[G.R. No. 45459. March 13, 1937.

]
GREGORIO AGLIPAY, petitioner, vs. JUAN RUIZ, respondent.
Vicente Sotto for petitioner.
Solicitor-General Tuason for respondent.
SYLLABUS
1. PROHIBITION; ISSUANCE OF WRIT FOR ACTS PERFORMED WITHOUT
JURISDICTION. While, generally, prohibition as an extraordinary legal writ will not
issue to restrain or control the performance of other than judicial or quasi-judicial
function (50 C. J., 658), its issuance and enforcement are regulated by statute and
in this jurisdiction may issue to ". . . inferior tribunals, corporations, boards, or
persons, whether exercising functions judicial or ministerial, which are without or in
excess of the jurisdiction of such tribunal, corporation, board, or person . . .." (Secs.
516 and 226, Code of Civil Procedure.)
2. ID.; ID.; DIRECTOR OF POSTS. The term "judicial"
reference to "functions" in the statute are undoubtedly
the challenge act of the respondent Director of Posts in
because alleged to be violative of the Constitution is a
of . . . jurisdiction."

and "ministerial" used with

comprehensive and include
the present case, which act
fortiori"without or in excess

3. ID.; ID.; WRIT NOT CONFINED EXCLUSIVELY TO COURTS OR TRIBUNALS. The

statutory rule, therefore, in this jurisdiction is that the writ of prohibition is not
confined exclusively to courts or tribunals to keep them within the limits of their
own jurisdiction and to prevent them from encroaching upon the jurisdiction of other
tribunals, but will issue, in appropriate cases, to an officer or person whose acts are
without or in excess of his authority. Not infrequently, "the writ is granted, where it
is necessary for the orderly administration of justice, or the prevent the use of the
strong arm of the law in an oppressive or vindictive manner, or a multiplicity of
actions." (Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304, 307.)
4. CONSTITUTION OF THE PHILIPPINES; RELIGIOUS FREEDOM. What is guaranteed
by our Constitution is religious liberty, not mere religious toleration. Religious
freedom, however, as a constitutional mandate is not inhibition of profound
reverence for religion and is not a denial of its influence in human affairs. Religion
as a profession of faith to an active power that binds and elevates man to 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.
5. ID.; ID.; POSTAGE STAMPS ISSUED UNDER ACT No. 4052. The respondent
Director of Posts issued the postage stamps in question under the provision of Act
No. 4052 of the Philippine Legislature which appropriates the sum of sixty thousand
pesos for the cost of plates and printing of postage stamps with new designs and
other expenses incident thereto, and authorizes the Director of Posts, with the
approval of the Secretary of Public Works and Communications, to dispose of the
amount appropriated in the manner indicated and "as often as may be deemed
advantageous to the Government."

6. ID.; ID.; ID. Act No. 4052 contemplates no religious purpose in view. What it
gives the Director of Posts is the discretionary power to determine when the
issuance of special postage stamps would be "advantageous to the Government."
Of course, the phrase ""advantageous to the Government" does not authorize the
violation of the Constitution. It does not authorize the appropriation, use or
application of public money or property for the use, benefit or support of a
particular sect or church. In the present case, however, the issuance of the postage
stamps in question by the Director of Posts and the Secretary of Public Works and
Communications was not inspired by any sectarian feeling to favor a particular
church or religious denominations. The stamps were not issued and sold for the
benefit of the Roman Catholic Church. Nor were money derived from the sale of the
stamps given to that church.
7. ID.; ID.; ID. The only purpose in issuing and selling the stamps was "to
advertise the Philippines and attract more tourists to this country." The officials
concerned merely took advantage of an event considered of international
importance "to give publicity to the Philippines and its people." The stamps as
actually designed and printed (Exhibit 2), instead of showing a Catholic Church
chalice as originally planned, contains a map of the Philippines and the location of
the City of Manila, and an inscription as follows: "Seat XXXIII International
Eucharistic Congress, Feb. 3-7, 1937." What is emphasized is not the Eucharistic
Congress itself but Manila, the capital of the Philippines, as the seat of that
congress.
8. ID.; ID.; ID. While the issuance and sale of the stamps in question may be said
to be inseparably linked with an event of a religious character, the resulting
propaganda, if any, received by the Roman Catholic Church, was not the aim and
purpose of the Government. The Government should not be embarrassed in its
activities simply because of incidental results, more or less religious in character, if
the purpose had in view is one which could legitimately be undertaken by
appropriate legislation. The main purpose should not be frustrated by its
subordination to mere incidental results not contemplated. (Vide Bradfield vs.
Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)
DECISION
LAUREL, J p:
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent
Church, seeks the issuance from this court of a writ of prohibition to prevent the
respondent Director of Posts from issuing and selling postage stamps
commemorative of the Thirty-third International Eucharistic Congress.
In May, 1936, the Director of Posts announced in the dailies of Manila that he would
order the issuance of postage stamps commemorating the celebration in the City of
Manila of the Thirty- third International Eucharistic Congress, organized by the
Roman Catholic Church. The petitioner, in the fulfillment of what he considers to be
a civic duty, requested Vicente Sotto, Esq., member of the Philippine Bar, to
denounce the matter to the President of the Philippines. In spite of the protest of the

petitioner's attorney, the respondent publicly announced having sent to the United
States the designs of the postage for printing as follows:
"In the center is a chalice, with grape vine and stalks of wheat as border design. The
stamps are blue, green, brown, cardinal red, violet and orange, 1 inch by 1.094
inches. The denominations are for 2, 6, 16, 20, 36, and 50 centavos." the said
stamps were actually issued and sold though the greater part thereof, to this day,
remains unsold. The further sale of the stamps is sought to be prevented by the
petitioner herein.
The Solicitor-General contends that the writ of prohibition is not the proper legal
remedy in the instant case, although he admits that the writ may properly restrain
ministerial functions. While, generally, prohibition as an extraordinary legal writ will
not issue to restrain or control the performance of other than judicial or quasijudicial functions (50 C. J., 658), its issuance and enforcement are regulated by
statute and in this jurisdiction may issue to ". . . inferior tribunals, corporations,
boards, or persons, whether exercising functions judicial or ministerial, which are
without or in excess of the jurisdiction of such tribunal, corporation, board, or
person . . .." (Secs. 516 and 226, Code of Civil Procedure.) The terms "judicial" and
"ministerial" used with reference to "functions" in the statute are undoubtedly
comprehensive and include the challenged act of the respondent Director of Posts in
the present case, which act because alleged to be violative of the Constitution isa
fortiori "without or in excess of . . . jurisdiction." The statutory rule, therefore, in this
jurisdiction is that the writ of prohibition is not confined exclusively to courts or
tribunals to keep them within the limits of their own jurisdiction and to prevent them
from encroaching upon the jurisdiction of other tribunals but will issue, in
appropriate cases, to an officer or person whose acts are without or in excess of his
authority. Not infrequently, "the writ is granted, where it is necessary for the orderly
administration of justice, or to prevent the use of the strong arm of the law in an
oppressive or vindictive manner, or a multiplicity of actions," (Dimayuga and Fajardo
vs. Fernandez [1923], 43 Phil., 304, 307.)
The more important question raised refers to the alleged violation of the
Constitution by the respondent in issuing and selling postage stamps
commemorative of the Thirty-third International Eucharistic Congress. It is alleged
that this action of the respondent is violative of the provisions of section 13, Article
VI, of the Constitution of the Philippines, which provides as follows:
"No public money or property shall ever be appropriated, applied, or used, directly
or indirectly, for the use, benefit, or support of any sect, church, denomination,
sectarian institution, or system of religion, or for the use, benefit, or support of any
priest, preacher, minister, or other religious teacher or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to the armed forces or
to any penal institution, orphanage, or leprosarium."
The prohibition herein expressed is a direct corollary of the principle of separation
church and state. Without the necessity of adverting to the historical background
this principle in our country, it is sufficient to say that our history, not to speak
the history of mankind, has taught us that the union of church and state

of
of
of
is

prejudicial to both, for occasions might arise when the state will use the church, and
the church the state, as a weapon in the furtherance of their respective ends and
aims. The Malolos Constitution recognized this principle of separation of church and
state in the early stages of our constitutional development; it was inserted in the
Treaty of Paris between the United States and Spain of December 10, 1898,
reiterated in President McKinley's Instructions to the Philippine Commission,
reaffirmed in the Philippine Bill of 1902 and in the Autonomy Act of August 29, 1916,
and finally embodied in the Constitution of the Philippines as the supreme
expression of the Filipino People. It is almost trite to say now that in this country we
enjoy both religious and civil freedom. All the officers of the Government, from the
highest to the lowest, in taking their oath to support and defend the Constitution,
bind themselves to recognize and respect the constitutional guarantee of religious
freedom, with its inherent limitations and recognized implications. It should be
stated that what is guaranteed by our Constitution is religious liberty, not mere
religious toleration.

Religious freedom, however, as a constitutional mandate is not inhibition of

profound reverence for religion and is not a denial of its influence in human affairs.
Religion as a profession of faith to an active power that binds and elevates man to
his Creator is recognized. And, in so far as it instills into the minds the purest
principles of morality, its influence is deeply felt and highly appreciated. When the
Filipino people, in the preamble of their Constitution, implored "the aid of Divine
Providence, in order to establish a government that shall embody their ideals,
conserve and develop the patrimony of the nation, promote the general welfare,
and secure to themselves and their posterity the blessings of independence under a
regime of justice, liberty and democracy," they thereby manifested their intense
religious nature and placed unfaltering reliance upon Him who guides the destinies
of men and nations. The elevating influence of religion in human society is
recognized here as elsewhere. In fact, certain general concessions are
indiscriminately accorded to religious sects and denominations. Our Constitution
and laws exempt from taxation properties devoted exclusively to religious purposes
(sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec.
Ordinance appended thereto; Assessment Law, sec. 344, par [c], Adm. Code)
sectarian aid is not prohibited when a priest, preacher, minister or other religious
teacher or dignitary as such is assigned to the armed forces or to any penal
institution, orphanage or leprosarium (sec. 13, subsec. 3 Art. VI, Constitution of the
Philippines). Optional religious instruction in the public schools is by constitutional
mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in relation to sec.
928, Ad. Code). Thursday and Friday of Holy Week, Thanksgiving Day, Christmas
Day, and Sundays are made legal holidays (sec. 29, Adm. Code) because of the
secular idea that their observance is conducive to beneficial moral results. The law
allows divorce but punishes polygamy and bigamy; and certain crimes against
religious worship are considered crimes against the fundamental laws of the state
(see arts. 132 and 133, Revised Penal Code).

In the case at bar, it appears that the respondent Director of Posts issued the
postage stamps in question under the provisions of Act. No. 4052 of the Philippine
Legislature. this Act is as follows:
No. 4052. AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS AND
MAKING THE SAME AVAILABLE OUT OF ANY FUNDS IN THE INSULAR TREASURY NOT
OTHERWISE APPROPRIATED FOR THE COST OF PLATES AND PRINTING OF POSTAGE
STAMPS WITH NEW DESIGNS, AND FOR OTHER PURPOSES.
Be it enacted by the Senate and House of Representatives of the Philippines in
legislature assembled and by the authority of the same:
"SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made
immediately available out of any funds in the Insular Treasury not otherwise
appropriated, for the cost of plates, and printing of postage stamps with new
designs, and other expenses incident thereto.
"SECTION 2. The Director of Posts, with the approval of the Secretary of Public
Works and Communications, is hereby authorized to dispose of the whole or any
portion of the amount herein appropriated in the manner indicated and as often as
may be deemed advantageous to the Government.
"SECTION 3. This amount or any portion thereof not otherwise expended shall not
revert to the Treasury.
"SECTION 4. This act shall take effect on its approval.
"Approved, February 21, 1933."
It will be seen that the Act appropriate the sum of sixty thousand pesos for the cost
of plates and printing of postage stamps with new designs and other expenses
incident thereto, and authorizes the Director of Posts, with the approval of the
Secretary of Public Works and Communications, to dispose of the amount
appropriated in the manner indicated and "as often as may be deemed
advantageous to the Government". The printing and issuance of the postage
stamps in question appears to have been approved by authority of the President of
the Philippines in a letter dated September 1, 1936, made part of the respondent's
memorandum as Exhibit A. The respondent alleges that the Government of the
Philippines would suffer losses if the writ prayed for is granted. He estimates the
revenue to be derived from the sale of the postage stamps in question at
P1,618,179.10 and states that there still remain to be sold stamps worth
P1,402,279.02.
Act No. 4052 contemplates no religious purpose in view. What it gives the Director
of Posts is the discretionary power to determine when the issuance of special
postage stamps would be "advantageous to the Government." Of course, the phrase
"advantageous to the Government" does not authorize the violation of the
Constitution. It does not authorize the appropriation, use or application of public
money or property for the use, benefit or support of a particular sect or church. In
the present case, however, the issuance of the postage stamps in question by the
Director of Posts and the Secretary of Public Works and Communications was not

inspired by any sectarian feeling to favor a particular church or religious

denominations. The stamps were not issued and sold for the benefit of the Roman
Catholic Church. Nor were money derived from the sale of the stamps given to that
church. On the contrary, it appears from the letter of the Director of Posts of June 5,
1936, incorporated on page 2 of the petitioner's complaint, that the only purpose in
issuing and selling the stamps was "to advertise the Philippines and attract more
tourists to this country." The officials concerned merely took advantage of an event
considered of international importance "to give publicity to the Philippines and its
people" (Letter of the Undersecretary of Public Works and Communications in the
President of the Philippines, June 9, 1936; p. 3, petitioner's complaint). It is
significant to note that the stamps as actually designed and printed (Exhibit 2),
instead of showing a Catholic Church chalice as originally planned, contains a map
of the Philippines and the location of the City of Manila, and an inscription as
follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-7, 1937." What is
emphasized is not the Eucharistic Congress itself but Manila, the capital of the
Philippines, as the seat of that congress. It is obvious that while the issuance and
sale of the stamps in question may be said to be inseparably linked with an event of
a religious character, the resulting propaganda, if any, received by the Roman
Catholic Church, was not the aim and purpose of the Government. We are of the
opinion that the Government should not be embarrassed in its activities simply
because of incidental results, more or less religious in character, if the purpose had
in view is one which could legitimately be undertaken by appropriate legislation.
The main purpose should not be frustrated by its subordination to mere incidental
results not contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct.
Rep., 121; 44 Law. ed., 168.)
We are much impressed with the vehement appeal of counsel for the petitioner to
maintain inviolate the complete separation of church and state and curb any
attempt to infringe by indirection a constitutional inhibition. Indeed, in the
Philippines, once the scene of religious intolerance and persecution, care should be
taken that at this stage of our political development nothing is done by the
Government or its officials that may lead to the belief that the Government is taking
sides or favoring a particular religious sect or institution. But, upon very serious
reflection, examination of Act No. 4052, and scrutiny of the attending
circumstances, we have come to the conclusion that there has been no
constitutional infraction in the case at bar. Act. No. 4052 grants the Director of
Posts, with the approval of the Secretary of Public Works and Communications,
discretion to issue postage stamps with new designs "as often as may be deemed
advantageous to the Government. "Even if we were to assume that these officials
made use of a poor judgment in issuing and selling the postage stamps in question
still, the case of the petitioner would fail to take in weight. Between the exercise of
a poor judgment and the unconstitutionality of the step taken, a gap exists which is
yet to be filled to justify the court in setting aside the official act assailed as coming
within a constitutional inhibition.
The petition for a writ of prohibition is hereby denied, without pronouncement as to
costs. So ordered.

Avancea, C. J., Villa-Real, Abad Santos, Imperial Diaz and Concepcion, JJ., concur.
||| (Aglipay v. Ruiz, G.R. No. 45459, March 13, 1937)

[G.R. No. L-53487. May 25, 1981.]

ANDRES GARCES, Reverend Father SERGIO MARILAO OSMEA, NICETAS DAGAR and
JESUS EDULLANTES, petitioners, vs. Hon. NUMERIANO G. ESTENZO, Presiding Judge
of the Court of First Instance of Leyte, Ormoc City Branch V, BARANGAY COUNCIL of
Valencia, Ormoc City, Barangay Captain MANUEL C. VELOSO, Councilmen
GAUDENCIO LAVEZARES, TOMAS CABATINGAN and MAXIMINO NAVARRO, Barangay
Secretary
CONCHITA
MARAYA
and
Barangay
Treasurer
LUCENA
BALTAZAR, respondents.
Francisco D. Abas and Narciso Marilao, Jr. for petitioners.
Celso C . Veloso, Dominador T . Tabucanon and Faustino C. Tumamak, Jr. for private
respondents.
SYNOPSIS
A wooden image of San Vicente Ferrer was acquired by the barangay council with
funds raised by means of solicitations and cash donations pursuant to Resolution
No. 5 of said council, duly ratified by the barangay assembly in a plebiscite, reviving
the traditional socio-religious celebration of the feast day of the saint. The image
was brought to the Catholic parish church during the saint's feast day as per
Resolution No. 6 which also designated the hermano mayor as the custodian of the
image. After the fiesta, however, petitioner parish priest refused to return custody of
the image to the council until after the latter, by resolution, filed a replevin case
against the priest and posted the required bond. The parish priest and his copetitioners thereafter filed an action for annulment of the council's resolutions
relating to the subject image contending that when they were adopted, the
barangay council was not duly constituted because the chairman of the Kabataang
Barangay was not allowed to participate; and that they contravened the
constitutional provisions on separation of church and state. freedom of religion and
the use of public money to favor any sect or church. The lower court dismissed the
complaint and upheld the validity of the resolution.
On petition for review, the Supreme Court held, that the absence of the Kabataang
Barangay chairman, despite due notice from the sessions of the barangay council,
did not render the resolutions then adopted void since there was a quorum; and
that the questioned resolutions did not contravene any constitutional provision
since the image was purchased with private funds, not with tax money, and in
connection with a socio-religious affair, the celebration of which is an ingrained
tradition in rural communities.
Judgment of the lower court affirmed.
SYLLABUS

1. CONSTITUTIONAL LAW; DECLARATION OF PRINCIPLES AND STATE POLICIES;

LOCAL AUTONOMY; BARANGAY; BARANGAY COUNCIL; COMPOSITION THEREOF.
The barrio council, now barangay council, is composed of the barangay captain and
six councilmen (Sec. 7, Revised Barrio Charter, R.A. No. 3590). Section 3
ofPresidential Decree No. 684, which took effect on April 15, 1975, provides that
"the barangay youth chairman shall be ex-officio member of the barangay council",
having the same powers and functions as a barangay councilman.
2. ID.; ID.; ID.; ID.; ID.; ABSENCE IN SESSION OF DULY NOTIFIED MEMBER DOES NOT
RENDER RESOLUTION ADOPTED DURING SAID SESSION VOID IF THERE WAS A
QUORUM. In the case at bar, the absence of the barangay youth chairman from
the sessions of the barangay council when the questioned resolutions were
adopted, did not render said resolutions void, because there was a quorum and he
was duly notified of said sessions.
3. ID.; SEPARATION OF CHURCH AND STATE; BARANGAY COUNCIL'S RESOLUTION
PROVIDING FOR PURCHASE OF SAINT'S IMAGE WITH PRIVATE FUNDS IN
CONNECTION WITH BARANGAY FIESTA, CONSTITUTIONAL. Resolution No. 5 of the
barangay council of Valenzuela, Ormoc City, "reviving the traditional socio-religious
celebration" every fifth day of April "of the feast day of Seor San Vicente Ferrer,
the patron saint of Valenzuela", and providing for: (I) the acquisition of the image of
San Vicente Ferrer; and (2) the construction of a waiting shed as the barangay's
projects, funds for which would be obtained through the "selling of tickets and cash
donations", does not directly or indirectly establish any religion, nor abridge
religious liberty, nor appropriate money for the benefit of any sect, priest or
clergyman. The image was purchased with private funds, not with tax money. The
construction of the waiting shed is entirely a secular matter. The wooden image was
purchased in connection with the celebration of the barrio fiesta honoring the
patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor
interfering with religious beliefs of the barrio residents. One of the highlights of the
fiesta was the mass. Consequently, the image of the patron saint had to be placed
in the church when the mass was celebrated. If there is nothing unconstitutional or
illegal in holding a fiesta and having a patron saint for the barrio, then any activity
intended to facilitate the worship of the patron saint (such as the acquisition and
display of his image) cannot be branded as illegal. As noted in the resolution, the
barrio fiesta is a socio-religious affair. Its celebration is an ingrained tradition in rural
communities. The fiesta relieves the monotony and drudgery of the lives of the
masses.
4. ID.; ID.; BARANGAY COUNCIL'S RESOLUTION DESIGNATING CUSTODIAN OF
SAINT'S IMAGE WHICH WAS BOUGHT WITH COUNCIL'S PRIVATE FUNDS IN
CONNECTION WITH BARRIO FIESTA, VALID AND CONSTITUTIONAL. Resolution No.
6 of the Barangay Council of Valenzuela, Ormoc City, adopted in connection with
Resolution No. 5 (providing for the purchase of an image of San Vicente Ferrer with
funds from solicitations and cash donations) and which specified that, in accordance
with the practice in Eastern Leyte, the chairman or hermano mayor of the fiesta,
would be the caretaker of the image of San Vicente Ferrer and that the image would
remain in his residence for one year and until the election of his successor as

chairman of the next fiesta, and that the image would be made available to the
Catholic parish church during the celebration of the saint's feast day, does not
involve at all, even remotely or indirectly, the momentous issues of separation of
church and state, freedom of religion and the use of public money to favor any sect
or church, contrary to the contradictory positions of the petitioners petitioner
Garces swearing that the said resolutions favored the Catholic Church, and
petitioners Dagar and Edullantes swearing that the resolutions prejudiced the
Catholics because they could sec the image in the church only once a year during
the fiesta. There can be no question that the image in question belongs to the
barangay council. Father Osmea's claim that it belongs to the church is wrong. The
barangay council, as owner of the image, has the right to determine who should
have custody thereof. The barangay council designated a layman as the custodian
of the wooden image in order to forestall any suspicion that it is favoring the
Catholic church. A more practical reason for that arrangement would be that the
image, if placed in a layman's custody, could easily be made available to any family
desiring to borrow the image in connection with prayers and novenas. If the council
chooses to change its mind and decides to give the image to the Catholic church,
that action would not violate the Constitution because the image was acquired
with private funds and is its private property.
5. ID.; ID.; BARANGAY COUNCIL'S RESOLUTION AUTHORIZING THE HIRING OF A
LAWYER TO FILE REPLEVIN CASE AND APPOINTING REPRESENTATIVE IN SAID CASE;
VALID. The barangay council of Valencia has the right to take measures to recover
possession of the image of San Vicente Ferrer, which is its private property, from the
parish priest of Valenzuela by enacting Resolution No. 10, authorizing the hiring of a
lawyer to file a replevin case against Father Osmea for the recovery of the image,
as well as Resolution No. 12, appointing Veloso as its representative in the replevin
case.
6. ID.; ID.; NOT ALL GOVERNMENTAL ACTIVITY HAVING RELIGIOUS TINT VIOLATIVE
OF CONSTITUTION. 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. (Sec Aglipay vs. Ruiz, 64
Phil. 201)
DECISION
AQUINO, J p:
This case is about the constitutionality of four resolutions of the barangay council of
Valencia, Ormoc City, regarding the acquisition of the wooden image of San Vicente
Ferrer to be used in the celebration of his annual feast day. That issue was spawned
by the controversy as to whether the parish priest or a layman should have the
custody of the image. Cdpr
On March 23, 1976, the said barangay council adopted Resolution No. 5, "reviving
the traditional socio-religious celebration" every fifth day of April "of the feast day of
Seor San Vicente Ferrer, the patron saint of Valencia."

That resolution designated the members of nine committees who would take charge
of the 1976 festivity. It provided for (1) the acquisition of the image of San Vicente
Ferrer and (2) the construction of a waiting shed as the barangay's projects. Funds
for the two projects would be obtained through the "selling of tickets and cash
donations" (Exh. A or 6).
On March 26, 1976, the barangay council passed Resolution No. 6 which specified
that, in accordance with the practice in Eastern Leyte, Councilman Tomas
Cabatingan, the chairman or hermano mayor of the fiesta, would be the caretaker of
the image of San Vicente Ferrer and that the image would remain in his residence
for one year and until the election of his successor as chairman of the next feast
day.
It was further provided in the resolution that the image would be made available to
the Catholic parish church during the celebration of the saint's feast day (Exh. B or
7).
Resolutions Nos. 5 and 6 were submitted to a plebiscite and were duly ratified by
the barangay general assembly on March 26, 1976. Two hundred seventy-two voters
ratified the two resolutions (Exh. 2 and 5).

Funds were raised by means of solicitations and cash donations of the barangay
residents and those of the neighboring places of Valencia. With those funds, the
waiting shed was constructed and the wooden image of San Vicente Ferrer was
acquired in Cebu City by the barangay council for four hundred pesos (Exh. F-1, 3
and 4).
On April 5, 1976, the image was temporarily placed in the altar of the Catholic
church of Barangay Valencia so that the devotees could worship the saint during the
mass for the fiesta. cdphil
A controversy arose after the mass when the parish priest, Father Sergio Marilao
Osmea, refused to return that image to the barangay council on the pretext that it
was the property of the church because church funds were used for its acquisition.
Several days after the fiesta or on April 11, 1976, on the occasion of his sermon
during a mass, Father Osmea allegedly uttered defamatory remarks against the
barangay captain, Manuel C. Veloso, apparently in connection with the disputed
image. That incident provoked Veloso to file against Father Osmea in the city court
of Ormoc City a charge for grave oral defamation.
Father Osmea retaliated by filing administrative complaints against Veloso with the
city mayor's office and the Department of Local Government and Community
Development on the grounds of immorality, grave abuse of authority, acts
unbecoming a public official and ignorance of the law.
Meanwhile, the image of San Vicente Ferrer remained in the Catholic church of
Valencia. Because Father Osmea did not accede to the request of Cabatingan to
have custody of the image and "maliciously ignored" the council's Resolution No. 6,

the council enacted on May 12, 1976 Resolution No. 10, authorizing the hiring of a
lawyer to file a replevin case against Father Osmea for the recovery of the image
(Exh. C or 8). On June 14, 1976, the barangay council passed Resolution No. 12,
appointing Veloso as its representative in the replevin case (Exh. D or 9).
The replevin case was filed in the city court of Ormoc City against Father Osmea
and Bishop Cipriano Urgel (Exh. F). After the barangay council had posted a cash
bond of eight hundred pesos, Father Osmea turned over the image to the council
(p. 10, Rollo). In his answer to the complaint for replevin, he assailed the
constitutionality of the said resolutions (Exh. F-1).
Later, he and three other persons, Andres Garces, a member of the Aglipayan
Church, and two Catholic laymen, Jesus Edullantes and Nicetas Dagar, filed against
the barangay council and its members (excluding two members) a complaint in the
Court of First Instance at Ormoc City, praying for the annulment of the said
resolutions (Civil Case No. 1680-0).
The lower court dismissed the complaint. It upheld the validity of the resolutions.
The petitioners appealed under Republic Act No. 5440.
The petitioners contend that the barangay council was not duly constituted because
Isidoro M. Maago, Jr., the chairman of the kabataang barangay, was not allowed to
participate in its sessions. LibLex
Barangays used to be known as citizens assemblies (Presidential Decrees Nos. 86
and 86-A). Presidential Decree No. 557, which took effect on September 21, 1974,
70 O.G. 8450-L, directed that all barrios should be known as barangays and adopted
the Revised Barrio Charter as the Barangay Charter.
Barrios are units of municipalities or municipal districts in which they are situated.
They are quasi-municipal corporations endowed with such powers" as are provided
by law "for the performance of particular government functions, to be exercised by
and through their respective barrio governments in conformity with law" (Sec. 2,
Revised Barrio Charter, R.A. No. 3590).
The barrio assembly consists of all persons who are residents of the barrio for at
least six months, eighteen years of age or over and Filipino citizens duly registered
in the list kept by the barrio secretary (Sec. 4, Ibid).
The barrio council, now barangay council, is composed of the barangay captain and
six councilmen (Sec. 7, Ibid). Section 3 of Presidential Decree No. 684, which took
effect on April 15, 1975, provides that "the barangay youth chairman shall be an exofficio member of the barangay council", having the same powers and functions as
a barangay councilman.
In this case, Maago, the barangay youth chairman, was notified of the sessions of
the barangay council to be held on March 23 and 26, 1976 but he was not able to
attend those sessions because he was working with a construction company based
at Ipil, Ormoc City (Par. 2[d], Exh. 1).

