higher interest of the state. To do otherwise is self-
defeating for unlimited freedom would erode order in the state and foment anarchy, eventually destroying the very state its members established to protect
their freedoms. The very purpose of the social contract by which people establish the state is for the state to protect their liberties; for this purpose, they give
up a portion of these freedoms - including the natural right to free exercise - to the state. It was certainly not the intention of the authors of the constitution
that free exercise could be used to countenance actions that would undo the constitutional order that guarantees free exercise. 405

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

The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where the "clear and present danger" and "grave and
immediate danger" tests were appropriate as speech has easily discernible or immediate effects. The Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test is proper where conduct is involved for the whole gamut of human conduct
has different effects on the state's interests: some effects may be immediate and short-term while others delayed and far-reaching. A test that would protect
the interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the state would
suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of rights - "the most
inalienable and sacred of all human rights", in the words of Jefferson. 406 This right is sacred for an invocation of the Free Exercise Clause is an appeal to a
higher sovereignty. The entire constitutional order of limited government is premised upon an acknowledgment of such higher sovereignty, 407 thus the
Filipinos implore the "aid of Almighty God in order to build a just and humane society and establish a government." As held in Sherbert, only the gravest
abuses, endangering paramount interests can limit this fundamental right. A mere balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow the state to batter religion, especially the less powerful ones
until they are destroyed.408 In determining which shall prevail between the state's interest and religious liberty, reasonableness shall be the guide. 409 The
"compelling state interest" serves the purpose of revering religious liberty while at the same time affording protection to the paramount interests of the state.
This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state interest" test, by upholding the
paramount interests of the state, seeks to protect the very state, without which, religious liberty will not be preserved.

X. Application of the Religion Clauses to the Case at Bar

A. The Religion Clauses and Morality

In a catena of cases, the Court has ruled that government employees engaged in illicit relations are guilty of "disgraceful and immoral conduct" for which
he/she may be held administratively liable. 410 In these cases, there was not one dissent to the majority's ruling that their conduct was immoral. The
respondents themselves did not foist the defense that their conduct was not immoral, but instead sought to prove that they did not commit the alleged act or
have abated from committing the act. The facts of the 1975 case of De Dios v. Alejo411 and the 1999 case of Maguad v. De Guzman,412 are similar to the
case at bar - i.e., the complainant is a mere stranger and the legal wife has not registered any objection to the illicit relation, there is no proof of scandal or
offense to the moral sensibilities of the community in which the respondent and the partner live and work, and the government employee is capacitated to
marry while the partner is not capacitated but has long been separated in fact. Still, the Court found the government employees administratively liable for
"disgraceful and immoral conduct" and only considered the foregoing circumstances to mitigate the penalty. Respondent Escritor does not claim that there is
error in the settled jurisprudence that an illicit relation constitutes disgraceful and immoral conduct for which a government employee is held liable. Nor is
there an allegation that the norms of morality with respect to illicit relations have shifted towards leniency from the time these precedent cases were decided.
The Court finds that there is no such error or shift, thus we find no reason to deviate from these rulings that such illicit relationship constitutes "disgraceful
and immoral conduct" punishable under the Civil Service Law. Respondent having admitted the alleged immoral conduct, she, like the respondents in the
above-cited cases, could be held administratively liable. However, there is a distinguishing factor that sets the case at bar apart from the cited precedents,
i.e., as a defense, respondent invokes religious freedom since her religion, the Jehovah's Witnesses, has, after thorough investigation, allowed her conjugal
arrangement with Quilapio based on the church's religious beliefs and practices. This distinguishing factor compels the Court to apply the religious clauses to
the case at bar.

Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion of Mme. Justice Ynares-Santiago and the separate
opinion of Mr. Justice Vitug dwell more on the standards of morality than on the religion clauses in deciding the instant case. A discussion on morality is in
order.

At base, morality refers to, in Socrates' words, "how we ought to live" and why. Any definition of morality beyond Socrates' simple formulation is bound to
offend one or another of the many rival theories regarding what it means to live morally. 413 The answer to the question of how we ought to live necessarily
considers that man does not live in isolation, but in society. Devlin posits that a society is held together by a community of ideas, made up not only of political
ideas but also of ideas about the manner its members should behave and govern their lives. The latter are their morals; they constitute the public morality.
Each member of society has ideas about what is good and what is evil. If people try to create a society wherein there is no fundamental agreement about
good and evil, they will fail; if having established the society on common agreement, the agreement collapses, the society will disintegrate. Society is kept
together by the invisible bonds of common thought so that if the bonds are too loose, the members would drift apart. A common morality is part of the
bondage and the bondage is part of the price of society; and mankind, which needs society, must pay its price. 414 This design is parallel with the social
contract in the realm of politics: people give up a portion of their liberties to the state to allow the state to protect their liberties. In a constitutional order,
people make a fundamental agreement about the powers of government and their liberties and embody this agreement in a constitution, hence referred to as
the fundamental law of the land. A complete break of this fundamental agreement such as by revolution destroys the old order and creates a new
one.415 Similarly, in the realm of morality, the breakdown of the fundamental agreement about the manner a society's members should behave and govern
their lives would disintegrate society. Thus, society is justified in taking steps to preserve its moral code by law as it does to preserve its government and
other essential institutions.416 From these propositions of Devlin, one cannot conclude that Devlin negates diversity in society for he is merely saying that in
the midst of this diversity, there should nevertheless be a "fundamental agreement about good and evil" that will govern how people in a society ought to live.
His propositions, in fact, presuppose diversity hence the need to come to an agreement; his position also allows for change of morality from time to time
which may be brought about by this diversity. In the same vein, a pluralistic society lays down fundamental rights and principles in their constitution in
establishing and maintaining their society, and these fundamental values and principles are translated into legislation that governs the order of society, laws
that may be amended from time to time. Hart's argument propounded in Mr. Justice Vitug's separate opinion that, "Devlin's view of people living in a single
society as having common moral foundation (is) overly simplistic" because "societies have always been diverse" fails to recognize the necessity of Devlin's
proposition in a democracy. Without fundamental agreement on political and moral ideas, society will fall into anarchy; the agreement is necessary to the
existence and progress of society.
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In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every opinion, every prejudice,
every aspiration, and every moral discernment has access to the public square where people deliberate the order of their life together. Citizens are the
bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public square. In this
representative democracy, the state is prohibited from determining which convictions and moral judgments may be proposed for public deliberation. Through
a constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle in this democratic governance. 417 Thus, when
public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the
mainstream or median groups.418 Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies -- including protection of
religious freedom "not only for a minority, however small- not only for a majority, however large- but for each of us" -- the majority imposes upon itself a self-
denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities. 419 In the realm of religious exercise,
benevolent neutrality that gives room for accommodation carries out this promise, provided the compelling interests of the state are not eroded for the
preservation of the state is necessary to the preservation of religious liberty. That is why benevolent neutrality is necessary in a pluralistic society such as the
United States and the Philippines to accommodate those minority religions which are politically powerless. It is not surprising that Smith is much criticized for
it blocks the judicial recourse of the minority for religious accommodations.

The laws enacted become expressions of public morality. As Justice Holmes put it, "(t)he law is the witness and deposit of our moral life." 420 "In a liberal
democracy, the law reflects social morality over a period of time." 421 Occasionally though, a disproportionate political influence might cause a law to be
enacted at odds with public morality or legislature might fail to repeal laws embodying outdated traditional moral views. 422 Law has also been defined as
"something men create in their best moments to protect themselves in their worst moments." 423 Even then, laws are subject to amendment or repeal just as
judicial pronouncements are subject to modification and reversal to better reflect the public morals of a society at a given time. After all, "the life of the
law...has been experience," in the words of Justice Holmes. This is not to say though that law is all of morality. Law deals with the minimum standards of
human conduct while morality is concerned with the maximum. A person who regulates his conduct with the sole object of avoiding punishment under the
law does not meet the higher moral standards set by society for him to be called a morally upright person. 424 Law also serves as "a helpful starting point for
thinking about a proper or ideal public morality for a society" 425 in pursuit of moral progress.

In Magno v. Court of Appeals, et al.,426 we articulated the relationship between law and public morality. We held that under the utilitarian theory, the
"protective theory" in criminal law, "criminal law is founded upon the moral disapprobation x x x of actions which are immoral, i.e., which are detrimental (or
dangerous) to those conditions upon which depend the existence and progress of human society. This disapprobation is inevitable to the extent that morality
is generally founded and built upon a certain concurrence in the moral opinions of all. x x x That which we call punishment is only an external means of
emphasizing moral disapprobation: the method of punishment is in reality the amount of punishment." 427 Stated otherwise, there are certain standards of
behavior or moral principles which society requires to be observed and these form the bases of criminal law. Their breach is an offense not only against the
person injured but against society as a whole. 428 Thus, even if all involved in the misdeed are consenting parties, such as in the case at bar, the injury done
is to the public morals and the public interest in the moral order. 429 Mr. Justice Vitug expresses concern on this point in his separate opinion. He observes
that certain immoral acts which appear private and not harmful to society such as sexual congress "between a man and a prostitute, though consensual and
private, and with no injured third party, remains illegal in this country." His opinion asks whether these laws on private morality are justified or they constitute
impingement on one's freedom of belief. Discussion on private morality, however, is not material to the case at bar for whether respondent's conduct, which
constitutes concubinage,430 is private in the sense that there is no injured party or the offended spouse consents to the concubinage, the inescapable fact is
that the legislature has taken concubinage out of the sphere of private morals. The legislature included concubinage as a crime under the Revised Penal
Code and the constitutionality of this law is not being raised in the case at bar. In the definition of the crime of concubinage, consent of the injured party, i.e.,
the legal spouse, does not alter or negate the crime unlike in rape 431 where consent of the supposed victim negates the crime. If at all, the consent or pardon
of the offended spouse in concubinage negates the prosecution of the action, 432 but does not alter the legislature's characterization of the act as a moral
disapprobation punishable by law. The separate opinion states that, "(t)he ponencia has taken pains to distinguish between secular and private morality, and
reached the conclusion that the law, as an instrument of the secular State should only concern itself with secular morality." The Court does not draw this
distinction in the case at bar. The distinction relevant to the case is not, as averred and discussed by the separate opinion, "between secular and private
morality," but between public and secular morality on the one hand, and religious morality on the other, which will be subsequently discussed.

Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the Philippine
Islands, et al., where we explained that for those wrongs which are not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of the New
Civil Code, dealing with Human Relations, provide for the recognition of the wrong and the concomitant punishment in the form of damages. Articles 19 and
21 provide, viz:

Art. 19. Any person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe
honesty and good faith.

xxx           xxx           xxx

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage. (emphasis supplied)

We then cited in Velayo the Code Commission's comment on Article 21:

Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved), would vouchsafe adequate legal remedy for that untold
numbers of moral wrongs which is impossible for human foresight to provide for specifically in the statutes.

But, it may be asked, would this proposed article obliterate the boundary line between morality and law? The answer is that, in the last analysis,
every good law draws its breath of life from morals, from those principles which are written with words of fire in the conscience of man. If this
premise is admitted, then the proposed rule is a prudent earnest of justice in the face of the impossibility of enumerating, one by one, all wrongs
which cause damages. When it is reflected that while codes of law and statutes have changed from age to age, the conscience of man has
remained fixed to its ancient moorings, one can not but feel that it is safe and salutary to transmute, as far as may be, moral norms into legal rules,
thus imparting to every legal system that enduring quality which ought to be one of its superlative attributes.

Furthermore, there is no belief of more baneful consequence upon the social order than that a person may with impunity cause damage to his
fellow-men so long as he does not break any law of the State, though he may be defying the most sacred postulates of morality. What is more, the
victim loses faith in the ability of the government to afford him protection or relief.

A provision similar to the one under consideration is embodied in article 826 of the German Civil Code. 433 (emphases supplied)
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The public morality expressed in the law is necessarily secular for in our constitutional order, the religion clauses prohibit the state from establishing a
religion, including the morality it sanctions. Religious morality proceeds from a person's "views of his relations to His Creator and to the obligations they
impose of reverence to His being and character and obedience to His Will," in accordance with this Court's definition of religion in American Bible Society
citing Davis. Religion also dictates "how we ought to live" for the nature of religion is not just to know, but often, to act in accordance with man's "views of his
relations to His Creator."434 But the Establishment Clause puts a negative bar against establishment of this morality arising from one religion or the other, and
implies the affirmative "establishment" of a civil order for the resolution of public moral disputes. This agreement on a secular mechanism is the price of
ending the "war of all sects against all"; the establishment of a secular public moral order is the social contract produced by religious truce. 435

Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of Professional Responsibility for lawyers 436, or "public morals" in
the Revised Penal Code,437 or "morals" in the New Civil Code, 438 or "moral character" in the Constitution, 439 the distinction between public and secular
morality on the one hand, and religious morality, on the other, should be kept in mind. 440 The morality referred to in the law is public and necessarily secular,
not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order but public
moral disputes may be resolved only on grounds articulable in secular terms." 441 Otherwise, if government relies upon religious beliefs in formulating public
policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The non-
believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly
disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full religious freedom for all its
citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens. Expansive religious freedom therefore requires that
government be neutral in matters of religion; governmental reliance upon religious justification is inconsistent with this policy of neutrality. 442

In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose. That
is, the government proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon which depend the existence and progress of
human society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments based on religion
might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral disapprobation punishable by
law. After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human
mind endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven. 443 Succinctly put, a law
could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification to
pass scrutiny of the religion clauses. Otherwise, if a law has an apparent secular purpose but upon closer examination shows a discriminatory and
prohibitory religious purpose, the law will be struck down for being offensive of the religion clauses as in Church of the Lukumi Babalu Aye, Inc. where the
U.S. Supreme Court invalidated an ordinance prohibiting animal sacrifice of the Santeria. Recognizing the religious nature of the Filipinos and the elevating
influence of religion in society, however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality
recognizes that government must pursue its secular goals and interests but at the same time strives to uphold religious liberty to the greatest extent possible
within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling state interests.

Mr. Justice Vitug's separate opinion embraces the benevolent neutrality approach when it states that in deciding the case at bar, the approach should
consider that, "(a)s a rule . . . moral laws are justified only to the extent that they directly or indirectly serve to protect the interests of the larger society. It is
only where their rigid application would serve to obliterate the value which society seeks to uphold, or defeat the purpose for which they are enacted would, a
departure be justified." In religion clause parlance, the separate opinion holds that laws of general applicability governing morals should have a secular
purpose of directly or indirectly protecting the interests of the state. If the strict application of these laws (which are the Civil Service Law and the laws on
marriage) would erode the secular purposes of the law (which the separate opinion identifies as upholding the sanctity of marriage and the family), then in a
benevolent neutrality framework, an accommodation of the unconventional religious belief and practice (which the separate opinion holds should be
respected on the ground of freedom of belief) that would promote the very same secular purpose of upholding the sanctity of marriage and family through the
Declaration Pledging Faithfulness that makes the union binding and honorable before God and men, is required by the Free Exercise Clause. The separate
opinion then makes a preliminary discussion of the values society seeks to protect in adhering to monogamous marriage, but concludes that these values
and the purposes of the applicable laws should be thoroughly examined and evidence in relation thereto presented in the OCA. The accommodation
approach in the case at bar would also require a similar discussion of these values and presentation of evidence before the OCA by the state that seeks to
protect its interest on marriage and opposes the accommodation of the unconventional religious belief and practice regarding marriage.

The distinction between public and secular morality as expressed - albeit not exclusively - in the law, on the one hand, and religious morality, on the other, is
important because the jurisdiction of the Court extends only to public and secular morality. Whatever pronouncement the Court makes in the case at bar
should be understood only in this realm where it has authority. More concretely, should the Court declare respondent's conduct as immoral and hold her
administratively liable, the Court will be holding that in the realm of public morality, her conduct is reprehensible or there are state interests overriding her
religious freedom. For as long as her conduct is being judged within this realm, she will be accountable to the state. But in so ruling, the Court does not and
cannot say that her conduct should be made reprehensible in the realm of her church where it is presently sanctioned and that she is answerable for her
immorality to her Jehovah God nor that other religions prohibiting her conduct are correct. On the other hand, should the Court declare her conduct
permissible, the Court will be holding that under her unique circumstances, public morality is not offended or that upholding her religious freedom is an
interest higher than upholding public morality thus her conduct should not be penalized. But the Court is not ruling that the tenets and practice of her religion
are correct nor that other churches which do not allow respondent's conjugal arrangement should likewise allow such conjugal arrangement or should not
find anything immoral about it and therefore members of these churches are not answerable for immorality to their Supreme Being. The Court cannot speak
more than what it has authority to say. In Ballard, the U.S. Supreme Court held that courts cannot inquire about the truth of religious beliefs. Similarly, in
Fonacier, this Court declared that matters dealing with "faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church…are
unquestionably ecclesiastical matters which are outside the province of the civil courts." 444 But while the state, including the Court, accords such deference to
religious belief and exercise which enjoy protection under the religious clauses, the social contract and the constitutional order are designed in such a way
that when religious belief flows into speech and conduct that step out of the religious sphere and overlap with the secular and public realm, the state has the
power to regulate, prohibit and penalize these expressions and embodiments of belief insofar as they affect the interests of the state. The state's inroad on
religion exercise in excess of this constitutional design is prohibited by the religion clauses; the Old World, European and American history narrated above
bears out the wisdom of this proscription.

Having distinguished between public and secular morality and religious morality, the more difficult task is determining which immoral acts under this public
and secular morality fall under the phrase "disgraceful and immoral conduct" for which a government employee may be held administratively liable. The line
is not easy to draw for it is like "a line that divides land and sea, a coastline of irregularities and indentations." 445 But the case at bar does not require us to
comprehensively delineate between those immoral acts for which one may be held administratively liable and those to which administrative liability does not
attach. We need not concern ourselves in this case therefore whether "laziness, gluttony, vanity, selfishness, avarice and cowardice" are immoral acts which
constitute grounds for administrative liability. Nor need we expend too much energy grappling with the propositions that not all immoral acts are illegal or not
all illegal acts are immoral, or different jurisdictions have different standards of morality as discussed by the dissents and separate opinions, although these
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observations and propositions are true and correct. It is certainly a fallacious argument that because there are exceptions to the general rule that the "law is
the witness and deposit of our moral life," then the rule is not true; in fact, that there are exceptions only affirms the truth of the rule. Likewise, the
observation that morality is relative in different jurisdictions only affirms the truth that there is morality in a particular jurisdiction; without, however,
discounting the truth that underneath the moral relativism are certain moral absolutes such as respect for life and truth-telling, without which no society will
survive. Only one conduct is in question before this Court, i.e., the conjugal arrangement of a government employee whose partner is legally married to
another which Philippine law and jurisprudence consider both immoral and illegal. Lest the Court inappropriately engage in the impossible task of prescribing
comprehensively how one ought to live, the Court must focus its attention upon the sole conduct in question before us.

In interpreting "disgraceful and immoral conduct," the dissenting opinion of Mme. Justice Ynares-Santiago groped for standards of morality and stated that
the "ascertainment of what is moral or immoral calls for the discovery of contemporary community standards" but did not articulate how these standards are
to be ascertained. Instead, it held that, "(f)or those in the service of the Government, provisions of law and court precedents . . . have to be considered." It
identified the Civil Service Law and the laws on adultery and concubinage as laws which respondent's conduct has offended and cited a string of precedents
where a government employee was found guilty of committing a "disgraceful and immoral conduct" for maintaining illicit relations and was thereby penalized.
As stated above, there is no dispute that under settled jurisprudence, respondent's conduct constitutes "disgraceful and immoral conduct." However, the
cases cited by the dissent do not involve the defense of religious freedom which respondent in the case at bar invokes. Those cited cases cannot therefore
serve as precedents in settling the issue in the case at bar.

Mme. Justice Ynares-Santiago's dissent also cites Cleveland v. United States446 in laying down the standard of morality, viz: "(w)hether an act is immoral
within the meaning of the statute is not to be determined by respondent's concept of morality. The law provides the standard; the offense is complete if
respondent intended to perform, and did in fact perform, the act which it condemns." The Mann Act under consideration in the Cleveland case declares as an
offense the transportation in interstate commerce of "any woman or girl for the purpose of prostitution or debauchery, or for any other immoral
purpose."447 The resolution of that case hinged on the interpretation of the phrase "immoral purpose." The U.S. Supreme Court held that the petitioner
Mormons' act of transporting at least one plural wife whether for the purpose of cohabiting with her, or for the purpose of aiding another member of their
Mormon church in such a project, was covered by the phrase "immoral purpose." In so ruling, the Court relied on Reynolds which held that the Mormons'
practice of polygamy, in spite of their defense of religious freedom, was "odious among the northern and western nations of Europe," 448 "a return to
barbarism,"449 "contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world," 450 and thus punishable by
law.

The Cleveland standard, however, does not throw light to the issue in the case at bar. The pronouncements of the U.S. Supreme Court that polygamy is
intrinsically "odious" or "barbaric" do not apply in the Philippines where Muslims, by law, are allowed to practice polygamy. Unlike in Cleveland, there is no
jurisprudence in Philippine jurisdiction holding that the defense of religious freedom of a member of the Jehovah's Witnesses under the same circumstances
as respondent will not prevail over the laws on adultery, concubinage or some other law. We cannot summarily conclude therefore that her conduct is
likewise so "odious" and "barbaric" as to be immoral and punishable by law.

While positing the view that the resolution of the case at bar lies more on determining the applicable moral standards and less on religious freedom, Mme.
Justice Ynares-Santiago's dissent nevertheless discussed respondent's plea of religious freedom and disposed of this defense by stating that "(a) clear and
present danger of a substantive evil, destructive to public morals, is a ground for the reasonable regulation of the free exercise and enjoyment of religious
profession. (American Bible Society v. City of Manila, 101 Phil. 386 [1957]). In addition to the destruction of public morals, the substantive evil in this case is
the tearing down of morality, good order, and discipline in the judiciary." However, the foregoing discussion has shown that the "clear and present danger"
test that is usually employed in cases involving freedom of expression is not appropriate to the case at bar which involves purely religious conduct. The
dissent also cites Reynolds in supporting its conclusion that respondent is guilty of "disgraceful and immoral conduct." The Reynolds ruling, however, was
reached with a strict neutrality approach, which is not the approach contemplated by the Philippine constitution. As discussed above, Philippine jurisdiction
adopts benevolent neutrality in interpreting the religion clauses.

In the same vein, Mr. Justice Carpio's dissent which employs strict neutrality does not reflect the constitutional intent of employing benevolent neutrality in
interpreting the Philippine religion clauses. His dissent avers that respondent should be held administratively liable not for "disgraceful and immoral conduct"
but "conduct prejudicial to the best interest of the service" as she is a necessary co-accused of her partner in concubinage. The dissent stresses that being a
court employee, her open violation of the law is prejudicial to the administration of justice. Firstly, the dissent offends due process as respondent was not
given an opportunity to defend herself against the charge of "conduct prejudicial to the best interest of the service." In addition, there is no evidence of the
alleged prejudice to the best interest of the service. Most importantly, the dissent concludes that respondent's plea of religious freedom cannot prevail
without so much as employing a test that would balance respondent's religious freedom and the state's interest at stake in the case at bar. The foregoing
discussion on the doctrine of religious freedom, however, shows that with benevolent neutrality as a framework, the Court cannot simply reject respondent's
plea of religious freedom without even subjecting it to the "compelling state interest" test that would balance her freedom with the paramount interests of the
state. The strict neutrality employed in the cases the dissent cites -Reynolds, Smith and People v. Bitdu decided before the 1935 Constitution which
unmistakably shows adherence to benevolent neutrality - is not contemplated by our constitution.

Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik 451 cited in Mr. Justice Carpio's dissent decisive of the immorality issue in
the case at bar. In that case, the Court dismissed the charge of immorality against a Tausug judge for engaging in an adulterous relationship with another
woman with whom he had three children because "it (was) not 'immoral' by Muslim standards for Judge Malik to marry a second time while his first marriage
(existed)." Putting the quoted portion in its proper context would readily show that the Sulu Islamic case does not provide a precedent to the case at bar.
Immediately prior to the portion quoted by the dissent, the Court stressed, viz: "(s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim
Personal Laws of the Philippines, provides that the penal laws relative to the crime of bigamy 'shall not apply to a person married x x x under Muslim Law,' it
is not 'immoral' by Muslim standards for Judge Malik to marry a second time while his first marriage exists." 452 It was by law, therefore, that the Muslim
conduct in question was classified as an exception to the crime of bigamy and thus an exception to the general standards of morality. The constitutionality of
P.D. No. 1083 when measured against the Establishment Clause was not raised as an issue in the Sulu Islamic case. Thus, the Court did not determine
whether P.D. No. 1083 suffered from a constitutional infirmity and instead relied on the provision excepting the challenged Muslim conduct from the crime of
bigamy in holding that the challenged act is not immoral by Muslim standards. In contradistinction, in the case at bar, there is no similar law which the Court
can apply as basis for treating respondent's conduct as an exception to the prevailing jurisprudence on illicit relations of civil servants. Instead, the Free
Exercise Clause is being invoked to justify exemption.

B. Application of Benevolent Neutrality and the Compelling State Interest Test to the Case at Bar

The case at bar being one of first impression, we now subject the respondent's claim of religious freedom to the "compelling state interest" test from a
benevolent neutrality stance - i.e. entertaining the possibility that respondent's claim to religious freedom would warrant carving out an exception from the
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Civil Service Law; necessarily, her defense of religious freedom will be unavailing should the government succeed in demonstrating a more compelling state
interest.

In applying the test, the first inquiry is whether respondent's right to religious freedom has been burdened. There is no doubt that choosing between keeping
her employment and abandoning her religious belief and practice and family on the one hand, and giving up her employment and keeping her religious
practice and family on the other hand, puts a burden on her free exercise of religion. In Sherbert, the Court found that Sherbert's religious exercise was
burdened as the denial of unemployment benefits "forces her to choose between following the precepts of her religion and forfeiting benefits, on the one
hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand." The burden on respondent in the case at bar is even
greater as the price she has to pay for her employment is not only her religious precept but also her family which, by the Declaration Pledging Faithfulness,
stands "honorable before God and men."

The second step is to ascertain respondent's sincerity in her religious belief. Respondent appears to be sincere in her religious belief and practice and is not
merely using the "Declaration of Pledging Faithfulness" to avoid punishment for immorality. She did not secure the Declaration only after entering the
judiciary where the moral standards are strict and defined, much less only after an administrative case for immorality was filed against her. The Declaration
was issued to her by her congregation after ten years of living together with her partner, Quilapio, and ten years before she entered the judiciary. Ministers
from her congregation testified on the authenticity of the Jehovah's Witnesses' practice of securing a Declaration and their doctrinal or scriptural basis for
such a practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal punishment for illicit conduct but to make the "union" of
their members under respondent's circumstances "honorable before God and men." It is also worthy of notice that the Report and Recommendation of the
investigating judge annexed letters 453 of the OCA to the respondent regarding her request to be exempt from attending the flag ceremony after Circular No.
62-2001 was issued requiring attendance in the flag ceremony. The OCA's letters were not submitted by respondent as evidence but annexed by the
investigating judge in explaining that he was caught in a dilemma whether to find respondent guilty of immorality because the Court Administrator and
Deputy Court Administrator had different positions regarding respondent's request for exemption from the flag ceremony on the ground of the Jehovah's
Witnesses' contrary belief and practice. Respondent's request for exemption from the flag ceremony shows her sincerity in practicing the Jehovah's
Witnesses' beliefs and not using them merely to escape punishment. She is a practicing member of the Jehovah's Witnesses and the Jehovah ministers
testified that she is a member in good standing. Nevertheless, should the government, thru the Solicitor General, want to further question the respondent's
sincerity and the centrality of her practice in her faith, it should be given the opportunity to do so. The government has not been represented in the case at
bar from its incipience until this point.

In any event, even if the Court deems sufficient respondent's evidence on the sincerity of her religious belief and its centrality in her faith, the case at bar
cannot still be decided using the "compelling state interest" test. The case at bar is one of first impression, thus the parties were not aware of the burdens of
proof they should discharge in the Court's use of the "compelling state interest" test. We note that the OCA found respondent's defense of religious freedom
unavailing in the face of the Court's ruling in Dicdican v. Fernan, et al., viz:

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

It is apparent from the OCA's reliance upon this ruling that the state interest it upholds is the preservation of the integrity of the judiciary by maintaining
among its ranks a high standard of morality and decency. However, there is nothing in the OCA's memorandum to the Court that demonstrates how this
interest is so compelling that it should override respondent's plea of religious freedom nor is it shown that the means employed by the government in
pursuing its interest is the least restrictive to respondent's religious exercise.

Indeed, it is inappropriate for the complainant, a private person, to present evidence on the compelling interest of the state. The burden of evidence should
be discharged by the proper agency of the government which is the Office of the Solicitor General. To properly settle the issue in the case at bar, the
government should be given the opportunity to demonstrate the compelling state interest it seeks to uphold in opposing the respondent's stance that her
conjugal arrangement is not immoral and punishable as it comes within the scope of free exercise protection. Should the Court prohibit and punish her
conduct where it is protected by the Free Exercise Clause, the Court's action would be an unconstitutional encroachment of her right to religious
freedom.454 We cannot therefore simply take a passing look at respondent's claim of religious freedom, but must instead apply the "compelling state interest"
test. The government must be heard on the issue as it has not been given an opportunity to discharge its burden of demonstrating the state's compelling
interest which can override respondent's religious belief and practice. To repeat, this is a case of first impression where we are applying the "compelling
state interest" test in a case involving purely religious conduct. The careful application of the test is indispensable as how we will decide the case will make a
decisive difference in the life of the respondent who stands not only before the Court but before her Jehovah God.

IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The Solicitor General is ordered to intervene in the case where it will
be given the opportunity (a) to examine the sincerity and centrality of respondent's claimed religious belief and practice; (b) to present evidence on the
state's "compelling interest" to override respondent's religious belief and practice; and (c) to show that the means the state adopts in pursuing its interest is
the least restrictive to respondent's religious freedom. The rehearing should be concluded thirty (30) days from the Office of the Court Administrator's receipt
of this Decision.

SO ORDERED.

Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga, JJ., concur.

Bellosillo and Vitug, JJ., please see separate opinion.
Ynares-Santiago, and Carpio, JJ., see dissenting opinion.
Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting opinion of J. Carpio.
Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.
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13. G.R. Nos. 115132-34 August 9, 1995

IMELDA R. MARCOS, petitioner, vs. THE HONORABLE SANDIGANBAYAN (First Division) and the PEOPLE OF THE PHILIPPINES, respondents.

MENDOZA, J.:

This is a petition for certiorari to set aside as arbitrary and in grave abuse of discretion resolutions of the Sandiganbayan's First Division denying petitioner's
motion for leave to travel abroad for medical treatment.

Petitioner, former First Lady and widow of former President Ferdinand E. Marcos, is the defendant in several criminal cases for violations of the Anti Graft
and Corrupt Practices Act (R.A. No. 3019) now pending in the Sandiganbayan and in the regular courts. In two of these cases,  i.e., Criminal Case Nos.
17450 and 17453, petitioner was found guilty by the First Division of the Sandiganbayan of violating § 3(g) of the Anti Graft and Corrupt Practices Act (R.A.
No. 3019) and was sentenced to suffer in each case imprisonment for an indeterminate period of 9 years and 1 day as minimum to 12 years and 10 days as
maximum, with perpetual disqualification from public office. Petitioner filed a motion for reconsideration, which is pending resolution in the Sandiganbayan.

After her conviction in the two cases petitioner filed on December 24, 1993 a "Motion for Leave to Travel Abroad" to seek diagnostic tests and treatment by
practitioners of oriental medicine in the People's Republic of China allegedly because of "a serious and life threatening medical condition" requiring facilities
not available in the Philippines. Petitioner's motion was denied by the Sandiganbayan for failure of petitioner to give notice to the prosecution and because
the time asked (December 29, 1993) was too close for the court to inform itself of the basis of the motion.

On December 29, 1993, petitioner filed in another case (Criminal Case No. 18742) 1 an "Urgent Ex-Parte Motion for Permission to Travel Abroad" to undergo
diagnosis and treatment in China. The motion was supported by Ambulatory BP Reports, Nuclear Medicine Reports and Computed Tomography Scan
Results prepared by her physician and cardiologist, Dr. Roberto V. Anastacio, and other doctors at the Makati Medical Center.

On January 4, 1994, petitioner filed In Criminal Case Nos. 17450 and 17453 another "Motion for Leave to Travel Abroad," to places including the United
States and Europe, "if necessary," for treatment of "hypertensive heart disease, uncontrolled angina pectoris, and anterior myocardial infarction." It was
alleged that the tests needed were not available in the Philippines.

The Chairman of respondent court's First Division, Presiding Justice Francis E. Garchitorena, contacted Dr. Gregorio B. Patacsil, Officer-in-Charge of the
Philippine Heart Center, and later wrote him a letter, 2 asking for "expert opinion on coronary medicine," particularly on the following questions:

1. Is [petitioner's] condition life-threatening?

2. What are the "sophisticated biochemical tests" necessary (not merely desirable), if any are needed at all, to ascertain and remedy her condition?

3. Are these tests available here?

4. Is the present level of expertise in the Philippines adequate to respond to her condition?

The Presidential Commission on Good Government filed a manifestation interposing no objection to petitioner's motions "primarily on humanitarian grounds
provided that the accused comply with the terms and conditions for travel as may be imposed" by respondent court. The Office of the Special Prosecutor, 3 on
the other hand, opposed the motions, contending that:

1. the absolute necessity to go abroad was not demonstrated;

2. no statement was made by the accused that medical equipment and facilities here were "sorrily" inadequate for the needs of the movant;

3. the conviction of the accused in Criminal Cases No. 17450 and No. 17453 might motivate her not to return if she were to be authorized to leave
the country.

On January 7, 1994 hearing was held on petitioner's motion, during which petitioner presented Dr. Roberto V. Anastacio. After the hearing, the
Sandiganbayan informed the parties that a copy of petitioner's first motion and its supporting documents had been sent to Dr. Patacsil for study and
comment by a committee of cardiologists.

After consulting Dr. Anastacio, petitioner's counsel asked the court to include among the questions to the committee the following: "Without the Biochemical
test, may proper treatment be administered to Mrs. Marcos?" Petitioner's counsel also asked the court to include the list of medicine being taken by
petitioner as part of the study. These requests were granted by the court.

Thereafter, a "Supplement to the Motion for Leave Abroad" was filed on January 17, 1994 together with additional documents, consisting of the following:

(a) a faxed letter from Dr. Denton A. Cooley of the Texas Heart Institute dated January 11, 1994;

(b) a letter dated May 9, 1990 from David B. Case, M.D. addressed to lawyer Gerry Spence;

(c) a letter dated May 23, 1990 from Dr. Vincent De Quattro of the University of Southern California Hypertension Diagnostic Laboratory;

(d) two letters, both dated January 3, 1994 from China, one from the Tranjin Medical College, and another without letterhead from one F.S. Tsui,
both letters offering their facilities for diagnosis and treatment of hypertension and related illness through the "Classic Art of Chinese Medical
Technology."

On January 20, 1994, the Sandiganbayan received by FAX machine the report of the committee, 4 containing findings which were contrary to the conclusions
of petitioner's physicians. The Presiding Justice immediately informed by phone petitioner's counsel, Attorneys Vicente D. Millora and Manuel M. Lazaro, of
 85

the committee's report. Atty. Lazaro requested that a copy of the report be sent to him by FAX machine, while Atty. Millora got his copy personally from the
court.

On January 26, 1994, Dr. Ramon F. Abarquez, Jr. was heard by the court on his committee's report. Present at the hearing were the two lawyers of
petitioner and Dr. Anastacio.

On February 11, 1994, the court accepted petitioner's "Supplemental Motion to Travel Abroad" and heard the rebuttal testimony of Dr. Roberto V. Anastacio,
as well as the testimony of Dr. Jorge Garcia, heart surgeon from Washington, D.C., in support of petitioner's motion to travel abroad.

On February 18, 1994 the court denied petitioner's motions. The dispositive portion of its resolution reads:

IN VIEW OF THE FOREGOING, it is the judgment of this Court that the imperative necessity of the accused to undertake a trip abroad for
diagnosis and treatment has not been established and for this reason DENIES the various motions of accused Imelda R. Marcos to leave for
abroad.

SO ORDERED.

Petitioner filed a motion for reconsideration and a "Motion to Admit Clinical Summary and to Resolve Motion for Reconsideration." The Clinical Summary
was a recent medical report on petitioner's condition after she had undergone another medical examination at the Philippine Heart Center 5 Petitioner also
filed a "Motion to Admit Recognizance in Support of, and to Resolve Soonest, the Motion for Reconsideration to Travel Abroad." Attached to the motion were
letters of Vice President Joseph E. Estrada offering to be guarantor for the return of petitioner and those of twenty four members of the House of
Representatives6 requesting the court to allow petitioner to travel abroad.

In a resolution dated April 19, 1994, respondent court denied petitioner's motion for reconsideration for lack of merit even as it expressed disapproval of the
intervention of the Vice President and the twenty four congressmen and warned them and petitioner's counsel, Atty. Rodolfo U. Jimenez, that "repetition of
any attempt to influence the resolutions, decisions or orders or any judicial action of [respondent court] will be responded to appropriately."

Hence, this petition for certiorari to set aside the resolutions dated February 18, 1994 and April 19, 1994 of the First Division of the Sandiganbayan on the
ground that they were issued with grave abuse of discretion, amounting to lack or in excess of jurisdiction. Petitioner claims that

1. [The Sandiganbayan] arbitrarily disregarded or misinterpreted the testimonies, medical findings and recommendations of petitioner's attending
physicians and relied on or substituted them with the academic views of Dr. Abarquez and the Committee, who never examined or treated
personally the petitioner, and erroneously concluded "that the necessity for trip abroad by the accused for diagnosis and treatment has not been
established";

2. It adopted an unusual and unorthodox conduct of trial as demonstrated by the following: (a) it motu propio contacted a third party asking the
latter to give an opinion on petitioner's motion and medical findings; (b) it unusually participated in the examination of petitioner's witnesses; (c)
thru its PJ, it presented as own witness; (d) it requested the formation of a committee to study the evidence presented; (e) it did not decide the
case on the basis of the evidence presented; (f) it decided on the basis of evidence (academic) it sought;

3. It failed to resolve that, in the clash between basic constitutional rights of the petitioner and the authority of the court over the petitioner, the
basic constitutional rights must prevail;

4(a). It considered the conviction of petitioner in two (2) criminal cases which are pending reconsideration as factors in denying the rights of
petitioner to life, health and liberty and depriving the  penumbras of such right to give life and substance;

4(b). Respondent court violated the cluster of rights of "personhood", "privacy" or "personal liberty".

5. It perceived that there is no "imperative necessity" for petitioner to avail of medical examination and treatment abroad not withstanding that such
perception/conclusion cannot constitute a cause to deny or deprive petitioner of her constitutional rights, nor can it refute the medical findings of
petitioner's attending physicians.

Called upon to comment, the Solicitor General, in representation of the prosecution in the criminal cases, contends that respondent court acted properly in
seeking the advice of medical experts in regard to petitioner's motion to travel; that in any event petitioner is estopped from questioning the referral of her
medical condition to other experts by agreeing to submit additional questions for their consideration; and that the right to life is not absolute but must be
balanced by the State's right to prosecute and enforce the judgments of its courts, and that petitioner's conviction in two cases is relevant along with
"humanitarian and equity" considerations.

The question for decision is whether the Sandiganbayan gravely abused its discretion in denying petitioner's request to travel abroad for medical treatment.
After due consideration of the parties' arguments, we find that it did not.

Respondent court had to seek expert opinion because petitioner's motion was based on the advice of her physician. The court could not be expected to just
accept the opinion of petitioner's physician in resolving her request for permission to travel. The subject lay beyond its competence and since the grant of the
request depended on the verification of the claim that petitioner was suffering from a medical condition that was alleged to be serious and life threatening,
the respondent court, we think, followed the only prudent course available of seeking the opinion of other specialists in the field.

Indeed, when even in their own field of expertise (law) courts are allowed to invite  amici curiae to shed light on recondite points of law, there is no reason for
denying them assistance on other subjects. Presiding Justice Garchitorena's letter to Dr. Patacsil is notable in this regard for its sedulous concern for
"greater need for information and expert advise" to the end that respondent court may be able to determine "whether or not it is necessary and urgent for
petitioner to travel abroad."
 86

What would be objectionable would be if respondent court obtained information without disclosing its source to the parties and used it in deciding a case
against them. Then the parties could justifiably complain that their right to due process has been violated. But, in this case, everything was on the level, with
the parties taking part in the proceedings of the court.

At all events if petitioner did not agree to the procedure adopted by the court, her counsel should have objected when informed by the court on January 7,
1994 that it had referred Dr. Anastacio's report to the Philippine Heart Center for advice and opinion. Counsel did not object. Instead, after consulting Dr.
Anastacio, he requested the court to submit additional questions for referral to the Philippine Heart Center and later took part in cross examining Dr.
Abarquez, Jr. when the latter testified. Petitioner is thus estopped from questioning what she now calls the "unusual and unorthodox" manner of resolving
her request for permission to travel abroad.

Now, if the respondent court disregarded the findings and recommendations of petitioner's physician, it was because in light of the report of the panel of
experts which reviewed the findings and recommendations of petitioner's physicians, petitioner failed to prove the necessity for a trip abroad. It should be
emphasized that considering the fact that she is facing charges before the courts in several cases, in two of which she was convicted although the decision
is still pending reconsideration, petitioner did not have an absolute right to leave the country and the burden was on her to prove that because of danger to
health if not to her life there was necessity to seek medical treatment in foreign countries. 7

Nor is there warrant for the claim that respondent court acted arbitrarily in disregarding the findings of petitioner's physicians and relying on the opinion of
specialists from the Philippine Heart Center because the latter did not personally examine her and for that reason their opinion is allegedly "academic." The
question raised by petitioner's motion was not whether petitioner was suffering from a serious and life threatening medical condition. Rather the question
before the Sandiganbayan was whether on the basis of reports attached to the motions for travel there was evidence to show that she was suffering from
such ailments (i.e., coronary artery disease and labile hypertension) and there was need for diagnostic tests which could only be performed abroad.
Consequently, it was unnecessary for the Philippine Heart Center's specialists to examine the petitioner personally.  Given the findings of petitioner's own
physicians, they found that petitioner had not been shown to be suffering from coronary artery disease and uncontrolled high blood pressure (labile
hypertension).

The claim that petitioner is suffering from a life threatening medical condition is based on a letter dated November 4, 1993 of Dr. Roberto V. Anastacio,
cardiologist at the Makati Medical Center, to Dr. Jorge M. Garcia, heart surgeon of the Washington Heart Institute at Washington D.C., recommending
diagnostic tests abroad for petitioner. In his letter (marked Annex B of petitioner's first "Motion for Leave to Travel Abroad") Dr. Anastacio claimed that
petitioner complained of chest pains; that she had an uncontrolled high blood pressure with "a spread of 200/100-100/70;" that the ambulatory blood
pressure monitoring device showed her highest systolic BP to be from 184 to 204 mmHg at 6 P.M., 1:35 A.M. and 3 A.M., and her highest diastolic pressure
to be 120 mmHg; that an Electrocardiogram indicated a myocardial infarction; that an Exercise-HexaMibi Tc-99m myocardial perfusion imaging showed an
"abnormal myorcardial injury in the anterior region." Dr. Anastacio concluded:

Definitely, we have established that Mrs. Marcos is suffering from a dangerous level of rises in blood pressure provoked by high level of emotional
stress and now complicated with a strong evidence of myocardial injury .

Her significant family history of hypertension in her father and siblings (eldest sister and brother) and that indeed two of them have experienced
sudden cardiac death as complicating manifestations of uncontrolled high blood pressure of this type  place this patient in the high risk category of
sudden cardiac death. (Emphasis added)

He recommended:

Definitely, Mrs. Marcos should undergo immediate studies [abroad] to define the following:

1. To investigate invasively (Coronary Arteriogram) to correlate the severity of coronary obstruction and the recent development of myocardial
infarction in relation to sudden cardiac death.

2. To do biochemical studies at the same time e.g. Continuous-Serial Vasopressine-Arginine and Catecholamine level determination in relation
with her uncontrolled high, dangerous level of high blood pressure not only in the stratification of her "Sudden Death" risk staging but likewise,
equally important is the control of her uncontrolled high blood pressure.

3. The observed sensitiveness to the drugs administered, makes drug therapy risky without a concomittant close monitoring of the hemodynamic
and biochemical parameters which will help avert a possible iatrogenic, fatal cardiovascular event.

Based on these findings, Dr. Roman F. Abarquez, Jr., Dr. Homobono B. Calleja and Dr. Romeo A. Divinagracia, however, found the diagnosis of "definite
coronary artery disease" to be "questionable" for the following reasons:

1) The location and character of the chest pain  (sharp pain lasting for a few seconds left mid axillary and not related to effort) i s not the common
presentation of pain due to coronary artery disease  (angina pectoris).