Maago's absence from the sessions of the barangay council did not render the said
resolutions void. There was a quorum when the said resolutions were passed.
The other contention of the petitioners is that the resolutions contravene the
constitutional provisions that "no law shall be made respecting an establishment of
religion" and that "no public money or property shall ever be appropriated, applied,
paid, or used, directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution, or system of religion, or for the use,
benefit, or support of any priest, preacher, minister, or other religious teacher or
dignitary as such, except when such priest, preacher, minister, or dignitary is
assigned to the armed forces, or to any penal institution, or government orphanage
or leprosarium" (Sec. 8, Article IV and sec. 18[2], Article VIII, Constitution). prcd
That contention is glaringly devoid of merit. The questioned resolutions do not
directly or indirectly establish any religion, nor abridge religious liberty, nor
appropriate public money or property for the benefit of any sect, priest or
clergyman. The image was purchased with private funds, not with tax money. The
construction of a waiting shed is entirely a secular matter.
Manifestly puerile and flimsy is petitioners' argument that the barangay council
favored the Catholic religion by using the funds raised by solicitations and donations
for the purchase of the patron saint's wooden image and making the image
available to the Catholic church.
The preposterousness of that argument is rendered more evident by the fact that
counsel advanced that argument in behalf of the petitioner, Father Osmea, the
parish priest.
The wooden image was purchased in connection with the celebration of the barrio
fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose of
favoring any religion nor interfering with religious matters or the religious beliefs of
the barrio residents. One of the highlights of the fiesta was the mass. Consequently,
the image of the patron saint had to be placed in the church when the mass was
celebrated.
If there is nothing unconstitutional or illegal in holding a fiesta and having a patron
saint for the barrio, then any activity intended to facilitate the worship of the patron
saint (such as the acquisition and display of his image) cannot be branded as illegal.
As noted in the first resolution, the barrio fiesta is a socio-religious affair. Its
celebration is an ingrained tradition in rural communities. The fiesta relieves the
monotony and drudgery of the lives of the masses.
The barangay council designated a layman as the custodian of the wooden image in
order to forestall any suspicion that it is favoring the Catholic church. A more
practical reason for that arrangement would be that the image, if placed in a
layman's custody, could easily be made available to any family desiring to borrow
the image in connection with prayers and novenas.
The contradictory positions of the petitioners are shown in their affidavits. Petitioner
Garces swore that the said resolutions favored the Catholic church. On the other

hand, petitioners Dagar and Edullantes swore that the resolutions prejudiced the
Catholics because they could see the image in the church only once a year or
during the fiesta (Exh. H and J).
We find that the momentous issues of separation of church and state, freedom of
religion and the use of public money to favor any sect or church are not involved at
all in this case even remotely or indirectly. It is not a microcosmic test case on those
issues.
This case is a petty quarrel over the custody of a saint's image. It would never have
arisen if the parties had been more diplomatic and tactful and if Father Osmea had
taken the trouble of causing contributions to be solicited from his own parishioners
for the purchase of another image of San Vicente Ferrer to be installed in his church.
There can be no question that the image in question belongs to the barangay
council. Father Osmea's claim that it belongs to his church is wrong. The barangay
council, as owner of the image, has the right to determine who should have custody
thereof. cdrep
If it chooses to change its mind and decides to give the image to the Catholic
church, that action would not violate the Constitution because the image was
acquired withprivate funds and is its private property.
The council has the right to take measures to recover possession of the image by
enacting Resolutions Nos. 10 and 12.
Not every governmental activity which involves the expenditure of public funds and
which has some religious tint is violative of the constitutional provisions regarding
separation of church and state, freedom of worship and banning the use of public
money or property.
In Aglipay vs. Ruiz, 64 Phil. 201, what was involved was Act No. 4052 which
appropriated sixty thousand pesos for the cost of plates and the printing of postage
stamps with new designs.
Under that law, the Director of Posts, with the approval of the Department Head and
the President of the Philippines, issued in 1936 postage stamps to commemorate
the celebration in Manila of the 33rd International Eucharistic Congress sponsored
by the Catholic Church.
The purpose of the stamps was to raise revenue and advertise the Philippines. The
design of the stamps showed a map of the Philippines and nothing about the
Catholic Church. No religious purpose was intended.

Monsignor Gregorio Aglipay, the founder and head of the Philippine Independent
Church, sought to enjoin the sale of those commemorative postage stamps.
It was held that the issuance of the stamps, while linked inseparably with an event
of a religious character, was not designed as a propaganda for the Catholic Church.
Aglipay's prohibition suit was dismissed. llcd

The instant case is easily distinguishable from Verzosa vs. Fernandez, 49 Phil. 627
and 55 Phil. 307, where a religious brotherhood, La Archicofradia del Santisimo
Sacramento, organized for the purpose of raising funds to meet the expenses for
the annual fiesta in honor of the Most Holy Sacrament and the Virgin Lady of
Guadalupe, was held accountable for the funds which it held as trustee.
Finding that the petitioners have no cause of action for the annulment of the
barangay resolutions, the lower court's judgment dismissing their amended petition
is affirmed. No costs.
SO ORDERED.
Fernando, C . J ., Barredo, Makasiar, Guerrero, De Castro and Melencio-Herrera, JJ .,
concur.
Teehankee, J ., concurs in the result.
Fernandez and Concepcion Jr., JJ ., are on official leave
||| (Garces v. Estenzo, G.R. No. L-53487, May 25, 1981)

[G.R. No. L-9637. April 30, 1957.]

AMERICAN
appellee.

BIBLE

SOCIETY, plaintiff-appellant, vs.

CITY

OF

MANILA, defendant-

City Fiscal Eugenio Angeles and Juan Nabong for appellant.

Assistant City Fiscal Arsenio Naawa for appellee.
SYLLABUS
1. STATUTES; SIMULTANEOUS REPEAL AND RE-ENACTMENT; EFFECT OF REPEAL
UPON RIGHTS AND LIABILITIES WHICH ACCRUED UNDER THE ORIGINAL STATUTE.
Where the old statute is repealed in its entirety and by the same enactment reenacts all or certain portions of the pre-existing law, the majority view holds that
the rights and liabilities which have accrued under the original statute are
preserved and may be enforced, since the re-enactment neutralizes the repeal,
therefore continuing the law in force without interruption. (Crawford, Statutory
Construction, Sec. 322). In the case at bar, Ordinances Nos. 2529 and 3000 of the
City of Manila were enacted by the Municipal Board of the City of Manila by virtue of
the power granted to it by section 2444, Subsection (m-2) of the Revised
Administrative Code, superseded on June 13, 1949, by section 13, Subsection (o)
of Republic Act No. 409, known as the Revised Charter of the City of Manila. The
only essential difference between these two provisions is that while Subsection (m2) prescribes that the combined total tax of any dealer or manufacturer, or both,
enumerated under Subsections (m-1) and (m-2), whether dealing in one or all of the
articles mentioned therein, shall not be in excess of P500 per annum, the
corresponding Section 18, subsection (o) of Republic Act No. 409, does not contain
any limitation as to the amount of tax or license fee that the retail dealer has to pay

per annum. Hence, and in accordance with the weight of authorities

aforementioned, City ordinances Nos. 2529 and 3000 are still in force and effect.
2. MUNICIPAL TAX; RETAIL DEALERS IN GENERAL MERCHANDISE; ORDINANCE
PRESCRIBING TAX NEED NOT BE APPROVED BY THE PRESIDENT TO BE EFFECTIVE.
The business of "retail dealers in general merchandise" is expressly enumerated in
subsection (o), section 18 of Republic Act No. 409: hence, an ordinance prescribing
a municipal tax on said business does not have to be approved by the President to
be effective, as it is not among those businesses referred to in subsection (ii)
Section 18 of the same Act subject to the approval of the President.
3. CONSTITUTIONAL LAW; RELIGIOUS FREEDOM; DISSEMINATION OF RELIGIOUS
INFORMATION, WHEN MAY BE RESTRAINED; PAYMENT OF LICENSE FEE, IMPAIRS
FREE EXERCISE OF RELIGION. 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." (Taada and Fernando on the Constitution of the Philippines, Vol. I, 4th ed.,
p. 297). In the case at bar, plaintiff is engaged in the distribution and sales of bibles
and religious articles. The City Treasurer of Manila informed the plaintiff that it was
conducting the business of general merchandise without providing itself with the
necessary Mayor's permit and municipal license, in violation of Ordinance No. 3000,
as amended, and Ordinance No. 2529, as amended, and required plaintiff to secure
the corresponding permit and license. Plaintiff protested against this requirement
and claimed that it never made any profit from the sale of its bibles. Held: It is true
the price asked for the religious articles was in some instances a little bit higher
than the actual cost of the same, but this cannot mean that plaintiff was engaged in
the business or occupation of selling said "merchandise" for profit. For this reasons,
the provisions of City Ordinance No. 2529, as amended, which requires the payment
of license fee for conducting the business of general merchandise, cannot be
applied to plaintiff society, for in doing so, it would impair its free exercise and
enjoyment of its religious profession and worship, as well as its rights of
dissemination of religious beliefs. Upon the other hand, City Ordinance No. 3000, as
amended, which requires the obtention of the Mayor's permit before any person can
engage in any of the businesses, trades or occupations enumerated therein, does
not impose any charge upon the enjoyment of a right granted by the Constitution,
nor tax the exercise of religious practices. Hence, it cannot be considered
unconstitutional, even if applied to plaintiff Society. But as Ordinance No. 2529 is
not applicable to plaintiff and the City of Manila is powerless to license or tax the
business of plaintiff society involved herein, for the reasons above stated, Ordinance
No. 3000 is also inapplicable to said business, trade or occupation of the plaintiff.
DECISION
FELIX, J p:
Plaintiff-appellant is a foreign, non-stock, non-profit, religious, missionary
corporation duly registered and doing business in the Philippines through its

Philippine agency established in Manila in November, 1898, with its principal office
at 636 Isaac Peral in said City. The defendant-appellee is a municipal corporation
with powers that are to be exercised in conformity with the provisions of Republic
Act No. 409, known as the Revised Charter of the City of Manila.
In the course of its ministry, plaintiff's Philippine agency has been distributing and
selling bibles and/or gospel portions thereof (except during the Japanese
occupation) throughout the Philippines and translating the same into several
Philippine dialects. On May 29, 1953, the acting City Treasurer of the City of Manila
informed plaintiff that it was conducting the business of general merchandise since
November, 1945, without providing itself with the necessary Mayor's permit and
municipal license, in violation of Ordinance No. 3000, as amended, and Ordinances
Nos. 2529, 3028 and 3364, and required plaintiff to secure, within three days, the
corresponding permit and license fees, together with compromise covering the
period from the 4th quarter of 1945 to the 2nd quarter of 1953, in the total sum of
P5,821.45 (Annex A).
Plaintiff protested against this requirement, but the City Treasurer demanded that
plaintiff deposit and pay under protest the sum of P5,891.45, if suit was to be taken
in court regarding the same (Annex B). To avoid the closing of its business as well as
further fines and penalties in the premises, on October 24, 1953, plaintiff paid to the
defendant under protest the said permit and license fees in the aforementioned
amount, giving at the same time notice to the City Treasurer that suit would be
taken in court to question the legality of the ordinances under which the said fees
were being collected (Annex C), which was done on the same date by filing the
complaint that gave rise to this action. In its complaint plaintiff prays that judgment
be rendered declaring the said Municipal Ordinance No. 3000, as amended, and
Ordinances Nos. 2529, 3028 and 3364 illegal and unconstitutional, and that the
defendant be ordered to refund to the plaintiff the sum of P5,891.45 paid under
protest, together with legal interest thereon, and the costs, plaintiff further praying
for such other relief and remedy as the court may deem just and equitable.
Defendant answered the complaint, maintaining in turn that said ordinances were
enacted by the Municipal Board of the City of Manila by virtue of the power granted
to it by section 2444, subsection (m-2) of the Revised Administrative Code,
superseded on June 18, 1949, by section 18, subsection (1) of Republic Act No. 409,
known as the Revised Charter of the City of Manila, and praying that the complaint
be dismissed, with costs against plaintiff. This answer was replied by the plaintiff
reiterating the unconstitutionality of the often- repeated ordinances.
Before trial the parties submitted the following stipulation of facts:
"COME NOW the parties in the above-entitled case, thru their undersigned attorneys
and respectfully submit the following stipulation of facts:
1. That the plaintiff sold for the use of the purchasers at its principal office at 636
Isaac Peral, Manila, Bibles, New Testaments, bible portions and bible concordance in
English and other foreign languages imported by it from the United States as well as
Bibles, New Testaments and bible portions in the local dialects imported and/or

purchased locally; that from the fourth quarter of 1945 to the first quarter of 1953
inclusive the sales made by the plaintiff were as follows:
Quarter Amount of Sales
4th
1st
2nd
3rd
4th
1st
2nd
3rd
4th
1st
2nd
3rd
4th
1st
2nd
3rd
4th
1st
2nd
3rd
4th
1st
2nd
3rd
4th
1st
2nd
3rd
4th
1st quarter 1953 29,516.21

quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter
quarter

1945 P1,244.21
1946 2,206.85
1946 1,950.38
1946 2,235.99
1946 3,256.04
1947 13,241.07
1947 15,774.55
1947 14,654.13
1947 12,590.94
1948 11,143.90
1948 14,715.26
1948 38,333.83
1948 16,179.90
1949 23,975.10
1949 17,802.08
1949 16,640.79
1949 15,961.38
1950 18,562.46
1950 21,816.32
1950 25,004.55
1950 45,287.92
1951 37,841.21
1951 29,103.98
1951 20,181.10
1951 22,968.91
1952 23,002.65
1952 17,626.96
1952 17,921.01
1952 24,180.72

2. That the parties hereby reserve the right to present evidence of other facts not
herein stipulated.
WHEREFORE, it is respectfully prayed that this case be set for hearing so that the
parties may present further evidence on their behalf (Record on Appeal, pp. 15-16)".
When the case was set for hearing, plaintiff proved, among other things, that it has
been in existence in the Philippines since 1899, and that its parent society is in New
York, United States of America; that its contiguous real properties located at Isaac
Peral are exempt from real estate taxes; and that it was never required to pay any
municipal license fee or tax before the war, nor does the American Bible Society in
the United States pay any license fee or sales tax for the sale of bible therein.
Plaintiff further tried to establish that it never made any profit from the sale of its

bibles, which are disposed of for as low as one third of the cost, and that in order to
maintain its operating cost it obtains substantial remittances from its New York
office and voluntary contributions and gifts from certain churches, both in the
United States and in the Philippines, which are interested in its missionary work.
Regarding plaintiff's contention of lack of profit in the sale of bibles, defendant
retorts that the admissions of plaintiff-appellant's lone witness who testified on
cross-examination that bibles bearing the price of 70 cents each from plaintiffappellant's New York office are sold here by plaintiff- appellant at P1.30 each; those
bearing the price of $4.50 each are sold here at P10 each; those bearing the price of
$7 each are sold here at P15 each; and those bearing the price of $11 each are sold
here at P22 each, clearly show that plaintiff's contention that it never makes any
profit from the sale of its bible, is evidently untenable.

After hearing the Court rendered judgment, the last part of which is as follows:
"As may be seen from the repealed section (m-2) of the Revised Administrative
Code and the repealing portions (o) of section 18 of Republic Act No. 409, although
they seemingly differ in the way the legislative intent is expressed, yet their
meaning is practically the same for the purpose of taxing the merchandise
mentioned in said legal provisions, and that the taxes to be levied by said
ordinances is in the nature of percentage graduated taxes (Sec. 3 of Ordinance No.
3000, as amended, and Sec. 1, Group 2, of Ordinance No. 2529, as amended by
Ordinance No. 3364).
IN VIEW OF THE FOREGOING CONSIDERATIONS, this Court is of the opinion and so
holds that this case should be dismissed, as it is hereby dismissed, for lack of
merits, with costs against the plaintiff."
Not satisfied with this verdict plaintiff took up the matter to the Court of Appeals
which certified the case to Us for the reason that the errors assigned to the lower
Court involved only questions of law.
Appellant contends that the lower Court erred:
1. In holding that Ordinances Nos. 2529 and 3000, as respectively amended, are not
unconstitutional;
2. In holding that subsection m-2 of Section 2444 of the Revised Administrative
Code under which Ordinances Nos. 2529 and 3000 were promulgated, was not
repealed by Section 18 of Republic Act No. 409;
3. In not holding that an ordinance providing for percentage taxes based on gross
sales or receipts, in order to be valid under the new Charter of the City of Manila,
must first be approved by the President of the Philippines; and
4. In holding that, as the sales made by the plaintiff-appellant have assumed
commercial proportions, it cannot escape from the operation of said municipal
ordinances under the cloak of religious privilege.

The issues. As may be seen from the preceding statement of the case, the issues
involved in the present controversy may be reduced to the following: (1) whether or
not the ordinances of the City of Manila, Nos. 3000, as amended, and 2529, 3028
and 3364, are constitutional and valid; and (2) whether the provisions of said
ordinances are applicable or not to the case at bar.
Section 1, subsection (7) of Article III of the Constitution of the Republic of the
Philippines, provides that:
"(7) No law shall be made respecting an establishment of religion, or prohibiting the
free exercise thereof, and the free exercise and enjoyment of religious profession
and worship, without discrimination or preference, shall forever be allowed. No
religion test shall be required for the exercise of civil or political rights."
Predicated on this constitutional mandate, plaintiff-appellant contends that
Ordinances Nos. 2529 and 3000, as respectively amended, are unconstitutional and
illegal in so far as its society is concerned, because they provide for religious
censorship and restrain the free exercise and enjoyment of its religious profession,
to wit: the distribution and sale of bibles and other religious literature to the people
of the Philippines.
Before entering into a discussion of the constitutional aspect of the case, We shall
first consider the provisions of the questioned ordinances in relation to their
application to the sale of bibles, etc. by appellant. The records show that by letter of
May 29, 1953 (Annex A), the City Treasurer required plaintiff to secure a Mayor's
permit in connection with the society's alleged business of distributing and selling
bibles, etc. and to pay permit dues in the sum of P35 for the period covered in this
litigation, plus the sum of P35 for compromise on account of plaintiff's failure to
secure the permit required by Ordinance No. 3000 of the City of Manila, as
amended. This Ordinance is of general application and not particularly directed
against institutions like the plaintiff, and it does not contain any provisions
whatsoever prescribing religious censorship nor restraining the free exercise and
enjoyment of any religious profession. Section 1 of Ordinance No. 3000 reads as
follows:
"SEC. 1. PERMITS NECESSARY. It shall be unlawful for any person or entity to
conduct or engage in any of the businesses, trades, or occupationsenumerated in
Section 3 of this Ordinance or other businesses, trades, or occupations for which a
permit is required for the proper supervision and enforcement of existing laws and
ordinances governing the sanitation, security, and welfare of the public and the
health of the employees engaged in the business specified in said section 3
hereof, WITHOUT FIRST HAVING OBTAINED A PERMIT THEREFOR FROM THE MAYOR
AND THE NECESSARY LICENSE FROM THE CITY TREASURER."
The business, trade or occupation of the plaintiff involved in this case is not
particularly mentioned in Section 3 of the Ordinance, and the record does not show
that a permit is required therefor under existing laws and ordinances for the proper
supervision and enforcement of their provisions governing the sanitation, security
and welfare of the public and the health of the employees engaged in the business

of the plaintiff. However, section 3 of Ordinance 3000 contains item No. 79, which
reads as follows:
"79. All other businesses, trades or occupations not mentioned in this
Ordinance, except those upon which the City is not empowered to license or to
tax . . . P5.00".
Therefore, the necessity of the permit is made to depend upon the power of the City
to license or tax said business, trade or occupation.
As to the license fees that the Treasurer of the City of Manila required the society to
pay from the 4th quarter of 1945 to the 1st quarter of 1953 in the sum of P5,821.45,
including the sum of P50 as compromise, Ordinance No. 2529, as amended by
Ordinances Nos. 2779, 2821 and 3028 prescribes the following:
"SEC. 1. FEES. Subject to the provisions of section 578 of the Revised Ordinances
of the City of Manila, as amended, there shall be paid to the City Treasurer for
engaging in any of the businesses or occupations below enumerated, quarterly,
license fees based on gross sales or receipts realized during the preceding quarter
in accordance with the rates herein prescribed: PROVIDED, HOWEVER, That a
person engaged in any business or occupation for the first time shall pay the initial
license fee based on the probable gross sales or receipts for the first quarter
beginning from the date of the opening of the business as indicated herein for the
corresponding business or occupation.
xxx xxx xxx
GROUP 2. Retail dealers in new (not yet used) merchandise, which dealers are
not yet subject to the payment of any municipal tax, such as (1) retail dealers in
general merchandise; (2) retail dealers exclusively engaged in the sale of . . . books,
including stationery.
xxx xxx xxx
As may be seen, the license fees required to be paid quarterly- in Section 1 of said
Ordinance No. 2529, as amended, are not imposed directly upon any religious
institution but upon those engaged in any of the business or occupations therein
enumerated, such as retail "dealers in general merchandise" which, it is alleged,
cover the business or occupation of selling bibles, books, etc.
Chapter 60 of the Revised Administrative Code which includes section 2444,
subsection (m-2) of said legal body, as amended by Act No. 3659, approved on
December 8, 1929, empowers the Municipal Board of the City of Manila:
"(M-2) To tax and fix the license fee on (a) dealers in new automobiles or
accessories or both, and (b) retail dealers in new (not yet used) merchandise, which
dealers are not yet subject to the payment of any municipal tax.
"For the purpose of taxation, these retail dealers shall be classified as (1) retail
dealers in general merchandise, and (2) retail dealers exclusively engaged in the
sale of (a) textiles . . . (e) books, including stationery paper and office supplies . . .
PROVIDED, HOWEVER, That the combined total tax of any debtor or manufacturer,

or both, enumerated under these subsections (m-1) and (m-2), whether dealing in
one or all of the articles mentioned herein, SHALL NOT BE IN EXCESS OF FIVE
HUNDRED PESOS PER ANNUM."
and appellee's counsel maintains that City Ordinances Nos. 2529 and 3000, as
amended, were enacted in virtue of the power that said Act No. 3669 conferred
upon the City of Manila. Appellant, however, contends that said ordinances are no
longer in force and effect as the law under which they were promulgated has been
expressly repealed by Section 102 of Republic Act No. 409 passed on June 18,
1949, known as the Revised Manila Charter.
Passing upon this point the lower Court categorically stated that Republic Act No.
409 expressly repealed the provisions of Chapter 60 of the Revised Administrative
Code but in the opinion of the trial Judge, although Section 244 (m-2) of the former
Manila Charter and section 18 (o) of the new seemingly differ in the way the
legislative intent was expressed, yet their meaning is practically the same for the
purpose of taxing the merchandise mentioned in both legal provisions and,
consequently, Ordinances Nos. 2529 and 3000, as amended, are to be considered
as still in full force and effect uninterruptedly up to the present.
"Often the legislature, instead of simply amending the preexisting statute, will
repeal the old statute in its entirety and by the same enactment re-enact all or
certain portions of the preexisting law. Of course, the problem created by this sort of
legislative action involves mainly the effect of the repeal upon rights and liabilities
which accrued under the original statute. Are those rights and liabilities destroyed
or preserved? The authorities are divided as to the effect of simultaneous repeals
and re- enactments. Some adhere to the view that the rights and liabilities accrued
under the repealed act are destroyed, since the statutes from which they sprang are
actually terminated, even though for only a very short period of time. Others, and
they seem to be in the majority, refuse to accept this view of the situation, and
consequently maintain that all rights and liabilities which have accrued under the
original statute are preserved and may be enforced, since the re-enactment
neutralizes the repeal, therefore continuing the law in force without
interruption". (Crawford-Statutory Construction, Sec. 322).

Appellant's counsel states that section 18 (o) of Republic Act No. 409 introduces a
new and wider concept of taxation and is so different from the provisions of Section
2444(m-2) that the former cannot be considered as a substantial re-enactment of
the provisions of the latter. We have quoted above the provisions of section 2444
(m-2) of the Revised Administrative Code and We shall now copy hereunder the
provisions of Section 18, subdivision (o) of Republic Act No. 409, which reads as
follows:
"(o) To tax and fix the license fee on dealers in general merchandise, including
importers and indentors, except those dealers who may be expressly subject to the
payment of some other municipal tax under the provisions of this section.

Dealers in general merchandise shall be classified as (a) wholesale dealers and (b)
retail dealers. For purposes of the tax on retail dealers, general merchandise shall
be classified into four main classes: namely (1) luxury articles, (2) semi-luxury
articles, (3) essential commodities, and (4) miscellaneous articles. A separate
license shall be prescribed for each class but where commodities of different classes
are sold in the same establishment, it shall not be compulsory for the owner to
secure more than one license if he pays the higher or highest rate of tax prescribed
by ordinance. Wholesale dealers shall pay the license tax as such, as may be
provided by ordinance.
For purposes of this section, the term 'General merchandise' shall include poultry
and livestock, agricultural products, fish and other allied products."
The only essential difference that We find between these two provisions that may
have any bearing on the case at bar, is that while subsection (m-2) prescribes that
the combined total tax of any dealer or manufacturer, or both, enumerated under
subsections (m-1) and (m- 2), whether dealing in one or all of the articles mentioned
therein, shall not be in excess of P500 per annum, the corresponding section 18,
subsection (o) of Republic Act No. 409, does not contain any limitation as to the
amount of tax or license fee that the retail dealer has to pay per annum. Hence, and
in accordance with the weight of the authorities above referred to that maintain that
"all rights and liabilities which have accrued under the original statute are preserved
and may be enforced, since the reenactment neutralizes the repeal, therefore
continuing the law in force without interruption", We hold that the questioned
ordinances of the City of Manila are still in force and effect.
Plaintiff, however, argues that the questioned ordinances, to be valid, must first be
approved by the President of the Philippines as per section 18, subsection (ii)
of Republic Act No. 409, which reads as follows:
"(ii) To tax, license and regulate any business, trade or occupation being conducted
within the City of Manila, not otherwise enumerated in the preceding subsections,
including percentage taxes based on gross sales or receipts, subject to the approval
of the PRESIDENT, except amusement taxes."
but this requirement of the President's approval was not contained in section 2444
of the former Charter of the City of Manila under which Ordinance No. 2529 was
promulgated. Anyway, as stated by appellee's counsel, the business of "retail
dealers in general merchandise" is expressly enumerated in subsection (o), section
18 ofRepublic Act No. 409; hence, an ordinance prescribing a municipal tax on said
business does not have to be approved by the President to be effective, as it is not
among those referred to in said subsection (ii). Moreover, the questioned ordinances
are still in force, having been promulgated by the Municipal Board of the City of
Manila under the authority granted to it by law.
The question that now remains to be determined is whether said ordinances are
inapplicable, invalid or unconstitutional if applied to the alleged business of
distribution and sale of bibles to the people of the Philippines by a religious
corporation like the American Bible Society, plaintiff herein.