2) The Stress Test done during the Thallium Scan was adequate (maximum predicted heart rate of 106%) and yet was negative for ischemia.

3) The Thallium Myocardial imaging (Nuclear scan) showed only a small questionable perfusion defect on the anterior wall.  It can also be
considered as a false positive finding due to soft tissue artifacts as mentioned in the report. (Emphasis added)

In fact the finding that petitioner did not have ischemia 8 and that there was only a small perfusion defect on the anterior wall which could be considered a
"false positive finding" is based on petitioner's own nuclear medical report. 9 prepared by the Makati Medical Center, which contains the following conclusions:

CONCLUSIONS: ABNORMAL MYOCARDIAL PERFUSION IMAGING. EVIDENCE FOR PRIOR MYOCARDIAL INJURY IN THE ANTERIOR
REGION. THERE WAS NO EVIDENCE FOR STRESS INDUCED MYOCARDIAL ISCHEMIA.

ALTHOUGH THESE FINDINGS ARE SUGGESTIVE OF CORONARY ARTERY DISEASE, PHOTON ATTENUATION SECONDARY TO SOFT
TISSUE ARTIFACTS CAN BE EXCLUDED.
 87

As to the ambulatory blood pressure monitor reports, the Abarquez panel noted:

The diagnosis of hypertensive heart disease is questionable. Mrs. Marcos has transient (labile) hypertension. In the ambulatory BP monitoring
records — there were only 2 transient rises of elevated systolic pressure and 3 episodes of elevated diastolic pressure. 5 episodes of transient
systolic BP elevation and 5 episodes of transient elevated diastolic pressure occurred in the 2nd ambulatory recording. The patient did not submit
a diary during both occasions when her ambulatory BP recording was performed.

A patient is considered to have sustained hypertension if 30% or more of the recorded blood pressures on ambulatory monitoring are hypertensive
levels. The term hypertensive heart disease is used to denote heart involvement due to effects of long standing (chronic) hypertension. There is no
evidence in the medical brief to show that there is left ventricular hypertrophy or left ventricular dysfunction. In fact, the previous echocardiogram
was reported to be normal.

For this reason the committee questioned the need for petitioner to have biochemical tests abroad. Even without these tests, it noted, Dr. Anastacio had
"already been treating her with medicines that are used for hypertension and coronary heart disease."

With respect to Dr. Anastacio's claim that petitioner is in the high risk group of sudden cardiac death, the committee stated that a history of sudden death in
the family alone will not support such a conclusion:

The known direct determinants for sudden cardiac death are: (1) ventricular electrical instability (ventricular arrhytmias), (2) extensive coronary
artery narrowing, (3) abnormal left ventricular function, (4) electrocardiographic conduction and repolarization abnormalities.

In the absence of the above factors for sudden cardiac death, the presence of a family history of sudden cardiac death  alone cannot stand as a
strong argument for a high risk of sudden cardiac death. Even the family history of sudden cardiac death in this case is still questionable since we
are not furnished with definite evidence that the said members of the family actually died of sudden death.

In summary, the evidence submitted do not confirm the allegation that Mrs . Marcos is in the high risk group for sudden cardiac death . (Emphases
added)

The group made the following conclusions and recommendations:

RECOMMENDED TESTS:

1) Coronary Angiography — to definitely establish the presence or absence of coronary artery obstruction and severity of the disease.

2) 2-D Echo Doppler Echocardlography — to demonstrate the presence of ventricular dysfunction or hypertrophy.

3) Ambulatory Holter Monitoring — to find out whether serious arrhythmias (irregularities of heart beat) are present or not.

CONCLUSIONS:

1) The diagnosis or significant coronary heart disease is  not confirmed from the brief presented.

2) Marcos has transient elevation of blood pressure" which be reactive to situations but there is no evidence to indicate the presence of
hypertensive heart disease.

3) The tests we have recommended are available in the Philippines . Proper treatment can be given to Mrs. Marcos even in the absence of the
suggested biochemical tests. (Emphasis added)

4) The present facilities and expertise in the Philippines are more than adequate to diagnose and treat patients with hypertension and/or coronary
heart disease. (Emphasis added)

Dr. Abarquez, Jr. testified on January 26, 1994 on the report of his committee. Dr. Anastacio was present at that hearing, but he did not refute Dr. Abarquez,
Jr.'s conclusions. Instead it appears that he performed the tests recommended by the committee, namely:

1) Coronary Angiography — to definitely establish the presence or absence of coronary artery obstruction and severity of the disease.

2) 2-D Echo Doppler Echocardiography — to demonstrate the presence of ventricular dysfunction or hypertrophy.

3) Ambulatory Holter Monitoring — to find out whether serious arrhythmias (irregularities of heart beat) are present or not.

The results, as the Sandiganbayan said in its resolution, were:

Dr. Roberto Anastacio, accused Marcos' attending physician, appears to have subsequently subjected accused Marcos to another set of tests
during her latest confinement at the Makati Medical Center, principally the Echo Doppler Test and the Holter 24-hour monitoring test.

The 2-D Echo Doppler test, which the Committee of Cardiologists recommended was administered on February 1, 1994 (Exhibit "D-
Supplemental") and all findings read normal.

Dr. Anastacio said that the handwritten notes of Drs. Dy and Lapitan who had read the results of the Ambulatory Hotter Monitor,  i.e., an ambulant
electrocardiogram, and the readings did not show that there was anything wrong with accused Marcos. In fact, the readings themselves said that
the average pulse rate was at 68 beats per minute (from 50 to 134) no blockages, no PVCs, no PACs, no indication of arrythmia.
 88

It would appear that earlier on January 31, 1994, petitioner had also undergone electrocardiogram tests at the Makati Medical Center in which cardiologists
are rotated to do the readings. Dr. Esperanza Cabral found the electrocardiogram results to be "Normal." The results of the echocardiogram were read by
another cardiologist, Dr. Adoracion Nambuyan-Abad, and her finding was approved by Dr. Benjamin N. Alimurong. The results were also "Normal."

Although Dr. Anastacio subsequently conducted another electrocardiogram test on petitioner and found the existence of myocardial infarction, as the
Sandiganbayan noted, Dr. Anastacio's finding was not read or concurred in by another cardiologist, contrary to the procedure followed at the Makati Medical
Center.10 It is, therefore, also questionable.

The evidence submitted to it, according to the Abarquez committee, "[did] not confirm the allegation that Mrs. Marcos is in the high risk group of sudden
cardiac death." Perhaps the best proof that she is  not in the group is the fact that she ran in the last election for a seat in the House of Representative and
won. It may be assumed that she waged an arduous political campaign but apparently is none the worse for it.

Considering the foregoing we cannot say that respondent court trifled with petitioner's constitutionally guaranteed right to life, health and liberty. What
petitioner denounces as the "unusual and unorthodox conduct of the trial" by the court's Presiding Justice owed more, it would seem, from the latter's robust
and rather active personality rather than to any ill motive or hostility he entertained toward petitioner, the latter's counsel or her witnesses. It is matter of
record that on three different occasions, petitioner had been permitted to travel abroad. But her later conviction in two cases dictated the need for greater
caution. To be sure, conviction is not yet final view of a motion for reconsideration filed by petitioner. But a person's right to travel is subject to the usual
contraints imposed by the very necessity of safeguarding the system of justice. In such cases, whether the accused should be permitted to leave the
jurisdiction for humanitarian reason is a matter of the court's sound discretion.

The active intervention of respondent Presiding Justice in the trial the case was justified by the fact that the subject with which the court was dealing was a
highly technical one and he wanted to clarify for himself a number of medical question. That a judge has the power — if not indeed a duty — to do this
teaching of People v. Obngayan; 11

There are obviously certain rights to the trier of facts due to the nature of (a judge's) function. Among these is the right to question a witness with a
view to satisfying his mind upon a material point which present itself during the trial as to the credibility of such witness.

This Court quoted the following from Justice Labrador's opinion Ventura v. Judge Yatco: 12

While judges should as much as possible refrain from showing partiality to one party and hostility to another, it does not mean that a trial judge
should keep mum throughout the trial and allow parties to ask the questions that they desire, on issues which they think are the important issues,
when the former are improper and the latter, immaterial. If trials are to be expedited, judges must take a leading part therein, by directing counsel
to submit the evidence on the facts in the dispute by asking clarifying questions, and by showing an interest in a fast and fair trial. Judges are not
mere referees like those of a boxing bout, only to watch and decide the result of a game; they should have as much interest as counsel in the
orderly and expeditious presentation of evidence, calling attention of counsel to point at issue that are overlooked, directing them to ask the
question that would elicit the fact on the issues involved, clarifying ambiguous remarks by witnesses, etc. Unless they take an active part in trials in
the above form and manner, and allow counsel to ask questions whether pertinent or impertinent, material or immaterial, the speedy administration
of justice which is the aim of the Government and of the people cannot be attained. Counsel should, therefore, not resent any interest that the
judge takes in the conduct of the trial, they should be glad that a trial judge takes such interest and help in the determination of truth.

The active participation of respondent court in examining petitioner's witnesses in the case merely indicated the court's deep concern with the truth of
petitioner's medical condition.

What perhaps should have been done was for petitioner to request an examination of her medical condition by a joint team of cardiologist and other medical
experts instead of having the findings of her physician reviewed by the other specialists. A joint investigation will have the advantage of not being unduly
adversarial since the purpose is the common objective of arriving at a consensus among the experts.

It is not late for the petitioner to ask for this. She can file another motion before the Sandiganbayan. This observation is made because after the petitioner in
the case had been filed, petitioner filed a motion for leave to travel, this time on the ground that she is suffering from a difficult type of glaucoma which
threatens to make her blind. Her motion is supported by a medical certificate of Dr. Manuel B. Agulto, opthalmologist and glaucoma expert, who
recommends that petitioner see Dr. Richard J. Simmons of Boston, Massachusetts, and avail herself of his "internationally renowned expertise and
recognized authority in this particularly difficult glaucoma type." 13 Dr. Agulto's certificate states:

This certifies that above patient has been treated by the undersigned by since 1980 for Low Tension Glaucoma which was initially diagnosed by
Richard J. Simmons, M.D. of Harvad Medical School and New England Glaucoma Research Foundation of Boston, Massachussetts.

Since then the patient has been monitored closely to prevent irreversible visual field and acuity loss. Lately we have noted a progression of her
visual field changes.

Latest pertinent clinical findings (as of April 19, 1994) include the following:

Corrected Vision: 20/20, Jaeger 1

Automated Visual field: positive paracentral depression, both eyes (April 11, 1994, copies of result appended)
Tensions: (Diurnal Range) 13-15mm Hg, right eye13-16mm Hg, left eye
Disc: Cupping of 0.6-0.7, both eyes

Remarks:

We suggest that the patient see her primary eye physician in Boston so as to avail herself of his internationally renowned expertise and recognized
authority in this particularly difficult glaucoma type.

Considering the irreversible nature of glaucoma blindness and the documented progression of her field changes plus additional and strong clinical
evidence of the unrelenting course of visual loss as was recently documented in a younger brother and patient, Alfredo T. Romualdez, who was
 89

recently declared legally blind from the same familial glaucoma, we urge Mrs. Marcos who is much older and therefore at greater risk, to consult
immediate Dr. Simmons so as to delay if not prevent the onset of very real and absolute blindness.

This motion should be addressed to the Sandiganbayan not only because whether petitioner should be allowed to leave the country is its primary concern
but also because the determination of petitioner's eye condition is question of fact to be made in the first instance by the Sandiganbayan. The court should
order a joint examination of petitioner's eye condition and resolve her motion accordingly.

WHEREFORE, the petitioner is DISMISSED without prejudice to the filling of another motion for leave to travel abroad, should petitioner still desire, based
on her heart condition. In such an event the determination of her medical condition should be made by joint panel of medical specialists recommended by
both the accused and the prosecution.

Petitioner's motion for leave to travel for medical treatment of her alleged failing eyesight is hereby referred to the Sandiganbayan with directive to the latter
to appoint a joint panel of eye specialists as outlined above.

SO ORDERED.

Narvasa, C.J., Regalado, Puno and Francisco, JJ., concur.

14. G.R. No. 133250           July 9, 2002

FRANCISCO I. CHAVEZ, petitioner, vs. PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY DEVELOPMENT CORPORATION, respondents.

CARPIO, J.:

This is an original Petition for Mandamus with prayer for a writ of preliminary injunction and a temporary restraining order. The petition seeks to compel the
Public Estates Authority ("PEA" for brevity) to disclose all facts on PEA's then on-going renegotiations with Amari Coastal Bay and Development Corporation
("AMARI" for brevity) to reclaim portions of Manila Bay. The petition further seeks to enjoin PEA from signing a new agreement with AMARI involving such
reclamation.

The Facts

On November 20, 1973, the government, through the Commissioner of Public Highways, signed a contract with the Construction and Development
Corporation of the Philippines ("CDCP" for brevity) to reclaim certain foreshore and offshore areas of Manila Bay. The contract also included the construction
of Phases I and II of the Manila-Cavite Coastal Road. CDCP obligated itself to carry out all the works in consideration of fifty percent of the total reclaimed
land.

On February 4, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1084 creating PEA. PD No. 1084 tasked PEA "to reclaim land,
including foreshore and submerged areas," and "to develop, improve, acquire, x x x lease and sell any and all kinds of lands." 1 On the same date, then
President Marcos issued Presidential Decree No. 1085 transferring to PEA the "lands reclaimed in the foreshore and offshore of the Manila Bay" 2 under the
Manila-Cavite Coastal Road and Reclamation Project (MCCRRP).

On December 29, 1981, then President Marcos issued a memorandum directing PEA to amend its contract with CDCP, so that "[A]ll future works in
MCCRRP x x x shall be funded and owned by PEA." Accordingly, PEA and CDCP executed a Memorandum of Agreement dated December 29, 1981, which
stated:

"(i) CDCP shall undertake all reclamation, construction, and such other works in the MCCRRP as may be agreed upon by the parties, to be paid
according to progress of works on a unit price/lump sum basis for items of work to be agreed upon, subject to price escalation, retention and other
terms and conditions provided for in Presidential Decree No. 1594. All the financing required for such works shall be provided by PEA.

xxx

(iii) x x x CDCP shall give up all its development rights and hereby agrees to cede and transfer in favor of PEA, all of the rights, title, interest and
participation of CDCP in and to all the areas of land reclaimed by CDCP in the MCCRRP as of December 30, 1981 which have not yet been sold,
transferred or otherwise disposed of by CDCP as of said date, which areas consist of approximately Ninety-Nine Thousand Four Hundred Seventy
Three (99,473) square meters in the Financial Center Area covered by land pledge No. 5 and approximately Three Million Three Hundred Eighty
Two Thousand Eight Hundred Eighty Eight (3,382,888) square meters of reclaimed areas at varying elevations above Mean Low Water Level
located outside the Financial Center Area and the First Neighborhood Unit." 3

On January 19, 1988, then President Corazon C. Aquino issued Special Patent No. 3517, granting and transferring to PEA "the parcels of land so reclaimed
under the Manila-Cavite Coastal Road and Reclamation Project (MCCRRP) containing a total area of one million nine hundred fifteen thousand eight
hundred ninety four (1,915,894) square meters." Subsequently, on April 9, 1988, the Register of Deeds of the Municipality of Parañaque issued Transfer
Certificates of Title Nos. 7309, 7311, and 7312, in the name of PEA, covering the three reclaimed islands known as the "Freedom Islands" located at the
southern portion of the Manila-Cavite Coastal Road, Parañaque City. The Freedom Islands have a total land area of One Million Five Hundred Seventy Eight
Thousand Four Hundred and Forty One (1,578,441) square meters or 157.841 hectares.

On April 25, 1995, PEA entered into a Joint Venture Agreement ("JVA" for brevity) with AMARI, a private corporation, to develop the Freedom Islands. The
JVA also required the reclamation of an additional 250 hectares of submerged areas surrounding these islands to complete the configuration in the Master
Development Plan of the Southern Reclamation Project-MCCRRP. PEA and AMARI entered into the JVA through negotiation without public bidding. 4 On
April 28, 1995, the Board of Directors of PEA, in its Resolution No. 1245, confirmed the JVA. 5 On June 8, 1995, then President Fidel V. Ramos, through then
Executive Secretary Ruben Torres, approved the JVA. 6
 90

On November 29, 1996, then Senate President Ernesto Maceda delivered a privilege speech in the Senate and denounced the JVA as the "grandmother of
all scams." As a result, the Senate Committee on Government Corporations and Public Enterprises, and the Committee on Accountability of Public Officers
and Investigations, conducted a joint investigation. The Senate Committees reported the results of their investigation in Senate Committee Report No. 560
dated September 16, 1997.7 Among the conclusions of their report are: (1) the reclaimed lands PEA seeks to transfer to AMARI under the JVA are lands of
the public domain which the government has not classified as alienable lands and therefore PEA cannot alienate these lands; (2) the certificates of title
covering the Freedom Islands are thus void, and (3) the JVA itself is illegal.

On December 5, 1997, then President Fidel V. Ramos issued Presidential Administrative Order No. 365 creating a Legal Task Force to conduct a study on
the legality of the JVA in view of Senate Committee Report No. 560. The members of the Legal Task Force were the Secretary of Justice, 8 the Chief
Presidential Legal Counsel,9 and the Government Corporate Counsel. 10 The Legal Task Force upheld the legality of the JVA, contrary to the conclusions
reached by the Senate Committees.11

On April 4 and 5, 1998, the Philippine Daily Inquirer and Today published reports that there were on-going renegotiations between PEA and AMARI under an
order issued by then President Fidel V. Ramos. According to these reports, PEA Director Nestor Kalaw, PEA Chairman Arsenio Yulo and retired Navy
Officer Sergio Cruz composed the negotiating panel of PEA.

On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition for Prohibition with Application for the Issuance of a Temporary Restraining Order and
Preliminary Injunction docketed as G.R. No. 132994 seeking to nullify the JVA. The Court dismissed the petition "for unwarranted disregard of judicial
hierarchy, without prejudice to the refiling of the case before the proper court." 12

On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity) as a taxpayer, filed the instant  Petition for Mandamus with Prayer for the Issuance of a
Writ of Preliminary Injunction and Temporary Restraining Order . Petitioner contends the government stands to lose billions of pesos in the sale by PEA of
the reclaimed lands to AMARI. Petitioner prays that PEA publicly disclose the terms of any renegotiation of the JVA, invoking Section 28, Article II, and
Section 7, Article III, of the 1987 Constitution on the right of the people to information on matters of public concern. Petitioner assails the sale to AMARI of
lands of the public domain as a blatant violation of Section 3, Article XII of the 1987 Constitution prohibiting the sale of alienable lands of the public domain to
private corporations. Finally, petitioner asserts that he seeks to enjoin the loss of billions of pesos in properties of the State that are of public dominion.

After several motions for extension of time, 13 PEA and AMARI filed their Comments on October 19, 1998 and June 25, 1998, respectively. Meanwhile, on
December 28, 1998, petitioner filed an Omnibus Motion: (a) to require PEA to submit the terms of the renegotiated PEA-AMARI contract; (b) for issuance of
a temporary restraining order; and (c) to set the case for hearing on oral argument. Petitioner filed a Reiterative Motion for Issuance of a TRO dated May 26,
1999, which the Court denied in a Resolution dated June 22, 1999.

In a Resolution dated March 23, 1999, the Court gave due course to the petition and required the parties to file their respective memoranda.

On March 30, 1999, PEA and AMARI signed the Amended Joint Venture Agreement ("Amended JVA," for brevity). On May 28, 1999, the Office of the
President under the administration of then President Joseph E. Estrada approved the Amended JVA.

Due to the approval of the Amended JVA by the Office of the President, petitioner now prays that on "constitutional and statutory grounds the renegotiated
contract be declared null and void."14

The Issues

The issues raised by petitioner, PEA15 and AMARI16 are as follows:

I. WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN THE PETITION ARE MOOT AND ACADEMIC BECAUSE OF SUBSEQUENT
EVENTS;

II. WHETHER THE PETITION MERITS DISMISSAL FOR FAILING TO OBSERVE THE PRINCIPLE GOVERNING THE HIERARCHY OF
COURTS;

III. WHETHER THE PETITION MERITS DISMISSAL FOR NON-EXHAUSTION OF ADMINISTRATIVE REMEDIES;

IV. WHETHER PETITIONER HAS LOCUS STANDI TO BRING THIS SUIT;

V. WHETHER THE CONSTITUTIONAL RIGHT TO INFORMATION INCLUDES OFFICIAL INFORMATION ON ON-GOING NEGOTIATIONS
BEFORE A FINAL AGREEMENT;

VI. WHETHER THE STIPULATIONS IN THE AMENDED JOINT VENTURE AGREEMENT FOR THE TRANSFER TO AMARI OF CERTAIN
LANDS, RECLAIMED AND STILL TO BE RECLAIMED, VIOLATE THE 1987 CONSTITUTION; AND

VII. WHETHER THE COURT IS THE PROPER FORUM FOR RAISING THE ISSUE OF WHETHER THE AMENDED JOINT VENTURE
AGREEMENT IS GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT.

The Court's Ruling

First issue: whether the principal reliefs prayed for in the petition are moot and academic because of subsequent events.

The petition prays that PEA publicly disclose the "terms and conditions of the on-going negotiations for a new agreement." The petition also prays that the
Court enjoin PEA from "privately entering into, perfecting and/or executing any new agreement with AMARI."

PEA and AMARI claim the petition is now moot and academic because AMARI furnished petitioner on June 21, 1999 a copy of the signed Amended JVA
containing the terms and conditions agreed upon in the renegotiations. Thus, PEA has satisfied petitioner's prayer for a public disclosure of the
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renegotiations. Likewise, petitioner's prayer to enjoin the signing of the Amended JVA is now moot because PEA and AMARI have already signed the
Amended JVA on March 30, 1999. Moreover, the Office of the President has approved the Amended JVA on May 28, 1999.

Petitioner counters that PEA and AMARI cannot avoid the constitutional issue by simply fast-tracking the signing and approval of the Amended JVA before
the Court could act on the issue. Presidential approval does not resolve the constitutional issue or remove it from the ambit of judicial review.

We rule that the signing of the Amended JVA by PEA and AMARI and its approval by the President cannot operate to moot the petition and divest the Court
of its jurisdiction. PEA and AMARI have still to implement the Amended JVA. The prayer to enjoin the signing of the Amended JVA on constitutional grounds
necessarily includes preventing its implementation if in the meantime PEA and AMARI have signed one in violation of the Constitution. Petitioner's principal
basis in assailing the renegotiation of the JVA is its violation of Section 3, Article XII of the Constitution, which prohibits the government from alienating lands
of the public domain to private corporations. If the Amended JVA indeed violates the Constitution, it is the duty of the Court to enjoin its implementation, and
if already implemented, to annul the effects of such unconstitutional contract.

The Amended JVA is not an ordinary commercial contract but one which seeks to transfer title and ownership to 367.5 hectares of reclaimed lands and
submerged areas of Manila Bay to a single private corporation . It now becomes more compelling for the Court to resolve the issue to insure the government
itself does not violate a provision of the Constitution intended to safeguard the national patrimony. Supervening events, whether intended or accidental,
cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution. In the instant case, if the Amended JVA runs counter to
the Constitution, the Court can still prevent the transfer of title and ownership of alienable lands of the public domain in the name of AMARI. Even in cases
where supervening events had made the cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling
principles to guide the bench, bar, and the public. 17

Also, the instant petition is a case of first impression. All previous decisions of the Court involving Section 3, Article XII of the 1987 Constitution, or its
counterpart provision in the 1973 Constitution, 18 covered agricultural lands sold to private corporations which acquired the lands from private parties. The
transferors of the private corporations claimed or could claim the right to judicial confirmation of their imperfect titles 19 under Title II of Commonwealth Act.
141 ("CA No. 141" for brevity). In the instant case, AMARI seeks to acquire from PEA, a public corporation, reclaimed lands and submerged areas for  non-
agricultural purposes by purchase under PD No. 1084 (charter of PEA) and Title III of CA No. 141. Certain undertakings by AMARI under the Amended JVA
constitute the consideration for the purchase. Neither AMARI nor PEA can claim judicial confirmation of their titles because the lands covered by the
Amended JVA are newly reclaimed or still to be reclaimed. Judicial confirmation of imperfect title requires open, continuous, exclusive and notorious
occupation of agricultural lands of the public domain for at least thirty years since June 12, 1945 or earlier. Besides, the deadline for filing applications for
judicial confirmation of imperfect title expired on December 31, 1987. 20

Lastly, there is a need to resolve immediately the constitutional issue raised in this petition because of the possible transfer at any time by PEA to AMARI of
title and ownership to portions of the reclaimed lands. Under the Amended JVA, PEA is obligated to transfer to AMARI the latter's seventy percent
proportionate share in the reclaimed areas as the reclamation progresses. The Amended JVA even allows AMARI to mortgage at any time
the entire reclaimed area to raise financing for the reclamation project. 21

Second issue: whether the petition merits dismissal for failing to observe the principle governing the hierarchy of courts .

PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the Court. The principle of hierarchy of courts applies generally
to cases involving factual questions. As it is not a trier of facts, the Court cannot entertain cases involving factual issues. The instant case, however, raises
constitutional issues of transcendental importance to the public. 22 The Court can resolve this case without determining any factual issue related to the case.
Also, the instant case is a petition for mandamus which falls under the original jurisdiction of the Court under Section 5, Article VIII of the Constitution. We
resolve to exercise primary jurisdiction over the instant case.

Third issue: whether the petition merits dismissal for non-exhaustion of administrative remedies.

PEA faults petitioner for seeking judicial intervention in compelling PEA to disclose publicly certain information without first asking PEA the needed
information. PEA claims petitioner's direct resort to the Court violates the principle of exhaustion of administrative remedies. It also violates the rule that
mandamus may issue only if there is no other plain, speedy and adequate remedy in the ordinary course of law.

PEA distinguishes the instant case from Tañada v. Tuvera 23 where the Court granted the petition for mandamus even if the petitioners there did not initially
demand from the Office of the President the publication of the presidential decrees. PEA points out that in Tañada, the Executive Department had
an affirmative statutory duty under Article 2 of the Civil Code 24 and Section 1 of Commonwealth Act No. 638 25 to publish the presidential decrees. There was,
therefore, no need for the petitioners in Tañada to make an initial demand from the Office of the President. In the instant case, PEA claims it has no
affirmative statutory duty to disclose publicly information about its renegotiation of the JVA. Thus, PEA asserts that the Court must apply the principle of
exhaustion of administrative remedies to the instant case in view of the failure of petitioner here to demand initially from PEA the needed information.

The original JVA sought to dispose to AMARI public lands held by PEA, a government corporation. Under Section 79 of the Government Auditing Code, 26 the
disposition of government lands to private parties requires public bidding. PEA was under a positive legal duty to disclose to the public the terms and
conditions for the sale of its lands . The law obligated PEA to make this public disclosure even without demand from petitioner or from anyone. PEA failed to
make this public disclosure because the original JVA, like the Amended JVA, was the result of a negotiated contract, not of a public bidding. Considering that
PEA had an affirmative statutory duty to make the public disclosure, and was even in breach of this legal duty, petitioner had the right to seek direct judicial
intervention.

Moreover, and this alone is determinative of this issue, the principle of exhaustion of administrative remedies does not apply when the issue involved is a
purely legal or constitutional question.27 The principal issue in the instant case is the capacity of AMARI to acquire lands held by PEA in view of the
constitutional ban prohibiting the alienation of lands of the public domain to private corporations. We rule that the principle of exhaustion of administrative
remedies does not apply in the instant case.

Fourth issue: whether petitioner has locus standi to bring this suit

PEA argues that petitioner has no standing to institute mandamus proceedings to enforce his constitutional right to information without a showing that PEA
refused to perform an affirmative duty imposed on PEA by the Constitution. PEA also claims that petitioner has not shown that he will suffer any concrete
 92

injury because of the signing or implementation of the Amended JVA. Thus, there is no actual controversy requiring the exercise of the power of judicial
review.

The petitioner has standing to bring this taxpayer's suit because the petition seeks to compel PEA to comply with its constitutional duties. There are two
constitutional issues involved here. First is the right of citizens to information on matters of public concern. Second is the application of a constitutional
provision intended to insure the equitable distribution of alienable lands of the public domain among Filipino citizens. The thrust of the first issue is to compel
PEA to disclose publicly information on the sale of government lands worth billions of pesos, information which the Constitution and statutory law mandate
PEA to disclose. The thrust of the second issue is to prevent PEA from alienating hundreds of hectares of alienable lands of the public domain in violation of
the Constitution, compelling PEA to comply with a constitutional duty to the nation.

Moreover, the petition raises matters of transcendental importance to the public. In  Chavez v. PCGG,28 the Court upheld the right of a citizen to bring a
taxpayer's suit on matters of transcendental importance to the public, thus -

"Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the Marcoses is an issue of 'transcendental importance to the
public.' He asserts that ordinary taxpayers have a right to initiate and prosecute actions questioning the validity of acts or orders of government
agencies or instrumentalities, if the issues raised are of 'paramount public interest,' and if they 'immediately affect the social, economic and moral
well being of the people.'

Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the proceeding involves the assertion of a public
right, such as in this case. He invokes several decisions of this Court which have set aside the procedural matter of  locus standi, when the subject
of the case involved public interest.

xxx

In Tañada v. Tuvera, the Court asserted that when the issue concerns a public right and the object of mandamus is to obtain the enforcement of a
public duty, the people are regarded as the real parties in interest; and because it is sufficient that petitioner is a citizen and as such is interested in
the execution of the laws, he need not show that he has any legal or special interest in the result of the action. In the aforesaid case, the petitioners
sought to enforce their right to be informed on matters of public concern, a right then recognized in Section 6, Article IV of the 1973 Constitution, in
connection with the rule that laws in order to be valid and enforceable must be published in the Official Gazette or otherwise effectively
promulgated. In ruling for the petitioners' legal standing, the Court declared that the right they sought to be enforced 'is a public right recognized by
no less than the fundamental law of the land.'

Legaspi v. Civil Service Commission, while reiterating Tañada, further declared that 'when a mandamus proceeding involves the assertion of a
public right, the requirement of personal interest is satisfied by the mere fact that petitioner is a citizen and, therefore, part of the general 'public'
which possesses the right.'

Further, in Albano v. Reyes, we said that while expenditure of public funds may not have been involved under the questioned contract for the
development, management and operation of the Manila International Container Terminal, 'public interest [was] definitely involved considering the
important role [of the subject contract] . . . in the economic development of the country and the magnitude of the financial consideration involved.'
We concluded that, as a consequence, the disclosure provision in the Constitution would constitute sufficient authority for upholding the petitioner's
standing.

Similarly, the instant petition is anchored on the right of the people to information and access to official records, documents and papers — a right
guaranteed under Section 7, Article III of the 1987 Constitution. Petitioner, a former solicitor general, is a Filipino citizen. Because of the
satisfaction of the two basic requisites laid down by decisional law to sustain petitioner's legal standing, i.e. (1) the enforcement of a public right (2)
espoused by a Filipino citizen, we rule that the petition at bar should be allowed."

We rule that since the instant petition, brought by a citizen, involves the enforcement of constitutional rights - to information and to the equitable diffusion of
natural resources - matters of transcendental public importance, the petitioner has the requisite locus standi.

Fifth issue: whether the constitutional right to information includes official information on on-going negotiations before a final agreement.

Section 7, Article III of the Constitution explains the people's right to information on matters of public concern in this manner:

"Sec. 7. The right of the people to information on matters of public concern shall be recognized . Access to official records, and to documents, and
papers pertaining to official acts, transactions, or decisions , as well as to government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law." (Emphasis supplied)

The State policy of full transparency in all transactions involving public interest reinforces the people's right to information on matters of public concern. This
State policy is expressed in Section 28, Article II of the Constitution, thus:

"Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its
transactions involving public interest." (Emphasis supplied)

These twin provisions of the Constitution seek to promote transparency in policy-making and in the operations of the government, as well as provide the
people sufficient information to exercise effectively other constitutional rights. These twin provisions are essential to the exercise of freedom of expression. If
the government does not disclose its official acts, transactions and decisions to citizens, whatever citizens say, even if expressed without any restraint, will
be speculative and amount to nothing. These twin provisions are also essential to hold public officials "at all times x x x accountable to the people," 29 for
unless citizens have the proper information, they cannot hold public officials accountable for anything. Armed with the right information, citizens can
participate in public discussions leading to the formulation of government policies and their effective implementation. An informed citizenry is essential to the
existence and proper functioning of any democracy. As explained by the Court in Valmonte v. Belmonte, Jr.30 –
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"An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the
people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive
and be responsive to the people's will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to
formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto
can such bear fruit."

PEA asserts, citing Chavez v. PCGG,31 that in cases of on-going negotiations the right to information is limited to "definite propositions of the government."
PEA maintains the right does not include access to "intra-agency or inter-agency recommendations or communications during the stage when common
assertions are still in the process of being formulated or are in the 'exploratory stage'."

Also, AMARI contends that petitioner cannot invoke the right at the pre-decisional stage or before the closing of the transaction. To support its contention,
AMARI cites the following discussion in the 1986 Constitutional Commission:

"Mr. Suarez. And when we say 'transactions' which should be distinguished from contracts, agreements, or treaties or whatever, does the
Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract itself?

Mr. Ople: The 'transactions' used here, I suppose is generic and therefore, it can cover both steps leading to a contract and already a
consummated contract, Mr. Presiding Officer.

Mr. Suarez: This contemplates inclusion of negotiations leading to the consummation of the transaction.

Mr. Ople: Yes, subject only to reasonable safeguards on the national interest.

Mr. Suarez: Thank you."32 (Emphasis supplied)

AMARI argues there must first be a consummated contract before petitioner can invoke the right. Requiring government officials to reveal their deliberations
at the pre-decisional stage will degrade the quality of decision-making in government agencies. Government officials will hesitate to express their real
sentiments during deliberations if there is immediate public dissemination of their discussions, putting them under all kinds of pressure before they decide.

We must first distinguish between information the law on public bidding requires PEA to disclose publicly, and information the constitutional right to
information requires PEA to release to the public. Before the consummation of the contract, PEA must, on its own and without demand from anyone,
disclose to the public matters relating to the disposition of its property. These include the size, location, technical description and nature of the property being
disposed of, the terms and conditions of the disposition, the parties qualified to bid, the minimum price and similar information. PEA must prepare all these
data and disclose them to the public at the start of the disposition process, long before the consummation of the contract, because the Government Auditing
Code requires public bidding. If PEA fails to make this disclosure, any citizen can demand from PEA this information at any time during the bidding process.

Information, however, on on-going evaluation or review of bids or proposals being undertaken by the bidding or review committee is not immediately
accessible under the right to information. While the evaluation or review is still on-going, there are no "official acts, transactions, or decisions" on the bids or
proposals. However, once the committee makes its official recommendation, there arises a "definite proposition" on the part of the government. From this
moment, the public's right to information attaches, and any citizen can access all the non-proprietary information leading to such definite proposition.
In Chavez v. PCGG,33 the Court ruled as follows:

"Considering the intent of the framers of the Constitution, we believe that it is incumbent upon the PCGG and its officers, as well as other
government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with the ostensible
owners and holders of ill-gotten wealth. Such information, though, must pertain to definite propositions of the government , not necessarily to intra-
agency or inter-agency recommendations or communications during the stage when common assertions are still in the process of being formulated
or are in the "exploratory" stage. There is need, of course, to observe the same restrictions on disclosure of information in general, as discussed
earlier – such as on matters involving national security, diplomatic or foreign relations, intelligence and other classified information." (Emphasis
supplied)

Contrary to AMARI's contention, the commissioners of the 1986 Constitutional Commission understood that the right to information  "contemplates inclusion
of negotiations leading to the consummation of the transaction."  Certainly, a consummated contract is not a requirement for the exercise of the right to
information. Otherwise, the people can never exercise the right if no contract is consummated, and if one is consummated, it may be too late for the public to
expose its defects.1âwphi1.nêt

Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous to the government or even
illegal, becomes a fait accompli. This negates the State policy of full transparency on matters of public concern, a situation which the framers of the
Constitution could not have intended. Such a requirement will prevent the citizenry from participating in the public discussion of any  proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of
its avowed "policy of full disclosure of all its transactions involving public interest."

The right covers three categories of information which are "matters of public concern," namely: (1) official records; (2) documents and papers pertaining to
official acts, transactions and decisions; and (3) government research data used in formulating policies. The first category refers to any document that is part
of the public records in the custody of government agencies or officials. The second category refers to documents and papers recording, evidencing,
establishing, confirming, supporting, justifying or explaining official acts, transactions or decisions of government agencies or officials. The third category
refers to research data, whether raw, collated or processed, owned by the government and used in formulating government policies.

The information that petitioner may access on the renegotiation of the JVA includes evaluation reports, recommendations, legal and expert opinions, minutes
of meetings, terms of reference and other documents attached to such reports or minutes, all relating to the JVA. However, the right to information does not
compel PEA to prepare lists, abstracts, summaries and the like relating to the renegotiation of the JVA. 34 The right only affords access to records, documents
and papers, which means the opportunity to inspect and copy them. One who exercises the right must copy the records, documents and papers at his
expense. The exercise of the right is also subject to reasonable regulations to protect the integrity of the public records and to minimize disruption to
government operations, like rules specifying when and how to conduct the inspection and copying. 35
 94

The right to information, however, does not extend to matters recognized as privileged information under the separation of powers. 36 The right does not also
apply to information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement
agencies before the prosecution of the accused, which courts have long recognized as confidential. 37 The right may also be subject to other limitations that
Congress may impose by law.

There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the separation of powers. The information does not
cover Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal deliberations of the Supreme
Court and other collegiate courts, or executive sessions of either house of Congress, 38 are recognized as confidential. This kind of information cannot be
pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by
interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. 39 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. 40 Congress has also prescribed other limitations on the right to information
in several legislations.41

Sixth issue: whether stipulations in the Amended JVA for the transfer to AMARI of lands, reclaimed or to be reclaimed, violate the Constitution.

The Regalian Doctrine

The ownership of lands reclaimed from foreshore and submerged areas is rooted in the Regalian doctrine which holds that the State owns all lands and
waters of the public domain. Upon the Spanish conquest of the Philippines, ownership of all "lands, territories and possessions" in the Philippines passed to
the Spanish Crown.42 The King, as the sovereign ruler and representative of the people, acquired and owned all lands and territories in the Philippines
except those he disposed of by grant or sale to private individuals.

The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine substituting, however, the State, in lieu of the King, as the owner of all lands and
waters of the public domain. The Regalian doctrine is the foundation of the time-honored principle of land ownership that "all lands that were not acquired
from the Government, either by purchase or by grant, belong to the public domain." 43 Article 339 of the Civil Code of 1889, which is now Article 420 of the
Civil Code of 1950, incorporated the Regalian doctrine.

Ownership and Disposition of Reclaimed Lands

The Spanish Law of Waters of 1866 was the first statutory law governing the ownership and disposition of reclaimed lands in the Philippines. On May 18,
1907, the Philippine Commission enacted Act No. 1654 which provided for the lease, but not the sale, of reclaimed lands of the government to corporations
and individuals. Later, on November 29, 1919, the Philippine Legislature approved Act No. 2874, the Public Land Act, which authorized  the lease, but not the
sale, of reclaimed lands of the government to corporations and individuals . On November 7, 1936, the National Assembly passed Commonwealth Act No.
141, also known as the Public Land Act, which authorized the lease, but not the sale, of reclaimed lands of the government to corporations and individuals .
CA No. 141 continues to this day as the general law governing the classification and disposition of lands of the public domain.

The Spanish Law of Waters of 1866 and the Civil Code of 1889

Under the Spanish Law of Waters of 1866, the shores, bays, coves, inlets and all waters within the maritime zone of the Spanish territory belonged to the
public domain for public use.44 The Spanish Law of Waters of 1866 allowed the reclamation of the sea under Article 5, which provided as follows:

"Article 5. Lands reclaimed from the sea in consequence of works constructed by the State, or by the provinces, pueblos or private persons, with
proper permission, shall become the property of the party constructing such works, unless otherwise provided by the terms of the grant of
authority."

Under the Spanish Law of Waters, land reclaimed from the sea belonged to the party undertaking the reclamation, provided the government issued the
necessary permit and did not reserve ownership of the reclaimed land to the State.

Article 339 of the Civil Code of 1889 defined property of public dominion as follows:

"Art. 339. Property of public dominion is –

1. That devoted to public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the State, riverbanks, shores, roadsteads,
and that of a similar character;

2. That belonging exclusively to the State which, without being of general public use, is employed in some public service, or in the development of
the national wealth, such as walls, fortresses, and other works for the defense of the territory, and mines, until granted to private individuals."

Property devoted to public use referred to property open for use by the public. In contrast, property devoted to public service referred to property used for
some specific public service and open only to those authorized to use the property.

Property of public dominion referred not only to property devoted to public use, but also to property not so used but employed  to develop the national wealth .
This class of property constituted property of public dominion although employed for some economic or commercial activity to increase the national wealth.

Article 341 of the Civil Code of 1889 governed the re-classification of property of public dominion into private property, to wit:

"Art. 341. Property of public dominion, when no longer devoted to public use or to the defense of the territory, shall become a part of the private
property of the State."
 95

This provision, however, was not self-executing. The legislature, or the executive department pursuant to law, must declare the property no longer needed
for public use or territorial defense before the government could lease or alienate the property to private parties. 45

Act No. 1654 of the Philippine Commission

On May 8, 1907, the Philippine Commission enacted Act No. 1654 which regulated the lease of reclaimed and foreshore lands. The salient provisions of this
law were as follows:

"Section 1. The control and disposition of the foreshore  as defined in existing law, and the title to all Government or public lands made or reclaimed
by the Government by dredging or filling  or otherwise throughout the Philippine Islands, shall be retained by the Government  without prejudice to
vested rights and without prejudice to rights conceded to the City of Manila in the Luneta Extension.

Section 2. (a) The Secretary of the Interior shall cause all Government or public lands made or reclaimed by the Government by dredging or filling
or otherwise to be divided into lots or blocks, with the necessary streets and alleyways located thereon, and shall cause plats and plans of such
surveys to be prepared and filed with the Bureau of Lands.

(b) Upon completion of such plats and plans the Governor-General shall give notice to the public that such parts of the lands so made or reclaimed
as are not needed for public purposes will be leased for commercial and business purposes , x x x.

xxx

(e) The leases above provided for shall be disposed of to the highest and best bidder  therefore, subject to such regulations and safeguards as the
Governor-General may by executive order prescribe." (Emphasis supplied)

Act No. 1654 mandated that the government should retain title to all lands reclaimed by the government . The Act also vested in the government control and
disposition of foreshore lands. Private parties could lease lands reclaimed by the government only if these lands were no longer needed for public purpose.
Act No. 1654 mandated public bidding in the lease of government reclaimed lands. Act No. 1654 made government reclaimed lands sui generis in that unlike
other public lands which the government could sell to private parties, these reclaimed lands were available only for lease to private parties.

Act No. 1654, however, did not repeal Section 5 of the Spanish Law of Waters of 1866. Act No. 1654 did not prohibit private parties from reclaiming parts of
the sea under Section 5 of the Spanish Law of Waters. Lands reclaimed from the sea by private parties with government permission remained private lands.

Act No. 2874 of the Philippine Legislature

On November 29, 1919, the Philippine Legislature enacted Act No. 2874, the Public Land Act. 46 The salient provisions of Act No. 2874, on reclaimed lands,
were as follows:

"Sec. 6. The Governor-General, upon the recommendation of the Secretary of Agriculture and Natural Resources, shall from time to time classify
the lands of the public domain into –

(a) Alienable or disposable,

(b) Timber, and

(c) Mineral lands, x x x.

Sec. 7. For the purposes of the government and disposition of alienable or disposable public lands,  the Governor-General, upon recommendation
by the Secretary of Agriculture and Natural Resources, shall from time to time declare what lands are open to disposition or concession under this
Act."

Sec. 8. Only those lands shall be declared open to disposition or concession which have been officially delimited or classified  x x x.

xxx

Sec. 55. Any tract of land of the public domain which, being neither timber nor mineral land, shall be classified as  suitable for residential purposes
or for commercial, industrial, or other productive purposes other than agricultural purposes , and shall be open to disposition or concession, shall be
disposed of under the provisions of this chapter, and not otherwise.

Sec. 56. The lands disposable under this title shall be classified as follows :

(a) Lands reclaimed by the Government by dredging, filling, or other means ;

(b) Foreshore;

(c) Marshy lands or lands covered with water bordering upon the shores or banks of navigable lakes or rivers;

(d) Lands not included in any of the foregoing classes.

x x x.
 96

Sec. 58. The lands comprised in classes (a), (b), and (c) of section fifty-six shall be disposed of to private parties by lease only and not otherwise ,
as soon as the Governor-General, upon recommendation by the Secretary of Agriculture and Natural Resources, shall declare that the same are
not necessary for the public service and are open to disposition  under this chapter. The lands included in class (d) may be disposed of by sale or
lease under the provisions of this Act." (Emphasis supplied)

Section 6 of Act No. 2874 authorized the Governor-General to "classify lands of the public domain into x x x alienable or disposable" 47 lands. Section 7 of the
Act empowered the Governor-General to "declare what lands are open to disposition or concession." Section 8 of the Act limited alienable or disposable
lands only to those lands which have been "officially delimited and classified."