With regard to Ordinance No. 2529, as amended by Ordinances Nos. 2779, 2821
and 3028, appellant contends that it is unconstitutional and illegal because it
restrains the free exercise and enjoyment of the religious profession and worship of
appellant.
Article III, section 1, clause (7) of the Constitution of the Philippines aforequoted,
guarantees the freedom of religious profession and worship. "Religion has been
spoken of as 'a profession of faith to an active power that binds and elevates man to
its Creator' (Aglipay vs. Ruiz, 64 Phil., 201). It has reference to one's views of his
relations to His Creator and to the obligations they impose of reverence to His being
and character, and obedience to His Will (Davis vs. Beason, 133 U.S., 342). The
constitutional guaranty of the free exercise and enjoyment of religious profession
and worship carries with it the right to disseminate religious information. Any
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". (Taada and Fernando on
the Constitution of the Philippines, Vol. I, 4th ed., p. 297). In the case at bar the
license fee herein involved is imposed upon appellant for its distribution and sale of
bibles and other religious literature.
"In the case of Murdock vs. Pennsylvania, it was held that an ordinance requiring
that a license be obtained before a person could canvass or solicit orders for goods,
paintings, pictures, wares or merchandise cannot be made to apply to members of
Jehovah's Witnesses who went about from door to door distributing literature and
soliciting people to 'purchase' certain religious books and pamphlets, all published
by the Watch Tower Bible & Tract Society. The 'price' of the books was twenty-five
cents each, the 'price' of the pamphlets five cents each. It was shown that in
making the solicitations there was a request for additional 'contribution' of twentyfive cents each for the books and five cents each for the pamphlets. Lesser sum
were accepted, however, and books were even donated in case interested persons
were without funds.
On the above facts the Supreme Court held that it could not be said that petitioners
were engaged in commercial rather than a religious venture. Their activities could
not be described as embraced in the occupation of selling books and pamphlets.
Then the Court continued:
'We do not mean to say that religious groups and the press are free from all
financial burdens of government. See Grosjean vs. American Press Co., 297 U.S.,
233, 250, 80 L. ed. 660, 668, 56 S. Ct. 444. We have here something quite different,
for example, from a tax on the income of one who engages in religious activities or
a tax on property used or employed in connection with those activities. It is one
thing to impose a tax on the income or property of a preacher. It is quite another
thing to exact a tax from him for the privilege of delivering a sermon. The tax
imposed by the City of Jeannette is a flat license tax, payment of which is a
condition of the exercise of these constitutional privileges. The power to tax the
exercise of a privilege is the power to control or suppress its enjoyment. . . . Those
who can tax the exercise of this religious practice can make its exercise so costly as
to deprive it of the resources necessary for its maintenance. Those who can tax the

privilege of engaging in this form of missionary evangelism can close all its doors to
all 'those who do not have a full purse. Spreading religious beliefs in this ancient
and honorable manner would thus be denied the needy. . . .
It is contended however that the fact that the license tax can suppress or control
this activity is unimportant if it does not do so. But that is to disregard the nature of
this tax. It is a license tax a flat tax imposed on the exercise of a privilege
granted by the Bill of Rights . . . The power to impose a license tax on the exercise
of these freedoms is indeed as potent as the power of censorship which this Court
has repeatedly struck down. . . . It is not a nominal fee imposed as a regulatory
measure to defray the expenses of policing the activities in question. It is in no way
apportioned. It is flat license tax levied and collected as a condition to the pursuit of
activities whose enjoyment is guaranteed by the constitutional liberties of press and
religion and inevitably tends to suppress their exercise. That is almost uniformly
recognized as the inherent vice and evil of this flat license tax.'
Nor could dissemination of religious information be conditioned upon the approval
of an official or manager even if the town were owned by a corporation as held in
the case of Marsh vs. State of Alabama (326 U.S. 501) or by the United States itself
as held in the case of Tucker vs. Texas (326 U.S. 517). In the former case the
Supreme Court expressed the opinion that the right to enjoy freedom of the press
and religion occupies a preferred position as against the constitutional right of
property owners.
'When we balance the constitutional rights of owners of property against those of
the people to enjoy freedom of press and religion, as we must here, we remain
mindful of the fact that the latter occupy a preferred position. . . . In our view the
circumstance that the property rights to the premises where the deprivation of
property here involved, took place, were held by others than the public, is not
sufficient to justify the State's permitting a corporation to govern a community of
citizens so as to restrict their fundamental liberties and the enforcement of such
restraint by the application of a State statute.'" (Taada and Fernando on the
Constitution of the Philippines, Vol. I, 4th ed., p. 304-306).
Section 27 of Commonwealth Act No. 466, otherwise known as the National Internal
Revenue Code, provides:

"SEC. 27. EXEMPTIONS FROM TAX ON CORPORATIONS. The following

organizations shall not be taxed under this Title in respect to income received by
them as such
"(e) Corporations or associations organized and operated exclusively for religious,
charitable, . . . or educational purposes, . . Provided however, That the income of
whatever kind and character from any of its properties, real or personal, or from any
activity conducted for profit, regardless of the disposition made of such income,
shall be liable to the tax imposed under this Code;"

Appellant's counsel claims that the Collector of Internal Revenue has exempted the
plaintiff from this tax and says that such exemption clearly indicates that the act of
distributing and selling bibles, etc. is purely religious and does not fall under the
above legal provisions.
It may be true that in the case at bar the price asked for the bibles and other
religious pamphlets was in some instances a little bit higher than the actual cost of
the same, but this cannot mean that appellant was engaged in the business or
occupation of selling said "merchandise" for profit. For this reason We believe that
the provisions of City of Manila Ordinance No. 2529, as amended, cannot be applied
to appellant, for in doing so it would impair its free exercise and enjoyment of its
religious profession and worship as well as its rights of dissemination of religious
beliefs.
With respect to Ordinance No. 3000, as amended, which requires the obtention of
the Mayor's permit before any person can engage in any of the businesses, trades
or occupations enumerated therein, We do not find that it imposes any charge upon
the enjoyment of a right granted by the Constitution, nor tax the exercise of
religious practices. In the case of Coleman vs. City of Griffin, 189 S.E. 427, this point
was elucidated as follows:
"An ordinance by the City of Griffin, declaring that the practice of distributing either
by hand or otherwise, circulars, handbooks, advertising, or literature of any kind,
whether said articles are being delivered free, or whether same are being sold
within the city limits of the City of Griffin, without first obtaining written permission
from the city manager of the City of Griffin, shall be deemed a nuisance and
punishable as an offense against the City of Griffin, does not deprive defendant of
his constitutional right of the free exercise and enjoyment of religious profession
and worship, even though it prohibits him from introducing and carrying out a
scheme or purpose which he sees fit to claim as a part of his religious system."
It seems clear, therefore, that Ordinance No. 3000 cannot be considered
unconstitutional, even if applied to plaintiff Society. But as Ordinance No. 2529 of
the City of Manila, as amended, is not applicable to plaintiff-appellant and
defendant-appellee is powerless to license or tax the business of plaintiff Society
involved herein for, as stated before, it would impair plaintiff's right to the free
exercise and enjoyment of its religious profession and worship, as well as its rights
of dissemination of religious beliefs, We find that Ordinance No. 3000, as amended,
is also inapplicable to said business, trade or occupation of the plaintiff.
Wherefore, and on the strength of the foregoing considerations, We hereby reverse
the decision appealed from, sentencing defendant to return to plaintiff the sum of
P5,891.45 unduly collected from it. Without pronouncement as to costs. It is so
ordered.
Bengzon,
Padilla,
Montemayor,
Concepcion and Endencia, JJ., concur.
Reyes, A., J., concurs in the result.

Bautista

Angelo,

Labrador,

||| (American Bible Society v. City of Manila, G.R. No. L-9637, April 30, 1957)

[G.R. No. 119673. July 26, 1996.]

IGLESIA NI CRISTO (INC.), petitioner, vs. THE HONORABLE COURT OF APPEALS,
BOARD OF REVIEW FOR MOVING PICTURES AND TELEVISION and HONORABLE
HENRIETTA S. MENDEZ, respondents.
Cuevas De la Cuesta & De las Alas for petitioner.
The Solicitor General for respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; ACCORDED A
PREFERRED STATUS. Freedom of religion has been accorded a preferred statusby
the framers of our fundamental laws, past and present. We have affirmed this
preferred status well aware that it is "designed to protect the broadest possible
liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with the
liberty of others and with the common good.
2. ID.; ID.; ID.; CAN BE REGULATED BY THE STATE. We reject petitioner's postulate
that its religious program is per se beyond review by the respondent Board. Its
public broadcast on TV of its religious program brings it out of the bosom of internal
belief. Television is a medium that reaches even the eyes and ears of children. The
Court iterates the rule that the exercise of religious freedom can be regulated by the
State when it will bring about the clear and present danger of some substantive evil
which the State is duty bound to prevent, i.e., serious detriment to the more
overriding interest of public health, public morals, or public welfare. A laissez
faire policy on the exercise of religion can be seductive to the liberal mind but
history counsels the Court against its blind adoption as religion is and continues to
be a volatile area of concern in our country today.
3. ID.; ID.; FREEDOM OF SPEECH; PRIOR RESTRAINTS, ENJOINED. Deeply
ensconced in our fundamental law is its hostility against all prior restraints on
speech, including religious speech. Hence, any act that restrains speech is hobbled
by the presumption of invalidity and should be greeted with furrowed brows. It is the
burden of the respondent Board to overthrow this presumption. If it fails to
discharge this burden, its act of censorship will be struck down.
4. ADMINISTRATIVE LAW; BOARD OF REVIEW FOR MOVING PICTURES AND
TELEVISION; T.V. SERIES CONTAINING CRITICISM OF SOME OF DEEPLY HELD DOGMAS
AND TENETS OF OTHER RELIGION, NOT INDECENT, CONTRARY TO LAW AND GOOD
CUSTOMS. The evidence shows that the respondent Board x-rated petitioners TV
series for "attacking" other religions, especially the Catholic church. An examination
of the evidence, especially Exhibits "A," "A-1," "B," "C," "D" will show that the socalled "attacks" are mere criticisms of some of the deeply held dogmas and tenets
of other religions. The videotapes were not viewed by the respondent court as they

were not presented as evidence. Yet they were considered by the respondent court
as indecent, contrary to law and good customs, hence, can be prohibited from
public viewing under sections 3(c) of PD 1986. This ruling clearly suppresses
petitioner's freedom of speech and interferes with its right to free exercise of
religion. The respondent Board may disagree with the criticisms of other religions by
petitioner but that gives it no excuse to interdict such criticisms, however, unclean
they may be. Under our constitutional scheme, it is not the task of the State to favor
any religion by protecting it against an attack by another religion. Religious dogmas
and beliefs are often at war and to preserve peace among their followers, especially
the fanatics, the establishment clause of freedom of religion prohibits the State from
leaning towards any religion. Vis-a-vis religious differences, the State enjoys no
banquet of options. Neutrality alone is its fixed and immovable stance. In fine,
respondent board cannot squelch the speech of petitioner Iglesia ni Cristo simply
because it attacks other religions, even if said religion happens to be the most
numerous church in our country. In a State where there ought to be no difference
between the appearance and the reality of freedom of religion, the remedy against
bad theology is better theology. The bedrock of freedom of religion is freedom of
thought and it is best served by encouraging the marketplace of dueling ideas.
When the luxury of time permits, the marketplace of ideas demands that speech
should be met by more speech for it is the spark of opposite speech, the heat of
colliding ideas that can fan the embers of truth.
5. ID.; ID.; T.V. SERIES CONTAINING "ATTACKS AGAINST ANOTHER RELIGION," NOT A
GROUND PROHIBITING BROADCAST." The respondents cannot also rely on the
ground "attacks against another religion" in x-rating the religious program of
petitioner. Even a sideglance at section 3 of PD No. 1986 will reveal that it is not
among the grounds to justify an order prohibiting the broadcast of petitioner's
television program. The ground "attack against another religion" was merely added
by the respondent Board in its Rules. This rule is void for it runs smack against the
hoary doctrine that administrative rules and regulations cannot expand the letter
and spirit of the law they seek to enforce.
6. CRIMINAL LAW; IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND
EXHIBITIONS; SHOWS WHICH OFFEND ANY RACE OR RELIGION; WORD "OFFEND"
NOT SYNONYMOUS WITH "ATTACK." It is opined that the respondent board can
still utilize "attack against any religion" as a ground allegedly ". . . because section
3(c) ofPD No. 1986 prohibits the showing of motion pictures, television programs
and publicity material which are contrary to law and Article 201 (2) (b) (3) of the
Revised Penal Code punishes anyone who exhibits "shows which offend any race or
religion." We respectfully disagree for it is plain that the word "attack" is not
synonymous with the word "offend."
7. ID.; ID.; ID.; CANNOT BE UTILIZED TO JUSTIFY PRIOR CENSORSHIP OF SPEECH.
Article 201 (2) (b) (3) of the Revised Penal Code should be invoked to justify
thesubsequent punishment of a show which offends any religion. It cannot be
utilized to justify prior censorship of speech. It must be emphasized that E.O. 876,
the law prior to PD 1986, included "attack against any religion" as a ground for

censorship. The ground was not, however, carried over by PD 1986. Its deletion is a
decree to disuse it. There can be no other intent.
8. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; GROUND FOR
RESTRAINTS. In American Bible Society v. City of Manila, this Court held: "The
constitutional guaranty of free exercise and enjoyment of religious profession and
worship carries with it the right to disseminate religious information. Any restraint of
such right can be justified like other restraints on freedom of expression on the
ground that there is a clear and present danger of any substantive evil which the
State has the right to prevent." In Victoriano vs. Elizalde Rope Workers Union, we
further ruled that ". . . it is only where it is unavoidably necessary to prevent
an immediate and grave danger to the security and welfare of the community that
infringement of religious freedom may be justified, and only to the smallest extent
necessary to avoid the danger.
9. ID.; ID.; ID.; HYPOTHETICAL FEARS OF SUBSTANTIVE AND IMMINENT EVIL, NOT
VALID GROUND. 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.
10. ID.; ID.; ID.; CLEAR AND PRESENT DANGER; RULE APPLY TO SPEECHES AND
ATTACKS AGAINST OTHER RELIGIONS. It is suggested we re-examine the
application of clear and present danger rule to the case at bar. In the United States,
it is true that the clear and present danger test undergone permutations. Presently
in the United States, the clear and present danger test is not applied to protect low
value speeches such as obscene speech, commercial speech and defamation. Be
that as it may, the test is still applied to four types of speech: speech that
advocates dangerous ideas, speech that provokes a hostile audience reaction, out
of court contempt and release of information that endangers a fair trial. Hence,
even following the drift of American jurisprudence, there is reason to apply the clear
and present danger test to the case at bar which concerns speech that attacks
other religions and could readily provoke hostile audience reaction. It cannot be
doubted that religious truths disturb and disturb terribly.
11. ID.; ID.; ID.; ID.; RULE APPLIES TO VIDEO TAPES THAT ARE PRE-TAPED. It is
also opined that it is inappropriate to apply the clear and present danger test to the
case at bar because the issue involves the content of speech and not the time,
place or manner of speech. Allegedly, unless the speech is first allowed, its impact
cannot be measured, and the causal connection between the speech and the evil
apprehended cannot be established. The contention overlooks the fact that the case
at bar involves videotape that are pre-taped and hence, their speech content is
known and not an X quantity. Given the specific content of the speech, it is not
unreasonable to assume that the respondent Board, with its expertise, can

determine whether its sulphur will bring about the substantive evil feared by the
law.
12. ID.; CONGRESS; MAY GRANT ADMINISTRATIVE BODIES QUASI-JUDICIAL POWER
TO PREVIEW AND CLASSIFY T.V. PROGRAMS. We are not ready to hold that it is
unconstitutional for Congress to grant an administrative body quasi-judicial power
to preview and classify TV programs and enforce its decision subject to review by
our court.

PADILLA, J., concurring and dissenting opinion:

CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND OF RELIGION;
THERE CAN BE NO PRIOR RESTRAINTS IN THE EXERCISE THEREOF. In this
countrythere can be no prior restraints on the exercise of free speech, expression or
religion, unless such exercises poses a clear and present danger of a substantive
evil which the State has the right and even the duty to prevent. The ban against
such prior restraints will result, as it has resulted in the past, in occasional abuses of
free speech and expression but it is immeasurably preferable to experience such
occasional abuses of speech and expression than to arm a governmental
administrative agency with the authority to censor speech and expression in
accordance with legislative standards which albeit apparently laudable in their
nature, can very well be bent or stretched by such agency to convenient latitudes
as to frustrate and eviscerate the precious freedoms of speech and expression.
MELO, J., concurring and dissenting opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; DENOTES RIGHT
TO DISSEMINATE RELIGIOUS INFORMATION; PRIOR RESTRICTION ON RIGHT TO
DISSEMINATE INFORMATION, A RESTRICTION ON RIGHT OF RELIGION. The
enjoyment of the freedom of religion is always coupled with the freedom of
expression. For the profession of faith inevitably carries with it, as a necessary
appendage, the prerogative of propagation. The constitutional guaranty of free
exercise and enjoyment of religious profession and worship thus denotes the right to
disseminate religious information (American Bible Society vs. City of Manila, 101
Phil. 386 [1957]). Any prior restriction upon a religious expression would be a
restriction on the right of religion. We recognize the role and the deep influence that
religion plays in our community. No less than the fundamental law of the land
acknowledges the elevating influence of religion by imploring the aid of almighty
God to build a just and humane society. Any restriction that is to be placed upon this
right must be applied with greatest caution.
2. ID.; ID.; ID.; GROUND FOR PRIOR RESTRAINT. Freedom of religion and
expression is the rule and its restriction, the exception. Any prior restriction on the
exercise of the freedom to profess religious faith and the propagation thereof will
unduly diminish that religion's authority to spread what it believes to be the sacred
truth. The State can exercise no power to restrict such right until the exercise
thereof traverses the point that will endanger the order of civil society. Thus we
have ruled in the case of Ebralinag vs. The Division Superintendent of Schools of

Cebu (219 SCRA 270 [1993]): The sole justification for a given restraint or limitation
on the exercise of religious freedom 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 the
right and duty to prevent. Correspondingly, the MTRCB has no authority to use as
standard, the dangerous tendency rule, which we have long abandoned, and for
which reason, the dangerous tendency standard under Subparagraph C, Section 3
of Presidential Decree No. 1986 has no place in our statute books.
KAPUNAN, J., concurring and dissenting opinion:
1. CONSTITUTIONAL LAW; FREEDOM OF RELIGION; CANNOT BE SUBJECT TO PRIOR
RESTRAINT BY THE BOARD OF REVIEW FOR MOTION PICTURES AND TELEVISION
(now MTRCB). While I concur in the result of the majority's decision reversing that
of the Court of Appeals insofar as it set aside the action of respondent MTRCB xrating petitioner's TV Program Series Nos. 115, 119 and 121 with due respect, I
cannot agree with its opinion that respondent Board of Review for Motion Pictures
and Television (now MTRCB) has the power to review petitioner's TV program "Ang
Iglesia ni Cristo." The religious TV program enjoys the Constitution's guarantee of
freedom of religion, and of speech and expression, and cannot be subject to prior
restraint by the Board by virtue of its power and functions under Section 3, P.D.
1986. It is my submission that the government, under the guise of its regulatory
powers in the censorship law (P.D. 1986 and its corresponding implementing rules
and regulations), does not have the power to interfere with the exercise of religious
expression in film or television by requiring the submission of the video tapes of
petitioner's religious program before their public viewing, absent a showing of a
compelling state interest that overrides the constitutional protection of the freedom
of expression and worship. Even if government can demonstrate a compelling state
interest, it would only burden such fundamental right like the free exercise of
religion by the least intrusive means possible. There is no demonstration here of
any sufficient state interest to justify the infringement.
2. ID.; ID.; RELIGIOUS SECT OR DENOMINATION ALLOWED FREE CHOICE OF
UTILIZING MEDIA IN DISSEMINATING RELIGIOUS INFORMATION. The freedom to
disseminate religious information is a right protected by the free exercise clause of
the Constitution. It encompasses a wide range of ideas and takes many forms. In
the process of enlightening the adherents or convincing non-believers of the truth of
its beliefs, a religious sect or denomination is allowed the free choice of utilizing
various media, including pulpit or podium, print, television film, and the electronic
mail.
3. ID.; ID.; ENTITLED TO THE HIGHEST PRIORITY AND GENERALLY INSULATED FROM
COURT ACTION. It is settled that religious freedom is a fundamental right entitled
to the highest priority and amplest protection among human rights. Because of its
exalted position in our hierarchy of civil rights, the realm of religious belief is
generally insulated from state action, and state interference with such belief is
allowed only in extreme cases.

4. ID.; ID.; CLEAR AND PRESENT DANGER OF SUBSTANTIVE EVIL, SOLE

JUSTIFICATION FOR PRIOR RESTRAINT OR LIMITATION. In American Bible Society
v. City of Manila, this Court held that any restraint on the right to disseminate
religious information "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." Affirming the use of this
"clear and present danger" standard in cases involving religious freedom and
worship, the late Chief Justice Claudio Teehankee warned that "[t]he sole
justification for a prior restraint or limitation on the exercise of religious freedom 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."
5. ADMINISTRATIVE LAW; BOARD OF REVIEW FOR MOTION PICTURES AND
TELEVISION; POWER TO PROHIBIT EXHIBITION OF TELEVISION BROADCASTS AND TV
PROGRAMS; PETITIONER'S RELIGIOUS PROGRAM ON TV, NOT OBJECTIONABLE AND
THEREFORE NOT SUBJECT TO CENSORSHIP. Under Section 3 of P.D. 1986 the
MTRCB, while nominally a classification board, is granted the power not only to
classify, but also to approve or disapprove/prohibit exhibition of film or television
broadcasts of motion pictures and TV programs. Petitioner's religious programs,
which in their very essence and characterization are the exercise of religious
freedom, cannot possibly come under the category of the objectionable matters
enumerated in Section 3(c) of P.D. 1986 or analogous thereto. It is not likely that
propagation of religion which has been spoken of as "a profession of faith that binds
and elevates man to his Creator" will involve pornography, excessive violence or
danger to national security. Significantly, the enumeration in Section 3(c) does not
include the standard "attack against any religion" as among those considered
objectionable and subject to censorship.
6. STATUTORY CONSTRUCTION AND INTERPRETATION; SPECIFIC STANDARD
FOLLOWING A GENERAL ENUMERATION CANNOT GO BEYOND THE SCOPE OF THE
LATTER. While the law's enumeration is concededly not exclusive, inclusion of
other standards should be made in the strict context of the words "immoral,
indecent, contrary to law and/or good customs." Specific standards following a
general enumeration cannot go beyond the scope of the latter.
7. ID.; CENSORSHIP LAW; WORD "INDECENT" CONFINED TO OBSCENITY
REGULATION. The word "indecent" in censorship law has a narrow meaning,
confined to obscenity regulation. It cannot be conveniently employed as a catch-all
term embracing all forms of expression considered noxious by the Board.
8. ADMINISTRATIVE LAW; P.D. 1986; OMISSION OF "ATTACK AGAINST ANY RELIGION,"
MANIFEST INTENTION TO DO AWAY WITH THAT STANDARD. In the light of what
the Solicitor General describes as the "transitional" nature of P.D. 1986, the better
view would be that the omission of "attack against any religion" among the
enumerated standards was intentional and part of the evolving process of
fashioning a system of strict classification of films and television programs as
opposed to censorship. As this phrase was ubiquitous in the old censorhip law

(particularly E.O. 868 and E.O. 876), its elimination in P.D. 1986 expresses the
manifest intention of the law-making authority to do away with the standard.
9. ID.; ID.; PHRASE "CONTRARY TO LAW" CANNOT AND SHOULD NOT BE
UNDERSTOOD TO REFER TO ARTICLE 201 OF THE REVISED PENAL CODE. The
phrase "contrary to law" cannot and should not be understood to refer to Article 201
of the Revised Penal Code, as respondents mistakenly suggest. Article 201 deals
with the subject of subsequent punishment; P.D. 1986 clearly treats with an
altogether different matter prior restraint and censorship. The two laws stand at
opposite poles in the continuum of regulation and punishment.

10. REMEDIAL LAW; JURISDICTION; DETERMINATION OF QUESTION AS TO WHETHER

OR NOT VILIFICATIONS, EXAGGERATION FALLS WITHIN OR LIES OUTSIDE THE
BOUNDARIES OF FREE SPEECH AND EXPRESSION, A JUDICIAL FUNCTION. We are
faced with a case of censorship and restraint which, I stated earlier, touches upon
one of the most private and sensitive of domains: the realm of religious freedom,
thought and expression. In this domain, sharp differences may arise such that the
tenets of one individual may seem the "rankest error" to his neighbor. In the process
of persuading others about the validity of his point of view, the preacher sometimes
resorts to exaggeration and vilification. However, the determination of the question
as to whether or not such vilification, exaggeration or fabrication falls within or lies
outside the boundaries of protected speech or expression is a judicial function which
cannot be arrogated by an administrative body such as a Board of Censors. Even if
the exercise of the liberties protected by the speech, expression and religion clauses
of our Constitution are regarded as neither absolute nor unlimited, there are
appropriate laws which deal with such excesses. The least restrictive alternative
would be to impose subsequent sanctions for proven violations of laws, rather than
inflict prior restraints on religious expression. Our penal law punishes libel, or acts or
speeches offensive to other religions, and awards damages whenever warranted. In
our legal scheme, courts essentially remains the arbiters of controversies affecting
the civil and political rights of persons. It is our courts which determine whether or
not certain forms of speech and expression have exceeded the bounds of
correctness, propriety or decency as to fall outside the area of protected speech. In
the meantime, the liberties protected by the speech and expression and free
exercise clauses are so essential to our society that they should be allowed to
flourish unobstructed and unmolested.
11. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; ACTS OF PRIOR
RESTRAINT, HOBBLED BY PRESUMPTION OF INVALIDITY; FAILURE BY THE BOARD OF
REVIEW FOR MOTION PICTURE AND TELEVISION TO OVERTHROW PRESUMPTION.
The majority opinion professes fealty to freedom of religion which, it openly admits,
has been accorded a preferred status by the framers of our fundamental laws, and
affirms that "(D)eeply ensconced in our fundamental law is its hostility against all
prior restraints on speech, including speech." The majority then adds pointedly that
"acts of prior restraint are hobbled by the presumption of invalidity and should be
greeted with furrowed brows. It is the burden of the respondent Board to overthrow

this presumption. If it fails to discharge this heavy burden, its acts of censorship will
be struck down. It failed in the case at bar.
12. ID.; ID.; CANNOT BE DEROGATED PEREMPTORILY BY AN ADMINISTRATIVE BODY
OR OFFICE WHO DETERMINES WHETHER OR NOT TO ALLOW THE EXERCISE OF
SUCH FREEDOM. The ruling in Sotto vs. Ruiz cannot be invoked as authority to
allow MTRCB to review petitioner's TV programs. In that case, the Court held that
the Acting Director of the Bureau of Posts is vested with authority to determine what
mail matter is obscene, lewd, filthy or libelous, pursuant to Section 1954 of the old
Administrative Code which provides, among others, that no lewd, lascivious, filthy,
indecent or libelous character shall be deposited in, or carried by, the mails of the
Philippine Island, or be delivered to its addressee by any officer or employee of the
Bureau of Posts. Petitioner's programs which are televised in the exercise of
freedom of worship cannot be placed in the category of the printed matter
proscribed in the old Administrative Code. Freedom of worship is such a precious
commodity in our hierarchy of civil liberties that it cannot be derogated
peremptorily by an administrative body or officer who determines, without judicial
safeguards, whether or not to allow the exercise of such freedom. The rights of free
expression and free exercise of religion occupy a unique and special place in our
constellation of civil rights. The primacy our society accords these freedoms
determines the mode it chooses to regulate their expression. But the idea that an
ordinary statute or decree could, by its effect, nullify both the freedom of religion
and the freedom of expression puts an ominous gloss on these liberties. Censorship
law as a means of regulation and as a form of prior restraint is anathema to a
society which places high significance to these values.
MENDOZA, J., separate opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND EXPRESSION;
GROUNDS FOR CENSORSHIP. Censorship may be allowed only in a narrow class of
cases involving pornography, excessive violence, and danger to national security.
2. ADMINISTRATIVE LAW; P.D. 1986; POWER OF THE BOARD TO CENSOR MOTION
PICTURES AND TV PROGRAMS, NOT FINAL; AGGRIEVED PARTY MAY RESORT TO
COURTS. Even in these cases, only courts can prohibit the showing of a film or
the broadcast of a program. In all other cases, the only remedy against speech
which creates a clear and present danger to public interests is through subsequent
punishment. Considering the potentiality for harm which motion pictures and TV
programs may have especially on the young, all materials may validly be required
to be submitted for review before they may be shown or broadcast. However, the
final determination of character of the materials cannot be left to an administrative
agency. That judicial review of administrative action is available does not obviate
the constitutional objection to censorship. For these reasons, I would hold Sec. 3(b)
of P.D. No. 1986, which gives to the Board limited time for review, to be valid, while
finding Sec. 3(c), under which the Board acted in this case in censoring petitioner's
materials to be, on its face and as applied, unconstitutional.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND EXPRESSION,
PREFERRED RIGHTS; PRIOR RESTRAINT ON THEIR EXERCISE CARRIES WITH IT A

PRESUMPTION OF INVALIDITY. At the very least, free speech and free press may
be identified with the liberty to discuss publicly and truthfully any matter of public
interest without censorship or punishment. 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. Because of the preferred character of the constitutional rights of freedom
of speech and expression, a weighty presumption of invalidity vitiates measures of
prior restraint upon the exercise of such freedoms.
4. ID.; ID.; ID.; TYPES OF PRIOR RESTRAINTS. Authoritative interpretations of the
free speech clause consider as invalid two types of prior restraints, namely, those
which are imposed prior to the dissemination of any matter and those imposed prior
to an adequate determination that the expression is not constitutionally protected.
5. ADMINISTRATIVE LAW; P.D. No. 1986; SEC 3(b) THEREOF REQUIRING THE
SUBMISSION OF MOTION PICTURES, TV PROGRAMS AND PUBLICITY MATERIALS TO
THE BOARD FOR REVIEW DOES NOT CONSTITUTE PRIOR RESTRAINT ON FREEDOM
OF SPEECH AND EXPRESSION. P.D. No. 1986, Sec. 3(b) requires motion pictures,
television programs and publicity materials to be submitted to the Board for review.
Does Sec. 3(b) impermissibly impose a prior restraint because of its requirement
that films and TV programs must be submitted to the Board for review before they
can be shown or broadcast? In my view it does not. The Burstyn case, in declaring
motion pictures to be protected under the free expression clause, was careful to
add: "It does not follow that the Constitution requires absolute freedom to exhibit
every motion picture of every kind at all times and all places. . . . Nor does it follow
that motion pictures are necessarily subject to the precise rules governing any other
particular method of expression. Each method tends to present its own peculiar
problems." With reference to television, this Court is on record that "a less liberal
approach calls for observance. This is so because unlike motion pictures where
patrons have to pay their way, television reaches every home where there is a [TV]
set. Children then will likely be among the avid viewers of programs therein
shown . . . .[T]he State as parens patriae is called upon to manifest an attitude of
caring for the welfare of the young." I hold Sec. 3(b) to be a valid exercise of the
State's power to protect legitimate public interests. The purpose of this restraint
temporary in character is to allow the Board time to screen materials and to seek
an injunction from the courts against those which it believes to be harmful.
6. ID.; ID.; SEC 3(c) AUTHORIZING THE BOARD TO PROHIBIT THE EXHIBITION OF
MOTION PICTURES, TV PROGRAMS AND PUBLICITY MATERIALS WHICH IN THE
BOARD'S OPINION ARE IMMORAL, INDECENT, CONTRARY TO LAW AND/OR GOOD
CUSTOMS, INJURIOUS TO THE REPUBLIC OR ITS PEOPLE OR WHICH HAVE A
DANGEROUS TENDENCY TO ENCOURAGE COMMISSION OF VIOLENCE, WRONG OR A
CRIME CONSTITUTES CENSORSHIP IN ITS BOLDEST FORM. I reach a different
conclusion, however, with respect to Sec. 3(c). This provision authorizes the Board
to prohibit, among other things, the exhibition or broadcast of motion pictures,
television programs and publicity materials which, in its opinion, are "immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the

Republic of the Philippines or its people, or [which have] a dangerous tendency to

encourage the commission of violence or of a wrong or crime." Under this authority,
the Board can determine what can be shown or broadcast and what cannot. It is not
true, as the Board claims, that under P.D. No. 1986 its power is limited to the
classification of motion pictures and TV programs. The power to classify includes the
power to censor. The Board can x-rate films and TV programs and thus ban their
public exhibition or broadcast. And once it declares that a motion picture or
television program is, for example, indecent or contrary to law, as in the case of the
INC program in question, its declaration becomes the law. Unless the producer or
exhibitor is willing to go to court, shouldering not only the burden of showing that
his movie or television program is constitutionally protected but also the cost of
litigation, the ban stays. This is censorship in its boldest form. This is contrary to the
fundamental tenet of our law that until and unless speech is found by the courts to
be unprotected its expression must be allowed. By authorizing the censorship of
materials which in the opinion of the Board are "contrary to law, Sec. 3(c) makes
what is only a ground for subsequent punishment also a ground for prior restraint on
expression. It is Sec. 3(c) of P.D. No. 1986, and not only the rules implementing it,
which is unconstitutional. To the extent therefore that P.D. No. 1986, Sec. 3(c) vests
in the Board the final authority to determine whether expression by motion picture
or television is constitutionally protected, I find it unconstitutional.

7. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND EXPRESSION;

CLEAR AND PRESENT DANGER RULE; DETERMINATION OF APPLICABILITY OF RULE
REQUIRES FACTUAL RECORD. The clear and present danger test has been
devised for use in criminal prosecutions for violations of laws punishing certain
types of utterances. While the test has been applied to the regulation of the use of
streets and parks surely a form of prior restraint its use in such context can be
justified on the ground that the content of the speech is not the issue. But when the
regulation concerns not the time, place or manner of speech but its content (i.e., it
is content based) the clear and present danger test simply cannot be applied. This
is because a determination whether an utterance has created a clear and present
danger to public interests requires a factual record.
PANGANIBAN, J., separate (concurring) opinion:
1. ADMINISTRATIVE LAW; P.D. No. 1986 (MTRCB); STATUTORY POWERS ARE LIMITED
BY THE BILL OF RIGHTS. The statutory powers of the MTRCB are set forth in Sec. 3
of P.D. 1986. In implementing P.D. 1986, the MTRCB issued its own Rules and
Regulations. At issue in this case is Section 4 of such Rules. On the other hand,
these statutory powers and internally generated regulations are limited by the Bill
of Rights, Art. III of the 1987 Constitution, particularly the rights to free speech and
religion.
2. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; ABSOLUTE
WHEN CONFINED WITHIN THE REALM OF THOUGHT BUT SUBJECT TO REGULATION
WHEN TRANSFORMED INTO EXTERNAL ACTS. "(F)reedom of religion has been
accorded a preferred status by the framers of our fundamental laws, past and

present." Religious freedom is absolute when it is confined within the realm of

thought to a private, personal relationship between a man's conscience and his
God, but it is subject to regulation when religious belief is transformed into external
acts that affect or afflict others. The mere invocation of religious freedom will not
stalemate the State and ipso facto render it incompetent in preserving the rights of
others and in protecting the general welfare.
3. ADMINISTRATIVE LAW; P.D. No. 1986 (MTRCB); BASIC POWERS. As an agency of
the State created to promote the general welfare, the MTRCB under P.D. 1986has
the basic initiatory authority and power, to "approve or disapprove, delete
objectionable portion from and/or prohibit the importation, exportation, production,
copying distribution, sale, lease, exhibition and/or prohibit the importation,
exportation,
production,
copying
distribution,
sale,
lease,
exhibition
and/or television broadcast" of pre-taped or canned (as contra-distinguished from
"live") video-audio/film/television programs and publicity materials.
4. ID.; ID.; ID.; AUTHORITY EXTENDS TO BOTH NON-RELIGIOUS AND RELIGIOUS
VIDEO MATERIALS. Petitioner INC contends that the MTRCB's authority extends
only to non-religious video materials but not to religious programs, particularly
those of INC, which it claims are neither "immoral" nor "indecent." This position
presents more problems than solutions. For who will determine whether a given
canned material is religions or not, and therefore whether it can be publicly
exhibited or not without its passing through the Board? I would prefer that the State,
which is constitutionally mandated to be neutral, continue to exercise the power to
make such determination, rather than leave it up to the producer, maker, or
exhibitor of such matter, who/which, because of vested interests would, in the
normal course, be understandably biased in his/its own favor. I feel less discomfort
with the idea of maintaining the censors' quasi-judicial authority to review such film
materials, subject to appeal to the proper courts aggrieved parties, than with the
prospect and consequences of doing away with such power altogether. I agree with
Mr. Justice Vitug in finding "it more prudent to have a deferment of an exhibition
that may be perceived (by the Board) to be contrary to decency, morality, good
custom or the law until at least, the courts are given an opportunity to pass upon
the matter . . ." A contrary ruling would most regrettably remove meaningful and
necessary safeguards against a veritable floodtide of prurient, violence-prone and
values-eroding television shows and programs.
5. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; POWER OF
REVIEW AND PROHIBITION THRU THE MTRCB, STATE'S EXERCISE OF ITS ROLE
ASPARENS PATRIAE. Gonzales vs. Kalaw Katigbak and Eastern Broadcasting Corp.
(DYRE) vs. Dans, Jr., this Court early on acknowledged the uniquely pervasive
presence of broadcast and electronic media in the lives of everyone, and the easy
accessibility of television and radio to just about anyone, especially children.
Everyone is susceptible to their influence, even "the indifferent or unwilling who
happen to be within reach of a blaring radio or television set." And these audiences
have less opportunity to cogitate, analyze and reject the utterances, compared to
readers of printed material. It is precisely because the State as parens patriae is

"called upon to manifest an attitude of caring for the welfare of the young" that I
vote for the retention of the State's power of review and prohibition via the MTRCB.
6. ADMINISTRATIVE LAW; P.D. No. 1986 (MTRCB); EXERCISE OF POWERS OF REVIEW
AND PROHIBITION SUBJECT TO CONSTITUTIONAL STANDARD. In exercising its
prerogatives, the MTRCB cannot act absolutely or whimsically. It must act prudently.
And it can do so ONLY if it exercises its powers of review and prohibition according
to a standard and/or a limit.
7. ID.; ID.; ID.; PHRASE "WITH A DANGEROUS TENDENCY" IN SEC. 3-C,
UNCONSTITUTIONAL. I believe that the phrase "with a dangerous tendency" in
Sec. 3-c ofP.D. 1986 should be struck down as an unconstitutional standard. This is
martial law vintage and should be replaced with the more libertarian "clear and
present danger rule" which is eloquently explained by JJ. Kapunan, Puno and
Mendoza (and which explanation I shall not repeat here). On the other hand, when
the question is whether the material being reviewed "encourages the commission of
violence or of a wrong or crime" per the enumeration contained in Sec. 3-c, the
"clear and present danger" principle should be applied as the standard in place of
the "dangerous tendency" rule.
8. ID.; ID.; ID.; CONTEMPORARY PHILIPPINE CULTURAL VALUES MORE APPROPRIATE
STANDARD. There is an even more appropriate standard in the Philippine
context proffered by the law itself, and that is "contemporary Philippine cultural
values." This standard under the law, should be used in determining whether a film
or video program is "(a) immoral, (b) indecent, (c) contrary to law and/or good
customs, and (d) injurious to the prestige of the Republic of the Philippines or its
people."
9. ID.; ID.; INTERNAL RULES AND REGULATIONS SHOULD BE READ TOGETHER WITH
OTHER EXISTING LAWS. Anent the validity of Sec. 4 of the Board's Rules and
Regulation authorizing MTRCB to prohibit the showing of materials "which clearly
constitute an attack against any race, creed or religion . . .," I agree with Mr. Justice
Vitug that the phrase "contrary to law" in Sec. 3-c "should be read together with
other existing laws such as, for instance, the provisions of the Revised Penal Code,
particularly Article 201, which prohibit the exhibition of shows that 'offend another
race or religion'." I note, in this connection, the caveat raised by the ponencia that
the MTRCB Rule bans shows which "attack" a religion, whereas Art. 201 merely
penalizes those who exhibit programs which "offend" such religion. Subject to
changing the word "attack" with the more accurate "offend," I believe Section 4 of
the Rules can stand. In sum, I respectfully submit (1) that P.D. 1986 is constitutional,
subject to the substitution (or interpretation) of the words "dangerous tendency"
with the phrase (or as meaning) "clear and present danger" in Sec. 3-c; and (2) that
Sec. 4 of the Board's Rules would be likewise valid, provided the words "constitute
an attack" are changed with "offend."
10. REMEDIAL LAW; EVIDENCE; PRESUMPTION THAT OFFICIAL DUTIES HAVE BEEN
REGULARLY PERFORMED; MUST YIELD TO FREEDOMS OF EXPRESSION AND
RELIGION. The tape in question was never submitted to the Court for viewing.
Neither was there a detailed description of its objectionable contents in the assailed

Decision of the Court of Appeals or Regional Trial Court. Nor is there extant a
detailed justification prepared by respondent Board on why it banned the program
other than its bare conclusion that the material constituted an attack against the
Catholic and Protestant religions. In no wise can the "remarks" in the voting slips
presented before the trial court be considered sufficient justification for banning the
showing of any material. In the face of such inadequacy of evidence and basis, I see
no way that this Court could authorize a suppression of a species of the freedom of
speech on the say-so of anyone not even the MTRCB. Paraphrasing People
vs.Fernando, the disputable presumption (which is of statutory origin) that official
duties have been regularly performed must yield to the constitutionally enshrined
freedoms of expression and of religion. If courts are required to state the factual and
legal bases of their conclusions and judicial dispositions, with more reason must
quasi-judicial officers such as censors, especially when they curtail a fundamental
right which is "entitled to the highest priority and amplest protection."
VITUG, J., separate opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; OCCUPIES AN
EXALTED POSITION. Religious freedom occupies an exalted position in our
hierarchy of rights and that the freedom to disseminate religious information is a
constitutionally-sanctioned prerogative that allows any legitimate religious
denomination a free choice of media in the propagation of its credo. Like any other
right, however, the exercise of religious belief is not without inherent and statutory
limitations.

2. ADMINISTRATIVE LAW; P.D. 1986 (BOARD OF REVIEW FOR MOTION PICTURES AND
TELEVISION); POWER TO DELETE OBJECTIONABLE PORTIONS OF T.V. PROGRAMS FOR
BEING CONTRARY TO LAW; PHRASE "CONTRARY TO LAW" SHOULD BE READ
TOGETHER WITH OTHER EXISTING LAWS. The Board disapproved the exhibition of
a series of television programs of petitioner on the ground that they tend to "offend
and constitute an attack against other religions." An opinion has been expressed
that the non-inclusion in Section 3 of P.D. 1986 of an "attack against any religion,"
as a standard for classification, and so the deletion of the phrase "offensive to other
religions" found in the old censorship law (Executive Order No. 876), should be clear
enough to manifest a legislative intent "to do away with the standard." A reading of
Section 3 of P.D. 1986 shows that the Board is empowered to "screen, review and
examine all . . . television programs" and to "approve or disprove, delete
objectionable portion from and/or prohibit the . . . television broadcast of . . .
television programs . . . which, in the judgment of the BOARD (so) applying
contemporary Filipino cultural values as standard, are objectionable for being
immoral indecent, contrary to law and/or good customs . . ." I believe that the
phrase "contrary to law" should be read together with other existing laws such as,
for instance, the provisions of the Revised Penal Code, particularly Article 201,
which prohibits the exhibition of shows that "offend another race or religion." I see
in this provision a good and sound standard. Recent events indicate recurrent
violent incidents between and among communities with diverse religious beliefs and

dogma. The danger is past mere apprehension; it has become a virtual reality and
now prevalent in some parts of the world.
3. ID.; ID.; ID.; RESTRICTION MUST BE FOR LEGITIMATE AND VALID REASONS. In
order not to infringe constitutional principles, any restriction by the Board must, of
course, be for legitimate and valid reasons.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; PRIOR
CENSORSHIP SHOULD NOT BE REJECTED. I certainly do not think that prior
censorship should altogether be rejected just because sanctions can later be
imposed. Regulating the exercise of a right is not necessarily an anathema to it; in
fact, it can safeguard and secure that right.
DECISION
PUNO, J p:
This is a petition for review of the Decision dated March 24, 1995 of the respondent
Court of Appeals affirming the action of the respondent Board for Motion Pictures
and Television which x-rated the TV Program "Ang Iglesia ni Cristo."
Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television
program entitled "Ang Iglesia ni Cristo" aired on Channel 2 every Saturday and on
Channel 13 every Sunday. The program presents and propagates petitioner's
religious beliefs, doctrines and practices often times in comparative studies with
other religions.
Sometime in the months of September, October and November 1992, petitioner
submitted to the respondent Board of Review for Motion Pictures and Television the
VTR tapes of its TV program Series Nos. 116, 119, 121 and 128. The Board classified
the series as "X" or not for public viewing on the ground that they "offend and
constitute an attack against other religions which is expressly prohibited by law."
Petitioner pursued two (2) courses of action against the respondent Board. On
November 28, 1992, it appealed to the Office of the President the classification of its
TV Series No. 128. It succeeded in its appeal for on December 18, 1992, the Office
of the President reversed the decision of the respondent Board. Forthwith, the Board
allowed Series No. 128 to be publicly telecast.
On December 14, 1992, petitioner also filed against the respondent Board Civil Case
No. Q-92-14280, with the RTC, NCR, Quezon City. 1 Petitioner alleged that the
respondent Board acted without jurisdiction or with grave abuse of discretion in
requiring petitioner to submit the VTR tapes of its TV program and in x-rating them.
It cited its TV Program Series Nos. 115, 119, 121 and 128. In their Answer,
respondent Board invoked its power under PD No. 1986 in relation to Article 201 of
the Revised Penal Code.
On January 4, 1993, the trial court held a hearing on petitioner's prayer for a writ of
preliminary injunction. The parties orally argued and then marked their
documentary evidence. Petitioner submitted the following as its exhibits, viz.:

(1) Exhibit "A," respondent Board's Voting Slip for Television showing its September
9, 1992 action on petitioner's Series No. 115 as follows: 2
REMARKS:
There are some inconsistencies in the particular program as it is very surprising for
this program to show series of Catholic ceremonies and also some religious sects
and using it in their discussion about the bible. There are remarks which are direct
criticism which affect other religions.
Need more opinions for this particular program. Please subject to more opinions.
(2) Exhibit "A-1," respondent Board's Voting Slip for Television showing its
September 11, 1992 subsequent action on petitioner's Series No. 115 as follows: 3
REMARKS:
This program is criticizing different religions, based on their own interpretation of
the Bible.
We suggest that the program should delve on explaining their own faith and beliefs
and avoid attacks on other faith.
(3) Exhibit "B," respondent Board's Voting Slip for Television showing its October 9,
1992 action on petitioner's Series No. 119, as follows: 4
REMARKS:
The Iglesia ni Cristo insists on the literal translation of the bible and says that our
(Catholic) veneration of the Virgin Mary is not to be condoned because nowhere it is
found in the bible that we should do so.
This is intolerance and robs off all sects of freedom of choice, worship and decision.
(4) Exhibit "C," respondent Board's Voting Slip for Television showing its October 20,
1992 action on petitioner's Series No. 121 as follows: 5
REMARKS:
I refuse to approve the telecast of this episode for reasons of the attacks, they do
on, specifically, the Catholic religion.
I refuse to admit that they can tell, dictate any other religion that they are right and
the rest are wrong, which they clearly present in this episode.
(5) Exhibit "D," respondent Board's Voting Slip for Television showing its November
20, 1992 action on petitioner's Series No. 128 as follows: 6
REMARKS:
The episode presented criticizes the religious beliefs of the Catholic and Protestant's
beliefs.
We suggest a second review.

(6) Exhibits "E," "E-1," petitioner's block time contract with ABS-CBN Broadcasting
Corporation dated September 1, 1992. 7
(7) Exhibit "F," petitioner's Airtime Contract with Island Broadcasting Corporation. 8
(8) Exhibit "G," letter dated December 18, 1992 of former Executive Secretary
Edelmiro A. Amante, Sr., addressed to Henrietta S. Mendez reversing the decision of
the respondent Board which x-rated the showing of petitioner's Series No. 129. The
letter reads in part:
"xxx xxx xxx
The television episode in question is protected by the constitutional guarantee of
free speech and expression under Article III, section 4 of the 1987 Constitution.
We have viewed a tape of the television episode in question, as well as studied the
passages found by MTRCB to be objectionable and we find no indication that the
episode poses any clear and present danger sufficient to limit the said constitutional
guarantee."
(9) Exhibits "H," "H-1," letter dated November 26, 1992 of Teofilo C. Ramos, Sr.,
addressed to President Fidel V. Ramos appealing the action of the respondent Board
x-rating petitioner's Series No. 128.
On its part, respondent Board submitted the following exhibits, viz.:
(1) Exhibit "1," Permit Certificate for Television Exhibition No. 15181 dated
December 18, 1992 allowing the showing of Series No. 128 under parental
guidance.
(2) Exhibit "2," which is Exhibit "G" of petitioner.
(3) Exhibit "3," letter dated October 12, 1992 of Henrietta S. Mendez, addressed to
the Christian Era Broadcasting Service which reads in part:
xxx xxx xxx
In the matter of your television show "Ang Iglesia ni Cristo" Series No. 119, please
be informed that the Board was constrained to deny your show a permit to exhibit.
The material involved constitute an attack against another religion which is
expressly prohibited by law. Please be guided in the submission of future shows.
After evaluating the evidence of the parties, the trial court issued a writ of
preliminary injunction on petitioner's bond of P10,000.00.
The trial court set the pre-trial of the case and the parties submitted their pre-trial
briefs. 9 The pre-trial briefs show that the parties' evidence is basically the evidence
they submitted in the hearing of the issue of preliminary injunction. The trial of the
case was set and reset several times as the parties tried to reach an amicable
accord. Their efforts failed and the records show that after submission of
memoranda, the trial court rendered a Judgment, 10 on December 15, 1993, the
dispositive portion of which reads:

"xxx xxx xxx

WHEREFORE, judgment is hereby rendered ordering respondent Board of Review for
Motion Pictures and Television (BRMPT) to grant petitioner Iglesia ni Cristo the
necessary permit for all the series of 'Ang Iglesia ni Cristo' program.
Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and
attacking other existing religions in showing 'Ang Iglesia ni Cristo' program.
SO ORDERED."
Petitioner moved for reconsideration 11 praying: (a) for the deletion of the second
paragraph of the dispositive portion of the Decision, and (b) for the Board to be
perpetually enjoined from requiring petitioner to submit for review the tapes of its
program. The respondent Board opposed the motion. 12 On March 7, 1993, the trial
court granted petitioner's Motion for Reconsideration. It ordered: 13

"xxx xxx xxx

WHEREFORE, the Motion for Reconsideration is granted. The second portion of the
Court's Order dated December 15, 1993, directing petitioner to refrain from
offending and attacking other existing religions in showing 'Ang Iglesia ni Cristo'
program is hereby deleted and set aside. Respondents are further prohibited from
requiring petitioner Iglesia ni Cristo to submit for review VTR tapes of its religious
program 'Ang Iglesia ni Cristo'."
Respondent Board appealed to the Court of Appeals after its motion for
reconsideration was denied. 14
On March 5, 1995, the respondent Court of Appeals 15 reversed the trial court. It
ruled that: (1) the respondent board has jurisdiction and power to review the TV
program "Ang Iglesia ni Cristo," and (2) the respondent Board did not act with grave
abuse of discretion when it denied permit for the exhibition on TV of the three series
of "Ang Iglesia ni Cristo" on the ground that the materials constitute an attack
against another religion. It also found the series "indecent, contrary to law and
contrary to good customs."
In this petition for review on certiorari under Rule 45, petitioner raises the following
issues:
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
THE 'ANG IGLESIA NI CRISTO' PROGRAM IS NOT CONSTITUTIONALLY PROTECTED AS
A FORM OF RELIGIOUS EXERCISE AND EXPRESSION.
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING
THAT BEING AN EXERCISE OF RELIGIOUS FREEDOM, THE 'ANG IGLESIA NI CRISTO'

PROGRAM IS SUBJECT TO THE POLICE POWER OF THE STATE ONLY IN THE EXTREME
CASE THAT IT POSES A CLEAR AND PRESENT DANGER.
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
THE MTRCB IS VESTED WITH THE POWER TO CENSOR RELIGIOUS PROGRAMS.
IV
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
THE 'ANG IGLESIA NI CRISTO,' A PURELY RELIGIOUS PROGRAM IS INDECENT AND
CONTRARY TO LAW AND GOOD CUSTOMS.
The basic issues can be reduced into two: (1) first, whether the respondent Board
has the power to review petitioner's TV program "Ang Iglesia ni Cristo," and (2)
second, assuming it has the power, whether it gravely abused its discretion when it
prohibited the airing of petitioner's religious program, series Nos. 115, 119 and 121,
for the reason that they constitute an attack against other religions and that they
are indecent, contrary to law and good customs.
The first issue can be resolved by examining the powers of the Board under PD No.
1986. Its section 3 pertinently provides:
"Sec. 3 Powers and Functions. The BOARD shall have the following functions,
powers and duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for theatrical or nontheatrical distribution for television broadcast or for general viewing, imported or
produced in the Philippines and in the latter case, whether they be for local viewing
or for export.
c) To approve, delete objectionable portion from and/or prohibit the importation,
exportation, production, copying, distribution, sale, lease, exhibition and/or
television broadcast of the motion pictures, television programs and publicity
materials, subject of the preceding paragraph, which, in the judgment of the BOARD
applying contemporary Filipino cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines and its people, or with a dangerous
tendency to encourage the commission of violence or of a wrong or crime, such as
but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion or sedition against
the State, or otherwise threaten the economic and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities.

iii) Those which glorify criminals or condone crimes;

iv) Those which serve no other purpose but to satisfy the market for violence or
pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead;
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal,
or pertain to matters which are sub-judice in nature (emphasis ours).
The law gives the Board the power to screen, review and examine all "television
programs." By the clear terms of the law, the Board has the power to "approve,
delete . . . and/or prohibit the . . . exhibition and/or television broadcast of . . .
television programs . . ." The law also directs the Board to apply "contemporary
Filipino cultural values as standard" to determine those which are objectionable for
being "immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines and its people, or with a dangerous
tendency to encourage the commission of violence or of a wrong or crime."
Petitioner contends that the term "television program" should not include religious
programs like its program "Ang Iglesia ni Cristo." A contrary interpretation, it is
urged, will contravene section 5, Article III of the Constitution which guarantees that
"no law shall be made respecting an establishment of religion, or prohibiting the
free exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed."
We reject petitioner's submission which need not set us adrift in a constitutional
voyage towards an uncharted sea. Freedom of religion has been accorded
a preferred status by the framers of our fundamental laws, past and present. We
have affirmed this preferred status well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to live as he believes he ought to live,
consistent with the liberty of others and with the common good." 16 We have also
laboriously defined in our jurisprudence the intersecting umbras and penumbras of
the right to religious profession and worship. To quote the summation of Mr. Justice
Isagani Cruz, our well-known constitutionalist: 17
Religious Profession and Worship
The right to religious profession and worship has a two-fold aspect, viz., freedom to
believe and freedom to act on one's beliefs. The first is absolute as long as the
belief is confined within the realm of thought. The second is subject to regulation
where the belief is translated into external acts that affect the public welfare.
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the
hereafter. He may indulge his own theories about life and death; worship any god he
chooses, or none at all; embrace or reject any religion; acknowledge the divinity of

God or of any being that appeals to his reverence; recognize or deny the
immortality of his soul in fact, cherish any religious conviction as he and he alone
sees fit. However absurd his beliefs may be to others, even if they be hostile and
heretical to the majority, he has full freedom to believe as he pleases. He may not
be required to prove his beliefs. He may not be punished for his inability to do so.
Religion, after all, is a matter of faith. 'Men may believe what they cannot prove.'
Every one has a right to his beliefs and he may not be called to account because he
cannot prove what he believes.
(2) Freedom to Act on One's Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the
public, his freedom to do so becomes subject to the authority of the State. As great
as this liberty may be, religious freedom, like all the other rights guaranteed in the
Constitution, can be enjoyed only with a proper regard for the rights of others. It is
error to think that the mere invocation of religious freedom will stalemate the State
and render it impotent in protecting the general welfare. The inherent police power
can be exercised to prevent religious practices inimical to society. And this is true
even if such practices are pursued out of sincere religious conviction and not merely
for the purpose of evading the reasonable requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: 'The constitutional provision on religious
freedom terminated disabilities, it did not create new privileges. It gave religious
liberty, not civil immunity. Its essence is freedom from conformity to religious
dogma, not freedom from conformity to law because of religious dogma.
Accordingly, while one has full freedom to believe in Satan, he may not offer the
object of his piety a human sacrifice, as this would be murder. Those who literally
interpret the Biblical command to "go forth and multiply" are nevertheless not
allowed to contract plural marriages in violation of the laws against bigamy. A
person cannot refuse to pay taxes on the ground that it would be against his
religious tenets to recognize any authority except that of God alone. An atheist
cannot express his disbelief in acts of derision that wound the feelings of the
faithful. The police power can be validly asserted against the Indian practice of
the suttee born of deep religious conviction, that calls on the widow to immolate
herself at the funeral pile of her husband.
We thus reject petitioner's postulate that its religious program is per se beyond
review by the respondent Board. Its public broadcast on TV of its religious program
brings it out of the bosom of internal belief. Television is a medium that reaches
even the eyes and ears of children. The Court iterates the rule that the exercise of
religious freedom can be regulated by the State when it will bring about the clear
and present danger of some substantive evil which the State is duty bound to
prevent, i.e., serious detriment to the more overriding interest of public health,
public morals, or public welfare. A laissez faire policy on the exercise of religion can
be seductive to the liberal mind but history counsels the Court against its blind
adoption as religion is and continues to be a volatile area of concern in our country
today. Across the sea and in our shore, the bloodiest and bitterest wars fought by
men were caused by irreconcilable religious differences. Our country is still not safe

from the recurrence of this stultifying strife considering our warring religious beliefs
and the fanaticism with which some of us cling and claw to these beliefs. Even now,
we have yet to settle the near century old strife in Mindanao, the roots of which
have been nourished by the mistrust and misunderstanding between our Christian
and Muslim brothers and sisters. The bewildering rise of weird religious cults
espousing violence as an article of faith also proves the wisdom of our rule rejecting
a strict let alone policy on the exercise of religion. For sure, we shall continue to
subject any act pinching the space for the free exercise of religion to a heightened
scrutiny but we shall not leave its rational exercise to the irrationality of man. For
when religion divides and its exercise destroys, the State should not stand still.

It is also petitioner's submission that the respondent appellate court gravely erred
when it affirmed the ruling of the respondent Board x-rating its TV Program Series
Nos. 115, 119, 121 and 128. The records show that the respondent Board
disallowed the program series for "attacking" other religions. Thus, Exhibits "A," "A1," (respondent Board's Voting Slip for Television) reveal that its reviewing members
x-rated Series 115 for ". . . criticizing different religions, based on their own
interpretation of the Bible." They suggested that the program should only explain
petitioner's ". . . own faith and beliefs and avoid attacks on other faiths." Exhibit "B"
shows that Series No. 119 was x-rated because "the Iglesia ni Cristo insists on the
literal translation of the bible and says that our Catholic veneration of the Virgin
Mary is not to be condoned because nowhere it is found in the bible that we should
do so. This is intolerance . . ." Exhibit "C" shows that Series No. 121 was x-rated ". . .
for reasons of the attacks, they do on, specifically, the Catholic religion. . . . (T)hey
can not tell, dictate any other religion that they are right and the rest are wrong . . ."
Exhibit "D" also shows that Series No. 128 was not favorably recommended because
it ". . . outrages Catholic and Protestant's beliefs." On second review, it was x-rated
because of its "unbalanced interpretations of some parts of the bible." 18 In sum,
the respondent Board x-rated petitioner's TV program series Nos. 115, 119, 121 and
128 because of petitioner's controversial biblical interpretations and its "attacks"
against contrary religious beliefs. The respondent appellate court agreed and even
held that the said "attacks" are indecent, contrary to law and good customs.
We reverse the ruling of the appellate court.
First. Deeply ensconced in our fundamental law is its hostility against all prior
restraints on speech, including religious speech. Hence, any act that restrains
speech is hobbled by the presumption of invalidity and should be greeted with
furrowed brows. 19 It is the burden of the respondent Board to overthrow this
presumption. If it fails to discharge this burden, its act of censorship will be struck
down. It failed in the case at bar.
Second. The evidence shows that the respondent Board x-rated petitioner's TV
series for "attacking" other religions, especially the Catholic church. An examination
of the evidence, especially Exhibits "A," "A-1," "B, "C," and "D" will show that the socalled "attacks" are mere criticisms of some of the deeply held dogmas and tenets
of other religions. The videotapes were not viewed by the respondent court as they

were not presented as evidence. Yet they were considered by the respondent court
as indecent, contrary to law and good customs, hence, can be prohibited from
public viewing under section 3(c) of PD 1986. This ruling clearly suppresses
petitioner's freedom of speech and interferes with its right to free exercise of
religion. It misappreciates the essence of freedom to differ as delineated in the
benchmark case ofCantwell v. Connecticut, 20 viz.:
xxx xxx xxx
In the realm of religious faith, and in that of political belief, sharp differences arise.
In both fields, the tenets of one man may seem the rankest error to his neighbor. To
persuade others to his own point of view, the pleader, as we know, at times, resorts
to exaggeration, to vilification of men who have been, or are prominent in church or
state or even to false statements. But the people of this nation have ordained in the
light of history that inspite of the probability of excesses and abuses, these liberties
are, in the long view, essential to enlightened opinion and right conduct on the part
of the citizens of democracy.
The respondent Board may disagree with the criticisms of other religions by
petitioner but that gives it no excuse to interdict such criticisms, however, unclean
they may be. Under our constitutional scheme, it is not the task of the State to favor
any religion by protecting it against an attack by another religion. Religious dogmas
and beliefs are often at war and to preserve peace among their followers, especially
the fanatics, the establishment clause of freedom of religion prohibits the State from
leaning towards any religion. Vis-a-vis religious differences, the State enjoys no
banquet of options. Neutrality alone is its fixed and immovable stance. In fine,
respondent board cannot squelch the speech of petitioner Iglesia ni Cristo simply
because it attacks other religions, even if said religion happens to be the most
numerous church in our country. In a State where there ought to be no difference
between the appearance and the reality of freedom of religion, the remedy against
bad theology is better theology. The bedrock of freedom of religion is freedom of
thought and it is best served by encouraging the marketplace of dueling ideas.
When the luxury of time permits, the marketplace of ideas demands that speech
should be met by more speech for it is the spark of opposite speech, the heat of
colliding ideas that can fan the embers of truth.
Third. The respondents cannot also rely on the ground "attacks against another
religion" in x-rating the religious program of petitioner. Even a side-glance at section
3 ofPD No. 1986 will reveal that it is not among the grounds to justify an order
prohibiting the broadcast of petitioner's television program. The ground "attack
against another religion" was merely added by the respondent Board in its
Rules. 21 This rule is void for it runs smack against the hoary doctrine that
administrative rules and regulations cannot expand the letter and spirit of the law
they seek to enforce.
It is opined that the respondent board can still utilize "attack against any religion"
as a ground allegedly ". . . because section 3 (c) of PD No. 1986 prohibits the
showing of motion pictures, television programs and publicity materials which are
contrary to law and Article 201 (2) (b) (3) of the Revised Penal Code punishes

anyone who exhibits "shows which offend any race or religion." We respectfully
disagree for it is plain that the word "attack" is not synonymous with the word
"offend." Moreover,Article 201 (2) (b) (3) of the Revised Penal Code should be
invoked to justify the subsequent punishment of a show which offends any religion.
It cannot be utilized to justify prior censorship of speech. It must be emphasized
that E.O. 876, the law prior to PD 1986, included "attack against any religion" as a
ground for censorship. The ground was not, however, carried over by PD 1986. Its
deletion is a decree to disuse it. There can be no other intent. Indeed, even the
Executive Department espouses this view. Thus, in an Opinion dated November 28,
1985 then Minister of Justice, now President of the Senate, Neptali Gonzales
explained:
"xxx xxx xxx
"However, the question whether the BRMPT (now MTRCB) may preview and censor
the subject television program of INC should be viewed in the light of the provision
of Section 3, paragraph (c) of PD 1986, which is substantially the same as the
provision of Section 3, paragraph (c) of E.O. No. 876-A, which prescribes the
standards of censorship, to wit: 'immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of the Philippines or its people or
with dangerous tendency to encourage the commission of violence, or of a wrong'
as determined by the Board, 'applying contemporary Filipino cultural values as
standard.' As stated, the intention of the Board to subject the INC's television
program to 'previewing and censorship is prompted by the fact that its religious
program' makes mention of beliefs and practices of other religion.' On the face of
the law itself, there can conceivably be no basis for censorship of said program by
the Board as much as the alleged reason cited by the Board does not appear to be
within the contemplation of the standards of censorship set by law." (Emphasis
supplied)
Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply
the clear and present danger rule. In American Bible Society v. City of
Manila, 22 this Court held: "The constitutional guaranty of free exercise and
enjoyment of religious profession and worship carries with it the right to
disseminate religious information. Any restraint of such right can be justified like
other restraints on freedom of expression on the ground that there is a clear and
present danger of any substantive evil which the State has the right to prevent."
In Victoriano vs. Elizalde Rope Workers Union, 23 we further ruled that ". . . it is only
where it is unavoidably necessary to prevent an immediate and grave danger to the
security and welfare of the community that infringement of religious freedom may
be justified, and only to the smallest extent necessary to avoid the danger."
The records show that the decision of the respondent Board, affirmed by the
respondent appellate court, is completely bereft of findings of facts to justify
theconclusion that the subject video tapes constitute impermissible attacks against
another religion. There is no showing whatsoever of the type of harm the tapes will
bring about especially the gravity and imminence of the threatened harm. Prior
restraint on speech, including religious speech, cannot be justified by hypothetical

fears but only by the showing of a substantive and imminent evil which has taken
the life of a reality already on ground.
It is suggested that we re-examine the application of clear and present danger rule
to the case at bar. In the United States, it is true that the clear and present danger
test has undergone permutations. It was Mr. Justice Holmes who formulated the test
in Schenck v. US, 24 as follows: ". . . the question in every case is whether the words
used are used in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that Congress
has a right to prevent." Admittedly, the test was originally designed to determine
the latitude which should be given to speech that espouses anti-government action.
Bannered by Justices Holmes and Brandeis, the test attained its full flowering in the
decade of the forties, when its umbrella was used to protect speech other than
subversive speech. 25 Thus, for instance, the test was applied to annul a total ban
on labor picketing. 26 The use of the test took a downswing in the 1950's when the
US Supreme Court decided Dennis v. United States involving communist
conspiracy. 27 In Dennis, the components of the test were altered as the High Court
adopted Judge Learned Hand's formulation that ". . . in each case [courts] must ask
whether the gravity of the 'evil,' discounted by its improbability, justifies such
invasion of free speech as is necessary to avoid the danger." The imminence
requirement of the test was thus diminished and to that extent, the protection of
the rule was weakened. In 1969, however, the strength of the test was reinstated
in Brandenburg v. Ohio, 28 when the High Court restored in the test the imminence
requirement, and even added an intent requirement which according to a noted
commentator ensured that only speech directed at inciting lawlessness could be
punished. 29 Presently in the United States, the clear and present danger test is not
applied to protect low value speeches such as obscene speech, commercial speech
and defamation. Be that as it may,the test is still applied to four types of speech:
speech that advocates dangerous ideas, speech that provokes a hostile audience
reaction, out of court contempt and release of information that endangers a fair
trial. 30 Hence, even following the drift of American jurisprudence, there is reason
to apply the clear and present danger test to the case at bar which concerns speech
that attacks other religions and could readily provoke hostile audience reaction. It
cannot be doubted that religious truths disturb and disturb terribly.

It is also opined that it is inappropriate to apply the clear and present danger test to
the case at bar because the issue involves the content of speech and not the time,
place or manner of speech. Allegedly, unless the speech is first allowed, its impact
cannot be measured, and the causal connection between the speech and the evil
apprehended cannot be established. The contention overlooks the fact that the case
at bar involves videotapes that are pre-taped and hence, their speech content is
known and not an X quantity. Given the specific content of the speech, it is not
unreasonable to assume that the respondent Board, with its expertise, can
determine whether its sulphur will bring about the substantive evil feared by the
law.

Finally, it is also opined by Mr. Justice Kapunan that . . . the determination of the
question as to whether or not such vilification, exaggeration or fabrication falls
within or lies outside the boundaries of protected speech or expression is a judicial
function which cannot be arrogated by an administrative body such as a Board of
Censors." He submits that a "system of prior restraint may only be validly
administered by judges and not left to administrative agencies." The same
submission is made by Mr. Justice Mendoza.
This thoughtful thesis is an attempt to transplant another American rule in our
jurisdiction. Its seedbed was laid down by Mr. Justice Brennan in his concurring
opinion in the 1962 case of Manual Enterprise v. Day. 31 By 1965, the US Supreme
Court in Freedman v. Maryland 32 was ready to hold that "the teaching of cases is
that, becauseonly a judicial determination in an adversary proceeding ensures the
necessary sensitivity to freedom of expression, only a procedure requiring a judicial
determination suffices to impose a valid final restraint." 33
While the thesis has a lot to commend itself, we are not ready to hold that it is
unconstitutional for Congress to grant an administrative body quasi-judicial power
to preview and classify TV programs and enforce its decision subject to review by
our courts. As far back as 1921, we upheld this set-up in Sotto vs. Ruiz, 34 viz.:
"The use of the mails by private persons is in the nature of a privilege which can be
regulated in order to avoid its abuse. Persons posses no absolute right to put into
the mail anything they please, regardless of its character.
On the other hand, the exclusion of newspaper and other publications from the
mails, in the exercise of executive power, is extremely delicate in nature and can
only be justified where the statute is unequivocably applicable to the supposed
objectionable publication. In excluding any publication for the mails, the object
should be not to interfere with the freedom of the press or with any other
fundamental right of the people. This is the more true with reference to articles
supposedly libelous than to other particulars of the law, since whether an article is
or is not libelous, is fundamentally a legal question. In order for there to be due
process of law, the action of the Director of Posts must be subject to revision by the
courts in case he had abused his discretion or exceeded his authority. (Ex parte
Jackson [1878], 96 U.S., 727; Public Clearing House vs. Coyne [1903], 194 U.S.,
497; Post Publishing Co. vs. Murray [1916], 23-Fed., 773)
As has been said, the performance of the duty of determining whether a publication
contains printed matter of a libelous character rests with the Director of Posts and
involves the exercise of his judgment and discretion. Every intendment of the law is
in favor of the correctness of his action. The rule is (and we go only to those cases
coming from the United States Supreme Court and pertaining to the United States
Postmaster-General), that the courts will not interfere with the decision of the
Director of Posts unless clearly of opinion that it was wrong. (Bates & Guilid Co. vs.
Payne [1904], 194 U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses Pub.
Co. vs. Patten [1917], 246 Fed., 24. But see David vs. Brown [1900], 103 Fed., 909,
announcing a somewhat different doctrine and relied upon by the AttorneyGeneral).

To be sure, legal scholars in the United States are still debating the proposition
whether or not courts alone are competent to decide whether speech is
constitutionally protected. 35 The issue involves highly arguable policy
considerations and can be better addressed by our legislators.
IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March
24, 1995 is affirmed insofar as it sustained the jurisdiction of the respondent MTRCB
to review petitioner's TV program entitled "Ang Iglesia ni Cristo," and is reversed
and set aside insofar as it sustained the action of the respondent MTRCB x-rating
petitioner's TV Program Series Nos. 115, 119, and 121. No costs.
SO ORDERED.
Regalado, Davide, Jr., Romero, Francisco, and Torres, JJ ., concur.
Narvasa, C .J ., concurs in the result.
Bellosillo, J ., is on leave.
||| (Iglesia ni Cristo v. Court of Appeals, G.R. No. 119673, July 26, 1996)

[G.R. No. 95770. March 1, 1993.]

ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents MR. & MRS.
LEONARDO EBRALINAG; JUSTINIANA TANTOG, represented by her father AMOS
TANTOG; JEMIL OYAO & JOEL OYAO, represented by their parents MR. & MRS.
ELIEZER OYAO; JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents MR. &
MRS. GODOFREDO DIAMOS; SARA OSTIA & JONATHAN OSTIA, represented by their
parents MR. & MRS. FAUSTO OSTIA; IRVIN SEQUINO & RENAN SEQUINO, represented
by their parents MR. & MRS. LYDIO SEQUINO; NAPTHALE TANACAO, represented by
his parents MR. & MRS. MANUEL TANACAO; PRECILA PINO, represented by her
parents MR. & MRS. FELIPE PINO; MARICRIS ALFAR, RUWINA ALFAR, represented by
their parents MR. & MRS. HERMINIGILDO ALFAR; FREDESMINDA ALFAR &
GUMERSINDO ALFAR, represented by their parents ABDON ALFAR; ALBERTO ALFAR &
ARISTIO ALFAR, represented by their parents MR. & MRS. GENEROSO ALFAR;
MARTINO VILLAR, represented by his parents MR. & MRS. GENARO VILLAR;
PERGEBRIEL GUINITA & CHAREN GUINITA, represented by their parents MR. & MRS.
CESAR GUINITA; ALVIN DOOP, represented by his parents MR. & MRS. LEONIDES
DOOP; RHILYN LAUDE, represented by her parents MR. & MRS. RENE LAUDE;
LEOREMINDA MONARES, represented by her parents, MR. & MRS. FLORENCIO
MONARES; MERCY MONTECILLO, represented by her parents MR. & MRS. MANUEL
MONTECILLO; ROBERTO TANGAHA, represented by his parent ILUMINADA TANGAHA;
EVELYN, MARIA & FLORA TANGAHA, represented by their parents MR. & MRS.
ALBERTO TANGAHA; MAXIMO EBRALINAG, represented by his parents, MR. & MRS.
PAQUITO EBRALINAG; JUTA CUMON, GIDEON CUMON & JONATHAN CUMON,
represented by their father RAFAEL CUMON; EVIE LUMAKANG & JUNAR LUMAKANG,
represented by their parents MR. & MRS. LUMAKANG; EMILIO SARSOZO, PAZ AMOR
SARSOZO & IGNA MARIE SARSOZO, represented by their parents MR. & MRS.
VIRGILIO SARSOZO; MICHAEL JOSEPH & HENRY JOSEPH, represented by parent

ANNIE JOSEPH; EMERSON TABLASON & MASTERLOU TABLASON, represented by their

parent EMERLITO TABLASON, petitioners, vs. THE DIVISION OF SUPERINTENDENT OF
SCHOOLS OF CEBU, respondent.
[G.R. No. 95887. March 1, 1993.]
MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO; REDFORD
ALSADO, JOEBERT ALSADO & RUDYARD ALSADO, represented by their parents MR. &
MRS. ABELARDO ALSADO; NESIA ALSADO, REU ALSADO and LILIBETH ALSADO,
represented by their parents MR. & MRS. ROLANDO ALSADO; SUZETTE NAPOLES,
represented by her parents ISMAILITO NAPOLES and OPHELIA NAPOLES; JESICA
CARMELOTES, represented by her parents MR. & MRS. SERGIO CARMELOTES; BABY
JEAN MACAPAS, represented by her parents MR. & MRS. TORIBIO MACAPAS;
GERALDINE ALSADO, represented by her parents MR. & MRS. JOEL ALSADO; RAQUEL
DEMOTOR and LEAH DEMOTOR, represented by their parents MR. & MRS.
LEONARDO DEMOTOR; JURELL VILLA and MELONEY VILLA, represented by their
parents MR. & MRS. JOVENIANO VILLA; JONELL HOPE MAHINAY, MARY GRACE
MAHINAY and MAGDALENE MAHINAY, represented by their parents MR. & MRS. FELIX
MAHINAY; JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their parents
FELIPE ANTIOLA and ANECITA ANTIOLA; MARIA CONCEPCION CABUYAO, represented
by her parents WENIFREDO CABUYAO and ESTRELLITA CABUYAO; NOEMI TURNO
represented by her parents MANUEL TURNO and VEVENCIA TURNO; SOLOMON
PALATULON, SALMERO PALATULON and ROSALINDA PALATULON, represented by
their
parents.
MARTILLANO
PALATULON
and
CARMILA
PALATULON, petitioners, vs. THE DIVISION OF SUPERINTENDENT OF SCHOOLS OF
CEBU and ANTONIO A. SANUTAN, respondents.
Felino M. Ganal for petitioners.
The Solicitor General for respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO RELIGIOUS PROFESSION AND
WORSHIP; FUNDAMENTAL RIGHT ENTITLED TO HIGHEST PRIORITY AND AMPLEST
PROTECTION: TWO-FOLD ASPECT THEREOF. Religious freedom is a fundamental
right which is entitled to the highest priority and the amplest protection among
human rights, for it involves the relationship of man to his Creator (Chief Justice
Enrique M. Fernando's separate opinion in German vs. Barangan, 135 SCRA 514,
530-531). "The right to religious profession and worship has a two-fold aspect, vis.,
freedom to believe and freedom to act on one's belief. The first is absolute as long
as the belief is confined within the realm of thought. The second is subject to
regulation where the belief is translated into external acts that affect the public
welfare" (J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177).
2. ID.; ID.; ID.; ID.; SOLE JUSTIFICATION FOR PRIOR RESTRAINT OR LIMITATION ON
EXERCISE OF RELIGIOUS FREEDOM; CASE AT BAR. "The sole justification for a
prior restraint or limitation on the exercise of religious freedom (according to the
late Chief Justice Claudio Teehankee in his dissenting opinion in German vs.
Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a

character both grave and imminent, of a serious evil to public safety, public morals,
public health or any other legitimate public interest, that the State has a right (and
duty) to prevent." Absent such a threat to public safety, the expulsion of the
petitioners from the schools is not justified. . . . 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, science, 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 for national heroes, the rights
and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987
Constitution) as part of the curricula. Expelling or banning the petitioners from
Philippine schools will bring about the very situation that this Court had feared
in Gerona. Forcing a small religious group, through the iron hand of the law, to
participate in a ceremony that violates their religious beliefs, will hardly be
conducive to love of country or respect for duly constituted authorities. As Mr.
Justice Jackson remarked in West Virginia vs. Barneta, 319 U.S. 624 (1943): ". . . To
believe that patriotism will not flourish if patriotic ceremonies are voluntary and
spontaneous instead of a compulsory routine is to make an unflattering estimate of
the appeal of our institutions to free minds. . . . When they [diversity] are so
harmless to others or to the State as those we deal with here, the price is not too
great. But freedom to differ is not limited to things that do not matter much. That
would be a mere shadow of freedom. The test of its substance is the right to differ
as to things that touch the heart of the existing order." "Furthermore, let it be noted
that coerced unity and loyalty even to the country, . . . assuming that such unity
and loyalty can be attained through coercion is not a goal that is constitutionally
obtainable at the expense of religious liberty. A desirable and cannot be promoted
by prohibited means." (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.).
3. ID.; ID.; ID.; ID.; EMPLOYEES' EXEMPTION FROM COVERAGE OF CLOSED SHOP
AGREEMENT ON ACCOUNT OF RELIGIOUS BELIEFS VALID SIMILAR EXEMPTION
ACCORDED JEHOVAH'S WITNESSES WITH REGARD TO OBSERVANCE OF FLAG
CEREMONY VALID. In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 7275, we upheld the exemption of members of the Iglesia ni Cristo, from the coverage
of a closed shop agreement between their employer and a union because it would
violate the teaching of their church not to join any labor group. ". . . It is certain that
not every conscience can be accommodated by all the laws of the land; but when
general laws conflict with scruples of conscience, exemptions ought to be granted
unless some 'compelling state interests' intervenes." (Sherbert vs. Berner 374 U.S.
Ct. 1790.) We hold that a similar exemptions may be accorded to the Jehovah's
Witnesses with regard to the observance of the flag ceremony out of respect for
their religious beliefs, however "bizarre" those beliefs may seem to others.
Nevertheless, their right not to participate in the flag ceremony does not give them
a right to disrupt such patriotic exercises. Paraphrasing the warning cited by this
Court in Non. vs. Dames II, 185 SCRA 523, 535, while the highest regard must be
afforded their right to the exercise of their religion, "this should not be taken to
mean that school authorities are powerless to discipline them" if they should
commit breaches of the peace by actions that offend the sensibilities, both religious

and patriotic, of other persons. If they quietly stand at attention during the flag
ceremony while their classmates and teachers salute the flag, sing the national
anthem and recite the patriotic pledge, we do not see how such conduct may
possibly disturb the peace, or pose "a grave and present danger of a serious evil to
public safety, public morals, public health or any other legitimate public interest
that the State has a right (and duty) to prevent" (German vs. Barangan, 135 SCRA
514, 517).
4. ID.; RIGHT TO FREE PUBLIC EDUCATION; EXPULSION OF JEHOVAH'S WITNESSES
FROM SCHOOL FOR NON-OBSERVANCE OF FLAG CEREMONY A VIOLATION THEREOF.
The expulsion of members of Jehovah's Witnesses from the schools where they
are enrolled will violate their right as Philippine citizens, under the 1987
Constitution, to receive free education, for it is the duty of the State to "protect and
promote the right of all citizens to quality education . . . and to make such education
accessible to all" (Sec. 1, Art. XIV).
CRUZ, J., concurring:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO RELIGIOUS PROFESSION AND
WORSHIP; FREEDOM TO BELIEVE; ABSOLUTE AS LONG AS BELIEFS NOT
EXTERNALIZED IN ACTS THAT OFFEND PUBLIC INTEREST. It seems to me that
every individual is entitled to choose for himself whom or what to worship or
whether to worship at all. This is a personal decision he alone can make. The
individual may worship a spirit or a person or a beast or a tree (or a flag), and the
State cannot prevent him from doing so. For that matter, neither can it compel him
to do so. As long as his beliefs are not externalized in acts that offend the public
interest, he cannot be prohibited from harboring them or punished for doing so.

In requiring the herein petitioners to participate in the flag ceremony, the State has
declared ex cathedra that they are not violating the Bible by saluting the flag. This
is to me an unwarranted intrusion into their religious beliefs, which tell them the
opposite. The State cannot interpret the Bible for them; only they can read it as
they see fit. Right or wrong, the meaning they derive from it cannot be revised or
reversed except perhaps by their own acknowledged superiors. But certainly not the
State. It has no competence in this matter. Religion is forbidden territory that the
State, for all its power and authority, cannot invade.
I am not unaware of Justice Frankfurter's admonition that "the constitutional
protection of religious freedom terminated disabilities, it did not create new
privileges. It 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."
2. ID.; ID.; FREEDOM OF SPEECH; INCLUDES RIGHT TO BE SILENT; SALUTE AS FORM
OF EXPRESSION CANNOT BE COMPELLED OR PROHIBITED IN FACE OF VALID
RELIGIOUS OBJECTIONS. Freedom of speech includes the right to be silent. Aptly
has it been said that the Bill of Rights that guarantees to the individual the liberty to
utter what is in his mind also guarantees to him the liberty not to utter what is not

in his mind. The salutes is a symbolic manner of communication that conveys its
message as clearly as the written or spoken word. As a valid form of expression, it
cannot be compelled any more than it can be prohibited in the face of valid religious
objections like those raised in this petition. To impose it on the petitioners is to deny
them the right not to speak when their religion bids them to be silent. This coercion
of conscience has no place in the free society.
The democratic system provides for the accommodation of diverse ideas, including
the unconventional and even the bizarre or eccentric. The will of the majority
prevails, but it cannot regiment thought by prescribing the recitation by rote of its
opinions or prescribing the assertion of unorthodox or unpopular views as in this
case. The conscientious objections of the petitioners, no less than the impatience of
those who disagree with them, are protected by the Constitution. The State cannot
make the individual speak when the soul within rebels.
PADILLA, J., concurring:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO RELIGIOUS PROFESSION AND
WORSHIP; HARMONIZED WITH VALID EXERCISE OF THE STATE'S FUNDAMENTAL AND
LEGITIMATE AUTHORITY TO REQUIRE HOMAGE AND HONOR TO THE FLAG. In fine,
the flag ceremony is a legitimate means to achieve legitimate (and noble) ends. For
a select few to be exempt from the flag ceremony and all that it represents even if
the exemption is predicated on respect for religious scruples, could bedivisive in its
impact on the school population or community. I would therefore submit that,
henceforth, teachers and students who because of religious scruples or beliefs
cannot actively participate in the flag ceremony conducted in the school premises
should be excluded beforehand from such ceremony. Instead of allowing the
religious objector to attend the flag ceremony and display therein his inability to
salute the flag, sing the national anthem and recite the pledge of loyalty to the
Republic, he or she should remain in the classroom while honors to the flag are
conducted and manifested in the "quadrangle" or equivalent place within school
premises; or if the flag ceremony must be held in a hall, the religious objector must
take his or her place at the rear of (or outside) the hall while those who actively
participate in the ceremony must take the front places. This arrangement can, in my
view, achieve an accommodation and, to a certain extent, harmonization of a
citizen's constitutional right to freedom of religion and a valid exercise of the State's
fundamental and legitimate authority to require homage and honor to the flag as
the symbol of the Nation.
DECISION
GRIO-AQUINO, J p:
These two special civil actions for Certiorari, Mandamus and Prohibition were
consolidated because they raise essentially the same issue: whether school children
who are members of a religious sect known as Jehovah's Witnesses may be expelled
from school (both public and private), for refusing, on account of their religious
beliefs, to take part in the flag ceremony which includes playing (by a band) or
singing the Philippine national anthem, saluting the Philippine flag and reciting the
patriotic pledge.