Section 56 of Act No. 2874 stated that lands "disposable under this title 48 shall be classified" as government reclaimed, foreshore and marshy lands, as well
as other lands. All these lands, however, must be suitable for residential, commercial, industrial or other productive  non-agricultural purposes. These
provisions vested upon the Governor-General the power to classify inalienable lands of the public domain into disposable lands of the public domain. These
provisions also empowered the Governor-General to classify further such disposable lands of the public domain into government reclaimed, foreshore or
marshy lands of the public domain, as well as other non-agricultural lands.

Section 58 of Act No. 2874 categorically mandated that disposable lands of the public domain classified as government reclaimed, foreshore and marshy
lands "shall be disposed of to private parties by lease only and not otherwise."  The Governor-General, before allowing the lease of these lands to private
parties, must formally declare that the lands were "not necessary for the public service." Act No. 2874 reiterated the State policy to lease and not to sell
government reclaimed, foreshore and marshy lands of the public domain, a policy first enunciated in 1907 in Act No. 1654. Government reclaimed, foreshore
and marshy lands remained sui generis, as the only alienable or disposable lands of the public domain that the government could not sell to private parties.

The rationale behind this State policy is obvious. Government reclaimed, foreshore and marshy public lands for non-agricultural purposes retain their
inherent potential as areas for public service. This is the reason the government prohibited the sale, and only allowed the lease, of these lands to private
parties. The State always reserved these lands for some future public service.

Act No. 2874 did not authorize the reclassification of government reclaimed, foreshore and marshy lands into other non-agricultural lands under Section 56
(d). Lands falling under Section 56 (d) were the only lands for non-agricultural purposes the government could sell to private parties. Thus, under Act No.
2874, the government could not sell government reclaimed, foreshore and marshy lands to private parties , unless the legislature passed a law allowing their
sale.49

Act No. 2874 did not prohibit private parties from reclaiming parts of the sea pursuant to Section 5 of the Spanish Law of Waters of 1866. Lands reclaimed
from the sea by private parties with government permission remained private lands.

Dispositions under the 1935 Constitution

On May 14, 1935, the 1935 Constitution took effect upon its ratification by the Filipino people. The 1935 Constitution, in adopting the Regalian doctrine,
declared in Section 1, Article XIII, that –

"Section 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy and other natural resources of the Philippines belong to the State, and their disposition, exploitation, development, or utilization
shall be limited to citizens of the Philippines or to corporations or associations at least sixty per centum of the capital of which is owned by such
citizens, subject to any existing right, grant, lease, or concession at the time of the inauguration of the Government established under this
Constitution. Natural resources, with the exception of public agricultural land, shall not be alienated , and no license, concession, or lease for the
exploitation, development, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five years, renewable for
another twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water
power, in which cases beneficial use may be the measure and limit of the grant." (Emphasis supplied)

The 1935 Constitution barred the alienation of all natural resources except public agricultural lands, which were the only natural resources the State could
alienate. Thus, foreshore lands, considered part of the State's natural resources, became inalienable by constitutional fiat, available only for lease for 25
years, renewable for another 25 years. The government could alienate foreshore lands only after these lands were reclaimed and classified as alienable
agricultural lands of the public domain. Government reclaimed and marshy lands of the public domain, being neither timber nor mineral lands, fell under the
classification of public agricultural lands. 50 However, government reclaimed and marshy lands, although subject to classification as disposable public
agricultural lands, could only be leased and not sold to private parties because of Act No. 2874.

The prohibition on private parties from acquiring ownership of government reclaimed and marshy lands of the public domain was only a statutory prohibition
and the legislature could therefore remove such prohibition. The 1935 Constitution did not prohibit individuals and corporations from acquiring government
reclaimed and marshy lands of the public domain that were classified as agricultural lands under existing public land laws. Section 2, Article XIII of the 1935
Constitution provided as follows:

"Section 2. No private corporation or association may acquire, lease, or hold public agricultural lands in excess of one thousand and twenty four
hectares, nor may any individual acquire such lands by purchase in excess of one hundred and forty hectares, or by lease in excess of one
thousand and twenty-four hectares, or by homestead in excess of twenty-four hectares. Lands adapted to grazing, not exceeding two thousand
hectares, may be leased to an individual, private corporation, or association." (Emphasis supplied)

Still, after the effectivity of the 1935 Constitution, the legislature did not repeal Section 58 of Act No. 2874 to open for sale to private parties government
reclaimed and marshy lands of the public domain. On the contrary, the legislature continued the long established State policy of retaining for the government
title and ownership of government reclaimed and marshy lands of the public domain.

Commonwealth Act No. 141 of the Philippine National Assembly

On November 7, 1936, the National Assembly approved Commonwealth Act No. 141, also known as the Public Land Act, which compiled the then existing
laws on lands of the public domain. CA No. 141, as amended, remains to this day the existing general law governing the classification and disposition of
lands of the public domain other than timber and mineral lands. 51
 97

Section 6 of CA No. 141 empowers the President to classify lands of the public domain into "alienable or disposable" 52 lands of the public domain, which
prior to such classification are inalienable and outside the commerce of man. Section 7 of CA No. 141 authorizes the President to "declare what lands are
open to disposition or concession." Section 8 of CA No. 141 states that the government can declare open for disposition or concession only lands that are
"officially delimited and classified." Sections 6, 7 and 8 of CA No. 141 read as follows:

"Sec. 6. The President, upon the recommendation of the Secretary of Agriculture and Commerce, shall from time to time classify the lands of the
public domain into –

(a) Alienable or disposable,

(b) Timber, and

(c) Mineral lands,

and may at any time and in like manner transfer such lands from one class to another, 53 for the purpose of their administration and disposition.

Sec. 7. For the purposes of the administration and disposition of alienable or disposable public lands, the President, upon recommendation by the
Secretary of Agriculture and Commerce, shall from time to time declare what lands are open to disposition or concession under this Act.

Sec. 8. Only those lands shall be declared open to disposition or concession which have been officially delimited and classified  and, when
practicable, surveyed, and which have not been reserved for public or quasi-public uses , nor appropriated by the Government, nor in any manner
become private property, nor those on which a private right authorized and recognized by this Act or any other valid law may be claimed, or which,
having been reserved or appropriated, have ceased to be so. x x x."

Thus, before the government could alienate or dispose of lands of the public domain, the President must first officially classify these lands as alienable or
disposable, and then declare them open to disposition or concession. There must be no law reserving these lands for public or quasi-public uses.

The salient provisions of CA No. 141, on government reclaimed, foreshore and marshy lands of the public domain, are as follows:

"Sec. 58. Any tract of land of the public domain which, being neither timber nor mineral land, is intended to be used for residential purposes or for
commercial, industrial, or other productive purposes other than agricultural, and is open to disposition or concession, shall be disposed of under
the provisions of this chapter and not otherwise .

Sec. 59. The lands disposable under this title shall be classified as follows :

(a) Lands reclaimed by the Government by dredging, filling, or other means;

(b) Foreshore;

(c) Marshy lands or lands covered with water bordering upon the shores or banks of navigable lakes or rivers;

(d) Lands not included in any of the foregoing classes.

Sec. 60. Any tract of land comprised under this title may be leased or sold, as the case may be, to any person, corporation, or association
authorized to purchase or lease public lands for agricultural purposes. x x x.

Sec. 61. The lands comprised in classes (a), (b), and (c) of section fifty-nine shall be disposed of to private parties by lease only and not otherwise ,
as soon as the President, upon recommendation by the Secretary of Agriculture, shall declare that the same are not necessary for the public
service and are open to disposition under this chapter. The lands included in class (d) may be disposed of by sale or lease under the provisions of
this Act." (Emphasis supplied)

Section 61 of CA No. 141 readopted, after the effectivity of the 1935 Constitution, Section 58 of Act No. 2874 prohibiting the sale of government reclaimed,
foreshore and marshy disposable lands of the public domain. All these lands are intended for residential, commercial, industrial or other non-agricultural
purposes. As before, Section 61 allowed only the lease of such lands to private parties. The government could sell to private parties only lands falling under
Section 59 (d) of CA No. 141, or those lands for non-agricultural purposes not classified as government reclaimed, foreshore and marshy disposable lands of
the public domain. Foreshore lands, however, became inalienable under the 1935 Constitution which only allowed the lease of these lands to qualified
private parties.

Section 58 of CA No. 141 expressly states that disposable lands of the public domain intended for residential, commercial, industrial or other productive
purposes other than agricultural " shall be disposed of under the provisions of this chapter and not otherwise ." Under Section 10 of CA No. 141, the term
"disposition" includes lease of the land. Any disposition of government reclaimed, foreshore and marshy disposable lands for non-agricultural purposes must
comply with Chapter IX, Title III of CA No. 141, 54 unless a subsequent law amended or repealed these provisions.

In his concurring opinion in the landmark case of Republic Real Estate Corporation v. Court of Appeals ,55 Justice Reynato S. Puno summarized succinctly
the law on this matter, as follows:

"Foreshore lands are lands of public dominion intended for public use. So too are lands reclaimed by the government by dredging, filling, or other
means. Act 1654 mandated that the control and disposition of the foreshore and lands under water remained in the national government. Said law
allowed only the 'leasing' of reclaimed land. The Public Land Acts of 1919 and 1936 also declared that the foreshore and lands reclaimed by the
government were to be "disposed of to private parties by lease only and not otherwise." Before leasing, however, the Governor-General, upon
recommendation of the Secretary of Agriculture and Natural Resources, had first to determine that the land reclaimed was not necessary for the
public service. This requisite must have been met before the land could be disposed of. But even then, the foreshore and lands under water were
 98

not to be alienated and sold to private parties. The disposition of the reclaimed land was only by lease. The land remained property of the State ."
(Emphasis supplied)

As observed by Justice Puno in his concurring opinion, "Commonwealth Act No. 141 has remained in effect at present."

The State policy prohibiting the sale to private parties of government reclaimed, foreshore and marshy alienable lands of the public domain, first
implemented in 1907 was thus reaffirmed in CA No. 141 after the 1935 Constitution took effect. The prohibition on the sale of foreshore lands, however,
became a constitutional edict under the 1935 Constitution. Foreshore lands became inalienable as natural resources of the State, unless reclaimed by the
government and classified as agricultural lands of the public domain, in which case they would fall under the classification of government reclaimed lands.

After the effectivity of the 1935 Constitution, government reclaimed and marshy disposable lands of the public domain continued to be only leased and not
sold to private parties.56 These lands remained sui generis, as the only alienable or disposable lands of the public domain the government could not sell to
private parties.

Since then and until now, the only way the government can sell to private parties government reclaimed and marshy disposable lands of the public domain is
for the legislature to pass a law authorizing such sale. CA No. 141 does not authorize the President to reclassify government reclaimed and marshy lands
into other non-agricultural lands under Section 59 (d). Lands classified under Section 59 (d) are the only alienable or disposable lands for non-agricultural
purposes that the government could sell to private parties.

Moreover, Section 60 of CA No. 141 expressly requires congressional authority before lands under Section 59 that the government previously transferred to
government units or entities could be sold to private parties. Section 60 of CA No. 141 declares that –

"Sec. 60. x x x The area so leased or sold shall be such as shall, in the judgment of the Secretary of Agriculture and Natural Resources, be
reasonably necessary for the purposes for which such sale or lease is requested, and shall not exceed one hundred and forty-four hectares:
Provided, however, That this limitation shall not apply to grants, donations, or transfers made to a province, municipality or branch or subdivision of
the Government for the purposes deemed by said entities conducive to the public interest; but the land so granted, donated, or transferred to a
province, municipality or branch or subdivision of the Government shall not be alienated, encumbered, or otherwise disposed of in a manner
affecting its title, except when authorized by Congress: x x x." (Emphasis supplied)

The congressional authority required in Section 60 of CA No. 141 mirrors the legislative authority required in Section 56 of Act No. 2874.

One reason for the congressional authority is that Section 60 of CA No. 141 exempted government units and entities from the maximum area of public lands
that could be acquired from the State. These government units and entities should not just turn around and sell these lands to private parties in violation of
constitutional or statutory limitations. Otherwise, the transfer of lands for non-agricultural purposes to government units and entities could be used to
circumvent constitutional limitations on ownership of alienable or disposable lands of the public domain. In the same manner, such transfers could also be
used to evade the statutory prohibition in CA No. 141 on the sale of government reclaimed and marshy lands of the public domain to private parties. Section
60 of CA No. 141 constitutes by operation of law a lien on these lands. 57

In case of sale or lease of disposable lands of the public domain falling under Section 59 of CA No. 141, Sections 63 and 67 require a public bidding.
Sections 63 and 67 of CA No. 141 provide as follows:

"Sec. 63. Whenever it is decided that lands covered by this chapter are not needed for public purposes, the Director of Lands shall ask the
Secretary of Agriculture and Commerce (now the Secretary of Natural Resources) for authority to dispose of the same. Upon receipt of such
authority, the Director of Lands shall give notice by public advertisement in the same manner as in the case of leases or sales of agricultural public
land, x x x.

Sec. 67. The lease or sale shall be made by oral bidding; and adjudication shall be made to the highest bidder . x x x." (Emphasis supplied)

Thus, CA No. 141 mandates the Government to put to public auction all leases or sales of alienable or disposable lands of the public domain. 58

Like Act No. 1654 and Act No. 2874 before it, CA No. 141 did not repeal Section 5 of the Spanish Law of Waters of 1866. Private parties could still reclaim
portions of the sea with government permission. However, the reclaimed land could become private land only if classified as alienable agricultural land of the
public domain open to disposition under CA No. 141. The 1935 Constitution prohibited the alienation of all natural resources except public agricultural lands.

The Civil Code of 1950

The Civil Code of 1950 readopted substantially the definition of property of public dominion found in the Civil Code of 1889. Articles 420 and 422 of the Civil
Code of 1950 state that –

"Art. 420. The following things are property of public dominion:

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads,
and others of similar character;

(2) Those which belong to the State, without being for public use, and are intended for some public service or for the development of the national
wealth.

x x x.

Art. 422. Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the
State."
 99

Again, the government must formally declare that the property of public dominion is no longer needed for public use or public service, before the same could
be classified as patrimonial property of the State. 59 In the case of government reclaimed and marshy lands of the public domain, the declaration of their being
disposable, as well as the manner of their disposition, is governed by the applicable provisions of CA No. 141.

Like the Civil Code of 1889, the Civil Code of 1950 included as property of public dominion those properties of the State which, without being for public use,
are intended for public service or the "development of the national wealth." Thus, government reclaimed and marshy lands of the State, even if not employed
for public use or public service, if developed to enhance the national wealth, are classified as property of public dominion.

Dispositions under the 1973 Constitution

The 1973 Constitution, which took effect on January 17, 1973, likewise adopted the Regalian doctrine. Section 8, Article XIV of the 1973 Constitution stated
that –

"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, wildlife, and
other natural resources of the Philippines belong to the State. With the exception of agricultural, industrial or commercial, residential, and
resettlement lands of the public domain, natural resources shall not be alienated , and no license, concession, or lease for the exploration,
development, exploitation, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five years, renewable for not
more than twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water
power, in which cases, beneficial use may be the measure and the limit of the grant." (Emphasis supplied)

The 1973 Constitution prohibited the alienation of all natural resources with the exception of "agricultural, industrial or commercial, residential, and
resettlement lands of the public domain." In contrast, the 1935 Constitution barred the alienation of all natural resources except "public agricultural lands."
However, the term "public agricultural lands" in the 1935 Constitution encompassed industrial, commercial, residential and resettlement lands of the public
domain.60 If the land of public domain were neither timber nor mineral land, it would fall under the classification of agricultural land of the public domain.  Both
the 1935 and 1973 Constitutions, therefore, prohibited the alienation of all natural resources except agricultural lands of the public domain .

The 1973 Constitution, however, limited the alienation of lands of the public domain to individuals who were citizens of the Philippines. Private corporations,
even if wholly owned by Philippine citizens, were no longer allowed to acquire alienable lands of the public domain unlike in the 1935 Constitution. Section
11, Article XIV of the 1973 Constitution declared that –

"Sec. 11. The Batasang Pambansa, taking into account conservation, ecological, and development requirements of the natural resources, shall
determine by law the size of land of the public domain which may be developed, held or acquired by, or leased to, any qualified individual,
corporation, or association, and the conditions therefor. No private corporation or association may hold alienable lands of the public domain except
by lease not to exceed one thousand hectares in area nor may any citizen hold such lands by lease in excess of five hundred hectares or acquire
by purchase, homestead or grant, in excess of twenty-four hectares. No private corporation or association may hold by lease, concession, license
or permit, timber or forest lands and other timber or forest resources in excess of one hundred thousand hectares. However, such area may be
increased by the Batasang Pambansa upon recommendation of the National Economic and Development Authority." (Emphasis supplied)

Thus, under the 1973 Constitution, private corporations could hold alienable lands of the public domain only through lease. Only individuals could now
acquire alienable lands of the public domain, and private corporations became absolutely barred from acquiring any kind of alienable land of the public
domain. The constitutional ban extended to all kinds of alienable lands of the public domain, while the statutory ban under CA No. 141 applied only to
government reclaimed, foreshore and marshy alienable lands of the public domain.

PD No. 1084 Creating the Public Estates Authority

On February 4, 1977, then President Ferdinand Marcos issued Presidential Decree No. 1084 creating PEA, a wholly government owned and controlled
corporation with a special charter. Sections 4 and 8 of PD No. 1084, vests PEA with the following purposes and powers:

"Sec. 4. Purpose. The Authority is hereby created for the following purposes:

(a) To reclaim land, including foreshore and submerged areas, by dredging, filling or other means, or to acquire reclaimed land;

(b) To develop, improve, acquire, administer, deal in, subdivide, dispose, lease and sell any and all kinds of lands , buildings, estates and other
forms of real property, owned, managed, controlled and/or operated by the government;

(c) To provide for, operate or administer such service as may be necessary for the efficient, economical and beneficial utilization of the above
properties.

Sec. 5. Powers and functions of the Authority. The Authority shall, in carrying out the purposes for which it is created, have the following powers
and functions:

(a)To prescribe its by-laws.

xxx

(i) To hold lands of the public domain in excess of the area permitted to private corporations by statute.

(j) To reclaim lands and to construct work across, or otherwise, any stream, watercourse, canal, ditch, flume x x x.

xxx
 100

(o) To perform such acts and exercise such functions as may be necessary for the attainment of the purposes and objectives herein specified."
(Emphasis supplied)

PD No. 1084 authorizes PEA to reclaim both foreshore and submerged areas of the public domain. Foreshore areas are those covered and uncovered by
the ebb and flow of the tide. 61 Submerged areas are those permanently under water regardless of the ebb and flow of the tide. 62 Foreshore and submerged
areas indisputably belong to the public domain 63 and are inalienable unless reclaimed, classified as alienable lands open to disposition, and further declared
no longer needed for public service.

The ban in the 1973 Constitution on private corporations from acquiring alienable lands of the public domain did not apply to PEA since it was then, and until
today, a fully owned government corporation. The constitutional ban applied then, as it still applies now, only to "private corporations and associations." PD
No. 1084 expressly empowers PEA "to hold lands of the public domain " even "in excess of the area permitted to private corporations by statute." Thus, PEA
can hold title to private lands, as well as title to lands of the public domain.

In order for PEA to sell its reclaimed foreshore and submerged alienable lands of the public domain, there must be legislative authority empowering PEA to
sell these lands. This legislative authority is necessary in view of Section 60 of CA No.141, which states –

"Sec. 60. x x x; but the land so granted, donated or transferred to a province, municipality, or branch or subdivision of the Government shall not be
alienated, encumbered or otherwise disposed of in a manner affecting its title, except when authorized by Congress; x x x." (Emphasis supplied)

Without such legislative authority, PEA could not sell but only lease its reclaimed foreshore and submerged alienable lands of the public domain.
Nevertheless, any legislative authority granted to PEA to sell its reclaimed alienable lands of the public domain would be subject to the constitutional ban on
private corporations from acquiring alienable lands of the public domain. Hence, such legislative authority could only benefit private individuals.

Dispositions under the 1987 Constitution

The 1987 Constitution, like the 1935 and 1973 Constitutions before it, has adopted the Regalian doctrine. The 1987 Constitution declares that all natural
resources are "owned by the State," and except for alienable agricultural lands of the public domain, natural resources cannot be alienated. Sections 2 and
3, Article XII of the 1987 Constitution state that –

"Section 2. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests
or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision
of the State. x x x.

Section 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and national parks. Agricultural lands of the
public domain may be further classified by law according to the uses which they may be devoted.  Alienable lands of the public domain shall be
limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a
period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area . Citizens
of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof by purchase, homestead, or
grant.

Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the
Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions
therefor." (Emphasis supplied)

The 1987 Constitution continues the State policy in the 1973 Constitution banning private corporations from  acquiring any kind of alienable land of the public
domain. Like the 1973 Constitution, the 1987 Constitution allows private corporations to hold alienable lands of the public domain  only through lease. As in
the 1935 and 1973 Constitutions, the general law governing the lease to private corporations of reclaimed, foreshore and marshy alienable lands of the
public domain is still CA No. 141.

The Rationale behind the Constitutional Ban

The rationale behind the constitutional ban on corporations from acquiring, except through lease, alienable lands of the public domain is not well understood.
During the deliberations of the 1986 Constitutional Commission, the commissioners probed the rationale behind this ban, thus:

"FR. BERNAS: Mr. Vice-President, my questions have reference to page 3, line 5 which says:

`No private corporation or association may hold alienable lands of the public domain except by lease, not to exceed one thousand hectares in
area.'

If we recall, this provision did not exist under the 1935 Constitution, but this was introduced in the 1973 Constitution. In effect, it prohibits private
corporations from acquiring alienable public lands. But it has not been very clear in jurisprudence what the reason for this is . In some of the cases
decided in 1982 and 1983, it was indicated that the purpose of this is to prevent large landholdings . Is that the intent of this provision?

MR. VILLEGAS: I think that is the spirit of the provision.

FR. BERNAS: In existing decisions involving the Iglesia ni Cristo, there were instances where the Iglesia ni Cristo was not allowed to acquire a
mere 313-square meter land where a chapel stood because the Supreme Court said it would be in violation of this." (Emphasis supplied)

In Ayog v. Cusi,64 the Court explained the rationale behind this constitutional ban in this way:
 101

"Indeed, one purpose of the constitutional prohibition against purchases of public agricultural lands by private corporations is to equitably diffuse
land ownership or to encourage 'owner-cultivatorship and the economic family-size farm' and to prevent a recurrence of cases like the instant case.
Huge landholdings by corporations or private persons had spawned social unrest."

However, if the constitutional intent is to prevent huge landholdings, the Constitution could have simply limited the size of alienable lands of the public
domain that corporations could acquire. The Constitution could have followed the limitations on individuals, who could acquire not more than 24 hectares of
alienable lands of the public domain under the 1973 Constitution, and not more than 12 hectares under the 1987 Constitution.

If the constitutional intent is to encourage economic family-size farms, placing the land in the name of a corporation would be more effective in preventing the
break-up of farmlands. If the farmland is registered in the name of a corporation, upon the death of the owner, his heirs would inherit shares in the
corporation instead of subdivided parcels of the farmland. This would prevent the continuing break-up of farmlands into smaller and smaller plots from one
generation to the next.

In actual practice, the constitutional ban strengthens the constitutional limitation on individuals from acquiring more than the allowed area of alienable lands
of the public domain. Without the constitutional ban, individuals who already acquired the maximum area of alienable lands of the public domain could easily
set up corporations to acquire more alienable public lands. An individual could own as many corporations as his means would allow him. An individual could
even hide his ownership of a corporation by putting his nominees as stockholders of the corporation. The corporation is a convenient vehicle to circumvent
the constitutional limitation on acquisition by individuals of alienable lands of the public domain.

The constitutional intent, under the 1973 and 1987 Constitutions, is to transfer ownership of only a limited area of alienable land of the public domain to a
qualified individual. This constitutional intent is safeguarded by the provision prohibiting corporations from acquiring alienable lands of the public domain,
since the vehicle to circumvent the constitutional intent is removed. The available alienable public lands are gradually decreasing in the face of an ever-
growing population. The most effective way to insure faithful adherence to this constitutional intent is to grant or sell alienable lands of the public domain only
to individuals. This, it would seem, is the practical benefit arising from the constitutional ban.

The Amended Joint Venture Agreement

The subject matter of the Amended JVA, as stated in its second Whereas clause, consists of three properties, namely:

1. "[T]hree partially reclaimed and substantially eroded islands along Emilio Aguinaldo Boulevard in Paranaque and Las Pinas, Metro Manila, with
a combined titled area of 1,578,441 square meters;"

2. "[A]nother area of 2,421,559 square meters contiguous to the three islands;" and

3. "[A]t AMARI's option as approved by PEA, an additional 350 hectares more or less to regularize the configuration of the reclaimed area." 65

PEA confirms that the Amended JVA involves "the development of the Freedom Islands and further reclamation of about 250 hectares x x x," plus an option
"granted to AMARI to subsequently reclaim another 350 hectares x x x." 66

In short, the Amended JVA covers a reclamation area of 750 hectares. Only 157.84 hectares of the 750-hectare reclamation project have been reclaimed,
and the rest of the 592.15 hectares are still submerged areas forming part of Manila Bay .

Under the Amended JVA, AMARI will reimburse PEA the sum of P1,894,129,200.00 for PEA's "actual cost" in partially reclaiming the Freedom Islands.
AMARI will also complete, at its own expense, the reclamation of the Freedom Islands. AMARI will further shoulder all the reclamation costs of all the other
areas, totaling 592.15 hectares, still to be reclaimed. AMARI and PEA will share, in the proportion of 70 percent and 30 percent, respectively, the total net
usable area which is defined in the Amended JVA as the total reclaimed area less 30 percent earmarked for common areas. Title to AMARI's share in the
net usable area, totaling 367.5 hectares, will be issued in the name of AMARI. Section 5.2 (c) of the Amended JVA provides that –

"x x x, PEA shall have the duty to execute without delay the necessary deed of transfer or conveyance of the title pertaining to AMARI's Land
share based on the Land Allocation Plan. PEA, when requested in writing by AMARI, shall then cause the issuance and delivery of the proper
certificates of title covering AMARI's Land Share in the name of AMARI , x x x; provided, that if more than seventy percent (70%) of the titled area
at any given time pertains to AMARI, PEA shall deliver to AMARI only seventy percent (70%) of the titles pertaining to AMARI, until such time
when a corresponding proportionate area of additional land pertaining to PEA has been titled." (Emphasis supplied)

Indisputably, under the Amended JVA AMARI will acquire and own a maximum of 367.5 hectares of reclaimed land which will be titled in its name.

To implement the Amended JVA, PEA delegated to the unincorporated PEA-AMARI joint venture PEA's statutory authority, rights and privileges to reclaim
foreshore and submerged areas in Manila Bay. Section 3.2.a of the Amended JVA states that –

"PEA hereby contributes to the joint venture its rights and privileges to perform Rawland Reclamation and Horizontal Development as well as own
the Reclamation Area, thereby granting the Joint Venture the full and exclusive right, authority and privilege to undertake the Project in accordance
with the Master Development Plan."

The Amended JVA is the product of a renegotiation of the original JVA dated April 25, 1995 and its supplemental agreement dated August 9, 1995.

The Threshold Issue

The threshold issue is whether AMARI, a private corporation, can acquire and own under the Amended JVA 367.5 hectares of reclaimed foreshore and
submerged areas in Manila Bay in view of Sections 2 and 3, Article XII of the 1987 Constitution which state that:

"Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests
or timber, wildlife, flora and fauna, and other natural resources are owned by the State.  With the exception of agricultural lands, all other natural
resources shall not be alienated. x x x.
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Section 3. x x x Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such
alienable lands of the public domain except by lease , x x x."(Emphasis supplied)

Classification of Reclaimed Foreshore and Submerged Areas

PEA readily concedes that lands reclaimed from foreshore or submerged areas of Manila Bay are alienable or disposable lands of the public domain. In its
Memorandum,67 PEA admits that –

"Under the Public Land Act (CA 141, as amended), reclaimed lands are classified as alienable and disposable lands of the public domain :

'Sec. 59. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the government by dredging, filling, or other means;

x x x.'" (Emphasis supplied)

Likewise, the Legal Task Force 68 constituted under Presidential Administrative Order No. 365 admitted in its Report and Recommendation to then President
Fidel V. Ramos, "[R]eclaimed lands are classified as alienable and disposable lands of the public domain ."69 The Legal Task Force concluded that –

"D. Conclusion

Reclaimed lands are lands of the public domain. However, by statutory authority, the rights of ownership and disposition over reclaimed lands have
been transferred to PEA, by virtue of which PEA, as owner, may validly convey the same to any qualified person without violating the Constitution
or any statute.

The constitutional provision prohibiting private corporations from holding public land, except by lease (Sec. 3, Art. XVII, 70 1987 Constitution), does
not apply to reclaimed lands whose ownership has passed on to PEA by statutory grant."

Under Section 2, Article XII of the 1987 Constitution, the foreshore and submerged areas of Manila Bay are part of the "lands of the public domain, waters x
x x and other natural resources" and consequently "owned by the State." As such, foreshore and submerged areas "shall not be alienated," unless they are
classified as "agricultural lands" of the public domain. The mere reclamation of these areas by PEA does not convert these inalienable natural resources of
the State into alienable or disposable lands of the public domain. There must be a law or presidential proclamation officially classifying these reclaimed lands
as alienable or disposable and open to disposition or concession. Moreover, these reclaimed lands cannot be classified as alienable or disposable if the law
has reserved them for some public or quasi-public use.71

Section 8 of CA No. 141 provides that "only those lands shall be declared open to disposition or concession which have been  officially delimited and
classified."72 The President has the authority to classify inalienable lands of the public domain into alienable or disposable lands of the public domain,
pursuant to Section 6 of CA No. 141. In Laurel vs. Garcia, 73 the Executive Department attempted to sell the Roppongi property in Tokyo, Japan, which was
acquired by the Philippine Government for use as the Chancery of the Philippine Embassy. Although the Chancery had transferred to another location
thirteen years earlier, the Court still ruled that, under Article 422 74 of the Civil Code, a property of public dominion retains such character until formally
declared otherwise. The Court ruled that –

"The fact that the Roppongi site has not been used for a long time for actual Embassy service does not automatically convert it to patrimonial
property. Any such conversion happens only if the property is withdrawn from public use (Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA
481 [1975]. A property continues to be part of the public domain, not available for private appropriation or ownership 'until there is a formal
declaration on the part of the government to withdraw it from being such' (Ignacio v. Director of Lands, 108 Phil. 335 [1960]." (Emphasis supplied)

PD No. 1085, issued on February 4, 1977, authorized the issuance of special land patents for lands reclaimed by PEA from the foreshore or submerged
areas of Manila Bay. On January 19, 1988 then President Corazon C. Aquino issued Special Patent No. 3517 in the name of PEA for the 157.84 hectares
comprising the partially reclaimed Freedom Islands. Subsequently, on April 9, 1999 the Register of Deeds of the Municipality of Paranaque issued TCT Nos.
7309, 7311 and 7312 in the name of PEA pursuant to Section 103 of PD No. 1529 authorizing the issuance of certificates of title corresponding to land
patents. To this day, these certificates of title are still in the name of PEA.

PD No. 1085, coupled with President Aquino's actual issuance of a special patent covering the Freedom Islands, is equivalent to an official proclamation
classifying the Freedom Islands as alienable or disposable lands of the public domain. PD No. 1085 and President Aquino's issuance of a land patent also
constitute a declaration that the Freedom Islands are no longer needed for public service. The Freedom Islands are thus alienable or disposable lands of the
public domain, open to disposition or concession to qualified parties .

At the time then President Aquino issued Special Patent No. 3517, PEA had already reclaimed the Freedom Islands although subsequently there were
partial erosions on some areas. The government had also completed the necessary surveys on these islands. Thus, the Freedom Islands were no longer
part of Manila Bay but part of the land mass. Section 3, Article XII of the 1987 Constitution classifies lands of the public domain into "agricultural, forest or
timber, mineral lands, and national parks." Being neither timber, mineral, nor national park lands, the reclaimed Freedom Islands necessarily fall under the
classification of agricultural lands of the public domain. Under the 1987 Constitution, agricultural lands of the public domain are the only natural resources
that the State may alienate to qualified private parties. All other natural resources, such as the seas or bays, are "waters x x x owned by the State" forming
part of the public domain, and are inalienable pursuant to Section 2, Article XII of the 1987 Constitution.

AMARI claims that the Freedom Islands are private lands because CDCP, then a private corporation, reclaimed the islands under a contract dated
November 20, 1973 with the Commissioner of Public Highways. AMARI, citing Article 5 of the Spanish Law of Waters of 1866, argues that "if the ownership
of reclaimed lands may be given to the party constructing the works, then it cannot be said that reclaimed lands are lands of the public domain which the
State may not alienate."75 Article 5 of the Spanish Law of Waters reads as follows:
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"Article 5. Lands reclaimed from the sea in consequence of works constructed by the State, or by the provinces, pueblos or private persons,  with
proper permission, shall become the property of the party constructing such works, unless otherwise provided by the terms of the grant of
authority." (Emphasis supplied)

Under Article 5 of the Spanish Law of Waters of 1866, private parties could reclaim from the sea only with "proper permission" from the State. Private parties
could own the reclaimed land only if not "otherwise provided by the terms of the grant of authority." This clearly meant that no one could reclaim from the sea
without permission from the State because the sea is property of public dominion. It also meant that the State could grant or withhold ownership of the
reclaimed land because any reclaimed land, like the sea from which it emerged, belonged to the State. Thus, a private person reclaiming from the sea
without permission from the State could not acquire ownership of the reclaimed land which would remain property of public dominion like the sea it
replaced.76 Article 5 of the Spanish Law of Waters of 1866 adopted the time-honored principle of land ownership that "all lands that were not acquired from
the government, either by purchase or by grant, belong to the public domain." 77

Article 5 of the Spanish Law of Waters must be read together with laws subsequently enacted on the disposition of public lands. In particular, CA No. 141
requires that lands of the public domain must first be classified as alienable or disposable before the government can alienate them. These lands must not
be reserved for public or quasi-public purposes. 78 Moreover, the contract between CDCP and the government was executed after the effectivity of the 1973
Constitution which barred private corporations from acquiring any kind of alienable land of the public domain. This contract could not have converted the
Freedom Islands into private lands of a private corporation.

Presidential Decree No. 3-A, issued on January 11, 1973, revoked all laws authorizing the reclamation of areas under water and revested solely in the
National Government the power to reclaim lands. Section 1 of PD No. 3-A declared that –

"The provisions of any law to the contrary notwithstanding , the reclamation of areas under water, whether foreshore or inland, shall be limited to
the National Government or any person authorized by it under a proper contract . (Emphasis supplied)

x x x."

PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866 because reclamation of areas under water could now be undertaken only by the
National Government or by a person contracted by the National Government. Private parties may reclaim from the sea only under a contract with the
National Government, and no longer by grant or permission as provided in Section 5 of the Spanish Law of Waters of 1866.

Executive Order No. 525, issued on February 14, 1979, designated PEA as the National Government's implementing arm to undertake "all reclamation
projects of the government," which " shall be undertaken by the PEA or through a proper contract executed by it with any person or entity ." Under such
contract, a private party receives compensation for reclamation services rendered to PEA. Payment to the contractor may be in cash, or in kind consisting of
portions of the reclaimed land, subject to the constitutional ban on private corporations from acquiring alienable lands of the public domain. The reclaimed
land can be used as payment in kind only if the reclaimed land is first classified as alienable or disposable land open to disposition, and then declared no
longer needed for public service.

The Amended JVA covers not only the Freedom Islands, but also an additional 592.15 hectares which are still submerged and forming part of Manila
Bay. There is no legislative or Presidential act classifying these submerged areas as alienable or disposable lands of the public domain open to disposition .
These submerged areas are not covered by any patent or certificate of title. There can be no dispute that these submerged areas form part of the public
domain, and in their present state are inalienable and outside the commerce of man . Until reclaimed from the sea, these submerged areas are, under the
Constitution, "waters x x x owned by the State," forming part of the public domain and consequently inalienable. Only when actually reclaimed from the sea
can these submerged areas be classified as public agricultural lands, which under the Constitution are the only natural resources that the State may
alienate. Once reclaimed and transformed into public agricultural lands, the government may then officially classify these lands as alienable or disposable
lands open to disposition. Thereafter, the government may declare these lands no longer needed for public service. Only then can these reclaimed lands be
considered alienable or disposable lands of the public domain and within the commerce of man.

The classification of PEA's reclaimed foreshore and submerged lands into alienable or disposable lands open to disposition is necessary because PEA is
tasked under its charter to undertake public services that require the use of lands of the public domain. Under Section 5 of PD No. 1084, the functions of
PEA include the following: "[T]o own or operate railroads, tramways and other kinds of land transportation, x x x; [T]o construct, maintain and operate such
systems of sanitary sewers as may be necessary; [T]o construct, maintain and operate such storm drains as may be necessary." PEA is empowered to issue
"rules and regulations as may be necessary for the proper use by private parties of  any or all of the highways, roads, utilities, buildings and/or any of its
properties and to impose or collect fees or tolls for their use." Thus, part of the reclaimed foreshore and submerged lands held by the PEA would actually be
needed for public use or service since many of the functions imposed on PEA by its charter constitute essential public services.

Moreover, Section 1 of Executive Order No. 525 provides that PEA "shall be primarily responsible for integrating, directing, and coordinating all reclamation
projects for and on behalf of the National Government." The same section also states that "[A]ll reclamation projects shall be approved by the President upon
recommendation of the PEA, and shall be undertaken by the PEA or through a proper contract executed by it with any person or entity; x x x." Thus, under
EO No. 525, in relation to PD No. 3-A and PD No.1084, PEA became the primary implementing agency of the National Government to reclaim foreshore and
submerged lands of the public domain. EO No. 525 recognized PEA as the government entity "to undertake the reclamation of lands and ensure their
maximum utilization in promoting public welfare and interests."79 Since large portions of these reclaimed lands would obviously be needed for public service,
there must be a formal declaration segregating reclaimed lands no longer needed for public service from those still needed for public service. 1âwphi1.nêt

Section 3 of EO No. 525, by declaring that all lands reclaimed by PEA "shall belong to or be owned by the PEA," could not automatically operate to classify
inalienable lands into alienable or disposable lands of the public domain. Otherwise, reclaimed foreshore and submerged lands of the public domain would
automatically become alienable once reclaimed by PEA, whether or not classified as alienable or disposable.

The Revised Administrative Code of 1987, a later law than either PD No. 1084 or EO No. 525, vests in the Department of Environment and Natural
Resources ("DENR" for brevity) the following powers and functions:

"Sec. 4. Powers and Functions. The Department shall:

(1) x x x
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(4) Exercise supervision and control over forest lands, alienable and disposable public lands, mineral resources and, in the process of exercising
such control, impose appropriate taxes, fees, charges, rentals and any such form of levy and collect such revenues for the exploration,
development, utilization or gathering of such resources;

xxx

(14) Promulgate rules, regulations and guidelines on the issuance of licenses, permits, concessions, lease agreements and such other privileges
concerning the development, exploration and utilization of the country's marine, freshwater, and brackish water and over all aquatic resources of
the country and shall continue to oversee, supervise and police our natural resources ; cancel or cause to cancel such privileges upon failure, non-
compliance or violations of any regulation, order, and for all other causes which are in furtherance of the conservation of natural resources and
supportive of the national interest;

(15) Exercise exclusive jurisdiction on the management and disposition of all lands of the public domain and serve as the sole agency responsible
for classification, sub-classification, surveying and titling of lands in consultation with appropriate agencies." 80 (Emphasis supplied)

As manager, conservator and overseer of the natural resources of the State, DENR exercises "supervision and control over alienable and disposable public
lands." DENR also exercises "exclusive jurisdiction on the management and disposition of all lands of the public domain." Thus, DENR decides whether
areas under water, like foreshore or submerged areas of Manila Bay, should be reclaimed or not. This means that PEA needs authorization from DENR
before PEA can undertake reclamation projects in Manila Bay, or in any part of the country.

DENR also exercises exclusive jurisdiction over the disposition of all lands of the public domain. Hence, DENR decides whether reclaimed lands of PEA
should be classified as alienable under Sections 6 81 and 782 of CA No. 141. Once DENR decides that the reclaimed lands should be so classified, it then
recommends to the President the issuance of a proclamation classifying the lands as alienable or disposable lands of the public domain open to disposition.
We note that then DENR Secretary Fulgencio S. Factoran, Jr. countersigned Special Patent No. 3517 in compliance with the Revised Administrative Code
and Sections 6 and 7 of CA No. 141.

In short, DENR is vested with the power to authorize the reclamation of areas under water, while PEA is vested with the power to undertake the physical
reclamation of areas under water, whether directly or through private contractors. DENR is also empowered to classify lands of the public domain into
alienable or disposable lands subject to the approval of the President. On the other hand, PEA is tasked to develop, sell or lease the reclaimed alienable
lands of the public domain.

Clearly, the mere physical act of reclamation by PEA of foreshore or submerged areas does not make the reclaimed lands alienable or disposable lands of
the public domain, much less patrimonial lands of PEA. Likewise, the mere transfer by the National Government of lands of the public domain to PEA does
not make the lands alienable or disposable lands of the public domain, much less patrimonial lands of PEA.

Absent two official acts – a classification that these lands are alienable or disposable and open to disposition and a declaration that these lands are not
needed for public service, lands reclaimed by PEA remain inalienable lands of the public domain. Only such an official classification and formal declaration
can convert reclaimed lands into alienable or disposable lands of the public domain, open to disposition under the Constitution, Title I and Title III 83 of CA No.
141 and other applicable laws.84

PEA's Authority to Sell Reclaimed Lands

PEA, like the Legal Task Force, argues that as alienable or disposable lands of the public domain, the reclaimed lands shall be disposed of in accordance
with CA No. 141, the Public Land Act. PEA, citing Section 60 of CA No. 141, admits that reclaimed lands transferred to a branch or subdivision of the
government "shall not be alienated, encumbered, or otherwise disposed of in a manner affecting its title, except when authorized by Congress: x x
x."85 (Emphasis by PEA)

In Laurel vs. Garcia,86 the Court cited Section 48 of the Revised Administrative Code of 1987, which states that –

"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the Government  is authorized by law to be conveyed , the deed of
conveyance shall be executed in behalf of the government by the following: x x x."

Thus, the Court concluded that a law is needed to convey any real property belonging to the Government. The Court declared that -

"It is not for the President to convey real property of the government on his or her own sole will.  Any such conveyance must be authorized and
approved by a law enacted by the Congress. It requires executive and legislative concurrence." (Emphasis supplied)

PEA contends that PD No. 1085 and EO No. 525 constitute the legislative authority allowing PEA to sell its reclaimed lands. PD No. 1085, issued on
February 4, 1977, provides that –

"The land reclaimed in the foreshore and offshore area of Manila Bay  pursuant to the contract for the reclamation and construction of the Manila-
Cavite Coastal Road Project between the Republic of the Philippines and the Construction and Development Corporation of the Philippines dated
November 20, 1973 and/or any other contract or reclamation covering the same area  is hereby transferred, conveyed and assigned to the
ownership and administration of the Public Estates Authority  established pursuant to PD No. 1084; Provided, however, That the rights and
interests of the Construction and Development Corporation of the Philippines pursuant to the aforesaid contract shall be recognized and respected.

Henceforth, the Public Estates Authority shall exercise the rights and assume the obligations of the Republic of the Philippines (Department of
Public Highways) arising from, or incident to, the aforesaid contract between the Republic of the Philippines and the Construction and
Development Corporation of the Philippines.
 105

In consideration of the foregoing transfer and assignment, the Public Estates Authority shall issue in favor of the Republic of the Philippines the
corresponding shares of stock in said entity with an issued value of said shares of stock (which) shall be deemed fully paid and non-assessable.

The Secretary of Public Highways and the General Manager of the Public Estates Authority shall execute such contracts or agreements, including
appropriate agreements with the Construction and Development Corporation of the Philippines, as may be necessary to implement the above.

Special land patent/patents shall be issued by the Secretary of Natural Resources in favor of the Public Estates Authority without prejudice to the
subsequent transfer to the contractor or his assignees of such portion or portions of the land reclaimed or to be reclaimed as provided for in the
above-mentioned contract. On the basis of such patents, the Land Registration Commission shall issue the corresponding certificate of title ."
(Emphasis supplied)

On the other hand, Section 3 of EO No. 525, issued on February 14, 1979, provides that -

"Sec. 3. All lands reclaimed by PEA shall belong to or be owned by the PEA  which shall be responsible for its administration, development,
utilization or disposition in accordance with the provisions of Presidential Decree No. 1084. Any and all income that the PEA may derive from the
sale, lease or use of reclaimed lands shall be used in accordance with the provisions of Presidential Decree No. 1084."

There is no express authority under either PD No. 1085 or EO No. 525 for PEA to sell its reclaimed lands. PD No. 1085 merely transferred "ownership and
administration" of lands reclaimed from Manila Bay to PEA, while EO No. 525 declared that lands reclaimed by PEA "shall belong to or be owned by PEA."
EO No. 525 expressly states that PEA should dispose of its reclaimed lands "in accordance with the provisions of Presidential Decree No. 1084," the charter
of PEA.

PEA's charter, however, expressly tasks PEA "to develop, improve, acquire, administer, deal in, subdivide, dispose, lease and  sell any and all kinds of
lands x x x owned, managed, controlled and/or operated by the government." 87 (Emphasis supplied) There is, therefore, legislative authority granted to PEA
to sell its lands, whether patrimonial or alienable lands of the public domain . PEA may sell to private parties its patrimonial properties in accordance with the
PEA charter free from constitutional limitations. The constitutional ban on private corporations from acquiring alienable lands of the public domain does not
apply to the sale of PEA's patrimonial lands.

PEA may also sell its alienable or disposable lands of the public domain  to private individuals since, with the legislative authority, there is no longer any
statutory prohibition against such sales and the constitutional ban does not apply to individuals. PEA, however, cannot sell any of its alienable or disposable
lands of the public domain to private corporations since Section 3, Article XII of the 1987 Constitution expressly prohibits such sales. The legislative authority
benefits only individuals. Private corporations remain barred from acquiring any kind of alienable land of the public domain, including government reclaimed
lands.

The provision in PD No. 1085 stating that portions of the reclaimed lands could be transferred by PEA to the "contractor or his assignees" (Emphasis
supplied) would not apply to private corporations but only to individuals because of the constitutional ban. Otherwise, the provisions of PD No. 1085 would
violate both the 1973 and 1987 Constitutions.

The requirement of public auction in the sale of reclaimed lands

Assuming the reclaimed lands of PEA are classified as alienable or disposable lands open to disposition, and further declared no longer needed for public
service, PEA would have to conduct a public bidding in selling or leasing these lands. PEA must observe the provisions of Sections 63 and 67 of CA No. 141
requiring public auction, in the absence of a law exempting PEA from holding a public auction. 88 Special Patent No. 3517 expressly states that the patent is
issued by authority of the Constitution and PD No. 1084, "supplemented by Commonwealth Act No. 141, as amended." This is an acknowledgment that the
provisions of CA No. 141 apply to the disposition of reclaimed alienable lands of the public domain unless otherwise provided by law. Executive Order No.
654,89 which authorizes PEA "to determine the kind and manner of payment for the transfer" of its assets and properties, does not exempt PEA from the
requirement of public auction. EO No. 654 merely authorizes PEA to decide the mode of payment, whether in kind and in installment, but does not authorize
PEA to dispense with public auction.

Moreover, under Section 79 of PD No. 1445, otherwise known as the Government Auditing Code, the government is required to sell valuable government
property through public bidding. Section 79 of PD No. 1445 mandates that –

"Section 79. When government property has become unserviceable for any cause, or is no longer needed, it shall, upon application of the officer
accountable therefor, be inspected by the head of the agency or his duly authorized representative in the presence of the auditor concerned and, if
found to be valueless or unsaleable, it may be destroyed in their presence. If found to be valuable, it may be sold at public auction to the highest
bidder under the supervision of the proper committee on award or similar body in the presence of the auditor concerned or other authorized
representative of the Commission, after advertising by printed notice in the Official Gazette, or for not less than three consecutive days in any
newspaper of general circulation , or where the value of the property does not warrant the expense of publication, by notices posted for a like
period in at least three public places in the locality where the property is to be sold. In the event that the public auction fails, the property may be
sold at a private sale at such price as may be fixed by the same committee or body concerned and approved by the Commission ."

It is only when the public auction fails that a negotiated sale is allowed, in which case the Commission on Audit must approve the selling price. 90 The
Commission on Audit implements Section 79 of the Government Auditing Code through Circular No. 89-296 91 dated January 27, 1989. This circular
emphasizes that government assets must be disposed of only through public auction, and a negotiated sale can be resorted to only in case of "failure of
public auction."

At the public auction sale, only Philippine citizens are qualified to bid for PEA's reclaimed foreshore and submerged alienable lands of the public domain.
Private corporations are barred from bidding at the auction sale of any kind of alienable land of the public domain.

PEA originally scheduled a public bidding for the Freedom Islands on December 10, 1991. PEA imposed a condition that the winning bidder should reclaim
another 250 hectares of submerged areas to regularize the shape of the Freedom Islands, under a 60-40 sharing of the additional reclaimed areas in favor of
the winning bidder.92 No one, however, submitted a bid. On December 23, 1994, the Government Corporate Counsel advised PEA it could sell the Freedom
Islands through negotiation, without need of another public bidding, because of the failure of the public bidding on December 10, 1991. 93
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However, the original JVA dated April 25, 1995 covered not only the Freedom Islands and the additional 250 hectares still to be reclaimed, it also granted an
option to AMARI to reclaim another 350 hectares. The original JVA, a negotiated contract, enlarged the reclamation area to  750 hectares.94 The failure of
public bidding on December 10, 1991, involving only 407.84 hectares, 95 is not a valid justification for a negotiated sale of 750 hectares, almost double the
area publicly auctioned. Besides, the failure of public bidding happened on December 10, 1991, more than three years before the signing of the original JVA
on April 25, 1995. The economic situation in the country had greatly improved during the intervening period.

Reclamation under the BOT Law and the Local Government Code

The constitutional prohibition in Section 3, Article XII of the 1987 Constitution is absolute and clear: "Private corporations or associations may not hold such
alienable lands of the public domain except by lease, x x x." Even Republic Act No. 6957 ("BOT Law," for brevity), cited by PEA and AMARI as legislative
authority to sell reclaimed lands to private parties, recognizes the constitutional ban. Section 6 of RA No. 6957 states –

"Sec. 6. Repayment Scheme. - For the financing, construction, operation and maintenance of any infrastructure projects undertaken through the
build-operate-and-transfer arrangement or any of its variations pursuant to the provisions of this Act, the project proponent x x x may likewise be
repaid in the form of a share in the revenue of the project or other non-monetary payments, such as, but not limited to, the grant of a portion or
percentage of the reclaimed land, subject to the constitutional requirements with respect to the ownership of the land : x x x." (Emphasis supplied)

A private corporation, even one that undertakes the physical reclamation of a government BOT project, cannot acquire reclaimed alienable lands of the
public domain in view of the constitutional ban.

Section 302 of the Local Government Code, also mentioned by PEA and AMARI, authorizes local governments in land reclamation projects to pay the
contractor or developer in kind consisting of a percentage of the reclaimed land, to wit:

"Section 302. Financing, Construction, Maintenance, Operation, and Management of Infrastructure Projects by the Private Sector. x x x

xxx

In case of land reclamation or construction of industrial estates, the repayment plan may consist of the grant of a portion or percentage of the
reclaimed land or the industrial estate constructed."

Although Section 302 of the Local Government Code does not contain a proviso similar to that of the BOT Law, the constitutional restrictions on land
ownership automatically apply even though not expressly mentioned in the Local Government Code.

Thus, under either the BOT Law or the Local Government Code, the contractor or developer, if a corporate entity, can only be paid with leaseholds on
portions of the reclaimed land. If the contractor or developer is an individual, portions of the reclaimed land, not exceeding 12 hectares 96 of non-agricultural
lands, may be conveyed to him in ownership in view of the legislative authority allowing such conveyance. This is the only way these provisions of the BOT
Law and the Local Government Code can avoid a direct collision with Section 3, Article XII of the 1987 Constitution.

Registration of lands of the public domain

Finally, PEA theorizes that the "act of conveying the ownership of the reclaimed lands to public respondent PEA transformed such lands of the public domain
to private lands." This theory is echoed by AMARI which maintains that the "issuance of the special patent leading to the eventual issuance of title takes the
subject land away from the land of public domain and converts the property into patrimonial or private property." In short, PEA and AMARI contend that with
the issuance of Special Patent No. 3517 and the corresponding certificates of titles, the 157.84 hectares comprising the Freedom Islands have become
private lands of PEA. In support of their theory, PEA and AMARI cite the following rulings of the Court:

1. Sumail v. Judge of CFI of Cotabato,97 where the Court held –

"Once the patent was granted and the corresponding certificate of title was issued, the land ceased to be part of the public domain and became
private property over which the Director of Lands has neither control nor jurisdiction."

2. Lee Hong Hok v. David,98 where the Court declared -

"After the registration and issuance of the certificate and duplicate certificate of title based on a public land patent, the land covered thereby
automatically comes under the operation of Republic Act 496 subject to all the safeguards provided therein."3.  Heirs of Gregorio Tengco v. Heirs of
Jose Aliwalas,99 where the Court ruled -

"While the Director of Lands has the power to review homestead patents, he may do so only so long as the land remains part of the public domain
and continues to be under his exclusive control; but once the patent is registered and a certificate of title is issued, the land ceases to be part of the
public domain and becomes private property over which the Director of Lands has neither control nor jurisdiction."

4. Manalo v. Intermediate Appellate Court,100 where the Court held –

"When the lots in dispute were certified as disposable on May 19, 1971, and free patents were issued covering the same in favor of the private
respondents, the said lots ceased to be part of the public domain and, therefore, the Director of Lands lost jurisdiction over the same."

5.Republic v. Court of Appeals,101 where the Court stated –

"Proclamation No. 350, dated October 9, 1956, of President Magsaysay legally effected a land grant to the Mindanao Medical Center, Bureau of
Medical Services, Department of Health, of the whole lot, validly sufficient for initial registration under the Land Registration Act. Such land grant is
constitutive of a 'fee simple' title or absolute title in favor of petitioner Mindanao Medical Center. Thus, Section 122 of the Act, which governs the
registration of grants or patents involving public lands, provides that 'Whenever public lands in the Philippine Islands belonging to the Government
 107

of the United States or to the Government of the Philippines are alienated, granted or conveyed to persons or to public or private corporations, the
same shall be brought forthwith under the operation of this Act (Land Registration Act, Act 496) and shall become registered lands.'"

The first four cases cited involve petitions to cancel the land patents and the corresponding certificates of titles issued to private parties. These four cases
uniformly hold that the Director of Lands has no jurisdiction over private lands or that upon issuance of the certificate of title the land automatically comes
under the Torrens System. The fifth case cited involves the registration under the Torrens System of a 12.8-hectare public land granted by the National
Government to Mindanao Medical Center, a government unit under the Department of Health. The National Government transferred the 12.8-hectare public
land to serve as the site for the hospital buildings and other facilities of Mindanao Medical Center, which performed a public service. The Court affirmed the
registration of the 12.8-hectare public land in the name of Mindanao Medical Center under Section 122 of Act No. 496. This fifth case is an example of a
public land being registered under Act No. 496 without the land losing its character as a property of public dominion.

In the instant case, the only patent and certificates of title issued are those in the name of PEA, a wholly government owned corporation performing public as
well as proprietary functions. No patent or certificate of title has been issued to any private party. No one is asking the Director of Lands to cancel PEA's
patent or certificates of title. In fact, the thrust of the instant petition is that PEA's certificates of title should remain with PEA, and the land covered by these
certificates, being alienable lands of the public domain, should not be sold to a private corporation.

Registration of land under Act No. 496 or PD No. 1529 does not vest in the registrant private or public ownership of the land. Registration is not a mode of
acquiring ownership but is merely evidence of ownership previously conferred by any of the recognized modes of acquiring ownership. Registration does not
give the registrant a better right than what the registrant had prior to the registration. 102 The registration of lands of the public domain under the Torrens
system, by itself, cannot convert public lands into private lands. 103

Jurisprudence holding that upon the grant of the patent or issuance of the certificate of title the alienable land of the public domain automatically becomes
private land cannot apply to government units and entities like PEA. The transfer of the Freedom Islands to PEA was made subject to the provisions of CA
No. 141 as expressly stated in Special Patent No. 3517 issued by then President Aquino, to wit:

"NOW, THEREFORE, KNOW YE, that by authority of the Constitution of the Philippines and in conformity with the provisions of Presidential
Decree No. 1084, supplemented by Commonwealth Act No. 141, as amended , there are hereby granted and conveyed unto the Public Estates
Authority the aforesaid tracts of land containing a total area of one million nine hundred fifteen thousand eight hundred ninety four (1,915,894)
square meters; the technical description of which are hereto attached and made an integral part hereof." (Emphasis supplied)

Thus, the provisions of CA No. 141 apply to the Freedom Islands on matters not covered by PD No. 1084. Section 60 of CA No. 141 prohibits, "except when
authorized by Congress," the sale of alienable lands of the public domain that are transferred to government units or entities. Section 60 of CA No. 141
constitutes, under Section 44 of PD No. 1529, a "statutory lien affecting title" of the registered land even if not annotated on the certificate of title. 104 Alienable
lands of the public domain held by government entities under Section 60 of CA No. 141 remain public lands because they cannot be alienated or
encumbered unless Congress passes a law authorizing their disposition. Congress, however, cannot authorize the sale to private corporations of reclaimed
alienable lands of the public domain because of the constitutional ban. Only individuals can benefit from such law.

The grant of legislative authority to sell public lands in accordance with Section 60 of CA No. 141 does not automatically convert alienable lands of the public
domain into private or patrimonial lands. The alienable lands of the public domain must be transferred to qualified private parties, or to government entities
not tasked to dispose of public lands, before these lands can become private or patrimonial lands. Otherwise, the constitutional ban will become illusory if
Congress can declare lands of the public domain as private or patrimonial lands in the hands of a government agency tasked to dispose of public lands. This
will allow private corporations to acquire directly from government agencies limitless areas of lands which, prior to such law, are concededly public lands.

Under EO No. 525, PEA became the central implementing agency of the National Government to reclaim foreshore and submerged areas of the public
domain. Thus, EO No. 525 declares that –

"EXECUTIVE ORDER NO. 525

Designating the Public Estates Authority as the Agency Primarily Responsible for all Reclamation Projects

Whereas, there are several reclamation projects which are ongoing or being proposed to be undertaken in various parts of the country which need
to be evaluated for consistency with national programs;

Whereas, there is a need to give further institutional support to the Government's declared policy to provide for a coordinated, economical and
efficient reclamation of lands;

Whereas, Presidential Decree No. 3-A requires that all reclamation of areas shall be limited to the National Government or any person authorized
by it under proper contract;

Whereas, a central authority is needed to act on behalf of the National Government which shall ensure a coordinated and integrated approach in
the reclamation of lands;

Whereas, Presidential Decree No. 1084 creates the Public Estates Authority as a government corporation to undertake reclamation of lands and
ensure their maximum utilization in promoting public welfare and interests ; and

Whereas, Presidential Decree No. 1416 provides the President with continuing authority to reorganize the national government including the
transfer, abolition, or merger of functions and offices.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution and
pursuant to Presidential Decree No. 1416, do hereby order and direct the following:

Section 1. The Public Estates Authority (PEA) shall be primarily responsible for integrating, directing, and coordinating all reclamation projects for
and on behalf of the National Government. All reclamation projects shall be approved by the President upon recommendation of the PEA, and
 108

shall be undertaken by the PEA or through a proper contract executed by it with any person or entity; Provided, that, reclamation projects of any
national government agency or entity authorized under its charter shall be undertaken in consultation with the PEA upon approval of the President.

x x x ."

As the central implementing agency tasked to undertake reclamation projects nationwide, with authority to sell reclaimed lands, PEA took the place of DENR
as the government agency charged with leasing or selling reclaimed lands of the public domain. The reclaimed lands being leased or sold by PEA are not
private lands, in the same manner that DENR, when it disposes of other alienable lands, does not dispose of private lands but alienable lands of the public
domain. Only when qualified private parties acquire these lands will the lands become private lands. In the hands of the government agency tasked and
authorized to dispose of alienable of disposable lands of the public domain, these lands are still public, not private lands .

Furthermore, PEA's charter expressly states that PEA " shall hold lands of the public domain " as well as "any and all kinds of lands." PEA can hold both lands
of the public domain and private lands. Thus, the mere fact that alienable lands of the public domain like the Freedom Islands are transferred to PEA and
issued land patents or certificates of title in PEA's name does not automatically make such lands private.

To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as private lands will sanction a gross violation of the constitutional ban
on private corporations from acquiring any kind of alienable land of the public domain. PEA will simply turn around,  as PEA has now done under the
Amended JVA, and transfer several hundreds of hectares of these reclaimed and still to be reclaimed lands to a single private corporation in only one
transaction. This scheme will effectively nullify the constitutional ban in Section 3, Article XII of the 1987 Constitution which was intended to diffuse equitably
the ownership of alienable lands of the public domain among Filipinos, now numbering over 80 million strong.

This scheme, if allowed, can even be applied to alienable agricultural lands of the public domain since PEA can "acquire x x x any and all kinds of lands."
This will open the floodgates to corporations and even individuals acquiring hundreds of hectares of alienable lands of the public domain under the guise that
in the hands of PEA these lands are private lands. This will result in corporations amassing huge landholdings never before seen in this country - creating
the very evil that the constitutional ban was designed to prevent. This will completely reverse the clear direction of constitutional development in this country.
The 1935 Constitution allowed private corporations to acquire not more than 1,024 hectares of public lands. 105 The 1973 Constitution prohibited private
corporations from acquiring any kind of public land, and the 1987 Constitution has unequivocally reiterated this prohibition.

The contention of PEA and AMARI that public lands, once registered under Act No. 496 or PD No. 1529, automatically become private lands is contrary to
existing laws. Several laws authorize lands of the public domain to be registered under the Torrens System or Act No. 496, now PD No. 1529, without losing
their character as public lands. Section 122 of Act No. 496, and Section 103 of PD No. 1529, respectively, provide as follows:

Act No. 496

"Sec. 122. Whenever public lands in the Philippine Islands belonging to the x x x Government of the Philippine Islands are alienated, granted, or
conveyed to persons or the public or private corporations, the same shall be brought forthwith under the operation of this Act and shall become
registered lands."

PD No. 1529

"Sec. 103. Certificate of Title to Patents. Whenever public land is by the Government alienated, granted or conveyed to  any person, the same shall
be brought forthwith under the operation of this Decree." (Emphasis supplied)

Based on its legislative history, the phrase "conveyed to any person" in Section 103 of PD No. 1529 includes conveyances of public lands to public
corporations.

Alienable lands of the public domain "granted, donated, or transferred to a province, municipality, or branch or subdivision of the Government," as provided
in Section 60 of CA No. 141, may be registered under the Torrens System pursuant to Section 103 of PD No. 1529. Such registration, however, is expressly
subject to the condition in Section 60 of CA No. 141 that the land "shall not be alienated, encumbered or otherwise disposed  of in a manner affecting its title,
except when authorized by Congress ." This provision refers to government reclaimed, foreshore and marshy lands of the public domain that have been titled
but still cannot be alienated or encumbered unless expressly authorized by Congress. The need for legislative authority prevents the registered land of the
public domain from becoming private land that can be disposed of to qualified private parties.

The Revised Administrative Code of 1987 also recognizes that lands of the public domain may be registered under the Torrens System. Section 48, Chapter
12, Book I of the Code states –

"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the Government is authorized by law to be conveyed, the deed of
conveyance shall be executed in behalf of the government by the following:

(1) x x x

(2) For property belonging to the Republic of the Philippines, but titled in the name of any political subdivision or of any corporate agency or
instrumentality, by the executive head of the agency or instrumentality." (Emphasis supplied)

Thus, private property purchased by the National Government for expansion of a public wharf may be titled in the name of a government corporation
regulating port operations in the country. Private property purchased by the National Government for expansion of an airport may also be titled in the name
of the government agency tasked to administer the airport. Private property donated to a municipality for use as a town plaza or public school site may
likewise be titled in the name of the municipality. 106 All these properties become properties of the public domain, and if already registered under Act No. 496
or PD No. 1529, remain registered land. There is no requirement or provision in any existing law for the de-registration of land from the Torrens System.

Private lands taken by the Government for public use under its power of eminent domain become unquestionably part of the public domain. Nevertheless,
Section 85 of PD No. 1529 authorizes the Register of Deeds to issue in the name of the National Government new certificates of title covering such
expropriated lands. Section 85 of PD No. 1529 states –
 109

"Sec. 85. Land taken by eminent domain. Whenever any registered land, or interest therein, is expropriated or taken by eminent domain, the
National Government, province, city or municipality, or any other agency or instrumentality exercising such right shall file for registration in the
proper Registry a certified copy of the judgment which shall state definitely by an adequate description, the particular property or interest
expropriated, the number of the certificate of title, and the nature of the public use. A memorandum of the right or interest taken shall be made on
each certificate of title by the Register of Deeds, and where the fee simple is taken, a new certificate shall be issued in favor of the National
Government, province, city, municipality , or any other agency or instrumentality exercising such right for the land so taken. The legal expenses
incident to the memorandum of registration or issuance of a new certificate of title shall be for the account of the authority taking the land or
interest therein." (Emphasis supplied)

Consequently, lands registered under Act No. 496 or PD No. 1529 are not exclusively private or patrimonial lands. Lands of the public domain may also be
registered pursuant to existing laws.

AMARI makes a parting shot that the Amended JVA is not a sale to AMARI of the Freedom Islands or of the lands to be reclaimed from submerged areas of
Manila Bay. In the words of AMARI, the Amended JVA "is not a sale but a joint venture with a stipulation for reimbursement of the original cost incurred by
PEA for the earlier reclamation and construction works performed by the CDCP under its 1973 contract with the Republic." Whether the Amended JVA is a
sale or a joint venture, the fact remains that the Amended JVA requires PEA to "cause the issuance and delivery of the certificates of title conveying
AMARI's Land Share in the name of AMARI." 107

This stipulation still contravenes Section 3, Article XII of the 1987 Constitution which provides that private corporations "shall not hold such alienable lands of
the public domain except by lease." The transfer of title and ownership to AMARI clearly means that AMARI will "hold" the reclaimed lands other than by
lease. The transfer of title and ownership is a "disposition" of the reclaimed lands, a transaction considered a sale or alienation under CA No. 141, 108 the
Government Auditing Code,109 and Section 3, Article XII of the 1987 Constitution.

The Regalian doctrine is deeply implanted in our legal system. Foreshore and submerged areas form part of the public domain and are inalienable. Lands
reclaimed from foreshore and submerged areas also form part of the public domain and are also inalienable, unless converted pursuant to law into alienable
or disposable lands of the public domain. Historically, lands reclaimed by the government are sui generis, not available for sale to private parties unlike other
alienable public lands. Reclaimed lands retain their inherent potential as areas for public use or public service. Alienable lands of the public domain,
increasingly becoming scarce natural resources, are to be distributed equitably among our ever-growing population. To insure such equitable distribution, the
1973 and 1987 Constitutions have barred private corporations from acquiring any kind of alienable land of the public domain. Those who attempt to dispose
of inalienable natural resources of the State, or seek to circumvent the constitutional ban on alienation of lands of the public domain to private corporations,
do so at their own risk.

We can now summarize our conclusions as follows:

1. The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by certificates of title in the name of PEA, are  alienable
lands of the public domain. PEA may lease these lands to private corporations but may not sell or transfer ownership of these lands to private
corporations. PEA may only sell these lands to Philippine citizens, subject to the ownership limitations in the 1987 Constitution and existing laws.

2. The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural resources of the public domain until classified as alienable or
disposable lands open to disposition and declared no longer needed for public service. The government can make such classification and
declaration only after PEA has reclaimed these submerged areas. Only then can these lands qualify as agricultural lands of the public domain,
which are the only natural resources the government can alienate. In their present state, the 592.15 hectares of submerged areas are inalienable
and outside the commerce of man.

3. Since the Amended JVA seeks to transfer to AMARI, a private corporation, ownership of 77.34 hectares 110 of the Freedom Islands, such transfer
is void for being contrary to Section 3, Article XII of the 1987 Constitution which prohibits private corporations from acquiring any kind of alienable
land of the public domain.

4. Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156 hectares 111 of still submerged areas of Manila Bay, such transfer
is void for being contrary to Section 2, Article XII of the 1987 Constitution which prohibits the alienation of natural resources other than agricultural
lands of the public domain. PEA may reclaim these submerged areas. Thereafter, the government can classify the reclaimed lands as alienable or
disposable, and further declare them no longer needed for public service. Still, the transfer of such reclaimed alienable lands of the public domain
to AMARI will be void in view of Section 3, Article XII of the 1987 Constitution which prohibits private corporations from acquiring any kind of
alienable land of the public domain.

Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article XII of the 1987 Constitution. Under Article 1409 112 of the Civil Code, contracts whose
"object or purpose is contrary to law," or whose "object is outside the commerce of men," are "inexistent and void from the beginning." The Court must
perform its duty to defend and uphold the Constitution, and therefore declares the Amended JVA null and void ab initio.

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

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

WHEREFORE, the petition is GRANTED. The Public Estates Authority and Amari Coastal Bay Development Corporation are PERMANENTLY
ENJOINED from implementing the Amended Joint Venture Agreement which is hereby declared NULL and VOID ab initio.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, and
Corona, JJ., concur.
 110

15. G.R. No. 177271             May 4, 2007

BANTAY REPUBLIC ACT OR BA-RA 7941, represented by MR. AMEURFINO E. CINCO, Chairman, AND URBAN POOR FOR LEGAL REFORMS (UP-
LR), represented by MRS. MYRNA P. PORCARE, Secretary-General, Petitioners, vs.
COMMISSION ON ELECTIONS, BIYAHENG PINOY, KAPATIRAN NG MGA NAKAKULONG NA WALANG SALA (KAKUSA), BARANGAY ASSOCIATION
FOR NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT), AHON PINOY, AGRICULTURAL SECTOR ALLIANCE OF THE PHILIPPINES, INC.
(AGAP), PUWERSA NG BAYANING ATLETA (PBA), ALYANSA NG MGA GRUPONG HALIGI NG AGHAM AT TEKNOLOHIYA PARA SA MAMAMAYAN,
INC. (AGHAM), BABAE PARA SA KAUNLARAN (BABAE KA), AKSYON SAMBAYANAN (AKSA), ALAY SA BAYAN NG MALAYANG PROPESYUNAL AT
REPORMANG KALAKAL (ABAY-PARAK), AGBIAG TIMPUYOG ILOCANO, INC. (AGBIAG!), ABANTE ILONGGO, INC. (ABA ILONGGO), AANGAT TAYO
(AT), AANGAT ANG KABUHAYAN (ANAK), BAGO NATIONAL CULTURAL SOCIETY OF THE PHILIPPINES (BAGO), ANGAT ANTAS-KABUHAYAN
PILIPINO MOVEMENT (AANGAT KA PILIPINO), ARTS BUSINESS AND SCIENCE PROFESSIONAL (ABS), ASSOSASYON NG MGA MALILIIT NA
NEGOSYANTENG GUMAGANAP INC. (AMANG), SULONG BARANGAY MOVEMENT, KASOSYO PRODUCERS CONSUMER EXCHANGE
ASSOCIATION, INC. (KASOSYO), UNITED MOVEMENT AGAINST DRUGS (UNI-MAD), PARENTS ENABLING PARENTS (PEP), ALLIANCE OF NEO-
CONSERVATIVES (ANC), FILIPINOS FOR PEACE, JUSTICE AND PROGRESS MOVEMENT (FPJPM), BIGKIS PINOY MOVEMENT (BIGKIS), 1-UNITED
TRANSPORT KOALISYON (1-UNTAK), ALLIANCE FOR BARANGAY CONCERNS (ABC), BIYAYANG BUKID, INC., ALLIANCE FOR NATIONALISM AND
DEMOCRACY (ANAD), AKBAY PINOY OFW-NATIONAL INC., (APOI), ALLIANCE TRANSPORT SECTOR (ATS), KALAHI SECTORAL PARTY
(ADVOCATES FOR OVERSEAS FILIPINO) AND ASSOCIATION OF ADMINISTRATORS, PROFESSIONALS AND SENIORS (AAPS), Respondents.

x--------------------------------------------------x

G.R. No. 177314             May 4, 2007

REP. LORETTA ANN P. ROSALES, KILOSBAYAN FOUNDATION, BANTAY KATARUNGAN FOUNDATION, Petitioners, vs.
THE COMMISSION ON ELECTIONS, Respondent.

DECISION

GARCIA, J.:

Before the Court are these two consolidated petitions for certiorari and mandamus to nullify and set aside certain issuances of the Commission on Elections
(Comelec) respecting party-list groups which have manifested their intention to participate in the party-list elections on May 14, 2007.

In the first petition, docketed as G.R. No. 177271, petitioners Bantay Republic Act (BA-RA 7941, for short) and the Urban Poor for Legal Reforms (UP-LR,
for short) assail the various Comelec resolutions accrediting private respondents Biyaheng Pinoy et al., to participate in the forthcoming party-list elections
on May 14, 2007 without simultaneously determining whether or not their respective nominees possess the requisite qualifications defined in Republic Act
(R.A.) No. 7941, or the "Party-List System Act" and belong to the marginalized and underrepresented sector each seeks to represent. In the second,
docketed as G.R. No. 177314, petitioners Loreta Ann P. Rosales, Kilosbayan Foundation and Bantay Katarungan Foundation impugn Comelec Resolution
07-0724 dated April 3, 2007 effectively denying their request for the release or disclosure of the names of the nominees of the fourteen (14) accredited
participating party-list groups mentioned in petitioner Rosales’ previous letter-request.

While both petitions commonly seek to compel the Comelec to disclose or publish the names of the nominees of the various party-list groups named in the
petitions,1 the petitioners in G.R. No. 177271 have the following additional prayers: 1) that the 33 private respondents named therein be "declare[d] as
unqualified to participate in the party-list elections as sectoral organizations, parties or coalition for failure to comply with the guidelines prescribed by the
[Court] in [Ang Bagong Bayani v. Comelec 2]" and, 2) correspondingly, that the Comelec be enjoined from allowing respondent groups from participating in
the May 2007 elections.

In separate resolutions both dated April 24, 2007, the Court en banc required the public and private respondents to file their respective comments on the
petitions within a non-extendible period of five (5) days from notice. Apart from respondent Comelec, seven (7) private respondents 3 in G.R. No. 177271 and
one party-list group4 mentioned in G.R. No. 177314 submitted their separate comments. In the main, the separate comments of the private respondents
focused on the untenability and prematurity of the plea of petitioners BA-RA 7941 and UP-LR to nullify their accreditation as party-list groups and thus
disqualify them and their respective nominees from participating in the May 14, 2007 party-list elections.

The facts:

On January 12, 2007, the Comelec issued Resolution No. 7804 prescribing rules and regulations to govern the filing of manifestation of intent to participate
and submission of names of nominees under the party-list system of representation in connection with the May 14, 2007 elections. Pursuant thereto, a
number of organized groups filed the necessary manifestations. Among these – and ostensibly subsequently accredited by the Comelec to participate in the
2007 elections - are 14 party-list groups, namely: (1) BABAE KA; (2) ANG KASANGGA; (3) AKBAY PINOY; (4) AKSA; (5) KAKUSA; (6) AHON PINOY;
(7) OFW PARTY; (8) BIYAHENG PINOY; (9) ANAD; (10) AANGAT ANG KABUHAYAN; (11) AGBIAG; (12) BANAT; (13) BANTAY LIPAD; (14) AGING
PINOY. Petitioners BA-RA 7941 and UP-LR presented a longer, albeit an overlapping, list.

Subsequent events saw BA-RA 7941 and UP-LR filing with the Comelec an Urgent Petition to Disqualify, thereunder seeking to disqualify the nominees of
certain party-list organizations. Both petitioners appear not to have the names of the nominees sought to be disqualified since they still asked for a copy of
the list of nominees. Docketed in the Comelec as SPA Case No 07-026, this urgent petition has yet to be resolved.

Meanwhile, reacting to the emerging public perception that the individuals behind the aforementioned 14 party-list groups do not, as they should, actually
represent the poor and marginalized sectors, petitioner Rosales, in G.R. No. 177314, addressed a letter 5 dated March 29, 2007 to Director Alioden Dalaig of
the Comelec’s Law Department requesting a list of that groups’ nominees. Another letter 6 of the same tenor dated March 31, 2007 followed, this time
petitioner Rosales impressing upon Atty. Dalaig the particular urgency of the subject request.

Neither the Comelec Proper nor its Law Department officially responded to petitioner Rosales’ requests. The April 13, 2007 issue of the  Manila
Bulletin, however, carried the front-page banner headline "COMELEC WON’T BARE PARTY-LIST NOMINEES", 7 with the following sub-heading: "Abalos
says party-list polls not personality oriented."
 111

On April 16, 2007, Atty. Emilio Capulong, Jr. and ex-Senator Jovito R. Salonga, in their own behalves and as counsels of petitioner Rosales, forwarded a
letter8 to the Comelec formally requesting action and definitive decision on Rosales’ earlier plea for information regarding the names of several party-list
nominees. Invoking their constitutionally-guaranteed right to information, Messrs. Capulong and Salonga at the same time drew attention to the banner
headline adverted to earlier, with a request for the Comelec, " collectively or individually, to issue a formal clarification, either confirming or denying … the
banner headline and the alleged statement of Chairman Benjamin Abalos, Sr. xxx " Evidently unbeknownst then to Ms. Rosales, et al., was the issuance of
Comelec en banc Resolution 07-07249 under date April 3, 2007 virtually declaring the nominees’ names confidential and in net effect denying petitioner
Rosales’ basic disclosure request. In its relevant part, Resolution 07-0724 reads as follows:

RESOLVED, moreover, that the Commission will disclose/publicize the names of party-list nominees in connection with the May 14, 2007 Elections only after
3:00 p.m. on election day.

Let the Law Department implement this resolution and reply to all letters addressed to the Commission inquiring on the party-list nominees. (Emphasis
added.)

According to petitioner Rosales, she was able to obtain a copy of the April 3, 2007 Resolution only on April 21, 2007. She would later state the observation
that the last part of the " Order empowering the Law Department to ‘implement this resolution and reply to all letters … inquiring on the party-list nominees’ is
apparently a fool-proof bureaucratic way to distort and mangle the truth and give the impression that the antedated Resolution of April 3, 2007 … is the final
answer to the two formal requests … of Petitioners".10

The herein consolidated petitions are cast against the foregoing factual setting, albeit petitioners BA-RA 7941 and UP-LR appear not to be aware, when they
filed their petition on April 18, 2007, of the April 3, 2007 Comelec Resolution 07-0724.

To start off, petitioners BA-RA 7941 and UP-LR would have the Court cancel the accreditation accorded by the Comelec to the respondent party-list groups
named in their petition on the ground that these groups and their respective nominees do not appear to be qualified. In the words of petitioners BA-RA 7941
and UP-LR, Comelec -

xxx committed grave abuse of discretion … when it granted the assailed accreditations even without simultaneously determining whether the nominees of
herein private respondents are qualified or not, or whether or not the nominees are likewise belonging to the marginalized and underrepresented sector they
claim to represent in Congress, in accordance with No. 7 of the eight-point guidelines prescribed by the Honorable Supreme in the Ang Bagong
Bayani11 case which states that, "not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its
nominees." In the case of private respondents, public respondent Comelec granted accreditations without the required  simultaneous determination of the
qualification of the nominees as part of the accreditation process of the party-list organization itself. (Words in bracket added; italization in the original) 12

The Court is unable to grant the desired plea of petitioners BA-RA 7941 and UP-LR for cancellation of accreditation on the grounds thus advanced in their
petition. For, such course of action would entail going over and evaluating the qualities of the sectoral groups or parties in question, particularly whether or
not they indeed represent marginalized/underrepresented groups. The exercise would require the Court to make a factual determination, a matter which is
outside the office of judicial review by way of special civil action for certiorari. In certiorari proceedings, the Court is not called upon to decide factual issues
and the case must be decided on the undisputed facts on record. 13 The sole function of a writ of certiorari is to address issues of want of jurisdiction or grave
abuse of discretion and does not include a review of the tribunal’s evaluation of the evidence. 14

Not lost on the Court of course is the pendency before the Comelec of SPA Case No. 07-026 in which petitioners BA-RA 7941 and UP-LR themselves seek
to disqualify the nominees of the respondent party-list groups named in their petition.

Petitioners BA-RA 7941’s and UP-LR’s posture that the Comelec committed grave abuse of discretion when it granted the assailed accreditations without
simultaneously determining the qualifications of their nominees is without basis. Nowhere in R.A. No. 7941 is there a requirement that the qualification of a
party-list nominee be determined simultaneously with the accreditation of an organization. And as aptly pointed out by private respondent Babae Para sa
Kaunlaran (Babae Ka), Section 4 of R.A. No. 7941 requires a petition for registration of a party-list organization to be filed with the Comelec "not later than
ninety (90) days before the election" whereas the succeeding Section 8 requires the submission "not later than forty-five (45) days before the election" of the
list of names whence party-list representatives shall be chosen.

Now to the other but core issues of the case. The petition in G.R. No. 177314 formulates and captures the main issues tendered by the petitioners in these
consolidated cases and they may be summarized as follows:

1. Whether respondent Comelec, by refusing to reveal the names of the nominees of the various party-list groups, has violated the right to
information and free access to documents as guaranteed by the Constitution; and

2. Whether respondent Comelec is mandated by the Constitution to disclose to the public the names of said nominees.

While the Comelec did not explicitly say so, it based its refusal to disclose the names of the nominees of subject party-list groups on Section 7 of R.A. 7941.
This provision, while commanding the publication and the posting in polling places of a certified list of party-list system participating groups, nonetheless tells
the Comelec not to show or include the names of the party-list nominees in said certified list. Thus:

SEC. 7. Certified List of Registered Parties.- The COMELEC shall, not later than sixty (60) days before election, prepare a certified list of national, regional,
or sectoral parties, organizations or coalitions which have applied or who have manifested their desire to participate under the party-list system and distribute
copies thereof to all precincts for posting in the polling places on election day. The names of the party-list nominees shall not be shown on the certified
list. (Emphasis added.)

And doubtless part of Comelec’s reason for keeping the names of the party list nominees away from the public is deducible from the following excerpts of the
news report appearing in the adverted April 13, 2007 issue of the Manila Bulletin:

The Commission on Elections (COMELEC) firmed up yesterday its decision not to release the names of nominees of sectoral parties, organizations, or
coalitions accredited to participate in the party-list election which will be held simultaneously with the May 14 mid-term polls.
 112

COMELEC Chairman Benjamin S. Abalos, Sr. … said he and [the other five COMELEC] Commissioners --- believe that the party list elections must not be
personality oriented.

Abalos said under [R.A.] 7941 …, the people are to vote for sectoral parties, organizations, or coalitions, not for their nominees.

He said there is nothing in R.A. 7941 that requires the Comelec to disclose the names of nominees. xxx (Words in brackets and emphasis added)

Insofar as the disclosure issue is concerned, the petitions are impressed with merit.

Assayed against the non-disclosure stance of the Comelec and the given rationale therefor is the right to information enshrined in the self-
executory15 Section 7, Article III of the Constitution, viz:

Sec.7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well 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.

Complementing and going hand in hand with the right to information is another constitutional provision enunciating the policy of full disclosure and
transparency in Government. We refer to Section 28, Article II of the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving
public interest.

The right to information is a public right where the real parties in interest are the public, or the citizens to be precise. And for every right of the people
recognized as fundamental lies a corresponding duty on the part of those who govern to respect and protect that right. This is the essence of the Bill of
Rights in a constitutional regime.16 Without a government’s acceptance of the limitations upon it by the Constitution in order to uphold individual liberties,
without an acknowledgment on its part of those duties exacted by the rights pertaining to the citizens, the Bill of Rights becomes a sophistry.

By weight of jurisprudence, any citizen can challenge any attempt to obstruct the exercise of his right to information and may seek its enforcement by
mandamus.17 And since every citizen by the simple fact of his citizenship possesses the right to be informed, objections on ground of loc us standi are
ordinarily unavailing.18

Like all constitutional guarantees, however, the right to information and its companion right of access to official records are not absolute. As articulated
in Legaspi, supra, the people’s right to know is limited to " matters of public concern" and is further subject to such limitation as may be provided by law.
Similarly, the policy of full disclosure is confined to transactions involving " public interest" and is subject to reasonable conditions prescribed by law. Too,
there is also the need of preserving a measure of confidentiality on some matters, such as military, trade, banking and diplomatic secrets or those affecting
national security.19

The terms "public concerns" and "public interest" have eluded precise definition. But both terms embrace, to borrow from Legaspi, a broad spectrum of
subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally whet the interest of an
ordinary citizen. At the end of the day, it is for the courts to determine, on a case to case basis, whether or not at issue is of interest or importance to the
public.

If, as in Legaspi, it was the legitimate concern of a citizen to know if certain persons employed as sanitarians of a health department of a city are civil service
eligibles, surely the identity of candidates for a lofty elective public office should be a matter of highest public concern and interest.

As may be noted, no national security or like concerns is involved in the disclosure of the names of the nominees of the party-list groups in question.
Doubtless, the Comelec committed grave abuse of discretion in refusing the legitimate demands of the petitioners for a list of the nominees of the party-list
groups subject of their respective petitions. Mandamus, therefore, lies.

The last sentence of Section 7 of R.A. 7941 reading: "[T]he names of the party-list nominees shall not be shown on the certified list" is certainly not a
justifying card for the Comelec to deny the requested disclosure. To us, the prohibition imposed on the Comelec under said Section 7 is limited in scope and
duration, meaning, that it extends only to the certified list which the same provision requires to be posted in the polling places on election day. To stretch the
coverage of the prohibition to the absolute is to read into the law something that is not intended. As it were, there is absolutely nothing in R.A. No. 7941 that
prohibits the Comelec from disclosing or even publishing through mediums other than the "Certified List" the names of the party-list nominees. The Comelec
obviously misread the limited non-disclosure aspect of the provision as an absolute bar to public disclosure before the May 2007 elections. The interpretation
thus given by the Comelec virtually tacks an unconstitutional dimension on the last sentence of Section 7 of R.A. No. 7941.

The Comelec’s reasoning that a party-list election is not an election of personalities is valid to a point. It cannot be taken, however, to justify its assailed non-
disclosure stance which comes, as it were, with a weighty presumption of invalidity, impinging, as it does, on a fundamental right to information. 20 While the
vote cast in a party-list elections is a vote for a party, such vote, in the end, would be a vote for its nominees, who, in appropriate cases, would eventually sit
in the House of Representatives.

The Court is very much aware of newspaper reports detailing the purported reasons behind the Comelec’s disinclination to release the names of party-list
nominees. It is to be stressed, however, that the Court is in the business of dispensing justice on the basis of hard facts and applicable statutory and
decisional laws. And lest it be overlooked, the Court always assumes, at the first instance, the presumptive validity and regularity of official acts of
government officials and offices.

It has been repeatedly said in various contexts that the people have the right to elect their representatives on the basis of an informed judgment. Hence the
need for voters to be informed about matters that have a bearing on their choice. The ideal cannot be achieved in a system of blind voting, as veritably
advocated in the assailed resolution of the Comelec. The Court, since the 1914 case of Gardiner v. Romulo, 21 has consistently made it clear that it frowns
upon any interpretation of the law or rules that would hinder in any way the free and intelligent casting of the votes in an election. 22 So it must be here for still
other reasons articulated earlier.
 113

In all, we agree with the petitioners that respondent Comelec has a constitutional duty to disclose and release the names of the nominees of the party-list
groups named in the herein petitions.

WHEREFORE, the petition in G.R. No. 177271 is partly DENIED insofar as it seeks to nullify the accreditation of the respondents named therein. However,
insofar as it seeks to compel the Comelec to disclose or publish the names of the nominees of party-list groups, sectors or organizations accredited to
participate in the May 14, 2007 elections, the same petition and the petition in G.R. No. 177314 are GRANTED. Accordingly, the Comelec is hereby
ORDERED to immediately disclose and release the names of the nominees of the party-list groups, sectors or organizations accredited to participate in the
May 14, 2007 party-list elections. The Comelec is further DIRECTED to submit to the Court its compliance herewith within five (5) days from notice hereof.

This Decision is declared immediately executory upon its receipt by the Comelec.

No pronouncement as to cost.

SO ORDERED.