In G.R. No. 95770, "Rose Ebralinag, et al. vs. Division Superintendent of Schools of
Cebu and Manuel F. Biongcog, Cebu District Supervisor," the petitioners are 43 high
school and elementary school students in the towns of Daan Bantayan,
Pinamungajan, Carcar, and Taburan, Cebu province. All minors, they are assisted by
their parents who belong to the religious group known as Jehovah's Witnesses which
claims some 100,000 "baptized publishers," in the Philippines.
In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent of Schools of Cebu
and Antonio A. Sangutan," the petitioners are 25 high school and grade school
students enrolled in public schools in Asturias, Cebu, whose parents are Jehovah's
Witnesses. Both petitions were prepared by the same counsel, Attorney Felino M.
Ganal.
All the petitioners in these two cases were expelled from their classes by the public
school authorities in Cebu for refusing to salute the flag, sing the national anthem
and recite the patriotic pledge as required by Republic Act No. 1265 of July 11,
1955, and by Department Order No. 8 dated July 21, 1955 of the Department of
Education, Culture and Sports (DECS) making the flag ceremony compulsory in all
educational institutions. Republic Act No. 1265 provides:
"SECTION 1. All educational institutions shall henceforth observe daily flag
ceremony, which shall be simple and dignified and shall include the playing or
singing of the Philippine National anthem.
"SECTION 2. The Secretary of Education is hereby authorized and directed to issue
or cause to be issued rules and regulations for the proper conduct of the flag
ceremony herein provided.
SECTION 3. Failure or refusal to observe the flag ceremony provided by this Act and
in accordance with rules and regulations issued by the Secretary of Education, after
proper notice and hearing, shall subject the educational institution concerned and
its head to public censure as an administrative punishment which shall be published
at least once in a newspaper of general circulation.
"In case of failure to observe for the second time the flag ceremony provided by this
Act, the Secretary of Education, after proper notice and hearing, shall cause the
cancellation of the recognition or permit of the private educational institution
responsible for such failure."
The implementing rules and regulations in Department Order No. 8 provide:
"RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL
EDUCATIONAL INSTITUTIONS
"1. The Filipino Flag shall be displayed by all educational institutions, public VFand
private, every school day throughout the year. It shall be raised at sunrise and
lowered at sunset. The flagstaff must be straight, slightly and gently tapering at the
end, and of such height as would give the Flag a commanding position in front of
the building or within the compound."

"2. Every public and private educational institution shall hold a flag-raising
ceremony every morning except when it is raining, in which event the ceremony
may be conducted indoors in the best way possible. A retreat shall be held in the
afternoon of the same day. The flag-raising ceremony in the morning shall be
conducted in the following manner:
"a. Pupils and teachers or students and faculty members who are in school and its
premises shall assemble in formation facing the flag. At command, books shall be
put away or held in the left hand and everybody shall come to attention. Those with
hats shall uncover. No one shall enter or leave the school grounds during the
ceremony.
"b. The assembly shall sing the Philippine National Anthem accompanied by the
school band or without the accompaniment if it has none; or the anthem may be
played by the school band alone. At the first note of the Anthem, the flag shall be
raised briskly. While the flag is being raised, all persons present shall stand at
attention and execute a salute. Boys and men with hats shall salute by placing the
hat over the heart. Those without hat may stand with their arms and hands down
and straight at the sides. Those in military or Boy Scout uniform shall give the salute
prescribed by their regulations. The salute shall be started as the Flag rises, and
completed upon last note of the anthem.
"c. Immediately following the singing of the Anthem, the assembly shall recite in
unison the following patriotic pledge (English or vernacular version), which may
bring the ceremony to a close. This is required of all public schools and of private
schools which are intended for Filipino students or whose population is
predominantly Filipino.
"English Version"
I love the Philippines.
It is the land of my birth;
It is the home of my people.
It protects me and helps me to be strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true Filipino in thought, in word, in deed.
xxx xxx xxx."
Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the
national anthem, and recite the patriotic pledge for they believe that those are "acts
of worship" or "religious devotion" (p. 10, Rollo) which they "cannot conscientiously

give . . . to anyone or anything except God" (p. 8, Rollo). They feel bound by the
Bible's command to "guard ourselves from idols 1 John 5:21" (p. 9, Rollo). They
consider the flag as an image or idol representing the State (p. 10, Rollo). They
think the action of the local authorities in compelling the flag salute and pledge
transcends constitutional limitations on the State's power and invades the sphere of
the intellect and spirit which the Constitution protects against official control (p. 10,
Rollo).

This is not the first time that the question, of whether the children of Jehovah's
Witnesses may be expelled from school for disobedience of R.A. No. 1265 and
Department Order No. 8, series of 1955, has been raised before this Court.
The same issue was raised in 1959 in Gerona, et al. vs. Secretary of Education, et
al., 106 Phil. 2 (1959) and Balbuna, et al. vs. Secretary of Education, 110 Phil. 150
(1960). This Court in the Gerona case upheld the expulsion of the students, thus:
"The flag is not an image but a symbol of the Republic of the Philippines, an emblem
of national sovereignty, of national unity and cohesion and of freedom and liberty
which it and the Constitution guarantee and protect. Under a system of complete
separation of church and state in the government, the flag is utterly devoid of any
religious significance. Saluting the flag does not involve any religious ceremony. The
flag salute is no more a religious ceremony than the taking of an oath of office by a
public official or by a candidate for admission to the bar."
"In requiring school pupils to participate in the flag salute, the State thru the
Secretary of Education is not imposing a religion or religious belief or a religious test
on said students. It is merely enforcing a non-discriminatory school regulation
applicable to all alike whether Christian, Moslem, Protestant or Jehovah's Witness.
The State is merely carrying out the duty imposed upon it by the Constitution which
charges it with supervision over and regulation of all educational institutions, to
establish and maintain a complete and adequate system of public education, and
see to it that all schools aim to develop, among other things, civic conscience and
teach the duties of citizenship."
"The children of Jehovah's Witnesses cannot be exempted from participation in the
flag ceremony. They have no valid right to such exemption. Moreover, exemption to
the requirements still disrupt school discipline and demoralize the rest of the school
population which by far constitutes the great majority."
"The freedom of religious belief guaranteed by the Constitution does not and cannot
mean exemption from or non-compliance with reasonable and non-discriminatory
laws, rules and regulations promulgated by competent authority." (pp. 2-3.)
Gerona was reiterated in Balbuna, as follows:
"The Secretary of Education was duly authorized by the Legislature thru Republic
Act 1265 to promulgate said Department Order, and its provisions requiring the
observance of the flag salute, not being a religious ceremony but an act and
profession of love and allegiance and pledge of loyalty to the fatherland which the

flag stands for, does not violate the constitutional provision on freedom of religion."
(Balbuna, et al. vs. Secretary of Education, et al., 110 Phil. 150.).
Republic Act No. 1265 and the ruling in Gerona have been incorporated in Section
28, Title VI, Chapter 9 of the Administrative Code of 1987 (Executive Order No. 292)
which took effect on September 21, 1988 (one year after its publication in the
Official Gazette, Vol. 83, No. 38 of September 21, 1987). Paragraph 5 of Section 28
gives legislative cachet to the ruling in Gerona, thus:
"5. Any teacher or student or pupil who refuses to join or participate in the flag
ceremony may be dismissed after due investigation."
However, the petitioners herein have not raised in issue the constitutionality of the
above provision of the new Administrative Code of 1987. They have targeted
onlyRepublic Act No. 1255 and the implementing orders of the DECS.
In 1989, the DECS Regional Office in Cebu received complaints about teachers and
pupils belonging to the Jehovah's Witnesses, and enrolled in various public and
private schools, who refused to sing the Philippine national anthem, salute the
Philippine flag and recite the patriotic pledge. Division Superintendent of Schools,
Susana B. Cabahug of the Cebu Division of DECS, and Dr./Atty. Marcelo M. Bacalso,
Assistant Division Superintendent, recalling this Court's decision in Gerona, issued
Division Memorandum No. 108, dated November 17, 1989 (pp. 147-148, Rollo of
G.R. No. 95770) directing District Supervisors, High School Principals and Heads of
Private Educational Institutions as follows:
"1. Reports reaching this Office disclose that there are a number of teachers, pupils,
students, and school employees in public schools who refuse to salute the Philippine
flag or participate in the daily flag ceremony because of some religious belief."
2. Such refusal not only undermines Republic Act No. 1265 and the DECS
Department Order No. 8, Series of 1955 (Implementing Rules and Regulations) but
also strikes at the heart of the DECS sustained effort to inculcate patriotism and
nationalism."
3. Let it be stressed that any belief that considers the flag as an image is not in any
manner whatever a justification for not saluting the Philippine flag or not
participating in flag ceremony. Thus, the Supreme Court of the Philippine says:
"'The flag is not an image but a symbol of the Republic of the Philippines, an
emblem of national sovereignty, of national unity and cohesion and freedom and
liberty which it and the Constitution guarantee and protect.' (Gerona, et al. vs. Sec.
of Education, et al., 105 Phil. 11.)
"4. As regards the claim for freedom of belief, which an objectionist may advance,
the Supreme Court asserts:
"'But between the freedom of belief and the exercise of said belief, there is quite a
stretch of road to travel. If the exercise of said religious belief clashes with the
established institutions of society and with the law, then the former must yield and
give way to the latter.' (Gerona, et al. vs. Sec. of Education, et al., 106 Phil. 11.).

"5. Accordingly, teachers and school employees who choose not to participate in the
daily flag ceremony or to obey the flag salute regulation spelled out in Department
Order No. 8, Series of 1955, shall be considered removed from the service after due
process."
6. In strong language about pupils and students who do the same the Supreme
Court has this to say:
"'If they choose not to obey the flag salute regulation, they merely lost the benefits
of public education being maintained at the expense of their fellow Citizens, nothing
more. According to a popular expression, they could take it or leave it! Having
elected not to comply with the regulation about the flag salute they forfeited their
right to attend public schools.' (Gerona, et al. vs. Sec. of Education, et al., 106 Phil.
15.)
"7. School administrators shall therefore submit to this Office a report on those who
choose not to participate in flag ceremony or salute the Philippine flag." (pp. 147148, Rollo of G.R. No. 95770; Emphasis supplied.).
Cebu school officials resorted to a number of ways to persuade the children of
Jehovah's Witnesses to obey the memorandum. In the Buenavista Elementary
School, the children were asked to sign an Agreement (Kasabutan) in the Cebuano
dialect promising to sing the national anthem, place their right hand on their breast
until the end of the song and recite the pledge of allegiance to the flag (Annex D, p.
46, Rollo of G.R. No. 95770 and p. 48, Rollo of G.R. No. 95887), but they refused to
sign the "Kasabutan" (p. 20, Rollo of G.R. No. 95770).
In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A. Sangutan, met
with the Jehovah's Witnesses' parents, as disclosed in his letter of October 17, 1990,
excerpts from which reveal the following:
"After two (2) fruitless confrontation meetings with the Jehovah's Witnesses, parents
on October 2, 1990 and yesterday due to their firm stand not to salute the flag of
the Republic of the Philippines during Flag Ceremony and other occasions, as
mandated by law specifically Republic Act No. 1265, this Office hereby orders the
dropping from the list in the School Register (BPS Form I) of all teachers, all
Jehovah's Witness pupils from Grade I up to Grade VI effective today.
"xxx xxx xxx.
"This order is in compliance with Division Memorandum No. 108 s. 1989 dated
November 17, 1989 by virtue of Department Order No. 8 s. 1955 dated July 21,
1955 in accordance with Republic Act No. 1265 and Supreme Court Decision of a
case 'Genaro Gerona, et al., Petitioners and Appellants vs. The Honorable Secretary
of Education, et al., Respondents and Appellees' dated August 12, 1959 against
their favor." (p. 149, Rollo of G.R. No. 95770.)
In the Daan Bantayan District, the District Supervisor, Manuel F. Biongcog, ordered
the "dropping from the rolls" of students who "opted to follow their religious belief
which is against the Flag Salute Law" on the theory that "they forfeited their right to
attend public schools." (p. 47, Rollo of G.R. No. 95770.).

"1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990.
"Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic], Agujo
Elementary School with the information that this office is sad to order the
dropping of Jeremias Diamos and Jeaneth Diamos, Grades III and IV pupils
respectively from the roll since they opted to follow their belief which is against the
Flag Salute Law (R.A. 1265) and DECS Order No. 8, series of 1955, having elected
not to comply with the regulation about the flag salute they forfeited their right to
attend public schools (Gerona, et al. vs. Sec. of Education, et al., 106 Philippines
15). However, should they change their mind to respect and follow the Flag Salute
Law they may be re-accepted."
"(Sgd.) MANUEL F. BIONGCOG
District Supervisor"
(p. 47, Rollo of G.R. No. 95770.)
The expulsion as of October 23, 1990 of the 43 petitioning students of the
Daanbantayan National High School, Agujo Elementary School, Calape Barangay
National High School, Pinamungajan Provincial High School, Tabuelan Central
School, Canasojan Elementary School, Liboron Elementary School, Tagaytay Primary
School, San Juan Primary School and Northern Central Elementary School of San
Fernando, Cebu, upon order of then Acting Division Superintendent Marcelo Bacalso,
prompted some Jehovah's Witnesses in Cebu to appeal to the Secretary of
Education Isidro Cario but the latter did not answer their letter. (p. 21, Rollo.)

The petition in G.R. No. 95887 was filed by 25 students who were similarly expelled
because Dr. Pablo Antopina, who succeeded Susana Cabahug as Division
Superintendent of Schools, would not recall the expulsion orders of his predecessor.
Instead, he verbally caused the expulsion of some more children of Jehovah's
Witnesses.
On October 31, 1990, the students and their parents filed these Special civil actions
for Mandamus, Certiorari and Prohibition alleging that the public respondents acted
without or in excess of their jurisdiction and with grave abuse of discretion (1) in
ordering their expulsion without prior notice and hearing, hence, in violation of their
right to due process, their right to free public education, and their right to freedom
of speech, religion and worship (p. 23, Rollo). The petitioners pray that:
"c. Judgment be rendered:
"i. declaring null and void the expulsion or dropping from the rolls of herein
petitioners from their respective schools;

"ii. prohibiting and enjoining respondent from further barring the petitioners from
their classes or otherwise implementing the expulsion ordered on petitioners; and
"iii. compelling the respondent and all persons acting for him to admit and order the
re-admission of petitioners to their respective schools." (p. 41, Rollo.)
and that pending the determination of the merits of these cases, a temporary
restraining order be issued enjoining the respondents from enforcing the expulsion
of the petitioners and to re-admit them to their respective classes.
On November 27, 1990, the Court issued a temporary restraining order and a writ of
preliminary mandatory injunction commanding the respondents to immediately
readmit the petitioners to their respective classes until further orders from this
Court (p. 57, Rollo).
The Court also ordered the Secretary of Education and Cebu District Supervisor
Manuel F. Biongcog to be impleaded as respondents in these cases.
On May 13, 1991, the Solicitor General filed a consolidated comment to the
petitions (p. 98, Rollo) defending the expulsion orders issued by the public
respondents on the grounds that:
1. Bizarre religious practices of the Jehovah's Witnesses produce rebellious and antisocial school children and consequently disloyal and mutant Filipino citizens.
2. There are no new and valid grounds to sustain the charges of the Jehovah's
Witnesses that the DECS' rules and regulations on the flag salute ceremonies are
violative of their freedom of religion and worship.
3. The flag salute is devoid of any religious significance; instead, it inculcates
respect and love of country, for which the flag stands.
4. The State's compelling interests being pursued by the DECS' lawful regulations in
question do not warrant exemption of the school children of the Jehovah's Witnesses
from the flag salute ceremonies on the basis of their own self-perceived religious
convictions.
5. The issue is not freedom of speech but enforcement of law and jurisprudence.
6. State's power to regulate repressive and unlawful religious practices justified,
besides having scriptural basis.
7. The penalty of expulsion is legal and valid, more so with the enactment
of Executive Order No. 292 (The Administrative Code of 1987).
Our task here is extremely difficult, for the 30-year-old decision of this Court
in Gerona upholding the flag salute law and approving the expulsion of students
who refuse to obey it, is not lightly to be trifled with.
It is somewhat ironic however, that after the Gerona ruling had received legislative
cachet by its incorporation in the Administrative Code of 1987, the present Court
believes that the time has come to reexamine it. The idea that one may be
compelled to salute the flag, sing the national anthem, and recite the patriotic

pledge, during a flag ceremony on pain of being dismissed from one's job or of
being expelled from school, is alien to the conscience of the present generation of
Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to
free speech ** and the free exercise of religious profession and worship (Sec. 5,
Article III, 1987 Constitution; Article IV, Section 8, 1973 Constitution; Article III,
Section 1[7], 1935 Constitution).
Religious freedom is a fundamental right which is entitled to the highest priority and
the amplest protection among human rights, for it involves the relationship of man
to his Creator (Chief Justice Enrique M. Fernando's separate opinion in German vs.
Barangan, 135 SCRA 514, 530-531).
"The right to religious profession and worship has a two-fold aspect, vis., freedom to
believe and freedom to act on one's belief. The first is absolute as long as the belief
is confined within the realm of thought. The second is subject to regulation where
the belief is translated into external acts that affect the public welfare" (J. Cruz,
Constitutional Law, 1991 Ed., pp. 176-177).
Petitioners stress, however, that while they do not take part in the compulsory flag
ceremony, they do not engage in "external acts" or behavior that would offend their
countrymen who believe in expressing their love of country through the observance
of the flag ceremony. They quietly stand at attention during the flag ceremony to
show their respect for the right of those who choose to participate in the solemn
proceedings (Annex F, Rollo of G.R. No. 95887, p. 50 and Rollo of G.R. No. 95770, p.
48). Since they do not engage in disruptive behavior, there is no warrant for their
expulsion.
"The sole justification for a prior restraint or limitation on the exercise of religious
freedom (according to the late Chief Justice Claudio Teehankee in his dissenting
opinion in German vs. Barangan, 135 SCRA 514, 517) is the existence of a grave
and present danger of a character both grave and imminent, of a serious evil to
public safety, public morals, public health or any other legitimate public interest,
that the State has a right (and duty) to prevent." Absent such a threat to public
safety, the expulsion of the petitioners from the schools is not justified.
The situation that the Court directly predicted in Gerona that:
"[T]he flag ceremony will become a thing of the past or perhaps conducted with
very few participants, and the time will come when we would have citizens untaught
and uninculcated in and not imbued with reverence for the flag and love of country,
admiration for national heroes, and patriotism a pathetic, even tragic situation,
and all because a small portion of the school population imposed its will, demanded
and was granted an exemption." (Gerona, p. 24.)
has not come to pass. We are not persuaded that by exempting the Jehovah's
Witnesses from saluting the flag, singing the national anthem and reciting the
patriotic pledge, this religious which admittedly comprises a "small portion of the
school population" will shake up our part of the globe and suddenly produce a
nation "untaught and uninculcated in and unimbued with reverence for the flag,
patriotism, love of country and admiration for national heroes" (Gerona vs. Sec. of

Education, 106 Phil. 2, 24). After all, what the petitioners seek only is exemption
from the flag ceremony, not exclusion from the public schools where they may
study the Constitution, the democratic way of life and form of government, and
learn not only the arts, science, 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 for national heroes, the rights and duties of
citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as
part of the curricula. Expelling or banning the petitioners from Philippine schools will
bring about the very situation that this Court had feared in Gerona. Forcing a small
religious group, through the iron hand of the law, to participate in a ceremony that
violates their religious beliefs, will hardly be conducive to love of country or respect
for duly constituted authorities.
As Mr. Justice Jackson remarked in West Virginia vs. Barneta, 319 U.S. 624 (1943):
". . . To believe that patriotism will not flourish if patriotic ceremonies are voluntary
and spontaneous instead of a compulsory routine is to make an unflattering
estimate of the appeal of our institutions to free minds. . . . When they [diversity]
are so harmless to others or to the State as those we deal with here, the price is not
too great. But freedom to differ is not limited to things that do not matter much.
That would be a mere shadow of freedom. The test of its substance is the right to
differ as to things that touch the heart of the existing order."
"Furthermore, let it be noted that coerced unity and loyalty even to the country, . . .
assuming that such unity and loyalty can be attained through coercion is not a
goal that is constitutionally obtainable at the expense of religious liberty. A desirable
and cannot be promoted by prohibited means." (Meyer vs. Nebraska, 262 U.S. 390,
67 L. ed. 1042, 1046.).
Moreover, the expulsion of members of Jehovah's Witnesses from the schools where
they are enrolled will violate their right as Philippine citizens, under the 1987
Constitution, to receive free education, for it is the duty of the State to "protect and
promote the right of all citizens to quality education . . . and to make such education
accessible to all" (Sec. 1, Art. XIV).
In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the
exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop
agreement between their employer and a union because it would violate the
teaching of their church not to join any labor group.
". . . It is certain that not every conscience can be accommodated by all the laws of
the land; but when general laws conflict with scruples of conscience, exemptions
ought to be granted unless some 'compelling state interests' intervenes." (Sherbert
vs. Berner 374 U.S. Ct. 1790.)

We hold that a similar exemptions may be accorded to the Jehovah's Witnesses with
regard to the observance of the flag ceremony out of respect for their religious
beliefs, however "bizarre" those beliefs may seem to others. Nevertheless, their

right not to participate in the flag ceremony does not give them a right to disrupt
such patriotic exercises. Paraphrasing the warning cited by this Court in Non vs.
Dames II, 185 SCRA 523, 535, while the highest regard must be afforded their right
to the exercise of their religion, "this should not be taken to mean that school
authorities are powerless to discipline them" if they should commit breaches of the
peace by actions that offend the sensibilities, both religious and patriotic, of other
persons. If they quietly stand at attention during the flag ceremony while their
classmates and teachers salute the flag, sing the national anthem and recite the
patriotic pledge, we do not see how such conduct may possibly disturb the peace,
or pose "a grave and present danger of a serious evil to public safety, public morals,
public health or any other legitimate public interest that the State has a right (and
duty) to prevent" (German vs. Barangan, 135 SCRA 514, 517).
Before we close this decision, it is appropriate to recall the Japanese occupation of
our country in 1942-1944 when every Filipino, regardless of religious persuasion, in
fear of the invader, saluted the Japanese flag and bowed every Japanese soldier.
Perhaps, if petitioners had lived through that dark period of our history, they would
not quibble now about saluting the Philippine flag. For when liberation came in 1944
and our own flag was proudly hoisted aloft again, it was a beautiful sight to behold
that made our hearts pound with pride and joy over the newly-regained freedom
and sovereignty of our nation.
Although the Court upholds in this decision the petitioners' right under our
Constitution to refuse to salute the Philippine flag on account of their religious
beliefs, we hope, nevertheless, that another foreign invasion of our country will not
be necessary in order for our countrymen to appreciate and cherish the Philippine
flag.
WHEREFORE, the petition for certiorari and prohibition is GRANTED. The expulsion
orders issued by the public respondents against the petitioners are hereby
ANNULLED AND SET ASIDE. The temporary restraining order which was issued by
this Court is hereby made permanent.
SO ORDERED.
Narvasa, C .J ., Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo,
Melo and Campos, Jr., JJ ., concur.
Gutierrez, Jr., J ., On leave.
Quiason, J ., No part.
||| (Ebralinag v. Division of Superintendent of Schools of Cebu, G.R. Nos. 95770 &
95887, March 01, 1993)

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

(formerly OCA I.P.I. No. 00-1021-P)
ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR, respondent.

RESOLUTION
PUNO, J p:
While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad
Escritor once again stands before the Court invoking her religious freedom and her
Jehovah God in a bid to save her family united without the benefit of legal
marriage and livelihood. The State, on the other hand, seeks to wield its power to
regulate her behavior and protect its interest in marriage and family and the
integrity of the courts where respondent is an employee. How the Court will tilt the
scales of justice in the case at bar will decide not only the fate of respondent
Escritor but of other believers coming to Court bearing grievances on their free
exercise of religion. This case comes to us from our remand to the Office of the
Court Administrator on August 4, 2003. 1
I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada
requested Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial
Court of Las Pias City, for an investigation of respondent Soledad Escritor, court
interpreter in said court, for living with a man not her husband, and having borne a
child within this live-in arrangement. Estrada believes that Escritor is committing an
immoral act that tarnishes the image of the court, thus she should not be allowed to
remain employed therein as it might appear that the court condones her
act. 2 Consequently, respondent was charged with committing "disgraceful and
immoral conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code. 3
Respondent Escritor testified that when she entered the judiciary in 1999, she was
already a widow, her husband having died in 1998. 4 She admitted that she started
living with Luciano Quilapio, Jr. without the benefit of marriage more than twenty
years ago when her husband was still alive but living with another woman. She also
admitted that she and Quilapio have a son. 5 But as a member of the religious sect
known as the Jehovah's Witnesses and the Watch Tower and Bible Tract Society,
respondent asserted that their conjugal arrangement is in conformity with their
religious beliefs and has the approval of her congregation. 6 In fact, after ten years
of living together, she executed on July 28, 1991, a "Declaration of Pledging
Faithfulness." 7
For Jehovah's Witnesses, the Declaration allows members of the congregation who
have been abandoned by their spouses to enter into marital relations. The
Declaration thus makes the resulting union moral and binding within the
congregation all over the world except in countries where divorce is allowed. As laid
out by the tenets of their faith, the Jehovah's congregation requires that at the time
the declarations are executed, the couple cannot secure the civil authorities'
approval of the marital relationship because of legal impediments. Only couples
who have been baptized and in good standing may execute the Declaration, which
requires the approval of the elders of the congregation. As a matter of practice, the
marital status of the declarants and their respective spouses' commission of
adultery are investigated before the declarations are executed. 8 Escritor and

Quilapio's declarations were executed in the usual and approved form prescribed by
the Jehovah's Witnesses, 9 approved by elders of the congregation where the
declarations were executed, 10 and recorded in the Watch Tower Central Office. 11
Moreover, the Jehovah's congregation believes that once all legal impediments for
the couple are lifted, the validity of the declarations ceases, and the couple should
legalize their union. In Escritor's case, although she was widowed in 1998, thereby
lifting the legal impediment to marry on her part, her mate was still not capacitated
to remarry. Thus, their declarations remained valid. 12 In sum, therefore, insofar as
the congregation is concerned, there is nothing immoral about the conjugal
arrangement between Escritor and Quilapio and they remain members in good
standing in the congregation.
By invoking the religious beliefs, practices and moral standards of her congregation,
in asserting that her conjugal arrangement does not constitute disgraceful and
immoral conduct for which she should be held administratively liable, 13 the Court
had to determine the contours of religious freedom under Article III, Section 5 of the
Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting
the free exercise thereof. The free exercise and enjoyment of religious profession
and worship, without discrimination or preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political rights.
A. RULING
In our decision dated August 4, 2003, after a long and arduous scrutiny into the
origins and development of the religion clauses in the United States (U.S.) and the
Philippines, we held that in resolving claims involving religious freedom
(1) benevolent neutrality or accommodation, whether mandatory or permissive, is
the spirit, intent and framework underlying the religion clauses in our Constitution;
and (2) in deciding respondent's plea of exemption based on the Free Exercise
Clause (from the law with which she is administratively charged), it is
the compelling state interest test, the strictest test, which must be applied. 14
Notwithstanding the above rulings, the Court could not, at that time, rule
definitively on the ultimate issue of whether respondent was to be held
administratively liable for there was need to give the State the opportunity to
adduce evidence that it has a more "compelling interest" to defeat the claim of the
respondent to religious freedom. Thus, in the decision dated August 4, 2003, we
remanded the complaint to the Office of the Court Administrator (OCA), and ordered
the Office of the Solicitor General (OSG) to intervene in the case so it can:
(a) examine the sincerity and centrality of respondent's claimed religious belief and
practice;
(b) present evidence on the state's "compelling interest" to override respondent's
religious belief and practice; and
(c) show that the means the state adopts in pursuing its interest is the least
restrictive to respondent's religious freedom. 15

It bears stressing, therefore, that the residual issues of the case pertained NOT TO
WHAT APPROACH THIS COURT SHOULD TAKE IN CONSTRUING THE RELIGION
CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN DETERMINING CLAIMS OF
EXEMPTION BASED ON FREEDOM OF RELIGION. These issues have already been
ruled upon prior to the remand, and constitute "the law of the case" insofar as they
resolved the issues of which framework and test are to be applied in this case, and
no motion for its reconsideration having been filed. 16 The only task that the Court
is left to do is to determine whether the evidence adduced by the State proves its
more compelling interest. This issue involves a pure question of fact.
B. LAW OF THE CASE
Mr. Justice Carpio's insistence, in his dissent, in attacking the ruling of this case
interpreting the religious clauses of the Constitution, made more than two years
ago, is misplaced to say the least. Since neither the complainant, respondent nor
the government has filed a motion for reconsideration assailing this ruling, the same
has attained finality and constitutes the law of the case. Any attempt to reopen this
final ruling constitutes a crass contravention of elementary rules of procedure.
Worse, insofar as it would overturn the parties' right to rely upon our interpretation
which has long attained finality, it also runs counter to substantive due process.
Be that as it may, even assuming that there were no procedural and substantive
infirmities in Mr. Justice Carpio's belated attempts to disturb settled issues, and that
he had timely presented his arguments, the results would still be the same.
We review the highlights of our decision dated August 4, 2003.
1. OLD WORLD ANTECEDENTS
In our August 4, 2003 decision, we made a painstaking review of Old World
antecedents of the religion clauses, because "one cannot understand, much less
intelligently criticize the approaches of the courts and the political branches to
religious freedom in the recent past in the United States without a deep
appreciation of the roots of these controversies in the ancient and medieval world
and in the American experience." 17 We delved into the conception of religion from
primitive times, when it started out as the state itself, when the authority and power
of the state were ascribed to God. 18 Then, religion developed on its own and
became superior to the state,19 its subordinate, 20 and even becoming an engine
of state policy. 21
We ascertained two salient features in the review of religious history: First, with
minor exceptions, the history of church-state relationships was characterized by
persecution, oppression, hatred, bloodshed, and war, all in the name of the God of
Love and of the Prince of Peace. Second, likewise with minor exceptions, this history
witnessed the unscrupulous use of religion by secular powers to promote secular
purposes and policies, and the willing acceptance of that role by the vanguards of
religion in exchange for the favors and mundane benefits conferred by ambitious
princes and emperors in exchange for religion's invaluable service. This was the
context in which the unique experiment of the principle of religious freedom and

separation of church and state saw its birth in American constitutional democracy
and in human history. 22
Strictly speaking, the American experiment of freedom and separation was not
translated in the First Amendment. That experiment had been launched four years
earlier, when the founders of the republic carefully withheld from the new national
government any power to deal with religion. As James Madison said, the national
government had no "jurisdiction" over religion or any "shadow of right to
intermeddle" with it. 23