CANCIO C. GARCIA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Asscociate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Asscociate Justice

(on leave) (on leave)

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
Associate Justice Asscociate Justice

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

Associate Justice Asscociate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Asscociate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

16. A.C. 1928 December 19, 1980

In the Matter of the IBP Membership Dues Delinquency of Atty. MARCIAL A. EDILLION (IBP Administrative Case No. MDD-1), petitioner,

FERNANDO, C.J.:

The full and plenary discretion in the exercise of its competence to reinstate a disbarred member of the bar admits of no doubt. All the relevant factors
bearing on the specific case, public interest, the integrity of the profession and the welfare of the recreant who had purged himself of his guilt are given their
due weight. Respondent Marcial A. Edillon was disbarred on August 3, 1978, 1 the vote being unanimous with the late.
 114

Chief Justice Castro ponente. From June 5, 1979, he had repeatedly pleaded that he be reinstated. The minute resolution dated October 23, 1980, granted
such prayer. It was there made clear that it "is without prejudice to issuing an extended opinion." 2

Before doing so, a recital of the background facts that led to the disbarment of respondent may not be amiss. As set forth in the resolution penned by the late
Chief Justice Castro: "On November 29. 1975, the Integrated Bar of the Philippines (IBP for short) Board of Governors, unanimously adopted Resolution No.
75-65 in Administrative case No. MDD-1 (In the Matter of the Membership Dues Delinquency of Atty. Marcial A. Edillon) recommending to the Court the
removal of the name of the respondent from its Roll of Attorneys for 'stubborn refusal to pay his membership dues' to the IBP since the latter's constitution
notwithstanding due notice. On January 21, 1976, the IBP, through its then President Liliano B. Neri, submitted the said resolution to the Court for
consideration and approval,. Pursuant to paragraph 2, Section 24, Article III of the By-Laws of the IBP, which. reads: ... Should the delinquency further
continue until the following June 29, the Board shall promptly inquire into the cause or causes of the continued delinquency and take whatever action it shall
deem appropriate, including a recommendation to the Supreme Court for the removal of the delinquent member's name from the Roll of Attorneys. Notice of
the action taken should be submit by registered mail to the member and to the Secretary of the Chapter concerned.' On January 27, 1976, the Court required
the respondent to comment on the resolution and letter adverted to above he submitted his comment on February 23, 1976, reiterating his refusal to pay the
membership fees due from him. On March 2, 1976, the Court required the IBP President and the IBP Board of Governors to reply to Edillon's comment: On
March 24, 1976, they submitted a joint reply. Thereafter, the case was set for hearing on June 3, 1976. After the hearing, the parties were required to submit
memoranda in amplification of their oral arguments. The matter was thenceforth submitted for resolution." 3

Reference was then made to the authority of the IBP Board of Governors to recommend to the Supreme Court the removal of a delinquent member's name
from the Roll of Attorneys as found in Rules of Court: 'Effect of non-payment of dues. — Subject to the provisions of Section 12 of this Rule, default in the
payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one year shall be a
ground for the removal of the name of the delinquent member from the Roll of Attorneys. 4

The submission of respondent Edillion as summarized in the aforesaid resolution "is that the above provisions constitute an invasion of his constitutional
rights in the sense that he is being compelled, as a pre-condition to maintaining his status as a lawyer in good standing, to be a member of the IBP and to
pay the corresponding dues, and that as a consequence of this compelled financial support of the said organization to which he is admittedly personally
antagonistic, he is being deprived of the rights to liberty and property guaranteed to him by the Constitution. Hence, the respondent concludes, the above
provisions of the Court Rule and of the IBP By-Laws are void and of no legal force and effect. 5 It was pointed out in the resolution that such issues was
raised on a previous case before the Court, entitled 'Administrative Case No. 526, In the Matter of the Petition for the Integration of the Bar of the Philippines,
Roman Ozaeta, et al., Petitioners.' The Court exhaustively considered all these matters in that case in its Resolution ordaining the integration of the Bar of
the Philippines, promulgated on January 9, 1973. 6 The unanimous conclusion reached by the Court was that the integration of the Philippine Bar raises no
constitutional question and is therefore legally unobjectionable, "and, within the context of contemporary conditions in the Philippine, has become an
imperative means to raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility
fully and effectively." 7

As mentioned at the outset, the vote was unanimous. From the time the decision was rendered, there were various pleadings filed by respondent for
reinstatement starting with a motion for reconsideration dated August 19, 1978. Characterized as it was by persistence in his adamantine refusal to admit the
full competence of the Court on the matter, it was not unexpected that it would be denied. So it turned out.  8 It was the consensus that he continued to be
oblivious to certain balic juridical concepts, the appreciation of which does not even require great depth of intellect. Since respondent could not be said to be
that deficient in legal knowledge and since his pleadings in other cases coming before this Tribunal were quite literate, even if rather generously sprinkled
with invective for which he had been duly taken to task, there was the impression that his recalcitrance arose from and sheer obstinacy. Necessary, the
extreme penalty of disbarment visited on him was more than justified.

Since then, however, there were other communications to this Court where a different attitude on his part was discernible.  9 The tone of defiance was gone
and circumstances of a mitigating character invoked — the state of his health and his advanced age. He likewise spoke of the welfare of former clients who
still rely on him for counsel, their confidence apparently undiminished. For he had in his career been a valiant, if at times unreasonable, defender of the
causes entrusted to him.

This Court, in the light of the above, felt that reinstatement could be ordered and so it did in the resolution of October 23, 1980. It made certain that there was
full acceptance on his part of the competence of this Tribunal in the exercise of its plenary power to regulate the legal profession and can integrate the bar
and that the dues were duly paid. Moreover, the fact that more than two years had elapsed during which he war. barred from exercising his profession was
likewise taken into account. It may likewise be said that as in the case of the inherent power to punish for contempt and paraphrasing the dictum of  Justice
Malcolm in Villavicencio v. Lukban, 10 the power to discipline, especially if amounting to disbarment, should be exercised on the preservative and not on the
vindictive principle. 11

One last word. It has been pertinently observed that there is no irretrievable finality as far as admission to the bar is concerned. So it is likewise as to loss of
membership. What must ever be borne in mind is that membership in the bar, to follow Cardozo, is a privilege burdened with conditions. Failure to abide by
any of them entails the loss of such privilege if the gravity thereof warrant such drastic move. Thereafter a sufficient time having elapsed and after actuations
evidencing that there was due contrition on the part of the transgressor, he may once again be considered for the restoration of such a privilege. Hence, our
resolution of October 23, 1980.

The Court restores to membership to the bar Marcial A. Edillon.

Teehankee, Barredo, Makasiar, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, JJ., concur.
Aquino, J., concurs in the result.

17. G.R. No. 143076               June 10, 2003

PHILIPPINE RURAL ELECTRIC COOPERATIVES ASSOCIATION, INC. (PHILRECA); AGUSAN DEL NORTE ELECTRIC COOPERATIVE, INC. (ANECO);
ILOILO I ELECTRIC COOPERATIVE, INC. (ILECO I); and ISABELA I ELECTRIC COOPERATIVE, INC. (ISELCO I), Petitioners, vs. THE SECRETARY,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, and THE SECRETARY, DEPARTMENT OF FINANCE, Respondents.

DECISION

PUNO, J.:
 115

This is a petition for Prohibition under Rule 65 of the Rules of Court with prayer for the issuance of a temporary restraining order seeking to annul as
unconstitutional sections 193 and 234 of R.A. No. 7160 otherwise known as the Local Government Code.

On May 23, 2000, a class suit was filed by petitioners in their own behalf and in behalf of other electric cooperatives organized and existing under P.D. No.
269 who are members of petitioner Philippine Rural Electric Cooperatives Association, Inc. (PHILRECA). Petitioner PHILRECA is an association of 119
electric cooperatives throughout the country. Petitioners Agusan del Norte Electric Cooperative, Inc. (ANECO), Iloilo I Electric Cooperative, Inc. (ILECO I)
and Isabela I Electric Cooperative, Inc. (ISELCO I) are non-stock, non-profit electric cooperatives organized and existing under P.D. No. 269, as amended,
and registered with the National Electrification Administration (NEA).

Under P.D. No. 269, as amended, or the National Electrification Administration Decree, it is the declared policy of the State to provide "the total electrification
of the Philippines on an area coverage basis" the same "being vital to the people and the sound development of the nation." 1 Pursuant to this policy, P.D. No.
269 aims to "promote, encourage and assist all public service entities engaged in supplying electric service, particularly electric cooperatives" by "giving
every tenable support and assistance" to the electric cooperatives coming within the purview of the law. 2 Accordingly, Section 39 of P.D. No. 269 provides for
the following tax incentives to electric cooperatives:

SECTION 39. Assistance to Cooperatives; Exemption from Taxes, Imposts, Duties, Fees; Assistance from the National Power Corporation . — Pursuant to
the national policy declared in Section 2, the Congress hereby finds and declares that the following assistance to cooperative is necessary and appropriate:

(a) Provided that it operates in conformity with the purposes and provisions of this Decree, cooperatives (1) shall be permanently exempt from paying
income taxes, and (2) for a period ending on December 31 of the thirtieth full calendar year after the date of a cooperative's organization or conversion
hereunder, or until it shall become completely free of indebtedness incurred by borrowing, whichever event first occurs,  shall be exempt from the payment
(a) of all National Government, local government and municipal taxes and fees, including franchise, filing, recordation, license or permit fees or taxes and
any fees, charges, or costs involved in any court or administrative proceeding in which it may be a party , and (b) of all duties or imposts on foreign goods
acquired for its operations, the period of such exemption for a new cooperative formed by consolidation, as provided for in Section 29, to begin from as of the
date of the beginning of such period for the constituent consolidating cooperative which was most recently organized or converted under this Decree:
Provided, That the Board of Administrators shall, after consultation with the Bureau of Internal Revenue, promulgate rules and regulations for the proper
implementation of the tax exemptions provided for in this Decree.…. 3

From 1971 to 1978, in order to finance the electrification projects envisioned by P.D. No. 269, as amended, the Philippine Government, acting through the
National Economic Council (now National Economic Development Authority) and the NEA, entered into six (6) loan agreements with the government of the
United States of America through the United States Agency for International Development (USAID) with electric cooperatives, including petitioners ANECO,
ILECO I and ISELCO I, as beneficiaries. The six (6) loan agreements involved a total amount of approximately US$86,000,000.00. These loan agreements
are existing until today.

The loan agreements contain similarly worded provisions on the tax application of the loan and any property or commodity acquired through the proceeds of
the loan. Thus, Section 6.5 of A.I.D. Loan No. 492-H-027 dated November 15, 1971 provides:

Section 6.5. Taxes and Duties. The Borrower covenants and agrees that this Loan Agreement and the Loan provided for herein shall be free from, and the
Principal and interest shall be paid to A.I.D. without deduction for and free from, any taxation or fees imposed under any laws or decrees in effect within the
Republic of the Philippines or any such taxes or fees so imposed or payable shall be reimbursed by the Borrower with funds other than those provided under
the Loan. To the extent that (a) any contractor, including any consulting firm, any personnel of such contractor financed hereunder, and any property or
transactions relating to such contracts and (b) any commodity procurement transactions financed hereunder, are not exempt from identifiable taxes, tariffs,
duties and other levies imposed under laws in effect in the country of the Borrower, the Borrower and/or Beneficiary shall pay or reimburse the same with
funds other than those provided under the Loan.4

Petitioners contend that pursuant to the provisions of P.D. No. 269, as amended, and the above-mentioned provision in the loan agreements, they are
exempt from payment of local taxes, including payment of real property tax. With the passage of the Local Government Code, however, they allege that their
tax exemptions have been invalidly withdrawn. In particular, petitioners assail Sections 193 and 234 of the Local Government Code on the ground that the
said provisions discriminate against them, in violation of the equal protection clause. Further, they submit that the said provisions are unconstitutional
because they impair the obligation of contracts between the Philippine Government and the United States Government.

On July 25, 2000 we issued a Temporary Restraining Order. 5

We note that the instant action was filed directly to this Court, in disregard of the rule on hierarchy of courts. However, we opt to take primary jurisdiction over
the present petition and decide the same on its merits in view of the significant constitutional issues raised by the parties dealing with the tax treatment of
cooperatives under existing laws and in the interest of speedy justice and prompt disposition of the matter.

There is No Violation of the Equal Protection Clause

The pertinent parts of Sections 193 and 234 of the Local Government Code provide:

Section 193. Withdrawal of Tax Exemption Privileges. —Unless otherwise provided in this Code, tax exemptions or incentives granted to, or presently
enjoyed by all persons, whether natural or juridical, including government-owned and controlled corporations, except local water districts,  cooperatives duly
registered under R.A. No. 6938, non-stock and non-profit hospitals and educational institutions, are hereby withdrawn upon the effectivity of this Code.

….

Section 234. Exemptions from real property tax.—The following are exempted from payment of the real property tax:

….
 116

(d) All real property owned by duly registered cooperatives as provided for under R.A. No. 6938; and

….

Except as provided herein, any exemption from payment of real property tax previously granted to, or presently enjoyed by, all persons whether natural or
juridical, including all government-owned and controlled corporations are hereby withdrawn upon effectivity of this Code. 6

Petitioners argue that the above provisions of the Local Government Code are unconstitutional for violating the equal protection clause. Allegedly, said
provisions unduly discriminate against petitioners who are duly registered cooperatives under P.D. No. 269, as amended, and not under R.A. No. 6938 or
the Cooperative Code of the Philippines. They stress that cooperatives registered under R.A. No. 6938 are singled out for tax exemption privileges under the
Local Government Code. They maintain that electric cooperatives registered with the NEA under P.D. No. 269, as amended, and electric cooperatives
registered with the Cooperative Development Authority (CDA) under R.A. No. 6938 are similarly situated for the following reasons: a) petitioners are
registered with the NEA which is a government agency like the CDA; b) petitioners, like CDA-registered cooperatives, operate for service to their member-
consumers; and c) prior to the enactment of the Local Government Code, petitioners, like CDA-registered cooperatives, were already tax-exempt. 7 Thus,
petitioners contend that to grant tax exemptions from local government taxes, including real property tax under Sections 193 and 234 of the Local
Government Code only to registered cooperatives under R.A. No. 6938 is a violation of the equal protection clause.

We are not persuaded. The equal protection clause under the Constitution means that "no person or class of persons shall be deprived of the same
protection of laws which is enjoyed by other persons or other classes in the same place and in like circumstances." 8 Thus, the guaranty of the equal
protection of the laws is not violated by a law based on reasonable classification. Classification, to be reasonable, must (1) rest on substantial distinctions;
(2) be germane to the purposes of the law; (3) not be limited to existing conditions only; and (4) apply equally to all members of the same class. 9

We hold that there is reasonable classification under the Local Government Code to justify the different tax treatment between electric cooperatives covered
by P.D. No. 269, as amended, and electric cooperatives under R.A. No. 6938.

First, substantial distinctions exist between cooperatives under P.D. No. 269, as amended, and cooperatives under R.A. No. 6938. These distinctions are
manifest in at least two material respects which go into the nature of cooperatives envisioned by R.A. No. 6938 and which characteristics are not present in
the type of cooperative associations created under P.D. No. 269, as amended.

a. Capital Contributions by Members

A cooperative under R.A. No. 6938 is defined as:

[A] duly registered association of persons with a common bond of interest, who have voluntarily joined together to achieve a lawful common or social
economic end, making equitable contributions to the capital required and accepting a fair share of the risks and benefits of the undertaking in accordance
with universally accepted cooperative principles.10

The above definition provides for the following elements of a cooperative: a) association of persons; b) common bond of interest; c) voluntary association; d)
lawful common social or economic end; e) capital contributions; f) fair share of risks and benefits; g) adherence to cooperative values; and g) registration
with the appropriate government authority. 11

The importance of capital contributions by members of a cooperative under R.A. No. 6938 was emphasized during the Senate deliberations as one of the
key factors which distinguished electric cooperatives under P.D. No. 269, as amended, from electric cooperatives under the Cooperative Code. Thus:

Senator Osmeña. Will this Code, Mr. President, cover electric cooperatives as they exist in the country today and are administered by the National
Electrification Administration?

Senator Aquino. That cannot be answered with a simple yes or no, Mr. President. The answer will depend on what provisions we will eventually come up
with. Electric cooperatives as they exist today would not fall under the term "cooperative" as used in this bill because the concept of a cooperative is that
which adheres and practices certain cooperative principles. ….

….

Senator Aquino. To begin with, one of the most important requirements, Mr. President, is the principle where members bind themselves to help themselves.
It is because of their collectivity that they can have some economic benefits. In this particular case [cooperatives under P.D. No. 269], the government is the
one that funds these so-called electric cooperatives. …

….

Senator Aquino. … That is why in Article III we have the following definition:

A cooperative is an association of persons with a common bond of interest who have voluntarily joined together to achieve a common social or economic
end, making equitable contributions to the capital required.

In this particular case [cooperatives under P.D. No. 269], Mr. President, the members do not make substantial contribution to the capital required. It is the
government that puts in the capital, in most cases.

….

Senator Osmeña. Under line 6, Mr. President, making equitable contributions to the capital required would exclude electric cooperatives [under P.D. No.
269]. Because the membership does not make equitable contributions.
 117

Senator Aquino. Yes, Mr. President. This is precisely what I mean, that electric cooperatives [under P.D. No. 269] do not qualify in the spirit of cooperatives.
That is the reason why they should be eventually assessed whether they intend to comply with the cooperatives or not. Because, if after giving them a
second time, they do not comply, then, they should not be classified as cooperatives.

Senator Osmeña. Mr. President, the measure of their qualifying as a cooperative would be the requirement that a member of the electric cooperative must
contribute a pro rata share of the capital of the cooperative in cash to be a cooperative.12

Nowhere in P.D. No. 269, as amended, does it require cooperatives to make equitable contributions to capital. Petitioners themselves admit that to qualify as
a member of an electric cooperative under P.D. No. 269, only the payment of a ₱5.00 membership fee is required which is even refundable the moment the
member is no longer interested in getting electric service from the cooperative or will transfer to another place outside the area covered by the
cooperative.13 However, under the Cooperative Code, the articles of cooperation of a cooperative applying for registration must be accompanied with the
bonds of the accountable officers and a sworn statement of the treasurer elected by the subscribers showing that at least twenty-five per cent (25%) of the
authorized share capital has been subscribed and at least twenty-five per cent (25%) of the total subscription has been paid and in no case shall the paid-up
share capital be less than Two thousand pesos (P2,000.00). 14

b. Extent of Government Control over Cooperatives

Another principle adhered to by the Cooperative Code is the principle of subsidiarity. Pursuant to this principle, the government may only engage in
development activities where cooperatives do not posses the capability nor the resources to do so and only upon the request of such cooperatives. 15 Thus,
Article 2 of the Cooperative Code provides:

Art. 2. Declaration of Policy. — It is the declared policy of the State to foster the creation and growth of cooperatives as a practical vehicle for prompting self-
reliance and harnessing people power towards the attainment of economic development and social justice. The State shall encourage the private sector to
undertake the actual formation and organization to cooperatives and shall create an atmosphere that is conducive to the growth and development of these
cooperatives.

Towards this end, the Government and all its branches, subdivisions, instrumentalities and agencies shall ensure the provision of technical guidance,
financial assistance and other services to enable said cooperatives to develop into viable and responsive economic enterprises and thereby bring about a
strong cooperative movement that is free from any conditions that might infringe upon the autonomy or organizational integrity of cooperatives.

Further, the State recognizes the principle of subsidiarity under which the cooperative sector will initiate and regulate within its own ranks the promotion and
organization, training and research, audit and support services relating to cooperatives with government assistance where necessary.16

Accordingly, under the charter of the CDA, or the primary government agency tasked to promote and regulate the institutional development of cooperatives,
it is the declared policy of the State that:

[g]overnment assistance to cooperatives shall be free from any restriction and conditionality that may in any manner infringe upon the objectives and
character of cooperatives as provided in this Act. The State shall, except as provided in this Act, maintain the policy of noninterference in the management
and operation of cooperatives.17

In contrast, P.D. No. 269, as amended by P.D. No. 1645, is replete with provisions which grant the NEA, upon the happening of certain events, the power to
control and take over the management and operations of cooperatives registered under it. Thus:

a) the NEA Administrator has the power to designate, subject to the confirmation of the Board of Administrators, an Acting General Manager
and/or Project Supervisor for a cooperative where vacancies in the said positions occur and/or when the interest of the cooperative or the program
so requires, and to prescribe the functions of the said Acting General Manager and/or Project Supervisor, which powers shall not be nullified,
altered or diminished by any policy or resolution of the Board of Directors of the cooperative concerned; 18

b) the NEA is given the power of supervision and control over electric cooperatives and pursuant to such powers, NEA may issue orders, rules and
regulations motu propio or upon petition of third parties to conduct referenda and other similar actions in all matters affecting electric
cooperatives;19

c) No cooperative shall borrow money from any source without the approval of the Board of Administrators of the NEA; 20 and

d) The management of a cooperative shall be vested in its Board, subject to the supervision and control of NEA which shall have the right to be
represented and to participate in all Board meetings and deliberations and to approve all policies and resolutions. 21

The extent of government control over electric cooperatives covered by P.D. No. 269, as amended, is largely a function of the role of the NEA as a primary
source of funds of these electric cooperatives. It is crystal clear that NEA incurred loans from various sources to finance the development and operations of
the electric cooperatives. Consequently, amendments to P.D. No. 269 were primarily geared to expand the powers of the NEA over the electric cooperatives
to ensure that loans granted to them would be repaid to the government. In contrast, cooperatives under R.A. No. 6938 are envisioned to be self-sufficient
and independent organizations with minimal government intervention or regulation.

To be sure, the transitory provisions of R.A. No. 6938 are indicative of the recognition by Congress of the fundamental distinctions between electric
cooperatives organized under P.D No. 269, as amended, and cooperatives under the new Cooperative Code. Article 128 of the Cooperative Code provides
that all cooperatives registered under previous laws shall be deemed registered with the CDA upon submission of certain requirements within one year.
However, cooperatives created under P.D. No. 269, as amended, are given three years within which to qualify and register with the CDA, after which,
provisions of P.D. No. 1645 which expand the powers of the NEA over electric cooperatives, would no longer apply. 22

Second, the classification of tax-exempt entities in the Local Government Code is germane to the purpose of the law. The Constitutional mandate that every
local government unit shall enjoy local autonomy, does not mean that the exercise of power by local governments is beyond regulation by Congress. Thus,
while each government unit is granted the power to create its own sources of revenue, Congress, in light of its broad power to tax, has the discretion to
determine the extent of the taxing powers of local government units consistent with the policy of local autonomy. 23
 118

Section 193 of the Local Government Code is indicative of the legislative intent to vest broad taxing powers upon local government units and to limit
exemptions from local taxation to entities specifically provided therein. Section 193 provides:

Section 193. Withdrawal of Tax Exemption Privileges. —Unless otherwise provided in this Code, tax exemptions or incentives granted to, or presently
enjoyed by all persons, whether natural or juridical, including government-owned and controlled corporations, except local water districts,  cooperatives duly
registered under R.A. No. 6938, non-stock and non-profit hospitals and educational institutions, are hereby withdrawn upon the effectivity of this Code. 24

The above provision effectively withdraws exemptions from local taxation enjoyed by various entities and organizations upon effectivity of the Local
Government Code except for a) local water districts; b) cooperatives duly registered under R.A. No. 6938; and c) non-stock and non-profit hospitals and
educational institutions. Further, with respect to real property taxes, the Local Government Code again specifically enumerates entities which are exempt
therefrom and withdraws exemptions enjoyed by all other entities upon the effectivity of the code. Thus, Section 234 provides:

SEC. 234. Exemptions from Real Property Tax. — The following are exempted from payment of the real property tax:

(a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof had been
granted for consideration or otherwise, to a taxable person;

(b) Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques, nonprofit or religious cemeteries and all lands,
buildings and improvements actually, directly, and exclusively used for religious, charitable or educational purposes;

(c) All machineries and equipment that are actually, directly and exclusively used by local water districts and government-owned or controlled
corporations engaged in the supply and distribution of water and/or generation and transmission of electric power;

(d) All real property owned by duly registered cooperatives as provided for under R.A. No. 6938; and

(e) Machinery and equipment used for pollution control and environmental protection.

Except as provided herein, any exemption from payment of real property tax previously granted to, or presently enjoyed by, all persons, whether natural or
juridical, including all government-owned or controlled corporations are hereby withdrawn upon the effectivity of this Code. 25

In Mactan Cebu International Airport Authority v. Marcos, 26 this Court held that the limited and restrictive nature of the tax exemption privileges under the
Local Government Code is consistent with the State policy to ensure autonomy of local governments and the objective of the Local Government Code to
grant genuine and meaningful autonomy to enable local government units to attain their fullest development as self-reliant communities and make them
effective partners in the attainment of national goals. The obvious intention of the law is to broaden the tax base of local government units to assure them of
substantial sources of revenue.

While we understand petitioners’ predicament brought about by the withdrawal of their local tax exemption privileges under the Local Government Code, it is
not the province of this Court to go into the wisdom of legislative enactments. Courts can only interpret laws. The principle of separation of powers prevents
them from re-inventing the laws.

Finally, Sections 193 and 234 of the Local Government Code permit reasonable classification as these exemptions are not limited to existing conditions and
apply equally to all members of the same class. Exemptions from local taxation, including real property tax, are granted to all cooperatives covered by R.A.
No. 6938 and such exemptions exist for as long as the Local Government Code and the provisions therein on local taxation remain good law.

II

There is No Violation of the Non-Impairment Clause

It is ingrained in jurisprudence that the constitutional prohibition on the impairment of the obligation of contracts does not prohibit every change in existing
laws. To fall within the prohibition, the change must not only impair the obligation of the existing contract, but the impairment must be substantial. 27 What
constitutes substantial impairment was explained by this Court in Clemons v. Nolting:28

A law which changes the terms of a legal contract between parties, either in the time or mode of performance, or imposes new conditions, or dispenses with
those expressed, or authorizes for its satisfaction something different from that provided in its terms, is law which impairs the obligation of a contract and is
therefore null and void.

Moreover, to constitute impairment, the law must affect a change in the rights of the parties with reference to each other and not with respect to non-
parties.29

Petitioners insist that Sections 193 and 234 of the Local Government Code impair the obligations imposed under the six (6) loan agreements executed by
the NEA as borrower and USAID as lender. 1âwphi1 All six agreements contain similarly worded provisions on the tax treatment of the proceeds of the loan
and properties and commodities acquired through the loan. Thus:

Section 6.5. Taxes and Duties. The Borrower covenants and agrees that this Loan Agreement and the Loan provided for herein shall be free from, and the
Principal and interest shall be paid to A.I.D. without deduction for and free from, any taxation or fees imposed  under any laws or decrees in effect within the
Republic of the Philippines or any such taxes or fees so imposed or payable shall be reimbursed by the Borrower with funds other than those provided under
the Loan. To the extent that (a) any contractor, including any consulting firm, any personnel of such contractor financed hereunder, and any property or
transactions relating to such contracts and (b) any commodity procurement transactions financed hereunder, are not exempt from identifiable taxes, tariffs,
duties and other levies imposed under laws in effect in the country of the Borrower, the Borrower and/or Beneficiary shall pay or reimburse the same with
funds other than those provided under the Loan.30

Petitioners contend that the withdrawal by the Local Government Code of the tax exemptions of cooperatives under P.D. No. 269, as amended, is an
impairment of the tax exemptions provided under the loan agreements. Petitioners argue that as beneficiaries of the loan proceeds, pursuant to the above
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provision, "[a]ll the assets of petitioners, such as lands, buildings, distribution lines acquired through the proceeds of the Loan Agreements … are tax
exempt."31

We hold otherwise.

A plain reading of the provision quoted above readily shows that it does not grant any tax exemption in favor of the borrower or the beneficiary either on the
proceeds of the loan itself or the properties acquired through the said loan. It simply states that the loan proceeds and the principal and interest of the loan,
upon repayment by the borrower, shall be without deduction of any tax or fee that may be payable under Philippine law as such tax or fee will be absorbed
by the borrower with funds other than the loan proceeds. Further, the provision states that with respect to any payment made by the borrower to (1) any
contractor or any personnel of such contractor or any property transaction and (2) any commodity transaction using the proceeds of the loan, the tax to be
paid, if any, on such transactions shall be absorbed by the borrower and/or beneficiary through funds other than the loan proceeds.

Beyond doubt, the import of the tax provision in the loan agreements cited by petitioners is twofold: (1) the borrower is entitled to receive from and is obliged
to pay the lender the principal amount of the loan and the interest thereon in full, without any deduction of the tax component thereof imposed under
applicable Philippine law and any tax imposed shall be paid by the borrower with funds other than the loan proceeds and (2) with respect to payments made
to any contractor, its personnel or any property or commodity transaction entered into pursuant to the loan agreement and with the use of the proceeds
thereof, taxes payable under the said transactions shall be paid by the borrower and/or beneficiary with the use of funds other than the loan proceeds. The
quoted provision does not purport to grant any tax exemption in favor of any party to the contract, including the beneficiaries thereof. The provisions simply
shift the tax burden, if any, on the transactions under the loan agreements to the borrower and/or beneficiary of the loan. Thus, the withdrawal by the Local
Government Code under Sections 193 and 234 of the tax exemptions previously enjoyed by petitioners does not impair the obligation of the borrower, the
lender or the beneficiary under the loan agreements as in fact, no tax exemption is granted therein.

III

Conclusion

Petitioners lament the difficulties they face in complying with the implementing rules and regulations issued by the CDA for the conversion of electric
cooperatives under P.D. No. 269, as amended, to cooperatives under R.A. No. 6938. They allege that because of the cumbersome legal and technical
requirements imposed by the Omnibus Rules and Regulations on the Registration of Electric Cooperatives under R.A. No. 6938, petitioners cannot register
and convert as stock cooperatives under the Cooperative Code. 32

The Court understands the plight of the petitioners. Their remedy, however, is not judicial. Striking down Sections 193 and 234 of the Local Government
Code as unconstitutional or declaring them inapplicable to petitioners is not the proper course of action for them to obtain their previous tax exemptions. The
language of the law and the intention of its framers are clear and unequivocal and courts have no other duty except to uphold the law. The task to re-
examine the rules and guidelines on the conversion of electric cooperatives to cooperatives under R.A. No. 6938 and provide every assistance available to
them should be addressed by the proper authorities of government. This is necessary to encourage the growth and viability of cooperatives as instruments of
social justice and economic development.

WHEREFORE, the instant petition is DENIED and the temporary restraining order heretofore issued is LIFTED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Callejo, Sr., and Azcuna, JJ., concur.

18. G.R. No. 162243               December 3, 2009

HON. HEHERSON ALVAREZ substituted by HON. ELISEA G. GOZUN, in her capacity as Secretary of the Department of Environment and Natural
Resources, Petitioner, vs. PICOP RESOURCES, INC., Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 164516

PICOP RESOURCES, INC., Petitioner, vs.HON. HEHERSON ALVAREZ substituted by HON. ELISEA G. GOZUN, in her capacity as Secretary of the
Department of Environment and Natural Resources Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 171875              

THE HON. ANGELO T. REYES (formerly Hon. Elisea G. Gozun), in his capacity as Secretary of the Department of Environment and Natural Resources
(DENR), Petitioner, vs. PAPER INDUSTRIES CORP. OF THE PHILIPPINES (PICOP), Respondent.

RESOLUTION

CHICO-NAZARIO, J.:

The cause of action of PICOP Resources, Inc. (PICOP) in its Petition for Mandamus with the trial court is clear: the government is bound by contract, a 1969
Document signed by then President Ferdinand Marcos, to enter into an Integrated Forest Management Agreement (IFMA) with PICOP. Since the remedy of
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mandamus lies only to compel an officer to perform a ministerial duty, and since the 1969 Document itself has a proviso requiring compliance with the laws
and the Constitution, the issues in this Motion for Reconsideration are the following: (1) firstly, is the 1969 Document a contract enforceable under the Non-
Impairment Clause of the Constitution, so as to make the signing of the IFMA a ministerial duty? (2) secondly, did PICOP comply with all the legal and
constitutional requirements for the issuance of an IFMA?

To recall, PICOP filed with the Department of Environment and Natural Resources (DENR) an application to have its Timber License Agreement (TLA) No.
43 converted into an IFMA. In the middle of the processing of PICOP’s application, however, PICOP refused to attend further meetings with the DENR.
Instead, on 2 September 2002, PICOP filed before the Regional Trial Court (RTC) of Quezon City a Petition for Mandamus 1 against then DENR Secretary
Heherson T. Alvarez. PICOP seeks the issuance of a privileged writ of mandamus to compel the DENR Secretary to sign, execute and deliver an IFMA to
PICOP, as well as to –

[I]ssue the corresponding IFMA assignment number on the area covered by the IFMA, formerly TLA No. 43, as amended; b) to issue the necessary permit
allowing petitioner to act and harvest timber from the said area of TLA No. 43, sufficient to meet the raw material requirements of petitioner’s pulp and paper
mills in accordance with the warranty and agreement of July 29, 1969 between the government and PICOP’s predecessor-in-interest; and c) to honor and
respect the Government Warranties and contractual obligations to PICOP strictly in accordance with the warranty and agreement dated July 29, [1969]
between the government and PICOP’s predecessor-in-interest. x x x. 2

On 11 October 2002, the RTC rendered a Decision granting PICOP’s Petition for Mandamus, thus:

WHEREFORE, premises considered, the Petition for Mandamus is hereby GRANTED.

The Respondent DENR Secretary Hon. Heherson Alvarez is hereby ordered:

1. to sign, execute and deliver the IFMA contract and/or documents to PICOP and issue the corresponding IFMA assignment number on the area
covered by the IFMA, formerly TLA No. 43, as amended;

2. to issue the necessary permit allowing petitioner to act and harvest timber from the said area of TLA No. 43, sufficient to meet the raw material
requirements of petitioner’s pulp and paper mills in accordance with the warranty and agreement of July 29, 1969 between the government and
PICOP’s predecessor-in-interest; and

3. to honor and respect the Government Warranties and contractual obligations to PICOP strictly in accordance with the warranty and agreement
dated July 29, 1999 (sic) between the government and PICOP’s predecessor-in-interest (Exhibits "H", "H-1" to "H-5", particularly the following:

a) the area coverage of TLA No. 43, which forms part and parcel of the government warranties;

b) PICOP tenure over the said area of TLA No. 43 and exclusive right to cut, collect and remove sawtimber and pulpwood for the period
ending on April 26, 1977; and said period to be renewable for [an]other 25 years subject to compliance with constitutional and statutory
requirements as well as with existing policy on timber concessions; and

c) The peaceful and adequate enjoyment by PICOP of the area as described and specified in the aforesaid amended Timber License
Agreement No. 43.

The Respondent Secretary Alvarez is likewise ordered to pay petitioner the sum of ₱10 million a month beginning May 2002 until the conversion of TLA No.
43, as amended, to IFMA is formally effected and the harvesting from the said area is granted. 3

On 25 October 2002, the DENR Secretary filed a Motion for Reconsideration. 4 In a 10 February 2003 Order, the RTC denied the DENR Secretary’s Motion
for Reconsideration and granted PICOP’s Motion for the Issuance of Writ of Mandamus and/or Writ of Mandatory Injunction. 5 The fallo of the 11 October
2002 Decision was practically copied in the 10 February 2003 Order, although there was no mention of the damages imposed against then DENR Secretary
Alvarez.6 The DENR Secretary filed a Notice of Appeal 7 from the 11 October 2002 Decision and the 10 February 2003 Order.

On 19 February 2004, the Seventh Division of the Court of Appeals affirmed 8 the Decision of the RTC, to wit:

WHEREFORE, the appealed Decision is hereby AFFIRMED with modification that the order directing then DENR Secretary Alvarez "to pay petitioner-
appellee the sum of P10 million a month beginning May, 2002 until the conversion to IFMA of TLA No. 43, as amended, is formally effected and the
harvesting from the said area is granted" is hereby deleted. 9

Challenging the deletion of the damages awarded to it, PICOP filed a Motion for Partial Reconsideration 10 of this Decision, which was denied by the Court of
Appeals in a 20 July 2004 Resolution.11

The DENR Secretary and PICOP filed with this Court separate Petitions for Review of the 19 February 2004 Court of Appeals Decision. These Petitions
were docketed as G.R. No. 162243 and No. 164516, respectively. These cases were consolidated with G.R. No. 171875, which relates to the lifting of a Writ
of Preliminary Injunction enjoining the execution pending appeal of the foregoing Decision.

On 29 November 2006, this Court rendered the assailed Decision on the Consolidated Petitions:

WHEREFORE, the Petition in G.R. No. 162243 is GRANTED. The Decision of the Court of Appeals insofar as it affirmed the RTC Decision granting the
Petition for Mandamus filed by Paper Industries Corp. of the Philippines (PICOP) is hereby REVERSED and SET ASIDE. The Petition in G.R. No. 164516
seeking the reversal of the same Decision insofar as it nullified the award of damages in favor of PICOP is DENIED for lack of merit. The Petition in G.R. No.
171875, assailing the lifting of the Preliminary Mandatory Injunction in favor of the Secretary of Environment and Natural Resources is DISMISSED on the
ground of mootness.12

On 18 January 2006, PICOP filed the instant Motion for Reconsideration, based on the following grounds:
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I.

THE HONORABLE COURT ERRED IN HOLDING THAT THE CONTRACT WITH PRESIDENTIAL WARRANTY SIGNED BY THE PRESIDENT OF THE
REPUBLIC ON 29 JUNE 1969 ISSUED TO PICOP IS A MERE PERMIT OR LICENSE AND IS NOT A CONTRACT, PROPERTY OR PROPERTY RIGHT
PROTECTED BY THE DUE PROCESS CLAUSE OF THE CONSTITUTION

II.

THE EVALUATION OF PICOP’S MANAGEMENT OF THE TLA 43 NATURAL FOREST CLEARLY SHOWED SATISFACTORY PERFORMANCE FOR
KEEPING THE NATURAL FOREST GENERALLY INTACT AFTER 50 YEARS OF FOREST OPERATIONS. THIS COMPLETES THE REQUIREMENT FOR
AUTOMATIC CONVERSION UNDER SECTION 9 OF DAO 99-53.

III.

WITH DUE RESPECT, THE HONORABLE COURT, IN REVERSING THE FINDINGS OF FACTS OF THE TRIAL COURT AND THE COURT OF APPEALS,
MISAPPRECIATED THE EVIDENCE, TESTIMONIAL AND DOCUMENTARY, WHEN IT RULED THAT:

i.

PICOP FAILED TO SUBMIT A FIVE-YEAR FOREST PROTECTION PLAN AND A SEVEN-YEAR REFORESTATION PLAN FOR THE YEARS UNDER
REVIEW.

ii.

PICOP FAILED TO COMPLY WITH THE PAYMENT OF FOREST CHARGES.

iii.

PICOP DID NOT COMPLY WITH THE REQUIREMENT FOR A CERTIFICATION FROM THE NCIP THAT THE AREA OF TLA 43 DOES NOT OVERLAP
WITH ANY ANCESTRAL DOMAIN.

iv.

PICOP FAILED TO HAVE PRIOR CONSULTATION WITH AND APPROVAL FROM THE SANGUNIAN CONCERNED, AS REQUIRED BY SECTION 27 OF
THE REPUBLIC ACT NO. 7160, OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991.

v.

PCIOP FAILED TO SECURE SOCIAL ACCEPTABILITY UNDER PRESIDENTIAL DECREE NO. 1586.

IV

THE MOTIVATION OF ALVAREZ IN RECALLING THE CLEARANCE FOR AUTOMATIC CONVERSION HE ISSUED ON 25 OCTOBER 2001 WAS NOT
DUE TO ANY SHORTCOMING FROM PICOP BUT DUE TO HIS DETERMINATION TO EXCLUDE 28,125 HECTARES FROM THE CONVERSION AND
OTHER THINGS.

On 15 December 2008, on Motion by PICOP, the Third Division of this Court resolved to refer the consolidated cases at bar to the Court en banc. On 16
December 2008, this Court sitting en banc resolved to accept the said cases and set them for oral arguments. Oral arguments were conducted on 10
February 2009.

PICOP’s Cause of Action: Matters PICOP Should Have Proven to Be Entitled to a Writ of Mandamus

In seeking a writ of mandamus to compel the issuance of an IFMA in its favor, PICOP relied on a 29 July 1969 Document, the so-called Presidential
Warranty approved by then President Ferdinand E. Marcos in favor of PICOP’s predecessor-in-interest, Bislig Bay Lumber Company, Inc. (BBLCI). PICOP’s
cause of action is summarized in paragraphs 1.6 and 4.19 of its Petition for Mandamus:

1.6 Respondent Secretary impaired the obligation of contract under the said Warranty and Agreement of 29 July 1969 by refusing to respect the tenure; and
its renewal for another twenty five (25) years, of PICOP over the area covered by the said Agreement which consists of permanent forest lands with an
aggregate area of 121,587 hectares and alienable and disposable lands with an aggregate area of approximately 21,580 hectares, and petitioner’s exclusive
right to cut, collect and remove sawtimber and pulpwood therein and the peaceful and adequate enjoyment of the said area as described and specified in
petitioner’s Timber License Agreement (TLA) No. 43 guaranteed by the Government, under the Warranty and Agreement of 29 July 1969. 13

4.19 Respondent is in violation of the Constitution and has impaired the obligation of contract by his refusal to respect: a) the tenurial rights of PICOP over
the forest area covered by TLA No. 43, as amended and its renewal for another twenty five (25) years; b) the exclusive right of PICOP to cut, collect and
remove sawtimber and pulpwood therein; and c) PICOP’s peaceful and adequate enjoyment of the said area which the government guaranteed under the
Warranty and Agreement of 29 July 1969.14

The grounds submitted by PICOP in its Petition for Mandamus are as follows:

I
 122

Respondent secretary has unlawfully refused and/or neglected to sign and execute the IFMA contract of PICOP even as the latter has complied with all the
legal requirements for the automatic conversion of TLA No. 43, as amended, into an IFMA.

II

Respondent Secretary acted with grave abuse of discretion and/or in excess of jurisdiction in refusing to sign and execute PICOP’s IFMA contract,
notwithstanding that PICOP had complied with all the requirements for Automatic Conversion under DAO 99-53, as in fact Automatic Conversion was
already cleared in October, 2001, and was a completed process.

III

Respondent Secretary has impaired the obligation of contract under a valid and binding warranty and agreement of 29 July 1969 between the government
and PICOP’s predecessor-in-interest, by refusing to respect: a) the tenure of PICOP, and its renewal for another twenty five (25) years, over the TLA No.43
area covered by said agreement; b) the exclusive right to cut, collect and remove sawtimber and pulpwood timber; and c) the peaceful and adequate
enjoyment of the said area.

IV

As a result of respondent Secretary’s unlawful refusal and/or neglect to sign and deliver the IFMA contract, and violation of the constitutional rights of PICOP
against non-impairment of the obligation of contract (Sec. 10, Art. III, 1997 [sic] Constitution), PICOP suffered grave and irreparable damages. 15

Petitions for Mandamus are governed by Rule 65 of the Rules of Court, Section 3 of which provides:

SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which
such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at
some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the respondent. (Emphasis supplied.)

PICOP is thus asking this Court to conclude that the DENR Secretary is specifically enjoined by law to issue an IFMA in its favor. An IFMA, as defined by
DENR Administrative Order (DAO) No. 99-53,16 is -

[A] production-sharing contract entered into by and between the DENR and a qualified applicant wherein the DENR grants to the latter the exclusive right to
develop, manage, protect and utilize a specified area of forestland and forest resource therein for a period of 25 years and may be renewed for another 25-
year period, consistent with the principle of sustainable development and in accordance with an approved CDMP, and under which both parties share in its
produce.17

PICOP stresses the word "automatic" in Section 9 of this DAO No. 99-53:

Sec. 9. Qualifications of Applicants. – The applicants for IFMA shall be:

(a) A Filipino citizen of legal age; or,

(b) Partnership, cooperative or corporation whether public or private, duly registered under Philippine laws.

However, in the case of application for conversion of TLA into IFMA, an automatic conversion after proper evaluation shall be allowed, provided the TLA
holder shall have signified such intention prior to the expiry of the TLA, PROVIDED further, that the TLA holder has showed satisfactory performance and
have complied in the terms of condition of the TLA and pertinent rules and regulations. (Emphasis supplied.) 18

This administrative regulation provision allowing automatic conversion after proper evaluation can hardly qualify as a law, much less a law specifically
enjoining the execution of a contract. To enjoin is "to order or direct with urgency; to instruct with authority; to command." 19 "‘Enjoin’ is a mandatory word, in
legal parlance, always; in common parlance, usually." 20 The word "allow," on the other hand, is not equivalent to the word "must," and is in no sense a
command.21

As an extraordinary writ, the remedy of mandamus lies only to compel an officer to perform a ministerial duty, not a discretionary one; mandamus will not
issue to control the exercise of discretion of a public officer where the law imposes upon him the duty to exercise his judgment in reference to any manner in
which he is required to act, because it is his judgment that is to be exercised and not that of the court. 22

The execution of agreements, in itself, involves the exercise of discretion. Agreements are products of negotiations and mutual concessions, necessitating
evaluation of their provisions on the part of both parties. In the case of the IFMA, the evaluation on the part of the government is specifically mandated in the
afore-quoted Section 3 of DAO No. 99-53. This evaluation necessarily involves the exercise of discretion and judgment on the part of the DENR Secretary,
who is tasked not only to negotiate the sharing of the profit arising from the IFMA, but also to evaluate the compliance with the requirements on the part of
the applicant.

Furthermore, as shall be discussed later, the period of an IFMA that was merely automatically converted from a TLA in accordance with Section 9,
paragraph 2 of DAO No. 99-53 would only be for the remaining period of the TLA. Since the TLA of PICOP expired on 26 April 2002, the IFMA that could
have been granted to PICOP via the automatic conversion provision in DAO No. 99-53 would have expired on the same date, 26 April 2002, and the
PICOP’s Petition for Mandamus would have become moot.

This is where the 1969 Document, the purported Presidential Warranty, comes into play. When PICOP’s application was brought to a standstill upon the
evaluation that PICOP had yet to comply with the requirements for such conversion, PICOP refused to attend further meetings with the DENR and instead
filed a Petition for Mandamus, insisting that the DENR Secretary had impaired the obligation of contract by his refusal to respect: a) the tenurial rights of
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PICOP over the forest area covered by TLA No. 43, as amended, and its renewal for another twenty-five (25) years; b) the exclusive right of PICOP to cut,
collect and remove sawtimber and pulpwood therein; and c) PICOP’s peaceful and adequate enjoyment of the said area which the government guaranteed
under the Warranty and Agreement of 29 July 1969. 23

PICOP is, thus, insisting that the government is obligated by contract to issue an IFMA in its favor because of the 1969 Document.

A contract, being the law between the parties, can indeed, with respect to the State when it is a party to such contract, qualify as a law specifically enjoining
the performance of an act. Hence, it is possible that a writ of mandamus may be issued to PICOP, but only if it proves both of the following:

1) That the 1969 Document is a contract recognized under the non-impairment clause; and

2) That the 1969 Document specifically enjoins the government to issue the IFMA.

If PICOP fails to prove any of these two matters, the grant of a privileged writ of mandamus is not warranted. This was why we pronounced in the assailed
Decision that the overriding controversy involved in the Petition was one of law. 24 If PICOP fails to prove any of these two matters, more significantly its
assertion that the 1969 Document is a contract, PICOP fails to prove its cause of action. 25 Not even the satisfactory compliance with all legal and
administrative requirements for an IFMA would save PICOP’s Petition for Mandamus.

The reverse, however, is not true. The 1969 Document expressly states that the warranty as to the tenure of PICOP is "subject to compliance with
constitutional and statutory requirements as well as with existing policy on timber concessions." Thus, if PICOP proves the two above-mentioned matters, it
still has to prove compliance with statutory and administrative requirements for the conversion of its TLA into an IFMA.

Exhaustion of Administrative Remedies

PICOP uses the same argument –– that the government is bound by contract to issue the IFMA –– in its refusal to exhaust all administrative remedies by not
appealing the alleged illegal non-issuance of the IFMA to the Office of the President. PICOP claimed in its Petition for Mandamus with the trial court that:

1.10 This petition falls as an exception to the exhaustion of administrative remedies. The acts of respondent DENR Secretary complained of in this petition
are patently illegal; in derogation of the constitutional rights of petitioner against non-impairment of the obligation of contracts; without jurisdiction, or in
excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to excess or lack of jurisdiction; and moreover, the failure or refusal
of a high government official such as a Department head from whom relief is brought to act on the matter was considered equivalent to exhaustion of
administrative remedies (Sanoy v. Tantuico, 50 SCRA 455 [1973]), and there are compelling and urgent reasons for judicial intervention (Bagatsing v.
Ramirez, 74 SCRA 306 [1976]).

Thus, if there has been no impairment of the obligation of contracts in the DENR Secretary’s non-issuance of the IFMA, the proper remedy of PICOP in
claiming that it has complied with all statutory and administrative requirements for the issuance of the IFMA should have been with the Office of the
President. This makes the issue of the enforceability of the 1969 Document as a contract even more significant.

The Nature and Effects of the Purported 29 July 1969 Presidential Warranty

Base Metals Case

PICOP challenges our ruling that the 1969 Document is not a contract. Before we review this finding, however, it must be pointed out that one week after the
assailed Decision, another division of this Court promulgated a Decision concerning the very same 1969 Document. Thus, in PICOP Resources, Inc. v. Base
Metals Mineral Resources Corporation, 26 five other Justices who were still unaware of this Division’s Decision, 27 came up with the same conclusion as
regards the same issue of whether former President Marcos’s Presidential Warranty is a contract:

Finally, we do not subscribe to PICOP’s argument that the Presidential Warranty dated September 25, 1968 is a contract protected by the non-impairment
clause of the 1987 Constitution.

An examination of the Presidential Warranty at once reveals that it simply reassures PICOP of the government’s commitment to uphold the terms and
conditions of its timber license and guarantees PICOP’s peaceful and adequate possession and enjoyment of the areas which are the basic sources of raw
materials for its wood processing complex. The warranty covers only the right to cut, collect, and remove timber in its concession area, and does not extend
to the utilization of other resources, such as mineral resources, occurring within the concession.

The Presidential Warranty cannot be considered a contract distinct from PTLA No. 47 and FMA No. 35. We agree with the OSG’s position that it is merely a
collateral undertaking which cannot amplify PICOP’s rights under its timber license. Our definitive ruling in Oposa v. Factoran that a timber license is not a
contract within the purview of the non-impairment clause is edifying. We declared:

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protected by the due
process clause of the Constitution. In Tan vs. Director of Forestry, this Court held:

"x x x A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is
promoted. A timber license is not a contract within the purview of the due process clause; it is only a license or a privilege, which can be validly withdrawn
whenever dictated by public interest or public welfare as in this case.

‘A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal,
granting it and the person to whom it is granted; neither is it a property or a property right, nor does it create a vested right; nor is it taxation' (C.J. 168). Thus,
this Court held that the granting of license does not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576). x x
x"

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary:
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"x x x Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified
entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly
amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview
of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548,
October 27, 1983, 125 SCRA 302]."

Since timber licenses are not contracts, the non-impairment clause, which reads:

"SEC. 10. No law impairing the obligation of contracts shall be passed."

cannot be invoked.

The Presidential Warranty cannot, in any manner, be construed as a contractual undertaking assuring PICOP of exclusive possession and enjoyment of its
concession areas. Such an interpretation would result in the complete abdication by the State in favor of PICOP of the sovereign power to control and
supervise the exploration, development and utilization of the natural resources in the area. 28

The Motion for Reconsideration was denied with finality on 14 February 2007. A Second Motion for Reconsideration filed by PICOP was denied on 23 May
2007.

PICOP insists that the pronouncement in Base Metals is a mere obiter dictum, which would not bind this Court in resolving this Motion for Reconsideration.
In the oral arguments, however, upon questioning from the ponente himself of Base Metals, it was agreed that the issue of whether the 1969 Document is a
contract was necessary in the resolution of Base Metals:

JUSTICE TINGA:

And do you confirm that one of the very issues raised by PICOP in that case [PICOP Resources Inc. v. Base Metal Mineral Resources Corporation] revolves
around its claim that a Presidential Warranty is protected by the non-impairment c[l]ause of the Constitution.

ATTY. AGABIN:

Yes, I believe that statement was made by the Court, your Honor.

JUSTICE TINGA:

Yes. And that claim on the part of PICOP necessarily implies that the Presidential Warranty according to PICOP is a contract protected by the non-
impairment clause.

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE TINGA:

Essentially, the PICOP raised the issue of whether the Presidential Warranty is a contract or not.

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE TINGA:

And therefore any ruling on the part of the Court on that issue could not be an obiter dictum.

ATTY. AGABIN:

Your Honor, actually we believe that the basic issue in that case was whether or not Base Metals could conduct mining activities underneath the forest
reserve allotted to PICOP and the Honorable Court ruled that the Mining Act of 1995 as well as the Department Order of DENR does not disallow mining
activity under a forest reserve.

JUSTICE TINGA:

But it was PICOP itself which raised the claim that a Presidential Warranty is a contract. And therefore be, should be protected on the under the non-
impairment clause of the Constitution.

ATTY. AGABIN:

Yes, Your Honor. Except that…

JUSTICE TINGA:
 125

So, how can you say now that the Court merely uttered, declared, laid down an obiter dictum in saying that the Presidential Warranty is not a contract, and it
is not being a contract, it is not prohibited by the non-impairment clause.

ATTY. AGABIN:

This Honorable Court could have just ruled, held that the mining law allows mining activities under a forest reserve without deciding on that issue that was
raised by PICOP, your Honor, and therefore we believe….

JUSTICE TINGA:

It could have been better if PICOP has not raised that issue and had not claimed that the Presidential Warranty is not a contract.

ATTY. AGABIN:

Well, that is correct, your Honor except that the Court could have just avoided that question. Because…

JUSTICE TINGA:

Why[?]

ATTY. AGABIN:

It already settled the issue, the basic issue.

JUSTICE TINGA:

Yes, because the Court in saying that merely reiterated a number of rulings to the effect that the Presidential Warranty, a Timber License for that matter is
not a contract protected by the non-impairment laws.

ATTY. AGABIN:

Well, it is our submission, your Honor, that it is obiter because, that issue even a phrase by PICOP was not really fully argued by the parties for the
Honorable Court and it seems from my reading at least it was just an aside given by the Honorable Court to decide on that issue raised by PICOP but it was
not necessary to the decision of the court.

JUSTICE TINGA:

It was not necessary[?]

ATTY. AGABIN:

To the decision of the Court.

JUSTICE TINGA:

It was.

ATTY. AGABIN:

It was not necessary.

JUSTICE TINGA:

It was.

ATTY. AGABIN:

Yes.

JUSTICE TINGA:

And PICOP devoted quite a number of pages in [its] memorandum to that issue and so did the Court [in its Decision].

ATTY. AGABIN:

Anyway, your Honor, we beg the Court to revisit, not to… 29

Interpretation of the 1969 Document That Would Be in Harmony with the Constitution

To remove any doubts as to the contents of the 1969 Document, the purported Presidential Warranty, below is a complete text thereof:
 126

Republic of the Philippines

Department of Agriculture and Natural Resources
OFFICE OF THE SECRETARY
Diliman, Quezon City

D-53, Licenses (T.L.A. No. 43)

Bislig Bay Lumber Co., Inc.
(Bislig, Surigao)

July 29, 1969

Bislig Bay Lumber Co., Inc.

[unreadable word] Bldg.
Makati, Rizal

S i r s:

This has reference to the request of the Board of Investments through its Chairman in a letter dated July 16, 1969 for a warranty on the boundaries of your
concession area under Timber License Agreement No. 43, as amended.

We are made to understand that your company is committed to support the first large scale integrated wood processing complex hereinafter called: "The
Project") and that such support will be provided not only in the form of the supply of pulpwood and other wood materials from your concession but also by
making available funds generated out of your own operations, to supplement PICOP’s operational sources of funds and other financial arrangements made
by him. In order that your company may provide such support effectively, it is understood that you will call upon your stockholders to take such steps as may
be necessary to effect a unification of managerial, technical, economic and manpower resources between your company and PICOP.

It is in the public interest to promote industries that will enhance the proper conservation of our forest resources as well as insure the maximum utilization
thereof to the benefit of the national economy. The administration feels that the PICOP project is one such industry which should enjoy priority over the usual
logging operations hitherto practiced by ordinary timber licensees: For this reason, we are pleased to consider favorably the request.

We confirm that your Timber License Agreement No. 43, as amended (copy of which is attached as Annex "A" hereof which shall form part and parcel of this
warranty) definitely establishes the boundary lines of your concession area which consists of permanent forest lands with an aggregate area of 121,587
hectares and alienable or disposable lands with an aggregate area of approximately 21,580 hectares.

We further confirm that your tenure over the area and exclusive right to cut, collect and remove sawtimber and pulpwood shall be for the period ending on
April 26, 1977; said period to be renewable for other 25 years subject to compliance with constitutional and statutory requirements as well as with existing
policy on timber concessions.

The peaceful and adequate enjoyment by you of your area as described and specified in your aforesaid amended Timber License Agreement No. 43 is
hereby warranted provided that pertinent laws, regulations and the terms and conditions of your license agreement are observed.

Very truly yours,

(Sgd.) FERNANDO LOPEZ

Secretary of Agriculture
and Natural Resources

Encl.:

RECOMMENDED BY:

(Sgd.) JOSE VIADO

Acting Director of Forestry

APPROVED:

(Sgd.) FERDINAND E. MARCOS

President of the Philippines

ACCEPTED:

BISLIG BAY LBR. CO., INC.

By:

(Sgd.) JOSE E. SORIANO

President

PICOP interprets this document in the following manner:

6.1 It is clear that the thrust of the government warranty is to establish a particular area defined by boundary lines of TLA No. 43 for the PICOP Project. In
consideration for PICOP’s commitment to pursue and establish the project requiring huge investment/funding from stockholders and lending institutions, the
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government provided a warranty that ensures the continued and exclusive right of PICOP to source its raw materials needs from the forest and renewable
trees within the areas established.

6.2 As a long-term support, the warranty covers the initial twenty five (25) year period and is  renewable for periods of twenty five (25) years provided the
project continues to exist and operate. Very notably, the wording of the Presidential Warranty connotes that for as long as the holder complies with all the
legal requirements, the term of the warranty is not limited to fifty (50) years but other twenty five (25) years.

6.3 Note must be made that the government warranted that PICOP’s tenure over the area and exclusive right to cut, collect and remove saw timber and
pulpwood shall be for the period ending on 26 April 1977 and said period to be renewable for other 25 years subject to "compliance with constitutional and
statutory requirements as well as existing policy on timber requirements". It is clear that the renewal for other 25 years, not necessarily for another 25 years
is guaranteed. This explains why on 07 October 1977, TLA No. 43, as amended, was automatically renewed for another period of twenty five (25) years to
expire on 26 April 2002.30

PICOP’s interpretation of the 1969 Document cannot be sustained. PICOP’s claim that the term of the warranty is not limited to fifty years, but that it extends
to other fifty years, perpetually, violates Section 2, Article XII of the Constitution which provides:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries,  forests or timber,
wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may
directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law.  In cases of water rights for irrigation, water
supply fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

Mr. Justice Dante O. Tinga’s interpretation of the 1969 Document is much more in accord with the laws and the Constitution. What one cannot do directly, he
cannot do indirectly. Forest lands cannot be alienated in favor of private entities. Granting to private entities, via a contract, a permanent, irrevocable, and
exclusive possession of and right over forest lands is tantamount to granting ownership thereof. PICOP, it should be noted, claims nothing less than having
exclusive, continuous and uninterrupted possession of its concession areas, 31 where all other entrants are illegal,32 and where so-called "illegal settlers and
squatters" are apprehended.33

IFMAs are production-sharing agreements concerning the development and utilization of natural resources. As such, these agreements "may be for a period
not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law." Any
superior "contract" requiring the State to issue TLAs and IFMAs whenever they expire clearly circumvents Section 2, Article XII of the Constitution, which
provides for the only permissible schemes wherein the full control and supervision of the State are not derogated: co-production, joint venture, or production-
sharing agreements within the time limit of twenty-five years, renewable for another twenty-five years.

On its face, the 1969 Document was meant to expire on 26 April 2002, upon the expiration of the expected extension of the original TLA period ending on 26
April 1977:

We further confirm that your tenure over the area and exclusive right to cut, collect and remove sawtimber and pulpwood shall be for the period ending on
April 26, 1977; said period to be renewable for other 25 years subject to compliance with constitutional and statutory requirements as well as with existing
policy on timber concessions.1avvphi1

Any interpretation extending the application of the 1969 Document beyond 26 April 2002 and any concession that may be granted to PICOP beyond the said
date would violate the Constitution, and no amount of legal hermeneutics can change that. Attempts of PICOP to explain its way out of this Constitutional
provision only led to absurdities, as exemplified in the following excerpt from the oral arguments:

JUSTICE CARPIO:

The maximum trend of agreement to develop and utilize natural resources like forest products is 25 years plus another 25 years or a total of 50 years
correct?

ATTY. AGABIN

Yes, Your Honor.

JUSTICE CARPIO:

That is true for the 1987, 1973, 1935 Constitution, correct?

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE CARPIO:

The TLA here, TLA 43, expired, the first 25 years expired in 1977, correct?

ATTY. AGABIN:

Yes, Your Honor.

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JUSTICE CARPIO:

And it was renewed for another 25 years until 2002, the 50th year?

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE CARPIO:

Now, could PICOP before the end of the 50th year let’s say in 2001, one year before the expiration, could it have asked for an extension of another 25 years
of its TLA agreement[?]

ATTY. AGABIN:

I believe so, Your Honor.

JUSTICE CARPIO:

But the Constitution says, maximum of fifty years. How could you ask for another 25 years of its TLA.

ATTY. AGABIN:

Well, your Honor, we believe on a question like this, this Honorable Court should balance the interest.

JUSTICE CARPIO:

The Constitution is very clear, you have only a maximum of 50 years, 25 plus another 25. PICOP could never have applied for an extension, for a third 25-
year term whether under the 1935 Constitution, the 1973 Constitution and the 1987 Constitution, correct?

ATTY. AGABIN:

Your Honor, except that we are invoking the warranty, the terms of the warranty….

JUSTICE CARPIO:

Can the warranty prevail over the Constitution?

ATTY. AGABIN:

Well, it is a vested right, your Honor.

JUSTICE CARPIO:

Yes, but whatever it is, can it prevail over the Constitution?

ATTY. AGABIN:

The Constitution itself provides that vested rights should be ….

JUSTICE CARPIO:

If it is not in violation of specific provision of the Constitution. The Constitution says, 25 years plus another 25 years, that’s the end of it. You mean to say that
a President of the Philippines can give somebody 1,000 years license?

ATTY. AGABIN:

Well, that is not our position, Your Honor. Because our position is that ….

JUSTICE CARPIO:

My question is, what is the maximum term, you said 50 years. So, my next question is, can PICOP apply for an extension of another 25 years after 2002, the
50th year?

ATTY. AGABIN:

Yes, based on the contract of warranty, Your Honor, because the contract of warranty….

JUSTICE CARPIO:
 129

But in the PICOP license it is very clear, it says here, provision 28, it says the license agreement is for a total of 50 years. I mean it is very simple, the
President or even Congress cannot pass a law extending the license, whatever kind of license to utilize natural resources for more than fifty year[s]. I mean
even the law cannot do that. It cannot prevail over the Constitution. Is that correct, Counsel?

ATTY. AGABIN:

It is correct, Your Honor, except that in this case, what is actually our application is that the law provides for the conversion of existing TLA into IFMA.

JUSTICE CARPIO:

So, they file the petition for conversion before the end of the 50th year for IFMA.

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE CARPIO:

But IFMA is the same, it is based on Section 2, Article 12 of the Constitution, develop and utilize natural resources because as you said when the new
constitution took effect we did away with the old licensing regime, we have now co-production, a production sharing, joint venture, direct undertaking but still
the same developing and utilizing the natural resources, still comes from section 2, Art. 12 of the Constitution. It is still a license but different format now.

ATTY. AGABIN:

It is correct, Your Honor, except that the regimes of joint venture, co-production and production sharing are what is referred to in the constitution, Your
Honor, and still covered…

JUSTICE CARPIO:

Yes, but it is covered by same 25 year[s], you mean to say people now can circumvent the 50 year maximum term by calling their TLA as IFMA and after fifty
years calling it ISMA, after another 50 years call it MAMA.

ATTY. AGABIN:

Yes, Your Honor. Because…

JUSTICE CARPIO:

It can be done.

ATTY. AGABIN:

That is provided for by the department itself.34

PICOP is, in effect, arguing that the DENR issued DAO No. 99-53 in order to provide a way to circumvent the provisions of the Constitution limiting
agreements for the utilization of natural resources to a maximum period of fifty years. Official duties are, however, disputably considered to be regularly
performed,35 and good faith is always presumed.

DAO No. 99-53 was issued to change the means by which the government enters into an agreement with private entities for the utilization of forest products.
DAO No. 99-53 is a late response to the change in the constitutional provisions on natural resources from the 1973 Constitution, which allowed the granting
of licenses to private entities,36 to the present Constitution, which provides for co-production, joint venture, or production-sharing agreements as the
permissible schemes wherein private entities may participate in the utilization of forest products. Since the granting of timber licenses ceased to be a
permissible scheme for the participation of private entities under the present Constitution, their operations should have ceased upon the issuance of DAO
No. 99-53, the rule regulating the schemes under the present Constitution. This would be iniquitous to those with existing TLAs that would not have expired
yet as of the issuance of DAO No. 99-53, especially those with new TLAs that were originally set to expire after 10 or even 20 or more years. The DENR
thus inserted a provision in DAO No. 99-53 allowing these TLA holders to finish the period of their TLAs, but this time as IFMAs, without the rigors of going
through a new application, which they have probably just gone through a few years ago.

Such an interpretation would not only make DAO No. 99-53 consistent with the provisions of the Constitution, but would also prevent possible discrimination
against new IFMA applicants:

ASSOCIATE JUSTICE DE CASTRO:

I ask this question because of your interpretation that the period of the IFMA, if your TLA is converted into IFMA, would cover a new a fresh period of twenty-
five years renewable by another period of twenty-five years.

DEAN AGABIN:

Yes, Your Honor.

ASSOCIATE JUSTICE DE CASTRO:

 130

Don’t you think that will, in effect, be invidious discrimination with respect to other applicants if you are granted a fresh period of twenty-five years extendible
to another twenty-five years?

DEAN AGABIN:

I don’t think it would be, Your Honor, considering that the IFMA is different regime from the TLA. And not only that, there are considerations of public health
and ecology which should come into play in this case, and which we had explained in our opening statement and, therefore the provision of the Constitution
on the twenty-five limits for renewal of co-production, joint venture and production sharing agreements, should be balanced with other values stated in the
Constitution, like the value of balanced ecology, which should be in harmony with the rhythm of nature, or the policy of forest preservation in Article XII,
Section 14 of the Constitution. These are all important policy considerations which should be balanced against the term limits in Article II of the Constitution.

ASSOCIATE JUSTICE DE CASTRO:

The provision of this Administrative Order regarding automatic conversion may be reasonable, if, I want to know if you agree with me, if we limit this
automatic conversion to the remaining period of the TLA, because in that case there will be a valid ground to make a distinction between those with existing
TLA and those who are applying for the first time for IFMA?

DEAN AGABIN:

Well, Your Honor, we beg to disagree, because as I said TLA’s are completely different from IFMA. The TLA has no production sharing or co-production
agreement or condition. All that the licensee has to do is, to pay forest charges, taxes and other impositions from the local and national government. On the
other hand, the IFMAs contained terms and conditions which are completely different, and that they either impose co-production, production sharing or joint
venture terms. So it’s a completely different regime, Your Honor.

ASSOCIATE JUSTICE DE CASTRO:

Precisely, that is the reason why there should be an evaluation of what you mentioned earlier of the development plan.

DEAN AGABIN:

Yes, Your Honor.

ASSOCIATE JUSTICE DE CASTRO:

So it will be reasonable to convert a TLA into an IFMA without considering the development plan submitted by other applicants or the development plan itself
of one seeking conversion into IFMA if it will only be limited to the period, the original period of the TLA. But once you go beyond the period of the TLA, then
you will be, the DENR is I think should evaluate the different proposals of the applicants if we are thinking of a fresh period of twenty-five years, and which is
renewable under the Constitution by another twenty-five years. So the development plan will be important in this case, the submission of the development
plan of the different applicants must be considered. So I don’t understand why you mentioned earlier that the development plan will later on be a subject
matter of negotiation between the IFMA grantee and the government. So it seems that it will be too late in the day to discuss that if you have already
converted the TLA into IFMA or if the government has already granted the IFMA, and then it will later on study the development plan, whether it is viable or
not, or it is sustainable or not, and whether the development plan of the different applicants are, are, which of the development plan of the different
applicants is better or more advantageous to the government. 37

PICOP insists that the alleged Presidential Warranty, having been signed on 29 July 1969, could not have possibly considered the limitations yet to be
imposed by future issuances, such as the 1987 Constitution. However, Section 3, Article XVIII of said Constitution, provides:

Section 3. All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances not inconsistent with this
Constitution shall remain operative until amended, repealed, or revoked.

In the recent case Sabio v. Gordon, 38 we ruled that "(t)he clear import of this provision is that all existing laws, executive orders, proclamations, letters of
instructions and other executive issuances inconsistent or repugnant to the Constitution are repealed."

When a provision is susceptible of two interpretations, "the one that will render them operative and effective and harmonious with other provisions of
law"39 should be adopted. As the interpretations in the assailed Decision and in Mr. Justice Tinga’s ponencia are the ones that would not make the subject
Presidential Warranty unconstitutional, these are what we shall adopt.

Purpose of the 1969 Document: Assurance That the Boundaries of Its Concession Area Would Not Be Altered Despite the Provision in the TLA that the
DENR Secretary Can Amend Said Boundaries

In the assailed Decision, we ruled that the 1969 Document cannot be considered a contract that would bind the government regardless of changes in policy
and the demands of public interest and social welfare. PICOP claims this conclusion "did not take into consideration that PICOP already had a valid and
current TLA before the contract with warranty was signed in 1969." 40 PICOP goes on: "The TLA is a license that equips any TLA holder in the country for
harvesting of timber. A TLA is signed by the Secretary of the DANR now DENR. The Court ignored the significance of the need for another contract with the
Secretary of the DANR but this time with the approval of the President of the Republic." 41 PICOP then asks us: "If PICOP/BBLCI was only an ordinary TLA
holder, why will it go through the extra step of securing another contract just to harvest timber when the same can be served by the TLA signed only by the
Secretary and not requiring the approval of the President of the Republic(?)" 42

The answer to this query is found in TLA No. 43 itself wherein, immediately after the boundary lines of TLA No. 43 were established, the following conditions
were given:

This license is granted to the said party of the second part upon the following express conditions:
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I. That authority is granted hereunder to the party of the second part 43 to cut, collect or remove firewood or other minor forest products from the
area embraced in this license agreement except as hereinafter provided.

II. That the party of the first part 44 may amend or alter the description of the boundaries of the area covered by this license agreement to conform
with official surveys and that the decision of the party of the first part as to the exact location of the said boundaries shall be final.

III. That if the party of the first part deems it necessary to establish on the ground the boundary lines of the area granted under this license
agreement, the party of the second part shall furnish to the party of the first part or its representatives as many laborers as it needs and all the
expenses to be incurred on the work including the wages of such laborers shall be paid by the party of the second part. 45

Thus, BBLCI needed an assurance that the boundaries of its concession area, as established in TLA No. 43, as amended, would not be altered despite this
provision. Hence, BBLCI endeavored to obtain the 1969 Document, which provides:

We confirm that your Timber License Agreement No. 43, as amended (copy of which is attached as Annex "A" hereof which shall form part and parcel of this
warranty) definitely establishes the boundary lines of your concession area which consists of permanent forest lands with an aggregate area of 121,587
hectares and alienable or disposable lands with an aggregate area of approximately 21,580 hectares.

We further confirm that your tenure over the area and exclusive right to cut, collect and remove sawtimber and pulpwood shall be for the period ending on
April 26, 1977; said period to be renewable for other 25 years subject to compliance with constitutional and statutory requirements as well as with existing
policy on timber concessions.

The peaceful and adequate enjoyment by you of your area as described and specified in your aforesaid amended Timber License Agreement No. 43 is
hereby warranted provided that pertinent laws, regulations and the terms and conditions of your license agreement are observed. 46

In Koa v. Court of Appeals, 47 we ruled that a warranty is a collateral undertaking and is merely part of a contract. As a collateral undertaking, it follows the
principal wherever it goes. When this was pointed out by the Solicitor General, PICOP changed its designation of the 1969 Document from "Presidential
Warranty" or "government warranty" in all its pleadings prior to our Decision, to "contract with warranty" in its Motion for Reconsideration. This, however, is
belied by the statements in the 29 July 1969 Document, which refers to itself as "this warranty."

Re: Allegation That There Were Mutual Contract Considerations

Had the 29 July 1969 Document been intended as a contract, it could have easily said so. More importantly, it could have clearly defined the mutual
considerations of the parties thereto. It could have also easily provided for the sanctions for the breach of the mutual considerations specified therein. PICOP
had vigorously argued that the 1969 Document was a contract because of these mutual considerations, apparently referring to the following paragraph of the
1969 Document:

We are made to understand that your company is committed to support the first large scale integrated wood processing complex hereinafter called: "The
Project") and that such support will be provided not only in the form of the supply of pulpwood and other wood materials from your concession but also by
making available funds generated out of your own operations, to supplement PICOP’s operational surces (sic) of funds and other financial arrangements
made by him. In order that your company may provide such support effectively, it is understood that you will call upon your stockholders to take such steps
as may be necessary to effect a unification of managerial, technical, economic and manpower resources between your company and PICOP. 1avvphi1

This provision hardly evinces a contract consideration (which, in PICOP’s interpretation, is in exchange for the exclusive and perpetual tenure over 121,587
hectares of forest land and 21,580 hectares of alienable and disposable lands). As elucidated by PICOP itself in bringing up the Investment Incentives Act
which we shall discuss later, and as shown by the tenor of the 1969 Document, the latter document was more of a conferment of an incentive for BBLCI’s
investment rather than a contract creating mutual obligations on the part of the government, on one hand, and BBLCI, on the other. There was no stipulation
providing for sanctions for breach if BBLCI’s being "committed to support the first large scale integrated wood processing complex" remains a commitment.
Neither did the 1969 Document give BBLCI a period within which to pursue this commitment.

According to Article 1350 of the Civil Code, "(i)n onerous contracts the cause is understood to be, for each contracting party, the prestation or promise of a
thing or service by the other."48 Private investments for one’s businesses, while indeed eventually beneficial to the country and deserving to be given
incentives, are still principally and predominantly for the benefit of the investors. Thus, the "mutual" contract considerations by both parties to this alleged
contract would be both for the benefit of one of the parties thereto, BBLCI, which is not obligated by the 1969 Document to surrender a share in its proceeds
any more than it is already required by its TLA and by the tax laws.

PICOP’s argument that its investments can be considered as contract consideration derogates the rule that "a license or a permit is not a contract between
the sovereignty and the licensee or permittee, and is not a property in the constitutional sense, as to which the constitutional proscription against the
impairment of contracts may extend." All licensees obviously put up investments, whether they are as small as a tricycle unit or as big as those put up by
multi-billion-peso corporations. To construe these investments as contract considerations would be to abandon the foregoing rule, which would mean that
the State would be bound to all licensees, and lose its power to revoke or amend these licenses when public interest so dictates.

The power to issue licenses springs from the State’s police power, known as "the most essential, insistent and least limitable of powers, extending as it does
to all the great public needs."49 Businesses affecting the public interest, such as the operation of public utilities and those involving the exploitation of natural
resources, are mandated by law to acquire licenses. This is so in order that the State can regulate their operations and thereby protect the public interest.
Thus, while these licenses come in the form of "agreements," e.g., "Timber License Agreements," they cannot be considered contracts under the non-
impairment clause.50

PICOP found this argument "lame," arguing, thus:

43. It is respectfully submitted that the aforesaid pronouncement in the Decision is an egregious and monumental error.
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44. The Decision could not dismiss as "preposterous" the mutual covenants in the Presidential Warranty which calls for a huge investment of Php500 million
at that time in 1969 out of which Php268,440,000 raised from domestic foreign lending institution to establish the first large scale integrated wood processing
complex in the Philippines.

45. The Decision puts up a lame explanation that "all licensees put up investments in pursuing their business"

46. Now there are about a hundred timber licenses issued by the Government thru the DENR, but these are ordinary timber licenses which involve the mere
cutting of timber in the concession area, and nothing else. Records in the DENR shows that no timber licensee has put up an integrated large wood
processing complex in the Philippines except PICOP.51

PICOP thus argues on the basis of quantity, and wants us to distinguish between the investment of the tricycle driver and that of the multi-billion corporation.
However, not even billions of pesos in investment can change the fact that natural resources and, therefore, public interest are involved in PICOP’s venture,
consequently necessitating the full control and supervision by the State as mandated by the Constitution. Not even billions of pesos in investment can buy
forest lands, which is practically what PICOP is asking for by interpreting the 1969 Document as a contract giving it perpetual and exclusive possession over
such lands. Among all TLA holders in the Philippines, PICOP has, by far, the largest concession area at 143,167 hectares, a land area more than the size of
two Metro Manilas.52 How can it not expect to also have the largest investment?

Investment Incentives Act

PICOP then claims that the contractual nature of the 1969 Document was brought about by its issuance in accordance with and pursuant to the Investment
Incentives Act. According to PICOP:

The conclusion in the Decision that to construe PICOP’s investments as a consideration in a contract would be to stealthily render ineffective the principle
that a license is not a contract between the sovereignty and the licensee is so flawed since the contract with the warranty dated 29 July 1969 was issued by
the Government in accordance with and pursuant to Republic Act No. 5186, otherwise known as "The Investment Incentives Act." 53

PICOP then proceeds to cite Sections 2 and 4(d) and (e) of said act:

Section 2. Declaration of Policy – To accelerate the sound development of the national economy in consonance with the principles and objectives of
economic nationalism, and in pursuance of a planned, economically feasible and practicable dispersal of industries, under conditions which will encourage
competition and discharge monopolies, it is hereby declared to be the policy of the state to encourage Filipino and foreign investments, as hereinafter set
out, in projects to develop agricultural, mining and manufacturing industries which increase national income most at the least cost, increase exports, bring
about greater economic stability, provide more opportunities for employment, raise the standards of living of the people, and provide for an equitable
distribution of wealth. It is further declared to be the policy of the state to welcome and encourage foreign capital to establish pioneer enterprises that are
capital intensive and would utilize a substantial amount of domestic raw materials, in joint venture with substantial Filipino capital, whenever available.

Section 4. Basic Rights and Guarantees. – All investors and enterprises are entitled to the basic rights and guarantees provided in the constitution. Among
other rights recognized by the Government of the Philippines are the following:

xxxx

d) Freedom from Expropriation. – There shall be no expropriation by the government of the property represented by investments or of the property of
enterprises except for public use or in the interest of national welfare and defense and upon payment of just compensation. x x x.

e) Requisition of Investment. – There shall be no requisition of the property represented by the investment or of the property of enterprises, except in the
event of war or national emergency and only for the duration thereof. Just compensation shall be determined and paid either at the time of requisition or
immediately after cessation of the state of war or national emergency. Payments received as compensation for the requisitioned property may be remitted in
the currency in which the investment was originally made and at the exchange rate prevailing at the time of remittance, subject to the provisions of Section
seventy-four of republic Act Numbered Two hundred sixty-five.

Section 2 speaks of the policy of the State to encourage Filipino and foreign investments. It does not speak of how this policy can be implemented.
Implementation of this policy is tackled in Sections 5 to 12 of the same law, 54 which PICOP failed to mention, and for a good reason. None of the 24
incentives enumerated therein relates to, or even remotely suggests that, PICOP’s proposition that the 1969 Document is a contract.

PICOP could indeed argue that the enumeration is not exclusive. Certainly, granting incentives to investors, whether included in the enumeration or not,
would be an implementation of this policy. However, it is presumed that whatever incentives may be given to investors should be within the bounds of the
laws and the Constitution. The declaration of policy in Section 2 cannot, by any stretch of the imagination, be read to provide an exception to either the laws
or, heaven forbid, the Constitution. Exceptions are never presumed and should be convincingly proven. Section 2 of the Investment Incentives Act cannot be
read as exempting investors from the Constitutional provisions (1) prohibiting private ownership of forest lands; (2) providing for the complete control and
supervision by the State of exploitation activities; or (3) limiting exploitation agreements to twenty-five years, renewable for another twenty-five years.

Section 4(d) and (e), on the other hand, is a recognition of rights already guaranteed under the Constitution. Freedom from expropriation is granted under
Section 9 of Article III55 of the Constitution, while the provision on requisition is a negative restatement of Section 6, Article XII. 56

Refusal to grant perpetual and exclusive possession to PICOP of its concession area would not result in the expropriation or requisition of PICOP’s property,
as these forest lands belong to the State, and not to PICOP. This is not changed by PICOP’s allegation that:

Since it takes 35 years before the company can go back and harvest their residuals in a logged-over area, it must be assured of tenure in order to provide an
inducement for the company to manage and preserve the residuals during their growth period. This is a commitment of resources over a span of 35 years for
each plot for each cycle. No company will undertake the responsibility and cost involved in  policing, preserving and managing residual forest areas until it
were sure that it had firm title to the timber. 57
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The requirement for logging companies to preserve and maintain forest areas, including the reforestation thereof, is one of the prices a logging company
must pay for the exploitation thereof. Forest lands are meant to be enjoyed by countless future generations of Filipinos, and not just by one logging
company. The requirements of reforestation and preservation of the concession areas are meant to protect them, the future generations, and not
PICOP. Reforestation and preservation of the concession areas are not required of logging companies so that they would have something to cut again, but
so that the forest would remain intact after their operations. That PICOP would not accept the responsibility to preserve its concession area if it is not
assured of tenure thereto does not speak well of its corporate policies.

Conclusion

In sum, PICOP was not able to prove either of the two things it needed to prove to be entitled to a Writ of Mandamus against the DENR Secretary. The 1969
Document is not a contract recognized under the non-impairment clause and, even if we assume for the sake of argument that it is, it did not enjoin the
government to issue an IFMA in 2002 either. These are the essential elements in PICOP’s cause of action, and the failure to prove the same warrants a
dismissal of PICOP’s Petition for Mandamus, as not even PICOP’s compliance with all the administrative and statutory requirements can save its Petition
now.

Whether PICOP Has Complied with the Statutory and Administrative Requirements for the Conversion of the TLA to an IFMA

In the assailed Decision, our ruling was based on two distinct grounds, each one being sufficient in itself for us to rule that PICOP was not entitled to a Writ
of Mandamus: (1) the 1969 Document, on which PICOP hinges its right to compel the issuance of an IFMA, is not a contract; and (2) PICOP has not
complied with all administrative and statutory requirements for the issuance of an IFMA.

When a court bases its decision on two or more grounds, each is as authoritative as the other and neither is obiter dictum. 58 Thus, both grounds on which we
based our ruling in the assailed Decision would become judicial dictum, and would affect the rights and interests of the parties to this case unless corrected
in this Resolution on PICOP’s Motion for Reconsideration. Therefore, although PICOP would not be entitled to a Writ of Mandamus even if the second issue
is resolved in its favor, we should nonetheless resolve the same and determine whether PICOP has indeed complied with all administrative and statutory
requirements for the issuance of an IFMA.

While the first issue (on the nature of the 1969 Document) is entirely legal, this second issue (on PICOP’s compliance with administrative and statutory
requirements for the issuance of an IFMA) has both legal and factual sub-issues. Legal sub-issues include whether PICOP is legally required to (1) consult
with and acquire an approval from the Sanggunian concerned under Sections 26 and 27 of the Local Government Code; and (2) acquire a Certification from
the National Commission on Indigenous Peoples (NCIP) that the concession area does not overlap with any ancestral domain. Factual sub-issues include
whether, at the time it filed its Petition for Mandamus, PICOP had submitted the required Five-Year Forest Protection Plan and Seven-Year Reforestation
Plan and whether PICOP had paid all forest charges.

For the factual sub-issues, PICOP invokes the doctrine that factual findings of the trial court, especially when upheld by the Court of Appeals, deserve great
weight. However, deserving of even greater weight are the factual findings of administrative agencies that have the expertise in the area of concern. The
contentious facts in this case relate to the licensing, regulation and management of forest resources, the determination of which belongs exclusively to the
DENR:

SECTION 4. Mandate. – The Department shall be the primary government agency responsible for the conservation, management, development and proper
use of the country’s environment and natural resources, specifically forest and grazing lands, mineral resources, including those in reservation and
watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to
ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos. 59

When parties file a Petition for Certiorari against judgments of administrative agencies tasked with overseeing the implementation of laws, the findings of
such administrative agencies are entitled to great weight. In the case at bar, PICOP could not have filed a Petition for Certiorari, as the DENR Secretary had
not yet even determined whether PICOP should be issued an IFMA. As previously mentioned, when PICOP’s application was brought to a standstill upon
the evaluation that PICOP had yet to comply with the requirements for the issuance of an IFMA, PICOP refused to attend further meetings with the DENR
and instead filed a Petition for Mandamus against the latter. By jumping the gun, PICOP did not diminish the weight of the DENR Secretary’s initial
determination.

Forest Protection and Reforestation Plans

The Performance Evaluation Team tasked to appraise PICOP’s performance on its TLA No. 43 found that PICOP had not submitted its Five-Year Forest
Protection Plan and its Seven-Year Reforestation Plan. 60

In its Motion for Reconsideration, PICOP asserts that, in its Letter of Intent dated 28 August 2000 and marked as Exhibit L in the trial court, there was a
reference to a Ten-Year Sustainable Forest Management Plan (SFMP), in which a Five-Year Forest Protection Plan and a Seven-Year Reforestation Plan
were allegedly incorporated. PICOP submitted a machine copy of a certified photocopy of pages 50-67 and 104-110 of this SFMP in its Motion for
Reconsideration. PICOP claims that the existence of this SFMP was repeatedly asserted during the IFMA application process. 61

Upon examination of the portions of the SFMP submitted to us, we cannot help but notice that PICOP’s concept of forest protection is the security of the area
against "illegal" entrants and settlers. There is no mention of the protection of the wildlife therein, as the focus of the discussion of the silvicultural treatments
and the SFMP itself is on the protection and generation of future timber harvests. We are particularly disturbed by the portions stating that trees of
undesirable quality shall be removed.

However, when we required the DENR Secretary to comment on PICOP’s Motion for Reconsideration, the DENR Secretary did not dispute the existence of
this SFMP, or question PICOP’s assertion that a Ten-Year Forest Protection Plan and a Ten-Year Reforestation Plan are already incorporated therein.
Hence, since the agency tasked to determine compliance with IFMA administrative requirements chose to remain silent in the face of allegations of
compliance, we are constrained to withdraw our pronouncement in the assailed Decision that PICOP had not submitted a Five-Year Forest Protection Plan
and a Seven-Year Reforestation Plan for its TLA No. 43. As previously mentioned, the licensing, regulation and management of forest resources are the
primary responsibilities of the DENR.62
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The compliance discussed above is, of course, only for the purpose of determining PICOP’s satisfactory performance as a TLA holder, and covers a period
within the subsistence of PICOP’s TLA No. 43. This determination, therefore, cannot prohibit the DENR from requiring PICOP, in the future, to submit proper
forest protection and reforestation plans covering the period of the proposed IFMA.

Forest Charges

In determining that PICOP did not have unpaid forest charges, the Court of Appeals relied on the assumption that if it were true that PICOP had unpaid
forest charges, it should not have been issued an approved Integrated Annual Operation Plan (IAOP) for the year 2001-2002 by Secretary Alvarez himself. 63

In the assailed Decision, we held that the Court of Appeals had been selective in its evaluation of the IAOP, as it disregarded the part thereof that shows that
the IAOP was approved subject to several conditions, not the least of which was the submission of proof of the updated payment of forest charges from April
2001 to June 2001.64 We also held that even if we considered for the sake of argument that the IAOP should not have been issued if PICOP had existing
forestry accounts, the issuance of the IAOP could not be considered proof that PICOP had paid the same. Firstly, the best evidence of payment is the receipt
thereof. PICOP has not presented any evidence that such receipts were lost or destroyed or could not be produced in court. 65 Secondly, the government
cannot be estopped by the acts of its officers. If PICOP has been issued an IAOP in violation of the law, allegedly because it may not be issued if PICOP had
existing forestry accounts, the government cannot be estopped from collecting such amounts and providing the necessary sanctions therefor, including the
withholding of the IFMA until such amounts are paid.

We therefore found that, as opposed to the Court of Appeals’ findings, which were based merely on estoppel of government officers, the positive and
categorical evidence presented by the DENR Secretary was more convincing with respect to the issue of payment of forestry charges:

1. Forest Management Bureau (FMB) Senior Forest Management Specialist (SFMS) Ignacio M. Evangelista testified that PICOP had failed to pay
its regular forest charges covering the period from 22 September 2001 to 26 April 2002 in the total amount of ₱15,056,054.0566 PICOP also
allegedly paid late most of its forest charges from 1996 onwards, by reason of which, PICOP is liable for a surcharge of 25% per annum on the tax
due and interest of 20% per annum which now amounts to ₱150,169,485.02.67 Likewise, PICOP allegedly had overdue and unpaid silvicultural
fees in the amount of ₱2,366,901.00 as of 30 August 2002. 68 Summing up the testimony, therefore, it was alleged that PICOP had unpaid and
overdue forest charges in the sum of ₱167,592,440.90 as of 10 August 2002.69

2. Collection letters were sent to PICOP, but no official receipts are extant in the DENR record in Bislig City evidencing payment of the overdue
amount stated in the said collection letters. 70 There were no official receipts for the period covering 22 September 2001 to 26 April 2002.