The omission of an express guaranty of religious freedom and other natural rights,
however, nearly prevented the ratification of the Constitution. The restriction had to
be made explicit with the adoption of the religion clauses in the First Amendment as
they are worded to this day. Thus, the First Amendment did not take away or
abridge any power of the national government; its intent was to make express the
absence of power. 24 It commands, in two parts (with the first part usually referred
to as the Establishment Clause and the second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion or prohibiting
the free exercise thereof. 25
The Establishment and Free Exercise Clauses, it should be noted, were not designed
to serve contradictory purposes. They have a single goal to promote freedom of
individual religious beliefs and practices. In simplest terms, the Free Exercise Clause
prohibits government from inhibiting religious beliefs with penalties for religious
beliefs and practice, while the Establishment Clause prohibits government from
inhibiting religious belief with rewards for religious beliefs and practices. In other
words, the two religion clauses were intended to deny government the power to use
either the carrot or the stick to influence individual religious beliefs and
practices. 26
In sum, a review of the Old World antecedents of religion shows the movement of
establishment of religion as an engine to promote state interests, to the principle of
non-establishment to allow the free exercise of religion. DICSaH
2. RELIGION CLAUSES IN THE U.S. CONTEXT
The Court then turned to the religion clauses' interpretation and construction in the
United States, not because we are bound by their interpretation, but because the
U.S. religion clauses are the precursors to the Philippine religion clauses, although
we have significantly departed from the U.S. interpretation as will be discussed later
on.
At the outset, it is worth noting that American jurisprudence in this area has been
volatile and fraught with inconsistencies whether within a Court decision or across
decisions. For while there is widespread agreement regarding the value of the First
Amendment religion clauses, there is an equally broad disagreement as to what
these clauses specifically require, permit and forbid. No agreement has been
reached by those who have studied the religion clauses as regards its exact

meaning and the paucity of records in the U.S. Congress renders it difficult to
ascertain its meaning. 27
U.S. history has produced two identifiably different, even opposing, strains of
jurisprudence on the religion clauses. First is the standard of separation, which may
take the form of either (a) strict separation or (b) the tamer version of strict
neutrality or separation, or what Mr. Justice Carpio refers to as the second theory
ofgovernmental neutrality. Although the latter form is not as hostile to religion as
the former, both are anchored on the Jeffersonian premise that a "wall of
separation" must exist between the state and the Church to protect the state from
the church. 28 Both protect the principle of church-state separation with a rigid
reading of the principle. On the other hand, the second standard, the benevolent
neutrality or accommodation, is buttressed by the view that the wall of separation is
meant to protect the church from the state. A brief review of each theory is in order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was meant to
protect the state from the church, and the state's hostility towards religion allows no
interaction between the two. According to this Jeffersonian view, an absolute barrier
to formal interdependence of religion and state needs to be erected. Religious
institutions could not receive aid, whether direct or indirect, from the state. Nor
could the state adjust its secular programs to alleviate burdens the programs placed
on believers. 29 Only the complete separation of religion from politics would
eliminate the formal influence of religious institutions and provide for a free choice
among political views, thus a strict "wall of separation" is necessary. 30
Strict separation faces difficulties, however, as it is deeply embedded in American
history and contemporary practice that enormous amounts of aid, both direct and
indirect, flow to religion from government in return for huge amounts of mostly
indirect aid from religion. 31 For example, less than twenty-four hours after
Congress adopted the First Amendment's prohibition on laws respecting an
establishment of religion, Congress decided to express its thanks to God Almighty
for the many blessings enjoyed by the nation with a resolution in favor of a
presidential proclamation declaring a national day of Thanksgiving and
Prayer. 32 Thus, strict separationists are caught in an awkward position of claiming
a constitutional principle that has never existed and is never likely to. 33
The
tamer
version
of
the
strict
separationist
view,
the strict
neutrality or separationist view, (or, the governmental neutrality theory) finds basis
in Everson v. Board of Education, 34 where the Court declared that Jefferson's "wall
of separation" encapsulated the meaning of the First Amendment. However, unlike
the strict separationists, the strict neutrality view believes that the "wall of
separation" does not require the state to be their adversary. Rather, the state must
be neutral in its relations with groups of religious believers and non-believers. "State
power is no more to be used so as to handicap religions than it is to favor
them." 35 The strict neutrality approach is not hostile to religion, but it is strict in
holding that religion may not be used as a basis for classification for purposes of
governmental action, whether the action confers rights or privileges or imposes

duties or obligations. Only secular criteria may be the basis of government action. It
does not permit, much less require, accommodation of secular programs to religious
belief. 36
The problem with the strict neutrality approach, however, is if applied in interpreting
the Establishment Clause, it could lead to a de facto voiding of religious expression
in the Free Exercise Clause. As pointed out by Justice Goldberg in his concurring
opinion in Abington School District v. Schempp, 37 strict neutrality could lead to "a
brooding and pervasive devotion to the secular and a passive, or even active,
hostility to the religious" which is prohibited by the Constitution. 38 Professor
Laurence Tribe commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea
of a free exercise clause. The Framers, whatever specific applications they may
have intended, clearly envisioned religion as something special; they enacted that
vision into law by guaranteeing the free exercise of religion but not, say, of
philosophy or science. The strict neutrality approach all but erases this distinction.
Thus it is not surprising that the [U.S.] Supreme Court has rejected strict neutrality,
permitting and sometimes mandating religious classifications. 39
Thus, the dilemma of the separationist approach, whether in the form of strict
separation or strict neutrality, is that while the Jeffersonian wall of separation
"captures the spirit of the American ideal of church-state separation," in real life,
church and state are not and cannot be totally separate. This is all the more true in
contemporary times when both the government and religion are growing and
expanding their spheres of involvement and activity, resulting in the intersection of
government and religion at many points. 40
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on a different
view of the "wall of separation," associated with Williams, founder of the Rhode
Island colony. Unlike the Jeffersonian wall that is meant to protect the state from the
church, the wall is meant to protect the church from the state. 41 This doctrine was
expressed in Zorach v. Clauson, 42 which held, viz:
The First Amendment, however, does not say that in every and all respects there
shall be a separation of Church and State. Rather, it studiously defines the manner,
the specific ways, in which there shall be no concert or union or dependency one or
the other. That is the common sense of the matter. Otherwise, the state and religion
would be aliens to each other hostile, suspicious, and even unfriendly. Churches
could not be required to pay even property taxes. Municipalities would not be
permitted to render police or fire protection to religious groups. Policemen who
helped parishioners into their places of worship would violate the Constitution.
Prayers in our legislative halls; the appeals to the Almighty in the messages of the
Chief Executive; the proclamations making Thanksgiving Day a holiday; "so help me
God" in our courtroom oaths these and all other references to the Almighty that
run through our laws, our public rituals, our ceremonies would be flouting the First
Amendment. A fastidious atheist or agnostic could even object to the supplication

with which the Court opens each session: "God save the United States and this
Honorable Court."
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being. We
guarantee the freedom to worship as one chooses. . . When the state encourages
religious instruction or cooperates with religious authorities by adjusting the
schedule of public events, it follows the best of our traditions. For it then respects
the religious nature of our people and accommodates the public service to their
spiritual needs. To hold that it may not would be to find in the Constitution a
requirement that the government show a callous indifference to religious groups. . .
But we find no constitutional requirement which makes it necessary for government
to be hostile to religion and to throw its weight against efforts to widen their
effective scope of religious influence. 43

Benevolent neutrality recognizes that religion plays an important role in the public
life of the United States as shown by many traditional government practices which,
to strict neutrality, pose Establishment Clause questions. Among these are the
inscription of "In God We Trust" on American currency; the recognition of America as
"one nation under God" in the official pledge of allegiance to the flag; the Supreme
Court's time-honored practice of opening oral argument with the invocation "God
save the United States and this Honorable Court"; and the practice of Congress and
every state legislature of paying a chaplain, usually of a particular Protestant
denomination, to lead representatives in prayer. These practices clearly show the
preference for one theological viewpoint the existence of and potential for
intervention by a god over the contrary theological viewpoint of atheism. Church
and government agencies also cooperate in the building of low-cost housing and in
other forms of poor relief, in the treatment of alcoholism and drug addiction, in
foreign aid and other government activities with strong moral dimension. 44
Examples of accommodations in American jurisprudence also abound, including, but
not limited to the U.S. Court declaring the following acts as constitutional: a state
hiring a Presbyterian minister to lead the legislature in daily prayers, 45 or requiring
employers to pay workers compensation when the resulting inconsistency between
work and Sabbath leads to discharge; 46 for government to give money to
religiously-affiliated organizations to teach adolescents about proper sexual
behavior; 47 or to provide religious school pupils with books; 48 or bus rides to
religious schools; 49 or with cash to pay for state-mandated standardized tests. 50
(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in the Religion
clauses are invoked in relation to governmental action, almost invariably in the form
of legislative acts.
Generally speaking, a legislative act that purposely aids or inhibits religion will be
challenged as unconstitutional, either because it violates the Free Exercise Clause or

the Establishment Clause or both. This is true whether one subscribes to

the separationist approach
or
the benevolent
neutrality
or
accommodationist approach.
But the more difficult religion cases involve legislative acts which have a secular
purpose and general applicability, but may incidentally or inadvertently aid or
burden religious exercise. Though the government action is not religiously
motivated, these laws have a "burdensome effect" on religious exercise.
The benevolent neutrality theory believes that with respect to these governmental
actions, accommodation of religion may be allowed, not to promote the
government's favored form of religion, but to allow individuals and groups to
exercise their religion without hindrance. The purpose of accommodations is to
remove a burden on, or facilitate the exercise of, a person's or institution's religion.
As Justice Brennan explained, the "government [may] take religion into account . . .
to exempt,
when
possible,
from
generally
applicable
governmental
regulation individuals whose religious beliefs and practices would otherwise thereby
be infringed, or to create without state involvement an atmosphere in which
voluntary religious exercise may flourish." 51 In the ideal world, the legislature
would recognize the religions and their practices and would consider them, when
practical, in enacting laws of general application. But when the legislature fails to do
so, religions that are threatened and burdened may turn to the courts for
protection. 52
Thus, what is sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application or
its "burdensome effect," whether by the legislature or the courts. 53 Most of the
free exercise claims brought to the U.S. Court are for exemption, not invalidation of
the facially neutral law that has a "burdensome" effect. 54
(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of accommodation in the
U.S. blossomed in the case of Sherbert v. Verner, 55 which ruled that state
regulation that indirectly restrains or punishes religious belief or conduct must be
subjected to strict scrutiny under the Free Exercise Clause. 56 According
to Sherbert, when a law of general application infringes religious exercise, albeit
incidentally, the state interest sought to be promoted must be so paramount and
compelling as to override the free exercise claim. Otherwise, the Court itself will
carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment
compensation under the law as her employment was terminated for refusal to work
on Saturdays on religious grounds. Her claim was denied. She sought recourse in
the Supreme Court. In laying down the standard for determining whether the denial
of benefits could withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellee's conscientious objection to Saturday work constitutes no
conduct prompted by religious principles of a kind within the reach of state
legislation. If, therefore, the decision of the South Carolina Supreme Court is to

withstand appellant's constitutional challenge, it must be either because her

disqualification as a beneficiary represents no infringement by the State of her
constitutional right of free exercise, or because any incidental burden on the free
exercise of appellant's religion may be justified by a "compelling state interest in
the regulation of a subject within the State's constitutional power to
regulate. . . ." 57 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not
sufficient to merely show a rational relationship of the substantial infringement to
the religious right and a colorable state interest. "(I)n this highly sensitive
constitutional area, '[o]nly the gravest abuses, endangering paramount interests,
give occasion for permissible limitation.'" 58 The Court found that there was no such
compelling state interest to override Sherbert's religious liberty. It added that even if
the state could show that Sherbert's exemption would pose serious detrimental
effects to the unemployment compensation fund and scheduling of work, it was
incumbent upon the state to show that no alternative means of regulations would
address such detrimental effects without infringing religious liberty. The state,
however, did not discharge this burden. The Court thus carved out for Sherbert an
exemption from the Saturday work requirement that caused her disqualification
from claiming the unemployment benefits. The Court reasoned that upholding the
denial of Sherbert's benefits would force her to choose between receiving benefits
and following her religion. This choice placed "the same kind of burden upon the
free exercise of religion as would a fine imposed against (her) for her Saturday
worship." This germinal case of Sherbert firmly established the exemption
doctrine, 59 viz:
It is certain that not every conscience can be accommodated by all the laws of the
land; but when general laws conflict with scruples of conscience, exemptions ought
to be granted unless some "compelling state interest" intervenes. ESTCDA
Thus, Sherbert and subsequent cases held that when government action burdens,
even inadvertently, a sincerely held religious belief or practice, the state must
justify the burden by demonstrating that the law embodies a compelling interest,
that no less restrictive alternative exists, and that a religious exemption would
impair the state's ability to effectuate its compelling interest. As in other instances
of state action affecting fundamental rights, negative impacts on those rights
demand the highest level of judicial scrutiny. After Sherbert, this strict scrutiny
balancing test resulted in court-mandated religious exemptions from facially-neutral
laws of general application whenever unjustified burdens were found. 60
Then, in the 1972 case of Wisconsin v. Yoder, 61 the U.S. Court again ruled that
religious exemption was in order, notwithstanding that the law of general
application had a criminal penalty. Using heightened scrutiny, the Court overturned
the conviction of Amish parents for violating Wisconsin compulsory schoolattendance laws. The Court, in effect, granted exemption from a neutral, criminal
statute that punished religiously motivated conduct. Chief Justice Burger, writing for
the majority, held, viz:

It follows that in order for Wisconsin to compel school attendance beyond the eighth
grade against a claim that such attendance interferes with the practice of a
legitimate religious belief, it must appear either that the State does not deny the
free exercise of religious belief by its requirement, or that there is a state interest of
sufficient magnitude to override the interest claiming protection under the Free
Exercise Clause. Long before there was general acknowledgement of the need for
universal education, the Religion Clauses had specially and firmly fixed the right of
free exercise of religious beliefs, and buttressing this fundamental right was an
equally firm, even if less explicit, prohibition against the establishment of any
religion. The values underlying these two provisions relating to religion have been
zealously protected, sometimes even at the expense of other interests of admittedly
high social importance. . .
The essence of all that has been said and written on the subject is that only those
interests of the highest order and those not otherwise served can overbalance
legitimate claims to the free exercise of religion. . .

. . . our decisions have rejected the idea that religiously grounded conduct is always
outside the protection of the Free Exercise Clause. It is true that activities of
individuals, even when religiously based, are often subject to regulation by the
States in the exercise of their undoubted power to promote the health, safety, and
general welfare, or the Federal government in the exercise of its delegated
powers . . . But to agree that religiously grounded conduct must often be subject to
the broad police power of the State is not to deny that there are areas of conduct
protected by the Free Exercise Clause of the First Amendment and thus beyond the
power of the State to control, even under regulations of general applicability. . .
.This case, therefore, does not become easier because respondents were convicted
for their "actions" in refusing to send their children to the public high school; in this
context belief and action cannot be neatly confined in logic-tight
compartments. . . 62
The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise
clause claims were subject to heightened scrutiny or compelling interest test if
government substantially burdened the exercise of religion; (b) heightened scrutiny
or compelling interest test governed cases where the burden was direct, i.e., the
exercise of religion triggered a criminal or civil penalty, as well as cases where the
burden was indirect, i.e., the exercise of religion resulted in the forfeiture of a
government benefit; 63 and (c) the Court could carve out accommodations or
exemptions from a facially neutral law of general application, whether general or
criminal.
The Sherbert-Yoder doctrine had five main components. First, action was protected
conduct beyond speech, press, or worship was included in the shelter of freedom
of religion. Neither Sherbert's refusal to work on the Sabbath nor the Amish parents'
refusal to let their children attend ninth and tenth grades can be classified as
conduct protected by the other clauses of the First Amendment. Second, indirect
impositions on religious conduct, such as the denial of twenty-six weeks of

unemployment insurance benefits to Adel Sherbert, as well as direct restraints, such

as the criminal prohibition at issue in Yoder, were prohibited. Third, as the language
in the two cases indicate, the protection granted was extensive. Only extremely
strong governmental interests justified impingement on religious conduct, as the
absolute language of the test of the Free Exercise Clause suggests. 64
Fourth, the strong language was backed by a requirement that the government
provide proof of the important interest at stake and of the dangers to that interest
presented by the religious conduct at issue. Fifth, in determining the injury to the
government's interest, a court was required to focus on the effect that exempting
religious claimants from the regulation would have, rather than on the value of the
regulation in general. Thus, injury to governmental interest had to be measured at
the margin: assuming the law still applied to all others, what would be the effect of
exempting the religious claimant in this case and other similarly situated religious
claimants in the future? Together, the fourth and fifth elements required that facts,
rather than speculation, had to be presented concerning how the government's
interest would be harmed by excepting religious conduct from the law being
challenged. 65
Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which
would impose a discipline to prevent manipulation in the balancing of interests. The
fourth and the fifth elements prevented the likelihood of exaggeration of the weight
on the governmental interest side of the balance, by not allowing speculation about
the effects of a decision adverse to those interests nor accepting that those
interests would be defined at a higher level of generality than the constitutional
interests on the other side of the balance. 66
Thus, the strict scrutiny and compelling state interest test significantly increased
the degree of protection afforded to religiously motivated conduct. While not
affording absolute immunity to religious activity, a compelling secular justification
was necessary to uphold public policies that collided with religious practices.
Although the members of the U.S. Court often disagreed over which governmental
interests should be considered compelling, thereby producing dissenting and
separate opinions in religious conduct cases, this general test established a strong
presumption in favor of the free exercise of religion. 67 Most scholars and courts
agreed that underSherbert and Yoder, the Free Exercise Clause provided individuals
some form of heightened scrutiny protection, if not always a compelling interest
one. 68 The 1990 case of Employment Division, Oregon Department of Human
Resources v. Smith, 69 drastically changed all that.
Smith involved a challenge by Native Americans to an Oregon law prohibiting use of
peyote, a hallucinogenic substance. Specifically, individuals challenged the state's
determination that their religious use of peyote, which resulted in their dismissal
from employment, was misconduct disqualifying them from receipt of
unemployment compensation benefits. 70
Justice Scalia, writing for the majority, rejected the claim that free exercise of
religion required an exemption from an otherwise valid law. Scalia said that "[w]e
have never held that an individual's religious beliefs excuse him from compliance

with an otherwise valid law prohibiting conduct that the State is free to regulate. On
the contrary, the record of more than a century of our free exercise jurisprudence
contradicts that proposition." 71 Scalia thus declared "that the right of free exercise
does not relieve an individual of the obligation to comply with a 'valid and neutral
law of general applicability of the ground that the law proscribes (or prescribes)
conduct that his religion prescribes (or proscribes).'" 72
Justice Scalia's opinion then reviewed the cases where free exercise challenges had
been upheld such as Cantwell, Murdock, Follet, Pierce, and Yoder and said that
none involved the free exercise clause claims alone. All involved "the Free Exercise
Clause in conjunction with other constitutional protections, such as freedom of
speech and of the press, or the right of parents to direct the education of their
children." 73 The Court said that Smith was distinguishable because it did not
involve such a "hybrid situation," but was a free exercise claim "unconnected with
any communicative activity or parental right." 74
Moreover, the Court said that the Sherbert line of cases applied only in the context
of the denial of unemployment benefits; it did not create a basis for an exemption
from criminal laws. Scalia wrote that "[e]ven if we were inclined to breathe
into Sherbert some life beyond the unemployment compensation field, we would
not apply it to require exemptions from a generally applicable criminal law." 75
The Court expressly rejected the use of strict scrutiny for challenges to neutral laws
of general applicability that burden religion. Justice Scalia said that "[p]recisely
because 'we are a cosmopolitan nation made up of people of almost conceivable
religious preference,' and precisely because we value and protect that religious
divergence, we cannot afford the luxury of deeming presumptively invalid, as
applied to the religious objector, every regulation of conduct that does not protect
an interest of the highest order." The Court said that those seeking religious
exemptions from laws should look to the democratic process for protection, not the
courts. 76
Smith thus changed the test for the free exercise clause. Strict or heightened
scrutiny and the compelling justification approach were abandoned for evaluating
laws burdening religion; neutral laws of general applicability only have to meet the
rational basis test, no matter how much they burden religion. 77
Justice O'Connor wrote a concurring opinion sharply criticizing the rejection of the
compelling state interest test, asserting that "(t)he compelling state interest test
effectuates the First Amendment's command that religious liberty is an independent
liberty, that it occupies a preferred position, and that the Court will not permit
encroachments upon this liberty, whether direct or indirect, unless required by clear
and compelling government interest 'of the highest order.'" 78 She said that strict
scrutiny is appropriate for free exercise challenges because "[t]he compelling
interest test reflects the First Amendment's mandate of preserving religious liberty
to the fullest extent possible in a pluralistic society." 79
Justice O'Connor also disagreed with the majority's description of prior cases and
especially its leaving the protection of minority religions to the political process. She
said that, "First Amendment was enacted precisely to protect the rights of those

whose religious practice are not shared by the majority and may be viewed with
hostility." 80
Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and
Marshall. The dissenting Justices agreed with Justice O'Connor that the majority had
mischaracterized precedents, such as in describing Yoder as a "hybrid" case rather
than as one under the free exercise clause. The dissent also argued that strict
scrutiny should be used in evaluating government laws burdening religion. 81
Criticism of Smith was intense and widespread. 82 Academics, Justices, and a
bipartisan majority of Congress noisily denounced the decision. 83 Smith has the
rather unusual distinction of being one case that is almost universally despised (and
this is not too strong a word) by both the liberals and conservatives. 84 Liberals
chasten the Court for its hostility to minority faiths which, in light of Smith's general
applicability rule, will allegedly suffer at the hands of the majority faith whether
through outright hostility or neglect. Conservatives bemoan the decision as an
assault on religious belief leaving religion, more than ever, subject to the caprice of
an ever more secular nation that is increasingly hostile to religious belief as an
oppressive and archaic anachronism. 85

The Smith doctrine is highly unsatisfactory in several respects and has been
criticized
as
exhibiting
a
shallow
understanding
of
free
exercise
jurisprudence. 86 First, the First amendment was intended to protect minority
religions from the tyranny of the religious and political majority. 87 Critics
of Smith have worried about religious minorities, who can suffer disproportionately
from laws that enact majoritarian mores. 88 Smith, in effect would allow
discriminating in favor of mainstream religious groups against smaller, more
peripheral groups who lack legislative clout, 89 contrary to the original theory of the
First Amendment. 90 Undeniably, claims for judicial exemption emanate almost
invariably from relatively politically powerless minority religions and Smith virtually
wiped out their judicial recourse for exemption. 91Second, Smith leaves too much
leeway for pervasive welfare-state-regulation to burden religion while satisfying
neutrality. After all, laws not aimed at religion can hinder observance just as
effectively as those that target religion. 92 Government impairment of religious
liberty would most often be of the inadvertent kind as in Smithconsidering the
political culture where direct and deliberate regulatory imposition of religious
orthodoxy is nearly inconceivable. If the Free Exercise Clause could not afford
protection to inadvertent interference, it would be left almost meaningless. 93 Third,
the Reynolds-Gobitis-Smith 94 doctrine simply defies common sense. The state
should not be allowed to interfere with the most deeply held fundamental religious
convictions of an individual in order to pursue some trivial state economic or
bureaucratic objective. This is especially true when there are alternative approaches
for the state to effectively pursue its objective without serious inadvertent impact
on religion. 95
At bottom, the Court's ultimate concern in Smith appeared to be two-fold: (1) the
difficulty in defining and limiting the term "religion" in today's pluralistic society,

and (2) the belief that courts have no business determining the significance of an
individual's religious beliefs. For the Smith Court, these two concerns appear to lead
to the conclusion that the Free Exercise Clause must protect everything or it must
protect virtually nothing. As a result, the Court perceives its only viable options are
to leave free exercise protection to the political process or to allow a "system in
which each conscience is a law unto itself." 96 The Court's characterization of its
choices have been soundly rejected as false, viz:
If one accepts the Court's assumption that these are the only two viable options,
then admittedly, the Court has a stronger argument. But the Free Exercise Clause
cannot be summarily dismissed as too difficult to apply and this should not be
applied at all. The Constitution does not give the judiciary the option of simply
refusing to interpret its provisions. The First Amendment dictates that free exercise
of "religion" must be protected. Accordingly, the Constitution compels the Court to
struggle with the contours of what constitutes "religion." There is no constitutional
opt-out provision for constitutional words that are difficult to apply. IcHSCT
Nor does the Constitution give the Court the option of simply ignoring constitutional
mandates. A large area of middle ground exists between the Court's two opposing
alternatives for free exercise jurisprudence. Unfortunately, this middle ground
requires the Court to tackle difficult issues such as defining religion and possibly
evaluating the significance of a religious belief against the importance of a specific
law. The Court describes the results of this middle ground where "federal judges will
regularly balance against the importance of general laws the significance of
religious practice," and then dismisses it as a "parade of horribles" that is too
"horrible to contemplate."
It is not clear whom the Court feels would be most hurt by this "parade of horribles."
Surely not religious individuals; they would undoubtedly prefer their religious beliefs
to be probed for sincerity and significance rather than acquiesce to the Court's
approach of simply refusing to grant any constitutional significance to their beliefs
at all. If the Court is concerned about requiring lawmakers at times constitutionally
to exempt religious individuals from statutory provisions, its concern is misplaced. It
is the lawmakers who have sought to prevent the Court from dismantling the Free
Exercise Clause through such legislation as the [Religious Freedom Restoration Act
of 1993], and in any case, the Court should not be overly concerned about hurting
legislature's feelings by requiring their laws to conform to constitutional dictates.
Perhaps the Court is concerned about putting such burden on judges. If so, it would
truly be odd to say that requiring the judiciary to perform its appointed role as
constitutional interpreters is a burden no judge should be expected to fulfill. 97
Parenthetically, Smith's characterization that the U.S. Court has "never held that an
individual's religious beliefs excuse him from compliance with an otherwise valid law
prohibiting conduct that the state is free to regulate" an assertion which Mr.
Justice Carpio adopted unequivocally in his dissent has been sharply criticized
even implicitly by its supporters, as blatantly untrue. Scholars who
supported Smith frequently did not do so by opposing the arguments that the Court
was wrong as a matter of original meaning [of the religion clauses] or that the

decision conflicted with precedent [i.e. the Smith decision made shocking use of
precedent] those points were often conceded. 98
To justify its perversion of precedent, the Smith Court attempted to distinguish the
exemption made in Yoder, by asserting that these were premised on two
constitutional rights combined the right of parents to direct the education of their
children and the right of free exercise of religion. Under the Court's opinion inSmith,
the right of free exercise of religion standing alone would not allow Amish parents to
disregard the compulsory school attendance law, and under the Court's opinion
in Yoder, parents whose objection to the law was not religious would also have to
obey it. The fatal flaw in this argument, however, is that if two constitutional claims
will fail on its own, how would it prevail if combined? 99 As for Sherbert,
the Smith Court attempted to limit its doctrine as applicable only to denials of
unemployment compensation benefits where the religiously-compelled conduct that
leads to job loss is not a violation of criminal law. And yet, this is precisely why the
rejection of Sherbert was so damaging in its effect: the religious person was more
likely to be entitled to constitutional protection when forced to choose between
religious conscience and going to jail than when forced to choose between religious
conscience and financial loss. 100
Thus, the Smith decision elicited much negative public reaction especially from the
religious community, and commentaries insisted that the Court was allowing the
Free Exercise Clause to disappear. 101 So much was the uproar that a majority in
Congress was convinced to enact the Religious Freedom Restoration Act (RFRA) of
1993.102 The RFRA was adopted to negate the Smith test and require strict scrutiny
for free exercise claims. Indeed, the findings section of the Act notes
that Smith "virtually eliminated the requirement that the government justify
burdens on religious exercise imposed by laws neutral toward religion." 103 The Act
declares that its purpose is to restore the compelling interest test as set forth
in Sherbert v. Verner and Wisconsin v. Yoder, and to guarantee its application in all
cases where free exercise of religion is substantially burdened; and to provide a
claim of defense to a person whose religious exercise is substantially burdened by
government. 104 The RFRA thus sought to overrule Smith and make strict scrutiny
the test for all free exercise clause claims. 105
In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared the RFRA
unconstitutional, ruling that Congress had exceeded its power under the Fourteenth
Amendment in enacting the law. The Court ruled that Congress is empowered to
enact laws "to enforce the amendment," but Congress is not "enforcing" when it
creates new constitutional rights or expands the scope of rights. 107
City of Boerne also drew public backlash as the U.S. Supreme Court was accused of
lack of judicial respect for the constitutional decision-making by a coordinate branch
of government. In Smith, Justice Scalia wrote:
"Values that are protected against governmental interference through enshrinement
in the Bill of Rights are not thereby banished from the political process. Just as
society believes in the negative protection accorded to the press by the First
Amendment is likely to enact laws that affirmatively foster the dissemination of the

printed word, so also a society that believes in the negative protection accorded to
religious belief can be expected to be solicitous of that value in its legislation as
well."
By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a
nearly unanimous Congress. Contrary to the Court's characterization of the RFRA as
a kind of usurpation of the judicial power to say what the Constitution means, the
law offered no definition of Free Exercise, and on its face appeared to be a
procedural measure establishing a standard of proof and allocating the duty of
meeting it. In effect, the Court ruled that Congress had no power in the area of
religion. And yet, Free Exercise exists in the First Amendment as a negative on
Congress. The power of Congress to act towards the states in matters of religion
arises from the Fourteenth Amendment. 108