We also considered these pieces of evidence more convincing than the other ones presented by PICOP:

1. PICOP presented the certification of Community Environment and Natural Resources Office (CENRO) Officer Philip A. Calunsag, which refers
only to PICOP’s alleged payment of regular forest charges covering the period from 14 September 2001 to 15 May 2002. 71 We noted that it does
not mention similar payment of the penalties, surcharges and interests that PICOP incurred in paying late several forest charges, which fact was
not rebutted by PICOP.

2. The 27 May 2002 Certification by CENRO Calunsag specified only the period covering 14 September 2001 to 15 May 2002 and the amount of
P53,603,719.85 paid by PICOP without indicating the corresponding volume and date of production of the logs. This is in contrast to the findings of
SFMS Evangelista, which cover the period from CY 1996 to 30 August 2002 and includes penalties, interests, and surcharges for late payment
pursuant to DAO 80, series of 1987.

3. The 21 August 2002 PICOP-requested certification issued by Bill Collector Amelia D. Arayan, and attested to by CENRO Calunsag himself,
shows that PICOP paid only regular forest charges for its log production covering 1 July 2001 to 21 September 2001. However, there were log
productions after 21 September 2001, the regular forest charges for which have not been paid, amounting to ₱15,056,054.05.72 The same
certification shows delayed payment of forest charges, thereby corroborating the testimony of SFMS Evangelista and substantiating the imposition
of penalties and surcharges.

In its Motion for Reconsideration, PICOP claims that SFMS Evangelista is assigned to an office that has nothing to do with the collection of forest charges,
and that he based his testimony on the Memoranda of Forest Management Specialist II (FMS II) Teofila Orlanes and DENR, Bislig City Bill Collector Amelia
D. Arayan, neither of whom was presented to testify on his or her Memorandum. PICOP also submitted an Addendum to Motion for Reconsideration,
wherein it appended certified true copies of CENRO Summaries with attached Official Receipts tending to show that PICOP had paid a total of
₱81,184,747.70 in forest charges for 10 January 2001 to 20 December 2002, including the period during which SFMS Evangelista claims PICOP did not pay
forest charges (22 September 2001 to 26 April 2002).

Before proceeding any further, it is necessary for us to point out that, as with our ruling on the forest protection and reforestation plans, this determination of
compliance with the payment of forest charges is exclusively for the purpose of determining PICOP’s satisfactory performance on its TLA No. 43. This
cannot bind either party in a possible collection case that may ensue.

An evaluation of the DENR Secretary’s position on this matter shows a heavy reliance on the testimony of SFMS Evangelista, making it imperative for us to
strictly scrutinize the same with respect to its contents and admissibility.

PICOP claims that SFMS Evangelista’s office has nothing to do with the collection of forest charges. According to PICOP, the entity having administrative
jurisdiction over it is CENRO, Bislig City by virtue of DENR Administrative Order No. 96-36, dated 20 November 1996, which states:

1. In order for the DENR to be able to exercise closer and more effective supervision, management and control over the forest resources within the areas
covered by TLA No. 43, PTLA No. 47 and IFMA No. 35 of the PICOP Resources, Inc., (PRI) and, at the same time, provide greater facility in the delivery of
DENR services to various publics, the aforesaid forest holdings of PRI are hereby placed under the exclusive jurisdiction of DENR Region No. XIII with the
CENR Office at Bislig, Surigao del Sur, as directly responsible thereto. x x x.

We disagree. Evangelista is an SFMS assigned at the Natural Forest Management Division of the FMB, DENR. In Evangelista’s aforementioned affidavit
submitted as part of his direct examination, Evangelista enumerated his duties and functions as SFMS:
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1. As SFMS, I have the following duties and functions:

a) To evaluate and act on cases pertaining to forest management referred to in the Natural forest Management Division;

b) To monitor, verify and validate forest management and related activities by timber licences as to their compliance to approved plans
and programs;

c) To conduct investigation and verification of compliance by timber licenses/permittees to existing DENR rules and regulations;

d) To gather field data and information to be used in the formulation of forest policies and regulations; and

e) To perform other duties and responsibilities as may be directed by superiors. 73

PICOP also alleges that the testimony of SFMS Evangelista was based on the aforementioned Memoranda of Orlanes and Arayan and that, since
neither Orlanes nor Arayan was presented as a witness, SFMS Evangelista’s testimony should be deemed hearsay. SFMS Evangelista’s 1
October 2002 Affidavit,74 which was offered as part of his testimony, provides:

2. Sometime in September, 2001 the DENR Secretary was furnished a copy of forest Management Specialist II (FMS II) Teofila L. Orlanes’
Memorandum dated September 24, 2001 concerning unopaid forest charges of PICOP. Attached to the said Memorandum was a Memorandum
dated September 19, 2001 of Amelia D. Arayan, Bill collector of the DENR R13-14, Bislig City. Copies of the said Memoranda are attached as
Annexes 1 and 2, respectively.

3. The said Memoranda were referred to the FMB Director for appropriate action.

4. Thus, on August 5, 2002, I was directed by the FMB Director to proceed to Region 13 to gather forestry-related data and validate the report
contained in the Memoranda of Ms. Orlanes and Arayan.

5. On August 6, 2002, I proceeded to DENR Region 13 in Bislig City. A copy of my Travel Order is attached as Annex 3.

6. Upon my arrival at CENRO, Bislig, surigao del Sur, I coordinated with CENRO Officer Philip A. Calunsag and requested him to make available
to me the records regarding the forest products assessments of PICOP.

7. After I was provided with the requested records, I evaluated and collected the data.

8. After the evaluation, I found that the unpaid forest charges adverted to in the Memoranda of Mr. Orlanes and Arayan covering the period from
May 8, 2001 to July 7, 2001 had already been paid but late. I further found out that PICOP had not paid its forest charges covering the period from
September 22, 2001 to April 26, 2002 in the total amount of ₱15,056,054.05.

9. I also discovered that from 1996 up to august 30, 2002, PICOP paid late some of its forest charges in 1996 and consistently failed to pay late its
forest charges from 1997 up to the present time.

10. Under Section 7.4 of DAO No. 80 Series of 197\87 and Paragraph (4a), Section 10 of BIR revenue Regulations No. 2-81 dated November 18,
1980, PICOP is mandated to pay a surcharge of 25% per annum of the tax due and interest of 20% per annum for late payment of forest charges.

11. The overdue unpaid forest charges of PICOP as shown in the attached tabulation marked as Annex 4 hereof is ₱150,169,485.02. Likewise,
PICOP has overdue and unpaid silvicultural fees in the amount of ₱2,366,901.00 from 1996 to the present.

12. In all, PICOP has an outstanding and overdue total obligation of ₱167,592,440.90 as of August 30, 2002 based on the attached tabulation
which is marked as Annex 5 hereof.75

Clearly, SFMS Evangelista had not relied on the Memoranda of Orlanes and Arayan. On the contrary, he traveled to Surigao del Sur in order to verify the
contents of these Memoranda. SFMS Evangelista, in fact, revised the findings therein, as he discovered that certain forest charges adverted to as unpaid
had already been paid.

This does not mean, however, that SFMS Evangelista’s testimony was not hearsay. A witness may testify only on facts of which he has personal knowledge;
that is, those derived from his perception, except in certain circumstances allowed by the Rules. 76 Otherwise, such testimony is considered hearsay and,
hence, inadmissible in evidence.77

SFMS Evangelista, while not relying on the Memoranda of Orlanes and Arayan, nevertheless relied on records, the preparation of which he did not
participate in.78 These records and the persons who prepared them were not presented in court, either. As such, SFMS Evangelista’s testimony, insofar as
he relied on these records, was on matters not derived from his own perception, and was, therefore, hearsay.

Section 44, Rule 130 of the Rules of Court, which speaks of entries in official records as an exception to the hearsay rule, cannot excuse the testimony of
SFMS Evangelista. Section 44 provides:

SEC. 44. Entries in official records. – Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated.

In Africa v. Caltex,79 we enumerated the following requisites for the admission of entries in official records as an exception to the hearsay rule: (1) the entries
were made by a public officer or a private person in the performance of a duty; (2) the performance of the duty is especially enjoined by law; (3) the public
officer or the private person had sufficient knowledge of the facts stated by him, which must have been acquired by him personally or through official
information.
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The presentation of the records themselves would, therefore, have been admissible as an exception to the hearsay rule even if the public officer/s who
prepared them was/were not presented in court, provided the above requisites could be adequately proven. In the case at bar, however, neither the records
nor the persons who prepared them were presented in court. Thus, the above requisites cannot be sufficiently proven. Also, since SFMS Evangelista merely
testified based on what those records contained, his testimony was hearsay evidence twice removed, which was one step too many to be covered by the
official-records exception to the hearsay rule.

SFMS Evangelista’s testimony of nonpayment of forest charges was, furthermore, based on his failure to find official receipts corresponding to billings sent
to PICOP. As stated above, PICOP attached official receipts in its Addendum to Motion for Reconsideration to this Court. While this course of action is
normally irregular in judicial proceedings, we merely stated in the assailed Decision that "the DENR Secretary has adequately proven that PICOP has, at this
time, failed to comply with administrative and statutory requirements for the conversion of TLA No. 43 into an IFMA," 80 and that "this disposition confers
another chance to comply with the foregoing requirements." 81

In view of the foregoing, we withdraw our pronouncement that PICOP has unpaid forestry charges, at least for the purpose of determining compliance with
the IFMA requirements.

NCIP Certification

The Court of Appeals held that PICOP need not comply with Section 59 of Republic Act No. 8371, which requires prior certification from the NCIP that the
areas affected do not overlap with any ancestral domain before any IFMA can be entered into by the government. According to the Court of Appeals, Section
59 should be interpreted to refer to ancestral domains that have been duly established as such by the continuous possession and occupation of the area
concerned by indigenous peoples since time immemorial up to the present. The Court of Appeals held that PICOP had acquired property rights over TLA No.
43 areas, being in exclusive, continuous and uninterrupted possession and occupation of these areas since 1952 up to the present.

In the assailed Decision, we reversed the findings of the Court of Appeals. Firstly, the Court of Appeals ruling defies the settled jurisprudence we have
mentioned earlier, that a TLA is neither a property nor a property right, and that it does not create a vested right. 82

Secondly, the Court of Appeals’ resort to statutory construction is misplaced, as Section 59 of Republic Act No. 8379 is clear and unambiguous:

SEC. 59. Certification Precondition. – All departments and other governmental agencies shall henceforth be strictly enjoined from issuing, renewing or
granting any concession, license or lease, or entering into any production-sharing agreement, without prior certification from the NCIP that the area affected
does not overlap with any ancestral domain. Such certification shall only be issued after a field-based investigation is conducted by the Ancestral Domains
Office of the area concerned: Provided, That no certification shall be issued by the NCIP without the free and prior informed and written consent of the
ICCs/IPs concerned: Provided, further, That no department, government agency or government-owned or controlled corporation may issue new concession,
license, lease, or production sharing agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to
stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process.

PICOP had tried to put a cloud of ambiguity over Section 59 of Republic Act No. 8371 by invoking the definition of Ancestral Domains in Section 3(a) thereof,
wherein the possesssion by Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) must have been continuous to the present. However, we noted
the exception found in the very same sentence invoked by PICOP:

a) Ancestral domains – Subject to Section 56 hereof, refers to all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and
natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or
individually since time immemorial, continuously to the present except when interrupted  by war, force majeure or displacement by force, deceit, stealth or as
a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations , and which are
necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands
individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other
natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence
and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators;

Ancestral domains, therefore, remain as such even when possession or occupation of these areas has been interrupted by causes provided under the law,
such as voluntary dealings entered into by the government and private individuals/corporations. Consequently, the issuance of TLA No. 43 in 1952 did not
cause the ICCs/IPs to lose their possession or occupation over the area covered by TLA No. 43.

Thirdly, we held that it was manifestly absurd to claim that the subject lands must first be proven to be part of ancestral domains before a certification that the
lands are not part of ancestral domains can be required, and invoked the separate opinion of now Chief Justice Reynato Puno in Cruz v. Secretary of
DENR83:

As its subtitle suggests, [Section 59 of R.A. No. 8371] requires as a precondition for the issuance of any concession, license or agreement over natural
resources, that a certification be issued by the NCIP that the area subject of the agreement does not lie within any ancestral domain. The provision does not
vest the NCIP with power over the other agencies of the State as to determine whether to grant or deny any concession or license or agreement. It merely
gives the NCIP the authority to ensure that the ICCs/IPs have been informed of the agreement and that their consent thereto has been obtained. Note
that the certification applies to agreements over natural resources that do not necessarily lie within the ancestral domains. For those that are found within the
said domains, Sections 7(b) and 57 of the IPRA apply.

PICOP rejects the entire disposition of this Court on the matter, relying on the following theory:

84. It is quite clear that Section 59 of R.A. 8371 does not apply to the automatic conversion of TLA 43 to IFMA.

First, the automatic conversion of TLA 43 to an IFMA is not a new project. It is a mere continuation of the harvesting process in an area that PICOP had
been managing, conserving and reforesting for the last 50 years since 1952. Hence any pending application for a CADT within the area, cannot affect much
less hold back the automatic conversion. That the government now wishes to change the tenurial system to an IFMA could not change the PICOP project, in
existence and operating for the last 30 (sic) years, into a new one. 84
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PICOP’s position is anything but clear. What is clearly provided for in Section 59 is that it covers "issuing, renewing or granting (of) any concession, license
or lease, or entering into any production sharing agreement." PICOP is implying that, when the government changed the tenurial system to an IFMA,
PICOP’s existing TLA would just be upgraded or modified, but would be the very same agreement, hence, dodging the inclusion in the word "renewing."
However, PICOP is conveniently leaving out the fact that its TLA expired in 2002. If PICOP really intends to pursue the argument that the conversion of the
TLA into an IFMA would not create a new agreement, but would only be a modification of the old one, then it should be willing to concede that the IFMA
expired as well in 2002. An automatic modification would not alter the terms and conditions of the TLA except when they are inconsistent with the terms and
conditions of an IFMA. Consequently, PICOP’s concession period under the renewed TLA No. 43, which is from the year 1977 to 2002, would remain the
same.

PICOP cannot rely on a theory of the case whenever such theory is beneficial to it, but refute the same whenever the theory is damaging to it. In the same
way, PICOP cannot claim that the alleged Presidential Warranty is "renewable for other 25 years" and later on claim that what it is asking for is not a
renewal. Extensions of agreements must necessarily be included in the term renewal. Otherwise, the inclusion of "renewing" in Section 59 would be
rendered inoperative.

PICOP further claims:

85. Verily, in interpreting the term "held under claim of ownership," the Supreme Court could not have meant to include claims that had just been filed and
not yet recognized under the provisions of DENR Administrative Order No. 2 Series of 1993, nor to any other community / ancestral domain program prior to
R.A. 8371.

xxxx

87. One can not imagine the terrible damage and chaos to the country, its economy, its people and its future if a mere claim filed for the issuance of a CADC
or CADT will already provide those who filed the application, the authority or right to stop the renewal or issuance of any concession, license or lease or any
production-sharing agreement. The same interpretation will give such applicants through a mere application the right to stop or suspend any project that they
can cite for not satisfying the requirements of the consultation process of R.A. 8371. If such interpretation gets enshrined in the statures of the land, the
unscrupulous and the extortionists can put any ongoing or future project or activity to a stop in any part of the country citing their right from having filed an
application for issuance of a CADC or CADT claim and the legal doctrine established by the Supreme Court in this PICOP case. 85

We are not sure whether PICOP’s counsels are deliberately trying to mislead us, or are just plainly ignorant of basic precepts of law. The term "claim" in the
phrase "claim of ownership" is not a document of any sort. It is an attitude towards something. The phrase "claim of ownership" means "the possession of a
piece of property with the intention of claiming it in hostility to the true owner." 86 It is also defined as "a party’s manifest intention to take over land, regardless
of title or right."87 Other than in Republic Act No. 8371, the phrase "claim of ownership" is thoroughly discussed in issues relating to acquisitive prescription in
Civil Law.

Before PICOP’s counsels could attribute to us an assertion that a mere attitude or intention would stop the renewal or issuance of any concession, license or
lease or any production-sharing agreement, we should stress beforehand that this attitude or intention must be clearly shown by overt acts and, as required
by Section 3(a), should have been in existence "since time immemorial, continuously to the present except when interrupted by war, force majeure or
displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private
individuals/corporations."

Another argument of PICOP involves the claim itself that there was no overlapping:

Second, there could be no overlapping with any Ancestral Domain as proven by the evidence presented and testimonies rendered during the hearings in the
Regional Trial Court. x x x.

x x x x.

88. The DENR issued a total of 73 CADCs as of December 11, 1996. The DENR Undersecretary for Field Operations had recommended another 11
applications for issuance of CADCs. None of the CADCs overlap the TLA 43 area.

89. However former DENR Secretary Alvarez, in a memorandum dated 13 September, 2002 addressed to PGMA, insisted that PICOP had to comply with
the requirement to secure a Free and Prior Informed Concent because CADC 095 was issued covering 17,112 hectares of TLA 43.

90. This CADC 095 is a fake CADC and was not validly released by the DENR. While the Legal Department of the DENR was still in the process of receiving
the filings for applicants and the oppositors to the CADC application, PICOP came across filed copies of a CADC 095 with the PENRO of Davao Oriental as
part of their application for a Community Based Forest Management Agreement (CBFMA). Further research came across the same group filing copies of the
alleged CADC 095 with the Mines and Geosciences Bureau in Davao City for a mining agreement application. The two applications had two different
versions of the CADCs second page. One had Mr. Romeo T. Acosta signing as the Social reform Agenda Technical Action Officer, while the other had him
signing as the Head, Community-Based Forest Management Office. One had the word "Eight" crossed out and "Seven" written to make it appear that the
CADC was issued on September 25, 1997, the other made it appear that there were no alterations and the date was supposed to be originally 25 September
1997.

What is required in Section 59 of Republic Act No. 8379 is a Certification from the NCIP that there was no overlapping with any Ancestral Domain. PICOP
cannot claim that the DENR gravely abused its discretion for requiring this Certification, on the ground that there was no overlapping. We reiterate that  it is
manifestly absurd to claim that the subject lands must first be proven to be part of ancestral domains before a certification that they are not can be required .
As discussed in the assailed Decision, PICOP did not even seek any certification from the NCIP that the area covered by TLA No. 43, subject of its IFMA
conversion, did not overlap with any ancestral domain. 88

Sanggunian Consultation and Approval

While PICOP did not seek any certification from the NCIP that the former’s concession area did not overlap with any ancestral domain, PICOP initially
sought to comply with the requirement under Sections 26 and 27 of the Local Government Code to procure prior approval of the Sanggunians concerned.
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However, only one of the many provinces affected approved the issuance of an IFMA to PICOP. Undaunted, PICOP nevertheless submitted to the DENR
the purported resolution89 of the Province of Surigao del Sur indorsing the approval of PICOP’s application for IFMA conversion, apparently hoping either that
the disapproval of the other provinces would go unnoticed, or that the Surigao del Sur approval would be treated as sufficient compliance.

Surprisingly, the disapproval by the other provinces did go unnoticed before the RTC and the Court of Appeals, despite the repeated assertions thereof by
the Solicitor General. When we pointed out in the assailed Decision that the approval must be by all the Sanggunians concerned and not by only one of
them, PICOP changed its theory of the case in its Motion for Reconsideration, this time claiming that they are not required at all to procure Sanggunian
approval.

Sections 2(c), 26 and 27 of the Local Government Code provide:

SEC. 2. x x x.

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate local government units,
nongovernmental and people’s organizations, and other concerned sectors of the community before any project or program is implemented in their
respective jurisdictions.

SEC. 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. – It shall be the duty of every  national agency or government-
owned or controlled corporation authorizing or involved in the planning and implementation of any project or program that may cause pollution, climatic
change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species , to consult with the
local government units, nongovernmental organizations, and other sectors concerned and explain the goals and objectives of the project or program, its
impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize
the adverse effects thereof.

SEC. 27. Prior Consultations Required. – No project or program shall be implemented by government authorities unless the consultations mentioned in
Sections 2(c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such
projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the
Constitution.

As stated in the assailed Decision, the common evidence of the DENR Secretary and PICOP, namely, the 31 July 2001 Memorandum of Regional Executive
Director (RED) Elias D. Seraspi, Jr., enumerated the local government units and other groups which had expressed their opposition to PICOP’s application
for IFMA conversion:

7. During the conduct of the performance evaluation of TLA No. 43 issues complaints against PRI were submitted thru Resolutions and letters. It is important
that these are included in this report for assessment of what are their worth, viz:

xxxx

7.2 Joint Resolution (unnumbered), dated March 19, 2001 of the Barangay Council and Barangay Tribal Council of Simulao, Boston, Davao Oriental
(ANNEX F) opposing the conversion of TLA No. 43 into IFMA over the 17,112 hectares allegedly covered with CADC No. 095.

7.3 Resolution Nos. 10, s-2001 and 05, s-2001 (ANNEXES G & H) of the Bunawan Tribal Council of Elders (BBMTCE) strongly demanding none renewal of
PICOP TLA. They claim to be the rightful owner of the area it being their alleged ancestral land.

7.4 Resolution No. 4, S-2001 of Sitio Linao, San Jose, Bislig City (ANNEX I) requesting not to renew TLA 43 over the 900 hectares occupied by them.

7.5 Resolution No. 22, S-2001 (ANNEX J) of the Sanguniang Bayan, Lingig, Surigao del Sur not to grant the conversion of TLA 43 citing the plight of former
employees of PRI who were forced to enter and farm portion of TLA No. 43, after they were laid off.

7.6 SP Resolution No. 2001-113 and CDC Resolution Nos. 09-2001 of the Sanguniang Panglungsod of Bislig City (ANNEXES K & L) requesting to exclude
the area of TLA No. 43 for watershed purposes.

7.7 Resolution No. 2001-164, dated June 01, 2001 (ANNEX M) Sanguniang Panglungsod of Bislig City opposing the conversion of TLA 43 to IFMA for the
reason that IFMA do not give revenue benefits to the City. 90

PICOP had claimed that it complied with the Local Government Code requirement of obtaining prior approval of the Sanggunian concerned by submitting a
purported resolution91 of the Province of Surigao del Sur indorsing the approval of PICOP’s application for IFMA conversion. We ruled that this cannot be
deemed sufficient compliance with the foregoing provision. Surigao del Sur is not the only province affected by the area covered by the proposed IFMA. As
even the Court of Appeals found, PICOP’s TLA No. 43 traverses the length and breadth not only of Surigao del Sur but also of Agusan del Sur, Compostela
Valley and Davao Oriental.92

On Motion for Reconsideration, PICOP now argues that the requirement under Sections 26 and 27 does not apply to it:

97. PICOP is not a national agency. Neither is PICOP government owned or controlled. Thus Section 26 does not apply to PICOP.

98. It is very clear that Section 27 refers to projects or programs to be implemented by government authorities or government-owned and controlled
corporations. PICOP’s project or the automatic conversion is a purely private endevour. First the PICOP project has been implemented since 1969. Second,
the project was being implemented by private investors and financial institutions.
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99. The primary government participation is to warrant and ensure that the PICOP project shall have peaceful tenure in the permanent forest allocated to
provide raw materials for the project. To rule now that a project whose foundations were commenced as early as 1969 shall now be subjected to a 1991 law
is to apply the law retrospectively in violation of Article 4 of the Civil Code that laws shall not be applied retroactively.

100. In addition, under DAO 30, Series of 1992, TLA and IFMA operations were not among those devolved function from the National Government / DENR
to the local government unit. Under its Section 03, the devolved function cover only:

a) Community Based forestry projects.

b) Communal forests of less than 5000 hectares

c) Small watershed areas which are sources of local water supply. 93

We have to remind PICOP again of the contents of Section 2, Article XII of the Constitution:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may
directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by such citizens.  Such agreements may be for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

All projects relating to the exploration, development and utilization of natural resources are projects of the State. While the State may enter into co-
production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is
owned by these citizens, such as PICOP, the projects nevertheless remain as State projects and can never be purely private endeavors.

Also, despite entering into co-production, joint venture, or production-sharing agreements, the State remains in full control and supervision over such
projects. PICOP, thus, cannot limit government participation in the project to being merely its bouncer, whose primary participation is only to "warrant and
ensure that the PICOP project shall have peaceful tenure in the permanent forest allocated to provide raw materials for the project."

PICOP is indeed neither a national agency nor a government-owned or controlled corporation. The DENR, however, is a national agency and is the national
agency prohibited by Section 27 from issuing an IFMA without the prior approval of the Sanggunian concerned. As previously discussed, PICOP’s Petition
for Mandamus can only be granted if the DENR Secretary is required by law to issue an IFMA. We, however, see here the exact opposite: the DENR
Secretary was actually prohibited by law from issuing an IFMA, as there had been no prior approval by all the other Sanggunians concerned.

As regards PICOP’s assertion that the application to them of a 1991 law is in violation of the prohibition against the non-retroactivity provision in Article 4 of
the Civil Code, we have to remind PICOP that it is applying for an IFMA with a term of 2002 to 2027. Section 2, Article XII of the Constitution allows
exploitation agreements to last only "for a period not exceeding twenty-five years, renewable for not more than twenty-five years." PICOP, thus, cannot
legally claim that the project’s term started in 1952 and extends all the way to the present.

Finally, the devolution of the project to local government units is not required before Sections 26 and 27 would be applicable. Neither Section 26 nor 27
mentions such a requirement. Moreover, it is not only the letter, but more importantly the spirit of Sections 26 and 27, that shows that the devolution of the
project is not required. The approval of the Sanggunian concerned is required by law, not because the local government has control over such project, but
because the local government has the duty to protect its constituents and their stake in the implementation of the project. Again, Section 26 states that it
applies to projects that "may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and
extinction of animal or plant species." The local government should thus represent the communities in such area, the very people who will be affected by
flooding, landslides or even climatic change if the project is not properly regulated, and who likewise have a stake in the resources in the area, and deserve
to be adequately compensated when these resources are exploited.

Indeed, it would be absurd to claim that the project must first be devolved to the local government before the requirement of the national government seeking
approval from the local government can be applied. If a project has been devolved to the local government, the local government itself would be
implementing the project. That the local government would need its own approval before implementing its own project is patently silly.

EPILOGUE AND DISPOSITION

PICOP’c cause of action consists in the allegation that the DENR Secretary, in not issuing an IFMA, violated its constitutional right against non-impairment of
contracts. We have ruled, however, that the 1969 Document is not a contract recognized under the non-impairment clause, much less a contract specifically
enjoining the DENR Secretary to issue the IFMA. The conclusion that the 1969 Document is not a contract recognized under the non-impairment clause has
even been disposed of in another case decided by another division of this Court, PICOP Resources, Inc. v. Base Metals Mineral Resources
Corporation,94 the Decision in which case has become final and executory. PICOP’s Petition for Mandamus should, therefore, fail.

Furthermore, even if we assume for the sake of argument that the 1969 Document is a contract recognized under the non-impairment clause, and even if we
assume for the sake of argument that the same is a contract specifically enjoining the DENR Secretary to issue an IFMA, PICOP’s Petition for Mandamus
must still fail. The 1969 Document expressly states that the warranty as to the tenure of PICOP is "subject to compliance with constitutional and statutory
requirements as well as with existing policy on timber concessions." Thus, if PICOP proves the two above-mentioned matters, it still has to prove compliance
with statutory and administrative requirements for the conversion of its TLA into an IFMA.

While we have withdrawn our pronouncements in the assailed Decision that (1) PICOP had not submitted the required forest protection and reforestation
plans, and that (2) PICOP had unpaid forestry charges, thus effectively ruling in favor of PICOP on all factual issues in this case, PICOP still insists that the
requirements of an NCIP certification and Sanggunian consultation and approval do not apply to it. To affirm PICOP’s position on these matters would entail
nothing less than rewriting the Indigenous Peoples’ Rights Act and the Local Government Code, an act simply beyond our jurisdiction.
 140

WHEREFORE, the Motion for Reconsideration of PICOP Resources, Inc. is DENIED.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

No part
TERESITA J. LEONARDO-DE CASTRO
ANTONIO EDUARDO B. NACHURA*
Associate Justice
Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Resolution were reached in consultation before
the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

19. A.M. No. 01-4-03-S.C.       June 29, 2001

RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL OF IN THE SANDIGANBAYAN OF THE PLUNDER CASES AGAINST THE FORMER PRESIDENT
JOSEPH E. ESTRADA.

SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO and
ATTY. RICARDO ROMULO, petitioners, vs. JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES, oppositors.

VITUG, J.:

The travails of a deposed President continue. The Sandiganbayan reels to start hearing the criminal charges against Mr. Joseph E. Estrada. Media seeks to
cover the event via live television and live radio broadcast and endeavors this Court to allow it that kind of access to the proceedings.

On 13 March 2001, the Kapisanan ng mga BroadKaster ng Pilipinas (KBP), an association representing duly franchised and authorized television and radio
networks throughout the country, sent a letter requesting this Court to allow live media coverage of the anticipated trial of the plunder and other criminal
cases filed against former President Joseph E. Estrada before the Sandiganbayan in order "to assure the public of full transparency in the proceedings of an
unprecedented case in our history."2 The request was seconded by Mr. Cesar N. Sarino in his letter of 05 April 2001 to the Chief Justice  and, still later, by
Senator Renato Cayetano and Attorney Ricardo Romulo.

On 17 April 2001, the Honorable Secretary of Justice  Hernando Perez formally filed the instant petition, 3 submitting the following exegesis:

"3. The foregoing criminal cases involve the previous acts of the former highest official of the land, members of his family, his cohorts and, therefore, it
cannot be over emphasized that the prosecution thereof, definitely involves a matter of public concern and interest, or a matter over which the entire citizenry
has the right to know, be informed and made aware of.

"4. There is no gainsaying that the constitutional right of the people to be informed on matters of public concern, as in the instant cases, can best be
recognized, served and satisfied by allowing the live radio and television coverage of the concomitant court proceedings.
 141

"5. Moreover, the live radio and television coverage of the proceedings will also serve the dual purpose of ensuring the desired transparency in the
administration of justice in order to disabuse the minds of the supporters of the past regime of any and all unfounded notions, or ill-perceived attempts on the
part of the present dispensation, to railroad the instant criminal cases against the Former President Joseph Ejercito Estrada." 4

Public interest, the petition further averred, should be evident bearing in mind the right of the public to vital information affecting the nation.

In effect, the petition seeks a re-examination of the 23rd October 1991 resolution of this Court in a case for libel filed by then President Corazon C. Aquino.
The resolution read:

"The records of the Constitutional Commission are bereft of discussion regarding the subject of cameras in the courtroom. Similarly, Philippine courts have
not had the opportunity to rule on the question squarely.

"While we take notice of the September 1990 report of the United States Judicial Conference Ad Hoc Committee on Cameras in the Courtroom, still the
current rule obtaining in the Federal Courts of the United States prohibits the presence of television cameras in criminal trials. Rule 53 of the Federal Rules
of Criminal Procedure forbids the taking of photographs during the progress of judicial proceedings or radio broadcasting of such proceedings from the
courtroom. A trial of any kind or in any court is a matter of serious importance to all concerned and should not be treated as a means of entertainment. To so
treat it deprives the court of the dignity which pertains to it and departs from the orderly and serious quest for truth for which our judicial proceedings are
formulated.

"Courts do not discriminate against radio and television media by forbidding the broadcasting or televising of a trial while permitting the newspaper reporter
access to the courtroom, since a television or news reporter has the same privilege, as the news reporter is not permitted to bring his typewriter or printing
press into the courtroom.

"In Estes vs. Texas. the United States Supreme Court held that television coverage of judicial proceedings involves an inherent denial of the due process
rights of a criminal defendant. Voting 5-4, the Court through Mr. Justice Clark identified four (4) areas of potential prejudice which might arise from the impact
of the cameras on the jury, witnesses, the trial judge and the defendant. The decision in part pertinently stated:

"Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be frightened, play to the camera, or become
nervous. They are subject to extraordinary out-of court influences which might affect their testimony. Also, telecasting not only increases the trial judge's
responsibility to avoid actual prejudice to the defendant, it may as well affect his own performance. Judges are human beings also and are subject to the
same psychological reactions as laymen. For the defendant, telecasting is a form of mental harassment and subjects him to excessive public exposure and
distracts him from the effective presentation of his defense. 1âwphi1.nêt

'The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the public.'

"Representatives of the press have no special standing to apply for a writ of mandate to compel a court to permit them to attend a trial, since within the
courtroom, a reporter's constitutional rights are no greater than those of any other member of the public. Massive intrusion of representatives of the news
media into the trial itself can so alter or destroy the constitutionally necessary judicial atmosphere and decorum that the requirements of impartiality imposed
by due process of law are denied the defendant and a defendant in a criminal proceeding should not be forced to run a gauntlet of reporters and
photographers each time he enters or leaves the courtroom.

"Considering the prejudice it poses to the defendant's right to due process as well as to the fair and orderly administration of justice, and considering further
that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live
radio and television coverage of court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be restricted and limited to
shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or
photographs shall be permitted during the trial proper.

" Accordingly, in order to protect the parties' right to due process, to prevent the distraction of the participants in the proceedings and in the last analysis, to
avoid miscarriage of justice, the Court resolved to PROHlBIT live radio and television coverage of court proceedings. Video footage of court hearings for
news purposes shall be limited and restricted as above indicated."

Admittedly, the press is a mighty catalyst in awakening public consciousness, and it has become an important instrument in the quest for truth. 5 Recent
history exemplifies media's invigorating presence, and its contribution to society is quite impressive. The Court, just recently, has taken judicial notice of the
enormous effect of media in stirring public sentience during the impeachment trial, a partly judicial and partly political exercise, indeed the most-watched
program in the boob-tubes during those times, that would soon culminate in EDSA II.

The propriety of granting or denying the instant petition involve the weighing out of the constitutional guarantees of freedom of the press and the right to
public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its
proceedings in ensuring a fair and impartial trial. 6

When these rights race against one another, jurisprudence 7 tells us that the right of the accused must be preferred to win.

With the possibility of losing not only the precious liberty but also the very life of an accused, it behooves all to make absolutely certain that an accused
receives a verdict solely on the basis of a just and dispassionate judgment, a verdict that would come only after the presentation of credible evidence
testified to by unbiased witnesses unswayed by any kind of pressure, whether open or subtle, in proceedings that are devoid of histrionics that might detract
from its basic aim to ferret veritable facts free from improper influence, 8 and decreed by a judge with an unprejudiced mind, unbridled by running emotions or
passions.

Due process guarantees the accused a presumption of innocence until the contrary is proved in a trial that is not lifted above its individual settings nor made
an object of public's attention9 and where the conclusions reached are induced not by any outside force or influence 10 but only by evidence and argument
given in open court, where fitting dignity and calm ambiance is demanded.

Witnesses and judges may very well be men and women of fortitude, able to thrive in hardy climate, with every reason to presume firmness of mind and
resolute endurance, but it must also be conceded that "television can work profound changes in the behavior of the people it focuses on." 11
 142

Even while it may be difficult to quantify the influence, or pressure that media can bring to bear on them directly and through the shaping of public opinion, it
is a fact, nonetheless, that, indeed, it does so in so many ways and in varying degrees. The conscious or unconscious effect that such a coverage may have
on the testimony of witnesses and the decision of judges cannot be evaluated but, it can likewise be said, it is not at all unlikely for a vote of guilt or
innocence to yield to it.12 It might be farcical to build around them an impregnable armor against the influence of the most powerful media of public opinion. 13

To say that actual prejudice should first be present would leave to near nirvana the subtle threats to justice that a disturbance of the mind so indispensable to
the calm and deliberate dispensation of justice can create. 14 The effect of television may escape the ordinary means of proof, but it is not far-fetched for it to
gradually erode our basal conception of a trial such as we know it now. 15

An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A
public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secrete conclaves of
long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the
available seats, conduct themselves with decorum and observe the trial process. In the constitutional sense, a courtroom should have enough facilities for a
reasonable number of the public to observe the proceedings, not too small as to render the openness negligible and not too large as to distract the trial
participants from their proper functions, who shall then be totally free to report what they have observed during the proceedings. 16

The courts recognize the constitutionally embodied freedom of the press and the right to public information. It also approves of media's exalted power to
provide the most accurate and comprehensive means of conveying the proceedings to the public and in acquainting the public with the judicial process in
action; nevertheless, within the courthouse, the overriding consideration is still the paramount right of the accused to due process 17 which must never be
allowed to suffer diminution in its constitutional proportions. Justice Clark thusly pronounced, "while a maximum freedom must be allowed the press in
carrying out the important function of informing the public in a democratic society, its exercise must necessarily be subject to the maintenance
of absolute fairness in the judicial process."18

This Court, in the instance19 already mentioned, citing Estes vs. Texas,20 the United States Supreme Court holding the television coverage of judicial
proceedings as an inherent denial of due process rights of an accused, also identified the following as being likely prejudices:

"1. The potential impact of television x x x is perhaps of the greatest significance. x x x. From the moment the trial judge announces that a case will be
televised it becomes a cause celebre. The whole community, x x x becomes interested in all the morbid details surrounding it. The approaching trial
immediately assumes an important status in the public press and the accused is highly publicized along with the offense with which he is charged. Every
juror carries with him into the jury box these solemn facts and thus increases the chance of prejudice that is present in every criminal case. x x x.

"2. The quality of the testimony in criminal trials will often be impaired. The impact upon a witness of the knowledge that he is being viewed by a vast
audience is Simply incalculable. Some may be demoralized and frightened, some cocky and given to overstatement; memories may falter, as with anyone
speaking publicly, and accuracy of statement may be severely undermined. x x x. Indeed, the mere fact that the trial is to be televised might render
witnesses reluctant to appear and thereby impede the trial as well as the discovery of the truth.

"3. A major aspect of the problem is the additional responsibilities the presence of television places on the trial judge. His job is to make certain that the
accused receives a fair trial. This most difficult task requires his undivided attention. x x x

"4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its presence is a form of mental if not physical-harassment, resembling a
police line-up or the third degree. The inevitable close-up of his gestures and expressions during the ordeal of his trial might well transgress his personal
sensibilities, his dignity, and his ability to concentrate on the proceedings before him -sometimes the difference between life and death -dispassionately,
freely and without the distraction of wide public surveillance. A defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or a city
or nationwide arena. The heightened public clamor resulting from radio and television coverage will inevitably result in prejudice."

In his concurring opinion in Estes, Mr. Justice Harlan opined that live television and radio coverage could have mischievous potentialities for intruding upon
the detached atmosphere that should always surround the judicial process. 21

The Integrated Bar of the Philippines, in its Resolution of 16 Apri1 2001, expressed its own concern on the live television and radio coverage of the criminal
trials of Mr. Estrada; to paraphrase: Live television and radio coverage can negate the rule on exclusion of witnesses during the hearings intended to assure
a fair trial; at stake in the criminal trial is not only the life and liberty of the accused but the very credibility of the Philippine criminal justice system, and live
television and radio coverage of the trial could allow the "hooting throng" to arrogate unto themselves the task of judging the guilt of the accused, such that
the verdict of the court will be acceptable only if popular; and live television and radio coverage of the trial will not subserve the ends of justice but will only
pander to the desire for publicity of a few grandstanding lawyers.

It may not be unlikely, if the minority position were to be adopted, to see protracted delays in the prosecution of cases before trial courts brought about by
petitions seeking a declaration of mistrial on account of undue publicity and assailing a court a quo's action either allowing or disallowing live media coverage
of the court proceedings because of supposed abuse of discretion on the part of the judge.

En passant, the minority would view the ponencia as having modified the case law on the matter. Just to the contrary, the Court effectively reiterated its
standing resolution of 23 October 1991. Until 1991, the Court had yet to establish the case law on the matter, and when it did in its 23 rd October resolution, it
confirmed, in disallowing live television and radio coverage of court proceedings, that "the records of the Constitutional Commission (were) bereft of
discussion regarding the subject of cameras in the courtroom" and that "Philippine courts (had) not (therefore) had the opportunity to rule on the question
squarely."

But were the cases decided by the U.S. courts and cited in the minority opinion really in point?

In Nebraska Press Association vs, Stewart,22 the Nebraska State trial judge issued an order restraining news media from publishing accounts of confession
or admissions made by the accused or facts strongly implicating him. The order was struck down. In Richmond Newspaper; Inc., vs, Virginia,23 the trial judge
closed the courtroom to the public and all participants except witnesses when they testify. The judge was reversed by the U.S. Supreme Court which ruled
that criminal trials were historically open. In Globe Newspaper vs. Superior Court,24 the US Supreme Court voided a Massachusetts law that required trial
judges to exclude the press and the public from the courtroom during the testimony of a minor victim of certain sexual offenses.

Justice Steward, in Chandler vs. Florida,25 where two police officers charged with burglary sought to overturn their conviction before the US Supreme Court
upon the ground that the television coverage had infringed their right to fair trial, explained that "the constitutional violation perceived by the Estes Court did
 143

not stem from the physical disruption that might one day disappear with technological advances in the television equipment but inhered, rather, in the
hypothesis that the mere presence of cameras and recording devices might have an effect on the trial participants prejudicial to the accused." 26

Parenthetically, the United States Supreme Court and other federal courts do not allow live television and radio coverage of their proceedings.

The sad reality is that the criminal cases presently involved are of great dimensions so involving as they do a former President of the Republic. It is
undeniable that these cases have twice become the nation's focal points in the two conflicting phenomena of EDSA II and EDSA III where the magnitude of
the events has left a still divided nation. Must these events be invited anew and risk the relative stability that has thus far been achieved? The transcendental
events in our midst do not allow us to turn a blind eye to yet another possible extraordinary case of mass action being allowed to now creep into even the
business of the courts in the dispensation of justice under a rule of law. At the very least, a change in the standing rule of the court contained in its resolution
of 23 October 1991 may not appear to be propitious.

Unlike other government offices, courts do not express the popular will of the people in any sense which, instead, are tasked to only adjudicate justiciable
controversies on the basis of what alone is submitted before them. 27 A trial is not a free trade of ideas, Nor is a competing market of thoughts the known test
of truth in a courtroom.28

The Court is not all that umnindful of recent technological and scientific advances but to chance forthwith the life or liberty of any person in a hasty bid to use
and apply them, even before ample safety nets are provided and the concerns heretofore expressed are aptly addressed, is a price too high to pay.

WHEREFORE, the petition is DENIED.

SO ORDERED.1âwphi1.nêt

Davide, Jr., C.J., Pardo, Buena, and Gonzaga-Reyes, JJ., concur.

Bellosillo, J. I join in the dissent of J. Puno.

Melo, J. I join the dissents.
Puno, J. Please see dissenting opinion.
Kapunan, J. See concurring opinion.
Mendoza, J. I concur in the majority opinion of Vitug, I. and join the separate opinion of Kapunan, J.
Panganiban, J. See dissenting opinion.
Quisumbing, J. I join in the dissent of J. Puno.
Sandoval-Gutierrez, J. I concur. See my concurring opinion.
Ynares-Santiago, J. On leave.

20. G.R. No. 68828. March 27, 1985.

RELI GERMAN, RAMON PEDROSA, TIRSO SANTILLAN, JR., MA. LUISA ANDAL, NIEVA MALINIS, RICARDO LAVIÑA, CESAR CORTES, DANILO
REYES, JOSE REYES, JOSEFINA MATE, LOURDES CALMA, MILDRED JUAN, OLIVE GUANZON, FERNANDO COCHICO, SHERMAN CID,
NAZARENO BENTULAN, ROSLINA DONAIRE, MARIO MARTINEZ, BEATRIZ TEYLAN, ANGELINA LAPID, ROSEMARIE FLORES, DANIEL VAN SOTO,
EDGARDO MERCADER, NELLY AGUSTIN, MARILY MAGCALAS, DAVID CHAN, ARSENIO SALANSANG, NELSON DE GUZMAN, MARCIANO
ARANETA, CESAR MENESES, DIONISIO RELLOSA, MARIO SANTIAGO, SEVERINO SANTOS, LEONORA SANTOS, NIMFA DORONILLA, FLORENCE
GUINTO, ROSALINA MANANSALA, PERCIVAL OSTONAL, TOMMY MACARANAS, ROGER NICANDRO, Petitioners, v. GEN. SANTIAGO BARANGAN
and MAJOR ISABELO LARIOSA, Respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGIOUS WORSHIP AND OF LOCOMOTION, MUST BE EXERCISED IN GOOD FAITH.
— While it is beyond debate that every citizen has the undeniable and inviolable right to religious freedom, the exercise thereof, and of all fundamental rights
for that matter, must be done in good faith. As Article 19 of the Civil Code admonishes: "Every person must in the exercise of his rights and in the
performance of his duties . . . observe honesty and good faith." Even assuming that petitioners’ claim to the free exercise of religion is genuine and valid, still
respondents reaction to the October 2, 1984 mass action may not be characterized as violative of the freedom of religious worship. Since 1972, when mobs
of demonstrators crashed through the Malacañang gates and scaled its perimeter fence, the use by the public of J P. Laurel Street and the streets
approaching it have been restricted. While travel to and from the affected thoroughfares has not been absolutely prohibited, passers-by have been subjected
to courteous, unobtrusive security checks. The reasonableness of this restriction is readily perceived and appreciated if it is considered that the same is
designed to protect the lives of the President and his family, as well as other government officials, diplomats and foreign guests transacting business with
Malacañang.

2. ID.; ID.; FREEDOM OF RELIGION; MEANING AND SCOPE. — Elucidating on the meaning and scope of freedom of religion, the U.S. Supreme Court in
Cantwell v. Connecticut said: "The constitutional inhibition on legislation on the subject of religion has a double aspect. On the one hand, it forestalls
compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious
organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen
form of religion. Thus the amendment embraces two concepts — freedom to believe and freedom to act. The first is absolute, but in the nature of things, the
second cannot be."

3. ID.; ID.; ID.; EXERCISE OF RELIGIOUS BELIEF MUST YIELD TO ESTABLISHED INSTITUTION OF SOCIETY IN CASE OF CONFLICT. — In the case
at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but only in the manner by which they had attempted to
translate the same into action. This curtailment is in accord with the pronouncement of this Court in Gerona v. Secretary of Education, thus: "The realm of
belief and creed is infinite and limitless bounded only by one’s imagination and thought. So is the freedom of belief, including religious belief, limitless and
without bounds. One may believe in most anything however strange, bizarre and unreasonable the same may appear to others, even heretical when
weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to
travel. If the exercise of said religious belief clashes with the established institutions of society and with the law, then the former must yield and give way to
the latter. The government steps in and either restrains said exercise or even prosecutes the one exercising it." ( Emphasis supplied)
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4. ID.; ID.; ID.; LIBERTY OF TRAVEL, IMPAIRED WHEN NECESSARY IN THE INTEREST OF NATIONAL SECURITY. — Suffice it to say that the
restriction imposed on the use of J.P. Laurel Street, the wisdom and reasonableness of which have already been discussed, is allowed under the
fundamental law, the same having been established in the interest of national security.

GUTIERREZ, JR., J, concurring:

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM AND EQUALITY OF RELIGIOUS WORSHIP, TERM "SHALL FOREVER BE ALLOWED",
CONSTRUED. — Article 5 of the Malolos Constitution provided for freedom and equality of religious worship as well as the separation of church and state.
President William McKinley’s Instructions to the Second Philippine Commission directed "that no law shall be made respecting an establishment of religion or
prohibiting the free exercise thereof and that the free exercise and enjoyment of religious profession and worship without discrimination or preference shall
forever or allowed." (Emphasis supplied). The same statement of the eternal nature of the freedom is found in the Philippine Bill in 1902 and in the Philippine
Autonomy Act of 1916, more popularly known as the Jones Law. It is, of course, axiomatic that no provision of the Constitution is beyond repeal or
amendment. The clause "shall forever be allowed" is simply an expression of the framers’ faith that the Filipino people cherish religious freedom so much
that they would never remove this freedom from the Constitution or water it down through a modification. I believe that this faith is justified. The free exercise
of religious freedom is not only intended to last "forever" but the clause guaranteeing it is interpreted within limits of "utmost amplitude."

2. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; MANDAMUS AND INJUNCTION; DISMISSAL PROPER WHERE ISSUE IS NON-EXISTENT; CASE AT
BAR. — During the hearing, it was ascertained and the respondents gave concrete assurances that anyone wishing to worship at St. Jude Church near
Malacañang has never been restricted nor will he ever be restricted from going to that church. The presidential security guards check political demonstrators
who try to hold rallies before the presidential palace but not church goers, attending worship services in the vicinity. On the other hand, the petitioners
informed the Court through counsel that they did not intend to hold any protest rally or political demonstration in front of Malacañang. Their only intent was to
pray at St. Jude Church, the church dedicated to the patron saint of impossible causes. The facts as stated by contending counsel show that the problem is
one of a failure of communications and not a denial of freedom of worship. If the respondents do not deny completely free access to church goers while the
petitioners had absolutely no intention to hold a political demonstration, the petition belabors a non-existent issue.

RELOVA, J., dissenting:

1. POLITICAL LAW; CONSTITUTION; BILL OF RIGHTS; RELIGIOUS WORSHIP; RESTRAINT IMPOSED ON FREE EXERCISE AND ENJOYMENT OF
RELIGIOUS WORSHIP, APPARENT IN CASE AT BAR. — Petitioners claim that they were on their way to hear mass and/or pray. For respondents to say,
even before petitioners have reached the place, that they would be delivering speeches is pure speculation. Respondents should have allowed petitioners to
hear mass and/or pray and, thereafter, see what they would do. Only ‘when would We know what were really in their minds. What respondents did by acting
before petitioners could display themselves was tantamount to prohibiting free exercise and enjoyment of religious worship. Demonstrations about or near
the premises of St. Jude Chapel because of its proximity to the residence of the President may be restricted, but certainly, for petitioners or any group of
men for that matter, to hear mass and/or pray at the chapel should be tolerated.

GUTIERREZ, JR., J., concurring:

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM AND EQUALITY OF RELIGIOUS WORSHIP, TERM "SHALL FOREVER BE ALLOWED",
CONSTRUED. — Section 8 of the Bill of Rights [now Section 5, Article III of the 1987 Constitution] reads: "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. ( Emphasis supplied)." Article 5 of the Malolos
Constitution provided for freedom and equality of religious worship as well as the separation of church and state. President William McKinley’s Instructions to
the Second Philippine Commission directed "that no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof and
that the free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed." ( Emphasis supplied).
The same statement of the eternal nature of the freedom is found in the Philippine Bill in 1902 and in the Philippine Autonomy Act of 1916, more popularly
known as the Jones Law. It is, of course, axiomatic that no provision of the Constitution is beyond repeal or amendment. The clause "shall forever be
allowed" is simply an expression of the framers’ faith that the Filipino people cherish religious freedom so much that they would never remove this freedom
from the Constitution or water it down through a modification. I believe that this faith is justified. The free exercise of religious freedom is not only intended to
last "forever" but the clause guaranteeing it is interpreted within limits of "utmost amplitude."

2. ID.; ID.; CLAIM TO FREE EXERCISE OF RELIGION MUST BE GENUINE OR VALID. — Any claim to the free exercise of religion must be a genuine or
valid one. This Court is keenly sensitive to problems arising from the freedom of religion clause. We examine allegations of its violation to check any
infringement of this preferred freedom. A claim based on it should be rooted in genuine religious conviction, although . . . we have to take into account the
presumption of good faith.

3. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; MANDAMUS AND INJUNCTION; DISMISSAL PROPER WHERE ISSUE IS NON-EXISTENT. — During the
hearing, it was ascertained and the respondents gave concrete assurances that anyone wishing to worship at St. Jude Church near Malacañang has never
been restricted nor will he ever be restricted from going to that church. The presidential security guards check political demonstrators who try to hold rallies
before the presidential palace but not church goers, attending worship services in the vicinity. On the other hand, the petitioners informed the Court through
counsel that they did not intend to hold any protest rally or political demonstration in front of Malacañang. Their only intent was to pray at St. Jude Church,
the church dedicated to the patron saint of impossible causes. The facts as stated by contending counsel show that the problem is one of a failure of
communications and not a denial of freedom of worship. If the respondents do not deny completely free access to church goers while the petitioners had
absolutely no intention to hold a political demonstration, the petition belabors a non-existent issue.

TEEHANKEE, J., dissenting:

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO FREE WORSHIP AND MOVEMENT, A PREFERRED RIGHT. — Justice Teehankee votes to
grant the petition on the ground that the right of free worship and movement is a preferred right that enjoys precedence and primacy and is not subject to
prior restraint except where there exists the clear and present danger of a substantive evil sought to be prevented. There was and is manifestly no such
danger in this case.

2. ID.; ID.; ID.; ENJOYS PRECEDENCE AND PRIMACY. — The right to freely exercise one’s religion is guaranteed in Section 8 of our Bill of Rights.
Freedom of worship, alongside with freedom of expression and speech and peaceable assembly "along with the other intellectual freedoms, are highly
ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary — even more so than on the other departments — rests
the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course,
dispense with what has been so felicitiously termed by Justice Holmes ‘as the sovereign prerogative of judgment.’ Nonetheless, the presumption must be to
incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy."
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3. ID.; ID.; ID.; PRIOR RESTRAINTS IMPOSED ONLY IN THE EXISTENCE OF GRAVE AND PRESENT DANGER. — In the free exercise of such preferred
rights, there is to be no prior restraint although there may be subsequent punishment of any illegal acts committed during the exercise of such basic rights.
The sole justification for a prior restraint or limitation on the exercise of these basic rights is the existence of a grave and present danger of a character both
grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty)
to prevent.

4. ID.; ID.; ID.; INSTANCES OF DISORDERLY CONDUCT DOES NOT CHARACTERIZE ASSEMBLY TUMULTUOUS. — The burden to show the existence
of grave and imminent danger that would justify prior restraint and bar a group of persons from entering the church of their choice for prayer and worship lies
on the military or police officials who would so physical restrain them. Indeed, there is no precedent in this time and age when churchgoers whose right of
free exercise of their religion is recognized have been physically prevented from entering their church on grounds of national security. On the other hand, it
does not lie within the competence nor authority of such officials to demand of church goers that they show and establish their sincerity and good faith . . . in
invoking the constitutional guarantee of freedom of religious worship and of "locomotion" as a pre-condition, as seems to be the thrust of the majority
decision. Nor is there any burden on the churchgoer to awake "a satisfactory showing of a claim deeply rooted in religious conviction" before he may worship
at the church of his choice — as appears to be the basis of Justice Gutierrez’ concurring opinion for dismissal of the petition. The exercise of such basic and
sacred rights would be too tenuous if they were made to depend on the snap judgment and disposition of such officials as to one’s good faith and his attire.
In fact, Article 132 of the Revised Penal Code penalizes public officers and employees who "prevent or disturb the ceremonies or manifestations of nay
religion" while Article 32 of the Civil Code grants an independent cause of action for moral an exemplary damages and" for other relief" against such officials
or private individuals "who directly or indirectly obstruct, defeat, violate or in any manner impede or impair (the) freedom of religion (and) freedom of speech"
of any person.

5. ID.; ID.; ID.; DISMISSAL OF PETITION IN CASE AT BAR, A VIOLATION OF FREEDOM OF RELIGIOUS WORSHIP AND MOVEMENT. — Disorderly
conduct by individual members of a crowd [be not seized] as an excuse to characterize the assembly as a seditious and tumultuous rising against the
authorities, mutatis mutandis, is fully applicable here, thus: "But if the prosecution be permitted to seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to
assemble and to petition for redress of grievances would become a delusion and snare and the attempt to exercise it on the most righteous occasion and in
the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought
to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should
be sought out and punished therefor." The dismissal of the petition on the ground that the restriction imposed by respondents was "necessary to maintain the
smooth functions of the executive branch of the government which petitioners’ mass action would certainly disrupt" and that such prior restraint was not
violative of petitioners’ constitutional rights of freedom of religious worship and movement "having been established in the interest of national security,"
manifestly is not in accord with the applicable established standards and principles.

MAKASIAR, J., dissenting:

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; CLEAR AND PRESENT DANGER TO PUBLIC PEACE AND ORDER; NOT
PRESENT IN CASE AT BAR. — Their wearing yellow T-shirts and clothing and bearing yellow emblems or banners, are forms of expression which are also
protected by the constitutional guarantees of freedom of expression in general, and religious freedom in particular. The fact that most, if not all, of them are
not residents of Sampaloc or the neighborhood around St. Jude’s Church, should not impair their credibility as to their true intentions because St. Jude’s
Church, to the believers or devotees, is the only church in Metro Manila especially dedicated to supplications or the realization of impossible hopes and
dreams. With the assurances aforestated given by both petitioners and respondents, there is no clear and present danger to public peace and order or to the
security of persons within the premises of Malacañang and the adjacent areas, as the respondents have adopted measures and are prepared to insure
against any public disturbance or violence.

DECISION

ESCOLIN * , J.:

Invoking their constitutional freedom to religious worship and locomotion, petitioners seek the issuance of [1] a writ of mandamus to compel respondents to
allow them to enter and pray inside St. Jude Chapel located at J.P. Laurel Street, Manila; and [2] a writ of injunction to enjoin respondents from preventing
them from getting into and praying in said church.chanrobles virtual lawlibrary

The facts to be considered are the following:

At about 5:00 in the afternoon of October 2, 1984, Petitioners, composed of about 50 businessmen, students and office employees converged at J.P. Laurel
Street, Manila, for the ostensible purpose of hearing Mass at the St. Jude Chapel which adjoins the Malacañang grounds locate in the same street. Wearing
the now familiar inscribed yellow T-shirts, they started to march down said street with raised clenched fists 1 and shouts of anti-government invectives. Along
the way, however, they were barred by respondent Major Isabelo Lariosa, upon orders of his superior and co-respondent Gen. Santiago Barangan, from
proceeding any further, on the ground that St. Jude Chapel was located within the Malacañang security area. When petitioners’ protestations and pleas to
allow them to get inside the church proved unavailing, they decided to leave. However, because of the alleged warning given them by respondent Major
Lariosa that any similar attempt by petitioners to enter the church in the future would likewise be prevented, petitioners took this present recourse.

Petitioners’ alleged purpose in converging at J.P. Laurel Street was to pray and hear mass at St. Jude church. At the hearing of this petition, respondents
assured petitioners and the Court that they have never restricted, and will never restrict, any person or persons from entering and worshipping at said church
They maintain, however, that petitioners’ intention was not really to perform an act of religious worship, but to conduct an anti-government demonstration at
a place close to the very residence and offices of the President of the Republic. Respondents further lament petitioners’ attempt to disguise their true motive
with a ritual as sacred and solemn as the Holy Sacrifice of the Mass. Undoubtedly, the yellow T-shirts worn by some of the marchers, their raised clenched
fists, and chants of anti-government slogans strongly tend to substantiate respondents allegation. Thus, J.P. Fenix, commenting on the motive of petitioners’
mass action of October 2, 1984, wrote the following in his article entitled "Mission Impossible", published in the October 12-18, 1984 issue of the "Mr. & Mrs."
magazine:

"They couldn’t go through Mendiola bridge, and so they dared to get even closer to the heart of the matter. But as in Mendiola, the barbed wire barricades
and the array of sheet metal shields got in the way of the members of the August Twenty-One Movement (ATOM) as they tried last October 2 to get to the
pearly gates of power via the St. Jude Chapel on Laurel St. St. Jude happens to be a neighbor of President Marcos, his (sic) chapel being adjacent to
Malacañang . . ."

The foregoing cannot but cast serious doubts on the sincerity and good faith of petitioners in invoking the constitutional guarantee of freedom of religious
 146

worship and of locomotion. While it is beyond debate that every citizen has the undeniable and inviolable right to religious freedom, the exercise thereof, and
of all fundamental rights for that matter, must be done in good faith. As Article 19 of the Civil Code admonishes: "Every person must in the exercise of his
rights and in the performance of his duties . . . observe honesty and good faith."

Even assuming that petitioners’ claim to the free exercise of religion is genuine and valid, still respondents reaction to the October 2, 1984 mass action may
not be characterized as violative of the freedom of religious worship. Since 1972, when mobs of demonstrators crashed through the Malacañang gates and
scaled its perimeter fence, the use by the public of J P. Laurel Street and the streets approaching it have been restricted. While travel to and from the
affected thoroughfares has not been absolutely prohibited, passers-by have been subjected to courteous, unobtrusive security checks. The reasonableness
of this restriction is readily perceived and appreciated if it is considered that the same is designed to protect the lives of the President and his family, as well
as other government officials, diplomats and foreign guests transacting business with Malacañang. The need to secure the safety of heads of state and other
government officials cannot be overemphasized. The threat to their lives and safety is constant, real and felt throughout the world. Vivid illustrations of this
grave and serious problem are the gruesome assassinations, kidnapings and other acts of violence and terrorism that have been perpetrated against heads
of state and other public officers of foreign nations.cralawnad

Said restriction is moreover intended to secure the several executive offices within the Malacañang grounds from possible external attacks and disturbances.
These offices include communications facilities that link the central government to all places in the land. Unquestionably, the restriction imposed is necessary
to maintain the smooth functioning of the executive branch of the government, which petitioners’ mass action would certainly disrupt.

Freedom of religious worship is guaranteed under Section 8, Article IV of the 1973 Constitution, thus:

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

Elucidating on the meaning and scope of freedom of religion, the U.S. Supreme Court in Cantwell v. Connecticut 2 said:jgc:

"The constitutional inhibition on legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance
of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the
individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the amendment
embraces two concepts — freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be."

In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but only in the manner by which they had
attempted to translate the same into action. This curtailment is in accord with the pronouncement of this Court in Gerona v. Secretary of Education, 3 thus:

"The realm of belief and creed is infinite and limitless bounded only by one’s imagination and thought. So is the freedom of belief, including religious belief,
limitless and without bounds. One may believe in most anything however strange, bizarre and unreasonable the same may appear to others, even heretical
when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said belief, there is quite a stretch of
road to travel. If the exercise of said religious belief clashes with the established institutions of society and with the law, then the former must yield and give
way to the latter. The government steps in and either restrains said exercise or even prosecutes the one exercising it." ( Emphasis supplied)

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

"The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public
safety, or public health."

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

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

SO ORDERED.

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

Aquino, J., concurs in the result. Petitioners have no cause of action for mandamus.

Alampay, J., took no part.

Separate Opinions

FERNANDO, C.J., concurring and dissenting:

I concur in the result and dissent insofar as the opinion fails to declare that the freedom of exercise of religious profession and worship can only be limited by
the existence of a clear and present danger of a substantive evil. There is a need for such statement for the guidance of the parties as well as of the general
public.

1. The prayer of this petition reads as follows: "After hearing, a writ of mandamus/injunction issue against respondents commanding them (i) to allow herein
petitioners to enter and pray at the St. Jude church on Friday October 12, 1984 at or about 6:00 P.M. or on any date and time thereafter and (ii) to refrain
from preventing herein petitioners from [so] entering and praying inside the St. Jude Church." 1 Clearly, the plea to enter and pray at such church on Friday,
October 12, 1984 is moot and academic. There is in addition, however, plea for the injunctive relief to prevent respondents from interfering with petitioners
exercising their constitutional right to attend mass at such church in the future. That is to invoke freedom of religion as a preferred right of undoubted
primacy. 2 Specifically prior restraint is rule out except under a clear showing that its exercise would be attended by a clear and present danger of
substantive evil. That is settled law for rights embraced in freedom of expression and belief, whether secular and religious — and much more so in the case
of the latter. Our unanimous ruling in J.B.L. Reyes v. Bagatsing 3 stands for such a proposition.

2. Why a concurrence in the result then? I am led to do so in view of the clear manifestation by the Solicitor General that such a right would be accorded the
fullest respect with due regard to the countervailing consideration of avoiding danger to the lives of the President and his family, It is likewise in keeping with
 147

the letter and spirit of the Constitution when, as noted in the separate opinion of Justice Teehankee, "petitioners have given full assurance of their peaceful
intentions. They were walking and would walk along the sidewalks. They did not and will not hold any demonstrations, They were and are unarmed, and
were and are willing to be searched and have pledged peaceful and orderly behaviour." 4 There being such assurances, a more categorical pronouncement
on the full scope of the right to free exercise and enjoyment of religious profession and worship will have to wait another day.

3. It may not be amiss to state that at the hearing of this petition, while counsel for petitioners, admittedly with fluency and even with eloquence, was
discoursing with denunciatory fervor on the flagrant disregard of this constitutional right, the suggestion was made that the Court will welcome an analysis of
pertinent constitutional law decisions both from the Philippines and the United States. It hardly elicited, however, a response that could be considered as
adequate. At the very least, there could have been reference to the well-known distinction between religious belief, which is absolute, and its expression
which, while subject to restriction, does not lose its fundamental character. 5 It is worth recalling that in one of the latest of such American cases, Wisconsin
v. Yoder, 6 a 1972 decision, the opinion of Chief Justice Burger referred to the non-establishment clause of the First Amendment of the American
Constitution — the source of our constitutional provision — as "buttressing this fundamental right" 7 to the free exercise of religious profession and worship.
It is precisely to avoid any discrimination or preference in favor of any other religion that there is such a prohibition. Parenthetically, it may be observed that
the non-establishment clause in the Philippines which in the United States is the basis for the concept of separation of church and state is made much more
explicit by this constitutional command: "The separation of church and state shall be inviolable." 8 The point, I wish to make, however, is that had there been
no clear manifestation by both petitioners and respondents that the right to attend mass at St. Jude’s Church would be respected, even if it is located in a
security area but with due precautionary measures taken to avoid infiltration by subversive elements, this Court would have been called upon to rule and, if
possible, to delineate with some degree of precision the scope of such a right to free exercise and enjoyment of religious profession and worship.

4. Suffice it then for the present to rely on the standard of the clear and present danger principle as the controlling doctrine to justify any restriction on the
freedom of the exercise of religious profession and worship without discrimination or preference. I am freed from the necessity of referring to specific
paragraphs of the J.B.L. Reyes decision, where I was singularly fortunate in obtaining the unanimous approval of my brethren in my ponencia. The dissent of
Justice Teehankee in this case quotes its relevant portions. May I just add that there is an impermissible restriction unless the evil apprehended, according
to Justice Brandeis, outside of its being serious — it is so in this case — must likewise be imminent. 9 From the very wording of the clear and present danger
principle, the question, to follow Holmes, who was the author of this concept, is "one of proximity and degree." 10 Necessarily in each and every instance
where it is invoked, there must be the most careful scrutiny of the environmental facts and conditions. Absent that element, this Court cannot give the
imprimatur of its approval.

5. It would be an unwarranted departure then from what has been unanimously held in the J.B.L. Reyes decision if on such a basic right as religious freedom
— clearly the most fundamental and thus entitled to the highest priority among human rights, involving as it does the relationship of man to his Creator —
this Court will be less vigilant in upholding any rightful claim. More than ever, in times of stress -and much more so in times of crisis — it is that deeply-held
faith that affords solace and comfort if not for everyone at least for the majority of mankind. Without that faith, man’s very existence is devoid of meaning,
bereft of significance.

6. My vote, therefore, in concurring in the result is to be viewed in that light. I feel I could do so because of this excerpt from the opinion of Justice Escolin:
"Petitioners’ alleged purpose in converging at J.P. Laurel Street was to pray and hear mass at St. Jude Church. At the hearing of this petition, respondents
assured petitioners and the Court that they have never restricted, and will never restrict any person or persons from entering and worshipping at said
church." 11 Independently of any judgment of the past conduct of respondents, it bears repeating that the promise made by the respondents of not restricting
petitioners from entering and worshipping at St. Jude Church is a guarantee that no such impermissible restraint of religious freedom would thereafter be
attempted. I am prepared to accord good faith to both parties even if on the occasion that presented itself on October 2, 1984 there could be a mistake of
judgment on the part of respondents.

7. It is my reading then of the main opinion as well as of the separate opinions in this case that the Court is united in the view that the free exercise of
religious profession and worship is to be accorded the amplest protection. The dismissal of the petition, to my mind, is not a bar to the application hereafter
of the clear and present danger principle. If no mention was made in the opinion of the Court of such controlling doctrine it is my perception tat it is due, as
has been pointed out, to the assurances made by the parties to the controversy that the right to the free exercise of religious profession and worship will be
accorded the fullest respect. Hence the failure to make such explicit affirmation.

8. Nor is the dismissal of the petition a bar to such a conclusion. It is no longer unorthodox in this jurisdiction for this Court to make a pronouncement of
controlling force even if a case were dismissed for being moot and academic. It can trace its origin to the landmark opinion of Justice Malcolm in Alejandrino
v. Quezon. 12 The latest manifestation of such well accepted practice is the February, 1985 decision of Salonga v. Paño. 13 Moreover, in the opinion of
Justice Gutierrez, Jr., 14 reference was made to the three other cases of Camara v. Enage, 15 Aquino Jr. v. Enrile, 16 and Gonzales v. Marcos, 17 where
the Court enunciated doctrines that could govern future controversies. It is for me, a cause for regret that the Court has not done so in this case.
Nonetheless, implicit in the plurality opinion of Justice Escolin and to a greater degree in the separate opinions of Justices Relova and Gutierrez is the deep
concern for safeguarding the constitutional right to free exercise of religious profession and worship. As for the other separate opinions, its being a preferred
right to be restricted only if there be satisfactory proof of a clear and present danger of a substantive evil is quite manifest.

TEEHANKEE, J., dissenting:

I vote to grant the petition on the ground that the right of free worship and movement is a preferred right that enjoys precedence and primacy and is not
subject to prior restraint except where there exists the clear and present danger of a substantive evil sought to be prevented. There was and is manifestly no
such danger in this case.

The majority judgment dismisses the petition of the forty (40) hereinabove-named petitioners (composed of "businessmen, bankers, professionals, students
and office employees" 1), who, invoking their constitutional freedom of worship and movement, have prayed that a writ of mandamus/injunction issue from
this Court against respondents Chief of the Presidential Security Command and his subordinates at Malacañang, directing them" (1) to allow herein
petitioners to enter and pray at the St. Jude Church on Friday, October 12, 1984 at or about 6:00 P.M. or on any date and time thereafter and (2) to refrain
from preventing herein petitioner from [so] entering and praying inside St. Jude Church."

As aptly and concisely stated in the Solicitor General’s comment," (T)he issue petitioners present is whether respondent Presidential Security Command
officers have, in preventing petitioners’ group from proceeding down J.P. Laurel Street on October 2 violated their freedom of worship and movement. Given
that there has been such a violation, petitioners want similar acts of respondents in the future enjoined." 2

On October 2, 1984 at about 5:00 p.m., the petitioners and their companions totalling about fifty (50) to eighty (80) persons had walked along the sidewalk in
small groups towards the St. Jude Church at J. P. Laurel Street, Manila to hear a special mass that they had sponsored "for the main purpose of praying to
God through St. Jude to put an end to violence" 3 and for those who were injured during the September 22 and 27, 1984 rally dispersals and the lone fatality
Osias Alcala. Petitioner Reli German, a leader of the ATOM (August 21 Movement), was wearing a yellow T-shirt and he and those lined up after him were
 148

physically prevented from proceeding farther on the ground that the church was located within the Malacañang security area. Earlier, another ATOM leader
Ramon Pedrosa who was wearing a barong tagalog had gone through unnoticed to the church with some ten others. 4 Petitioners’ pleas with respondent
Lariosa to be allowed their right of worship and religion were unheeded. They then knelt on the pavement in front of the barricade and prayed the holy
Rosary. Afterwards, they sang Bayan ko with clenched fists of protest against the violation of their rights and thereafter dispersed peacefully. 5 Having been
then warned that any further attempts on their part to enter the church would be similarly barred, they filed the petition at bar, which was heard and submitted
for resolution on October 16, 1984 (rendering moot their prayer to enter the church on October 12, 1984 but not as to any open subsequent date, as prayed
for).chanrobles.com : virtual law library

A brief restatement of the applicable constitutional principles as set forth in the landmark case of J. B. L Reyes v. Bagatsing 6 should guide us in resolving
the issues.

1. The right to freely exercise one’s religion is guaranteed in Section 8 of our Bill of Rights. 7 Freedom of worship, alongside with freedom of expression and
speech and peaceable assembly "along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too
strongly stressed that on the judiciary — even more so than on the other departments — rests the grave and delicate responsibility of assuring respect for
and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by
Justice Holmes ‘as the sovereign prerogative of judgment.’ Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of
such rights, enjoying as they do precedence and primacy." 8

2. In the free exercise of such preferred rights, there is to be no prior restraint although there may be subsequent punishment of any illegal acts committed
during the exercise of such basic rights. The sole justification for a prior restraint or limitation on the exercise of these basic rights is the existence of a grave
and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public
interest, that the State has a right (and duty) to prevent. 9

3. The burden to show the existence of grave and imminent danger that would justify prior restraint and bar a group of persons from entering the church of
their choice for prayer and worship lies on the military or police officials who would so physical restrain them. Indeed, there is no precedent in this time and
age when churchgoers whose right of free exercise of their religion is recognized have been physically prevented from entering their church on grounds of
national security. On the other hand, it does not lie within the competence nor authority of such officials to demand of church goers that they show and
establish their sincerity and good faith .. in invoking the constitutional guarantee of freedom of religious worship and of "locomotion" as a pre-condition, as
seems to be the thrust of the majority decision. 10 Nor is there any burden on the churchgoer to awake" a satisfactory showing of a claim deeply rooted in
religious conviction" before he may worship at the church of his choice - as appears to be the basis of Justice Gutierrez’ concurring opinion for dismissal of
the petition. The exercise of such basic and sacred rights would be too tenuous if they were made to depend on the snap judgment and disposition of such
officials as to one’s good faith and his attire. In fact, Article 132 of the Revised Penal Code penalizes public officers and employees who "prevent or disturb
the ceremonies or manifestations of nay religion" while Article 32 of the Civil Code grants an independent cause of action for moral an exemplary damages
and" for other relief" against such officials or private individuals "who directly or indirectly obstruct, defeat, violate or in any manner impede or impair (the)
freedom of religion (and) freedom of speech" of any person.

4. Good faith on both sides is and must be presumed. Thus, petitioners’ manifestations of their sincere intention as Christians to gather together in prayer at
St. Jude Church who is known as the Patron of the Impossible should be taken in good faith. It would seem that no court petition should be necessary to
enable a group of persons such as petitioners to freely proceed and enter a church of their religion and choice and therein hear mass and say their prayers.
We are basically a people of peace who believe in the power of prayer and pray silently for God’s guidance and compassion and that peace and justice may
reign in the land. Many recall the Lord’s promise to Solomon that "if my people who bear my name humble themselves and pray and seek my presence and
turn from their wicked ways, I myself will hear from Heaven and forgive their sins and restore their land." 11 Respondents’ acts of barring petitioners from the
Malacañang security perimeter and thereby preventing their entering and praying at the St. Jude Church should likewise be taken as in good faith in their
zeal to avoid any untoward disturbance or development in the area. But "uncontrolled official suppression of the privilege cannot be made a substitute for the
duty to maintain order in connection with the exercise of the right." 12

5. Over and above all, public officials should ever be guided by the testament over half a century ago of the late Justice Jose Abad Santos in his dissenting
opinion in People v. Rubio 13 that the "commendable zeal . if allowed to override constitutional limitations would become ‘obnoxious to fundamental
principles of liberty.’ And if we are to be saved from the said experiences of some countries which have constitutions only in name, we must insist that
governmental authority be exercised within constitutional limits; for, after all, what matters is not so much what the people write in their constitutions as the
spirit in which they observe their provisions." To require the citizen at every step to assert his rights and to go to court is to render illusory his
rights.chanrobles virtual lawlibrary

The late Chief Justice Ricardo Paras’ injunction in his concurring opinion in Primicias v. Fuguso, 14 citing the 1907 sedition case of U.S. v. Apurado 15 that
instances of "disorderly conduct by individual members of a crowd [be not seized] as an excuse to characterize the assembly as a seditious and tumultuous
rising against the authorities, mutatis mutandis, is fully applicable here, thus: "But if the prosecution be permitted to seize upon every instance of such
disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities,
then the right to assemble and to petition for redress of grievances would become a delusion and snare and the attempt to exercise it on the most righteous
occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes
which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty
individuals should be sought out and punished therefor. 16

Applying the above settled standards and principles to the issue at bar, respondents’ act of preventing petitioners from proceeding down J.P. Laurel Street
on October 2, 1984 to attend their special mass at St. Jude Church was not justified and this Court must accordingly grant the petition and enjoin similar acts
of respondents in the future. There was no call for such prior restraint. Respondents themselves in the Solicitor General’s comment admit that "true, there
were only about 80 persons in petitioners’ group on October 2 and this number could hardly pose the danger feared," but expressed the fear that petitioners’
ranks could within hours reach hundreds if not thousands and "peaceful dispersal becomes impossible as in recent demonstrations and rallies." 17
Respondents were in full control and there is no question as to the capability of the security forces to ward off and stop any untoward move. They had placed
an advance checkpoint as far back as the Sta. Mesa Rotonda and could stop the flow of people in the church if they deemed it unmanageable. There
definitely was no clear and present danger of any serious evil to public safety or the security of Malacañang. The majority decision and respondents have
relied heavily on the October 12-18, 1984 issue of Mr. & Ms. magazine, particularly on an interpretive article written after the event by staff member J. P.
Fenix for their conclusion that petitioners’ objective on October 2, 1984 was not "innocently to worship at St. Jude" 18 but to "conduct an anti-government
demonstration at a place close to the very residence and offices of the President. 19 These conjectures were categorically denied by petitioners at the
hearing, supra, and were not rebutted. The said article itself cited in the decision as "casting serious doubts on the sincerity and good faith in invoking the
constitutional guaranty of freedom of religious worship and locomotion" shewed the government troops smiling and in good form and humor, and with
truncheons raised, "ready and waiting for any untoward incident." At any rate, petitioners have given full assurance of their peaceful intentions. They were
walking and would walk along the sidewalks. They did not and will not hold any demonstrations. They were and are unarmed, and were and are willing to be
 149

searched and have pledged peaceful and orderly behavior.

The majority’s dismissal of the petition on the ground that the restriction imposed by respondents was "necessary to maintain the smooth functions of the
executive branch of the government which petitioners’ mass action would certainly disrupt" and that such prior restraint was not violative of petitioners’
constitutional rights of freedom of religious worship and movement "having been established in the interest of national security," 20 manifestly is not in
accord with the applicable established standards and principles.

MAKASIAR, J., dissenting:

The petitioners gave the assurance that they are marching towards St. Jude’s Church only for the purpose of praying or attending mass therein; that they
were and are going to march in an orderly manner without blocking the traffic and with the marshals policing and identifying the marchers; that they are not
armed and are not going to be armed with any kind of weapon; and that they are willing to be frisked. These are practically the same assurances made by
the petitioners in the case of Reyes v. Bagatsing (125 SCRA 553, November 9, 1983) and by the petitioners who marched from España Rotonda to
Liwasang Bonifacio sometime in September, 1984.

The petitioners likewise manifested that on October 1984 after they entered the premises of the church, the parish priest invited them to prayer without
allowing them to demonstrate in any manner or deliver any speeches.

On the other hand, respondents in charge of the security of Malacañang and its immediate environs, including J.P. Laurel Street, which is the only street
going direct to St. Jude’s Church which is so close to Malacañang, likewise assured that they are not going to block or stop petitioners as long as they march
peacefully and their real purpose is just to hear mass inside St. Jude’s Church. Respondents or their agents can frisk petitioners for any concealed weapon.

Their wearing yellow T-shirts and clothing and bearing yellow emblems or banners, are forms of expression which are also protected by the constitutional
guarantees of freedom of expression in general, and religious freedom in particular. The fact that most, if not all, of them are not residents of Sampaloc or
the neighborhood around St. Jude’s Church, should not impair their credibility as to their true intentions because St. Jude’s Church, to the believers or
devotees, is the only church in Metro Manila especially dedicated to supplications or the realization of impossible hopes and dreams.

With the assurances aforestated given by both petitioners and respondents, there is no clear and present danger to public peace and order or to the security
of persons within the premises of Malacañang and the adjacent areas, as the respondents have adopted measures and are prepared to insure against any
public disturbance or violence.

Hence, the petition should be granted.

ABAD SANTOS, J., dissenting:

The Court took a big step forward in the WE FORUM case (G.R. No. 64261, Dec. 26, 1984). It has taken another step but this time in the other direction. In
martial law jargon it is a back-slider.

We are asked to give meaning to the constitutional guarantee that, ‘The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed." (Art. IV, Sec. 8.)

We have here a group of people. It may be conceded that Reli German, Ramon Pedrosa and company are "opposition minded." They wanted to go on foot
to St. Jude Chapel adjacent to the Malacañang compound and there to pray and hear mass. It may be assumed that they intended to pray for the full
restoration of the civil rights of the Filipino people. But they were prevented by the respondents who contended that their real purpose was to demonstrate
against the President of the Republic. In my opinion it is highly presumptuous for both the respondents and this Court to attribute unstated and unadmitted
motives to the petitioners. The petitioners said that they wanted to pray and hear mass. Why can’t good faith be accorded to them in the light of the
constitutional provision that the free exercise and enjoyment of religious profession and worship shall forever be allowed? It is unthinkable that they would
conduct an anti-government demonstration in the hallowed premises of St. Jude Chapel and thereby defile it. If they raised their fists in protest and shouted
invectives it was only after they had been arbitrarily barred from going to the chapel. So the petitioners said during the hearing and I believe them.

True it is that the free exercise of religion can be restrained under the clear and present danger principle. But I fail to perceive the presence of any clear
danger to the security of Malacañang due to the action of the petitioners. The danger existed only in the fertile minds of the overzealous guardians of the
complex which is protected by a stout steel fence.

I vote to grant the petition.

MELENCIO-HERRERA, J., dissenting:
I vote to accord to petitioners their right to freedom of worship.

One of the basic and fundamental rights guaranteed by our Constitution is the free exercise and enjoyment of religious profession and worship (Section 8,
Art. IV, 1973 Constitution). "For freedom of religious expression, the Constitution assures generous immunity, unless it can be shown that there is a clear
and present danger of a substantive evil which the State has the right to prevent" (E. M. Fernando on The Bill of Rights, Second Edition, p. 198).

The act of petitioners in converging at J.P. Laurel Street, majority of whom were wearing yellow T-shirts, marching towards St. Jude Chapel, there to hear
Mass, shouting anti-Government invectives with clenched fists as they marched, did not in my opinion pose any clear and present danger. Petitioners were
unarmed, marching peacefully, albeit noisily.

But neither can respondents be taken to task for impeding petitioners from proceeding along J.P. Laurel Street, which is within the perimeter of the
Malacañang security area, since it was not by chance that petitioners were marching as a group, evidently also to hold a public demonstration. In other
words, their objective cannot conclusively be said to have had a purely religious flavor. In fact, in his Comment, the Solicitor General has stated "those who
come to worship in its true sense will not be stopped."

The location of the St. Jude Chapel within the perimeter of the Malacañang security area is not, to my mind, sufficient reason for a prior restraint on
petitioners’ right to freedom of religious worship. Proper security measures can always be taken. It is only when petitioners, in the exercise of their religious
beliefs, exceed those bounds and translate their freedoms into acts detrimental or inimical to the superior rights of public peace and order, that the test of a
clear and present danger of a substantive evil is met and the acts having a religious significance may be infringed upon in the exercise of the police power of
the State. "Freedom of worship is susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect"
 150

(West Virginia State Board of Education v. Barnette (319 U.S. 624 [1943]).

"When clear and present danger of riot, disorder, interference, with traffic upon public streets, or other immediate threat to public safety, peace, or order
appears, the power of the state to prevent or punish is obvious. Equally obvious is it that a state may not unduly suppress free communication of views,
religious or other, under the guise of conserving desirable conditions. (Cantwell v. Connecticut 310 U. S. 308)" (Emphasis ours)

Our country is faced with the profoundest problems confronting a democracy. In the clash of competing interests, sobriety, restraint, and a balanced regard
not only for individual rights and liberties but also for the right of the State to survival, should be the guiding criteria. There is need for sustained efforts to
achieve a solution to the dilemma phrased by Lincoln: "Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its
existence?"

RELOVA, J., dissenting:

The majority opinion doubts the sincerity and good faith of the fifty (50) petitioners in invoking the constitutional guarantee of religious worship and of
locomotion because they were wearing yellow T-shirts as they marched down J. P. Laurel Street with raised clenched fists on October 2, 1984, at about 5:00
in the afternoon, for the purpose of praying and/or hearing mass at the St. Jude Chapel which adjoins the Malacañang grounds.

It is known that devotees of St. Jude attend mass and novena at this chapel on Thursdays, just like those of Our Lady of Perpetual Help in Baclaran who pay
homage to Her on Wednesdays, and worshipers at the Black Nazarene show religious reverence to Him at the Quiapo Church on Fridays. Whenever these
devotees request a mass in these places of worships for their special intentions, they may also ask that the same be held on any day other than Thursdays,
Wednesdays or Fridays.

October 2, 1984 was a Tuesday and was not a particular day of devotion to St. Jude, known as the Saint of the impossible. Thus, it cannot be said that
petitioners’ intention that afternoon was to conduct an anti-government demonstration because if the purpose was to stage one they would have gone to St.
Jude Chapel on a Thursday and be favored with a crowd to hear them. Stated differently, Thursdays would be the best day to stage a march at the place
and, after praying and/or hearing mass, deliver speeches outside the chapel before the many devotees. The fact that petitioners chose a Tuesday to hear
mass and/or pray for their special intention negates the suspicion that they were out to stage a demonstration.

Petitioners claim that they were on their way to hear mass and/or pray. For respondents to say, even before petitioners have reached the place, that they
would be delivering speeches is pure speculation. Respondents should have allowed petitioners to hear mass and/or pray and, thereafter, see what they
would do. Only ‘when would We know what were really in their minds. What respondents did by acting before petitioners could display themselves was
tantamount to prohibiting free exercise and enjoyment of religious worship. Demonstrations about or near the premises of St. Jude Chapel because of its
proximity to the residence of the President may be restricted, but certainly, for petitioners or any group of men for that matter, to hear mass and/or pray at
the chapel should be tolerated.

The petition should be granted.

GUTIERREZ, JR., J., concurring:

While concurring in the Court’s opinion penned by my distinguished colleague, Mr. Justice Venicio Escolin, I would like to add a few observations.

By its very nature, liberty of mind and conscience occupies a primacy or pre-eminent position in the hierarchy of values protected by the Constitution.
Nothing can inflame the passions of a freedom loving people more than an attempt by civil or military authorities to restrict persons in their right to worship. A
person who sincerely believes that Divine Providence determines not only his destiny in this life but also his eternal dwelling place after death will resist with
all his might any effort to curb or prevent communion through worship with his Deity.

This petition, therefore, furnishes an auspicious occasion to reiterate our people’s deep commitment to religious liberty. The unique phraseology of the
religious freedom clause furnishes a textual basis for this commitment.

Section 8 of the Bill of Rights reads:

"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. (Emphasis supplied)."

Article 5 of the Malolos Constitution provided for freedom and equality of religious worship as well as the separation of church and state. President William
McKinley’s Instructions to the Second Philippine Commission directed "that no law shall be made respecting an establishment of religion or prohibiting the
free exercise thereof and that the free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever or
allowed." (Emphasis supplied). The same statement of the eternal nature of the freedom is found in the Philippine Bill in 1902 and in the Philippine Autonomy
Act of 1916, more popularly known as the Jones Law.

It is, of course, axiomatic that no provision of the Constitution is beyond repeal or amendment. The clause "shall forever be allowed" is simply an expression
of the framers’ faith that the Filipino people cherish religious freedom so much that they would never remove this freedom from the Constitution or water it
down through a modification. I believe that this faith is justified.

This Court stated in Aglipay v. Ruiz 64 Phil, 201):

". . . 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."cralaw virtua1aw library

In Victoriano v. Elizalde Rope Workers Union (59 SCRA 54) we stated:

"The constitutional provision not only prohibits legislation for the support of any religious tenets or the modes of worship of any sect, thus forestalling
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compulsion by law of the acceptance of any creed or the practice of any form of worship, but also assures the free exercise of one’s chosen form of religion
within limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the
liberty of others and with the common good. Any legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate
invidiously between the religions, is invalid, even though the burden may be characterized as being only indirect."cralaw virtua1aw library

Thus, the free exercise of religious freedom is not only intended to last "forever" but the clause guaranteeing it is interpreted within limits of "utmost
amplitude." If the presidential security forces or any other public functionaries try to impede any genuine and legitimate exercise of a person’s religious
profession or worship, there can be no doubt that this Court would rule against such an attempt.

At the same time, any claim to the free exercise of religion must be a genuine or valid one. This Court is keenly sensitive to problems arising from the
freedom of religion clause. We examine allegations of its violation to check any infringement of this preferred freedom. A claim based on it should be rooted
in genuine religious conviction, although as mentioned by Justice Ameurfina A. Melencio-Herrera we have to take into account the presumption of good faith.

The petition, standing by itself, was pregnant with implications. Somehow, it seemed unthinkable that in our country, at this time and age, citizens would be
prevented from worshipping at a church of their choice. However, during the hearing, it was ascertained and the respondents gave concrete assurances that
anyone wishing to worship at St. Jude Church near Malacañang has never been restricted nor will he ever be restricted from going to that church. The
presidential security guards check political demonstrators who try to hold rallies before the presidential palace but not church goers, attending worship
services in the vicinity. On the other hand, the petitioners informed the Court through counsel that they did not intend to hold any protest rally or political
demonstration in front of Malacañang. Their only intent was to pray at St. Jude Church, the church dedicated to the patron saint of impossible causes. The
facts as stated by contending counsel show that the problem is one of a failure of communications and not a denial of freedom of worship. If the respondents
do not deny completely free access to church goers while the petitioners had absolutely no intention to hold a political demonstration, the petition belabors a
non-existent issue.

I, therefore, concur in the dismissal of the petition since it belabors a non-existent issue.