From the foregoing, it can be seen that Smith, while expressly recognizing the
power of legislature to give accommodations, is in effect contrary to the benevolent
neutrality or accommodation approach. Moreover, if we consider the history of the
incorporation of the religion clauses in the U.S., the decision in Smith is grossly
inconsistent with the importance placed by the framers on religious faith. Smith is
dangerous precedent because it subordinates fundamental rights of religious belief
and practice to all neutral, general legislation. Sherbert recognized the need to
protect religious exercise in light of the massive increase in the size of government,
the concerns within its reach, and the number of laws administered by it.
However, Smith abandons the protection of religious exercise at a time when the
scope and reach of government has never been greater. It has been pointed out
that Smith creates the legal framework for persecution: through general, neutral
laws, legislatures are now able to force conformity on religious minorities whose
practice irritate or frighten an intolerant majority. 109
The effect of Smith is to erase entirely the concept of mandatory accommodations,
thereby emasculating the Free Exercise Clause. Smith left religious freedom for
many in the hands of the political process, exactly where it would be if the religion
clauses did not exist in the Bill of Rights. Like most protections found in the Bill of
Rights, the religion clauses of the First Amendment are most important to those who
cannot prevail in the political process. The Court in Smith ignores the fact that the
protections found in the Bill of Rights were deemed too important to leave to the
political process. Because mainstream religions generally have been successful in
protecting their interests through the political process, it is the non-mainstream
religions that are adversely affected by Smith. In short, the U.S. Supreme Court has
made it clear to such religions that they should not look to the First Amendment for
religious freedom. 110
(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of accommodation: (a) those which
are found to be constitutionally compelled, i.e., required by the Free Exercise
Clause; (b) those which are discretionary or legislative, i.e., not required by the Free

Exercise Clause but nonetheless permitted by the Establishment Clause; and (c)
those which the religion clauses prohibit. 111
Mandatory accommodation results when the Court finds that accommodation
is required by the Free Exercise Clause, i.e., when the Court itself carves out an
exemption. This accommodation occurs when all three conditions of the compelling
interest test are met, i.e, a statute or government action has burdened claimant's
free exercise of religion, and there is no doubt as to the sincerity of the religious
belief; the state has failed to demonstrate a particularly important or compelling
governmental goal in preventing an exemption; and that the state has failed to
demonstrate that it used the least restrictive means. In these cases, the Court finds
that the injury to religious conscience is so great and the advancement of public
purposes is incomparable that only indifference or hostility could explain a refusal to
make exemptions. Thus, if the state's objective could be served as well or almost as
well by granting an exemption to those whose religious beliefs are burdened by the
regulation, the Court must grant the exemption. The Yoder case is an example
where the Court held that the state must accommodate the religious beliefs of the
Amish who objected to enrolling their children in high school as required by law.
The Sherbert case is another example where the Court held that the state
unemployment compensation plan must accommodate the religious convictions of
Sherbert. 112
In permissive accommodation, the Court finds that the State may, but is not
required to, accommodate religious interests. The U.S. Walz case illustrates this
situation where the U.S. Supreme Court upheld the constitutionality of tax
exemption given by New York to church properties, but did not rule that the state
was required to provide tax exemptions. The Court declared that "(t)he limits of
permissible state accommodation to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause." 113 Other examples
are Zorach v. Clauson, 114 allowing released time in public schools and Marsh v.
Chambers, 115 allowing payment of legislative chaplains from public funds.
Parenthetically, the Court in Smith has ruled that this is the only accommodation
allowed by the Religion Clauses.
Finally, when the Court finds no basis for a mandatory accommodation, or it
determines that the legislative accommodation runs afoul of the establishment or
the free exercise clause, it results to a prohibited accommodation. In this case, the
Court finds that establishment concerns prevail over potential accommodation
interests. To say that there are valid exemptions buttressed by the Free Exercise
Clause does not mean that all claims for free exercise exemptions are valid. 116 An
example where accommodation was prohibited is McCollum v. Board of
Education, 117 where the Court ruled against optional religious instruction in the
public school premises. 118
Given that a free exercise claim could lead to three different results, the question
now remains as to how the Court should determine which action to take. In this
regard, it is the strict scrutiny-compelling state interest test which is most in line
with the benevolent neutrality-accommodation approach.

Under the benevolent-neutrality theory, the principle underlying the First

Amendment is that freedom to carry out one's duties to a Supreme Being is an
inalienable right, not one dependent on the grace of legislature. Religious freedom
is seen as a substantive right and not merely a privilege against discriminatory
legislation. With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Considering that laws nowadays are rarely enacted specifically to disable religious
belief or practice, free exercise disputes arise commonly when a law that is
religiously neutral and generally applicable on its face is argued to prevent or
burden what someone's religious faith requires, or alternatively, requires someone
to undertake an act that faith would preclude. In essence, then, free exercise
arguments contemplate religious exemptions from otherwise general laws. 119
Strict scrutiny is appropriate for free exercise challenges because "[t]he compelling
interest test reflects the First Amendment's mandate of preserving religious liberty
to the fullest extent possible in a pluralistic society. 120 Underlying the compelling
state interest test is the notion that free exercise is a fundamental right and that
laws burdening it should be subject to strict scrutiny. 121
In its application, the compelling state interest test follows a three-step process,
summarized as follows:
If the plaintiff can show that a law or government practice inhibits the free exercise
of his religious beliefs, the burden shifts to the government to demonstrate that the
law or practice is necessary to the accomplishment of some important (or
'compelling') secular objective and that it is the least restrictive means of achieving
that objective. If the plaintiff meets this burden and the government does not, the
plaintiff is entitled to exemption from the law or practice at issue. In order to be
protected, the claimant's beliefs must be 'sincere', but they need not necessarily be
consistent, coherent, clearly articulated, or congruent with those of the claimant's
religious denomination. 'Only beliefs rooted in religion are protected by the Free
Exercise Clause'; secular beliefs, however sincere and conscientious, do not
suffice. 122
In sum, the U.S. Court has invariably decided claims based on the religion clauses
using either the separationist approach, or the benevolent neutrality approach. The
benevolent neutrality approach has also further been split by the view that the First
Amendment requires accommodation, or that it only allows permissible legislative
accommodations. The current prevailing view as pronounced in Smith, however, is
that that there are no required accommodation under the First Amendment,
although it permits of legislative accommodations.
3.
Religion
Clauses
Jurisprudence and Practice

in

the

Philippine

Context:

Constitution,

a. US Constitution and jurisprudence vis--vis Philippine Constitution

By juxtaposing the American Constitution and jurisprudence against that of the
Philippines, it is immediately clear that one cannot simply conclude that we have

adopted lock, stock and barrel the religion clauses as embodied in the First
Amendment, and therefore, the U.S. Court's interpretation of the same. Unlike in the
U.S. where legislative exemptions of religion had to be upheld by the U.S. Supreme
Court as constituting permissive accommodations, similar exemptions for religion
are mandatory accommodations under our own constitutions. Thus, our 1935, 1973
and 1987 Constitutions contain provisions on tax exemption of church
property,123 salary of religious officers in government institutions, 124 and optional
religious instruction. 125 Our own preamble also invokes the aid of a divine
being. 126 These constitutional provisions are wholly ours and have no counterpart
in the U.S. Constitution or its amendments. They all reveal without doubt that the
Filipino people, in adopting these constitutions, manifested their adherence to
the benevolent neutrality approach that requires accommodations in interpreting
the religion clauses. 127

The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous
insofar as it asserted that the 1935 Constitution incorporates the Walz ruling as this
case was decided subsequent to the 1935 Constitution is a misreading of
the ponencia. What the ponencia pointed out was that even as early as 1935, or
more than three decades before the U.S. Court could validate the exemption
in Walz as a form or permissible accommodation, we have already incorporated the
same in our Constitution, as a mandatory accommodation. HcDSaT
There is no ambiguity with regard to the Philippine Constitution's departure from the
U.S. Constitution, insofar as religious accommodations are concerned. It is
indubitable that benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the Philippine
Constitution.128 As stated in our Decision, dated August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these clauses
were largely adopted from the First Amendment of the U.S. Constitution . .
.Philippine jurisprudence and commentaries on the religious clauses also continued
to borrow authorities from U.S. jurisprudence without articulating the stark
distinction between the two streams of U.S. jurisprudence [i.e., separation and
benevolent neutrality]. One might simply conclude that the Philippine Constitutions
and jurisprudence also inherited the disarray of U.S. religion clause jurisprudence
and the two identifiable streams; thus, when a religion clause case comes before
the Court, a separationist approach or a benevolent neutrality approach might be
adopted and each will have U.S. authorities to support it. Or, one might conclude
that as the history of the First Amendment as narrated by the Court
in Everson supports the separationist approach, Philippine jurisprudence should also
follow this approach in light of the Philippine religion clauses' history. As a result, in
a case where the party claims religious liberty in the face of a general law that
inadvertently burdens his religious exercise, he faces an almost insurmountable wall
in convincing the Court that the wall of separation would not be breached if the
Court grants him an exemption. These conclusions, however, are not and were
never warranted by the 1987, 1973 and 1935 Constitutions as shown by other
provisions on religion in all three constitutions. It is a cardinal rule in constitutional

construction that the constitution must be interpreted as a whole and apparently

conflicting provisions should be reconciled and harmonized in a manner that will
give to all of them full force and effect. From this construction, it will be ascertained
that the intent of the framers was to adopt a benevolent neutrality approach in
interpreting the religious clauses in the Philippine constitutions, and the
enforcement of this intent is the goal of construing the constitution. 129 [citations
omitted]
We therefore reject Mr. Justice Carpio's total adherence to the U.S. Court's
interpretation of the religion clauses to effectively deny accommodations on the
sole basis that the law in question is neutral and of general application. For even if it
were true that "an unbroken line of U.S. Supreme Court decisions" has never held
that "an individual's religious beliefs [do not] excuse him from compliance with an
otherwise valid law prohibiting conduct that the State is free to regulate," our own
Constitutions have made significant changes to accommodate and exempt
religion. Philippine jurisprudence shows that the Court has allowed exemptions from
a law of general application, in effect, interpreting our religion clauses to cover both
mandatory and permissive accommodations. 130
To illustrate, in American Bible Society v. City of Manila, 131 the Court granted to
plaintiff exemption from a law of general application based on the Free Exercise
Clause. In this case, plaintiff was required by an ordinance to secure a mayor's
permit and a municipal license as ordinarily required of those engaged in the
business of general merchandise under the city's ordinances. Plaintiff argued that
this amounted to "religious censorship and restrained the free exercise and
enjoyment of religious profession, to wit: the distribution and sale of bibles and
other religious literature to the people of the Philippines." Although the Court
categorically held that the questioned ordinances were not applicable to plaintiff as
it was not engaged in the business or occupation of selling said "merchandise" for
profit, it also ruled that applying the ordinance to plaintiff and requiring it to secure
a license and pay a license fee or tax would impair its free exercise of religious
profession and worship and its right of dissemination of religious beliefs "as the
power to tax the exercise of a privilege is the power to control or suppress its
enjoyment." The decision states in part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious
profession and worship carries with it the right to disseminate religious information.
Any restraint of such right can only be justified like other restraints of freedom of
expression on the grounds that there is a clear and present danger of any
substantive evil which the State has the right to prevent. (citations
omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The Division
Superintendent of Schools. 132 The case involved several Jehovah's Witnesses who
were expelled from school for refusing to salute the flag, sing the national anthem
and recite the patriotic pledge, in violation of the Administrative Code of 1987. In
resolving the religious freedom issue, a unanimous Court overturned an earlier
ruling denying such exemption, 133 using the "grave and imminent danger"
test, viz:

The sole justification for a prior restraint or limitation on the exercise of religious
freedom (according to the late Chief Justice Claudio Teehankee in his dissenting
opinion in German v. Barangan, 135 SCRA 514, 517) is the existence of a grave and
present danger of a character both grave and imminent, of a serious evil to public
safety, public morals, public health or any other legitimate public interest, that the
State has a right (and duty) to prevent. Absent such a threat to public safety, the
expulsion of the petitioners from the schools is not justified. 134 (emphases
supplied)
In these two cases, the Court itself carved out an exemption from a law of general
application, on the strength directly of the Free Exercise Clause.
We also have jurisprudence that supports permissive accommodation. The case
of Victoriano v. Elizalde Rope Workers Union 135 is an example of the application of
Mr. Justice Carpio's theory of permissive accommodation, where religious exemption
is granted by a legislative act. In Victoriano, the constitutionality of Republic Act No.
3350 was questioned. The said R.A. exempt employees from the application and
coverage of a closed shop agreement mandated in another law based on
religious objections. A unanimous Court upheld the constitutionality of the law,
holding that "government is not precluded from pursuing valid objectives secular in
character even if the incidental result would be favorable to a religion or sect."
Interestingly, the secular purpose of the challenged law which the Court upheld was
the advancement of "the constitutional right to the free exercise of religion." 136
Having established that benevolent neutrality-accommodation is the framework by
which free exercise cases must be decided, the next question then turned to the
test that should be used in ascertaining the limits of the exercise of religious
freedom. In our Decision dated August 4, 2003, we reviewed our jurisprudence, and
ruled that in cases involving purely conduct based on religious belief, as in the case
at bar, the compelling state interest test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible Society,
the Court mentioned the "clear and present danger" test but did not employ it.
Nevertheless, this test continued to be cited in subsequent cases on religious
liberty. The Geronacase 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 conductarising 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 shortterm while others delayed and far-reaching. A test that would protect the interests
of the state in preventing a substantive evil, whether immediate or delayed, is
therefore necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental right that enjoys a
preferred position in the hierarchy of rights "the most inalienable and sacred of
all human rights", in the words of Jefferson. This right is sacred for an invocation of
the Free Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an acknowledgment of
such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in order
to build a just and humane society and establish a government." As held
in Sherbert, only the gravest abuses, endangering paramount interests can limit this
fundamental right. A mere balancing of interests which balances a right with just a
colorable state interest is therefore not appropriate. Instead, only a compelling
interest of the state can prevail over the fundamental right to religious liberty. The
test requires the state to carry a heavy burden, a compelling one, for to do
otherwise would allow the state to batter religion, especially the less powerful ones
until they are destroyed. In determining which shall prevail between the state's
interest and religious liberty, reasonableness shall be the guide. The "compelling
state interest" serves the purpose of revering religious liberty while at the same
time affording protection to the paramount interests of the state. This was the test
used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the
end, the "compelling state interest" test, by upholding the paramount interests of
the state, seeks to protect the very state, without which, religious liberty will not be
preserved. 137 (citations omitted)

At this point, we take note of Mr. Justice Carpio's dissent, which, while loosely
disputing the applicability of the benevolent neutrality framework and compelling
state interest test, states that "[i]t is true that a test needs to be applied by the
Court in determining the validity of a free exercise claim of exemption as made here
by Escritor." This assertion is inconsistent with the position negating the benevolent
neutrality or accommodation approach. If it were true, indeed, that the religion

clauses do not require accommodations based on the free exercise of religion,

then there would be no need for a test to determine the validity of a free exercise
claim, as any and all claims for religious exemptions from a law of general
application would fail.
Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive
accommodation and mandatory accommodation is more critically important in
analyzing free exercise exemption claims because it forces the Court to confront
how far it can validly set the limits of religious liberty under the Free Exercise
Clause, rather than presenting the separation theory and accommodation theory as
opposite concepts, and then rejecting relevant and instructive American
jurisprudence (such as theSmith case) just because it does not espouse the theory
selected." He then asserts that the Smith doctrine cannot be dismissed because it
does not really espouse the strict neutrality approach, but more of permissive
accommodation. ACTISE
Mr. Justice Carpio's assertion misses the point. Precisely because the doctrine
in Smith is that only legislative accommodations are allowed under the Free
Exercise Clause, it cannot be used in determining a claim of religion exemption
directly anchored on the Free Exercise Clause. Thus, even assuming that
the Smith doctrine actually espouses the theory of accommodation or benevolent
neutrality, the accommodation is limited to the permissive, or legislative
exemptions. It, therefore, cannot be used as a test in determining the claims of
religious exemptions directly under the Free Exercise Clause because Smith does
not recognize such exemption. Moreover, Mr. Justice Carpio's advocacy of
the Smith doctrine would effectively render the Free Exercise protection a
fundamental right under our Constitution nugatory because he would deny its
status as an independent source of right.
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a three-step
process. We explained this process in detail, by showing the questions which must
be answered in each step, viz:
. . . First, "[H]as the statute or government action created a burden on the free
exercise of religion?" The courts often look into the sincerity of the religious belief,
but without inquiring into the truth of the belief because the Free Exercise Clause
prohibits inquiring about its truth as held in Ballard and Cantwell. The sincerity of
the claimant's belief is ascertained to avoid the mere claim of religious beliefs to
escape a mandatory regulation. . . .
xxx xxx xxx
Second, the court asks: "[I]s there a sufficiently compelling state interest to justify
this infringement of religious liberty?" In this step, the government has to establish
that its purposes are legitimate for the state and that they are compelling.
Government must do more than assert the objectives at risk if exemption is given; it
must precisely show how and to what extent those objectives will be undermined if
exemptions are granted. . . .

xxx xxx xxx

Third, the court asks: "[H]as the state in achieving its legitimate purposes used the
least intrusive means possible so that the free exercise is not infringed any more
than necessary to achieve the legitimate goal of the state?" The analysis requires
the state to show that the means in which it is achieving its legitimate state
objective is the least intrusive means, i.e., it has chosen a way to achieve its
legitimate state end that imposes as little as possible on religious
liberties . . . . 138 [citations omitted]
Again, the application of the compelling state interest test could result to three
situations of accommodation: First, mandatory accommodation would result if the
Court finds that accommodation is required by the Free Exercise Clause. Second, if
the Court finds that the State may, but is not required to, accommodate religious
interests, permissive accommodation results. Finally, if the Court finds that the
establishment concerns prevail over potential accommodation interests, then it
must rule that the accommodation is prohibited.
One of the central arguments in Mr. Justice Carpio's dissent is that only permissive
accommodation can carve out an exemption from a law of general application. He
posits the view that the law should prevail in the absence of a legislative exemption,
and the Court cannot make the accommodation or exemption.
Mr. Justice Carpio's position is clearly not supported by Philippine jurisprudence. The
cases of American Bible Society, Ebralinag, and Victoriano demonstrate that our
application of the doctrine of benevolent neutrality-accommodation covers not only
the grant of permissive, or legislative accommodations, but also mandatory
accommodations. Thus, an exemption from a law of general application is possible,
even if anchored directly on an invocation of the Free Exercise Clause alone, rather
than a legislative exemption.
Moreover, it should be noted that while there is no Philippine case as yet wherein
the Court granted an accommodation/exemption to a religious act from the
application of general penal laws, permissive accommodation based on religious
freedom has been granted with respect to one of the crimes penalized under the
Revised Penal Code, that of bigamy.
In the U.S. case of Reynolds v. United States, 139 the U.S. Court expressly denied to
Mormons an exemption from a general federal law criminalizing polygamy, even if it
was proven that the practice constituted a religious duty under their faith. 140 In
contradistinction, Philippine law accommodates the same practice among Moslems,
through a legislative act. For while the act of marrying more than one still
constitutes bigamy under the Revised Penal Code, Article 180 of P.D. No. 1083,
otherwise known as the Code of Muslim Personal Laws of the Philippines, provides
that the penal laws relative to the crime of bigamy "shall not apply to a person
married . . . under Muslim law." Thus, by legislative action, accommodation is
granted of a Muslim practice which would otherwise violate a valid and general
criminal law. Mr. Justice Carpio recognized this accommodation when, in his dissent
in our Decision dated August 4, 2003 and citing Sulu Islamic Association of Masjid

Lambayong v. Malik,141 he stated that a Muslim Judge "is not criminally liable for
bigamy because Shari'a law allows a Muslim to have more than one wife."
From the foregoing, the weakness of Mr. Justice Carpio's "permissiveaccommodation only" advocacy in this jurisdiction becomes manifest. Having
anchored his argument on the Smith doctrine that "the guaranty of religious liberty
as embodied in the Free Exercise Clause does not require the grant of exemptions
from generally applicable laws to individuals whose religious practice conflict with
those laws," his theory is infirmed by the showing that the benevolent neutrality
approach which allows for both mandatory and permissive accommodations was
unequivocally adopted by our framers in the Philippine Constitution, our legislature,
and our jurisprudence.
Parenthetically, it should be pointed out that a "permissive accommodation-only"
stance is the antithesis to the notion that religion clauses, like the other
fundamental liberties found in the Bill or Rights, is a preferred right and an
independent source of right.
What Mr. Justice Carpio is left with is the argument, based on Smith, that the test
in Sherbert is not applicable when the law in question is a generally
applicablecriminal law. Stated differently, even if Mr. Justice Carpio conceded that
there is no question that in the Philippine context, accommodations are made, the
question remains as to how far the exemptions will be made and who would make
these exemptions.
On this point, two things must be clarified: first, in relation to criminal statutes, only
the question of mandatory accommodation is uncertain, for Philippine law and
jurisprudence have, in fact, allowed legislative accommodation. Second, the power
of the Courts to grant exemptions in general (i.e., finding that the Free Exercise
Clause required the accommodation, or mandatory accommodations) has already
been decided, not just once, but twice by the Court. Thus, the crux of the matter is
whether this Court can make exemptions as in Ebralinag and the American Bible
Society, in cases involving criminal laws of general application.
We hold that the Constitution itself mandates the Court to do so for the following
reasons.
First, as previously discussed, while the U.S. religion clauses are the precursors to
the Philippine religion clauses, the benevolent neutrality-accommodationapproach
in Philippine jurisdiction is more pronounced and given leeway than in the U.S.
Second, the whole purpose of the accommodation theory, including the notion of
mandatory accommodations, was to address the "inadvertent burdensome effect"
that an otherwise facially neutral law would have on religious exercise. Just because
the law is criminal in nature, therefore, should not bring it out of the ambit of the
Free Exercise Clause. As stated by Justice O'Connor in her concurring opinion
in Smith, "[t]here is nothing talismanic about neutral laws of general applicability or
general criminal prohibitions, for laws neutral towards religion can coerce a person
to violate his religious conscience or intrude upon his religious duties just as
effectively as laws aimed at religion." 142

Third, there is wisdom in accommodation made by the Court as this is the recourse
of minority religions who are likewise protected by the Free Exercise Clause.
Mandatory accommodations are particularly necessary to protect adherents of
minority religions from the inevitable effects of majoritarianism, which include
ignorance and indifference and overt hostility to the minority. As stated in our
Decision, dated August 4, 2003:
. . . In a democratic republic, laws are inevitably based on the presuppositions of the
majority, thus not infrequently, they come into conflict with the religious scruples of
those holding different world views, even in the absence of a deliberate intent to
interfere with religious practice. At times, this effect is unavoidable as a practical
matter because some laws are so necessary to the common good that exceptions
are intolerable. But in other instances, the injury to religious conscience is so great
and the advancement of public purposes so small or incomparable that only
indifference or hostility could explain a refusal to make exemptions. Because of
plural traditions, legislators and executive officials are frequently willing to make
such exemptions when the need is brought to their attention, but this may not
always be the case when the religious practice is either unknown at the time of
enactment or is for some reason unpopular. In these cases, a constitutional
interpretation thatallows accommodations prevents needless injury to the religious
consciences of those who can have an influence in the legislature; while a
constitutional interpretation that requires accommodations extends this treatment
to religious faiths that are less able to protect themselves in the political arena.
Fourth, exemption from penal laws on account of religion is not entirely an alien
concept, nor will it be applied for the first time, as an exemption of such nature,
albeit by legislative act, has already been granted to Moslem polygamy and the
criminal law of bigamy.
Finally, we must consider the language of the Religion Clauses vis--vis the other
fundamental rights in the Bill of Rights. It has been noted that unlike other
fundamental rights like the right to life, liberty or property, the Religion Clauses are
stated in absolute terms, unqualified by the requirement of "due process,"
"unreasonableness," or "lawful order." Only the right to free speech is comparable in
its absolute grant. Given the unequivocal and unqualified grant couched in the
language, the Court cannot simply dismiss a claim of exemption based on the Free
Exercise Clause, solely on the premise that the law in question is a general criminal
law. 143 If the burden is great and the sincerity of the religious belief is not in
question, adherence to the benevolent neutrality-accommodation approach require
that the Court make an individual determination and not dismiss the claim
outright. ETHSAI
At this point, we must emphasize that the adoption of the benevolent neutralityaccommodation approach does not mean that the Court ought to grant exemptions
every time a free exercise claim comes before it. This is an erroneous reading of the
framework which the dissent of Mr. Justice Carpio seems to entertain.
Althoughbenevolent neutrality is the lens with which the Court ought to view

religion clause cases, the interest of the state should also be afforded utmost
protection. This is precisely the purpose of the test to draw the line between
mandatory, permissible and forbidden religious exercise. Thus, under the
framework, the Court cannot simply dismiss a claim under the Free Exercise Clause
because the conduct in question offends a law or the orthodox view, as proposed by
Mr. Justice Carpio, for this precisely is the protection afforded by the religion clauses
of the Constitution. 144 As stated in the Decision:
. . . While the Court cannot adopt a doctrinal formulation that can eliminate the
difficult questions of judgment in determining the degree of burden on religious
practice or importance of the state interest or the sufficiency of the means adopted
by the state to pursue its interest, the Court can set a doctrine on the ideal towards
which religious clause jurisprudence should be directed. We here lay down the
doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach
not only because of its merits as discussed above, but more importantly, because
our constitutional history and interpretation indubitably show that benevolent
neutrality is the launching pad from which the Court should take off in interpreting
religion clause cases. The ideal towards which this approach is directed is the
protection of religious liberty "not only for a minority, however small- not only for a
majority, however large but for each of us" to the greatest extent possible within
flexible constitutional limits. 145
II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003 Decision. As
mentioned, what remained to be resolved, upon which remand was necessary,
pertained to the final task of subjecting this case to the careful application of the
compelling state interest test, i.e., determining whether respondent is entitled to
exemption, an issue which is essentially factual or evidentiary in nature.
After the termination of further proceedings with the OCA, and with the transmittal
of the Hearing Officer's report, 146 along with the evidence submitted by the OSG,
this case is once again with us, to resolve the penultimate question of whether
respondent should be found guilty of the administrative charge of "disgraceful and
immoral conduct." It is at this point then that we examine the report and documents
submitted by the hearing officer of this case, and apply the three-step process of
the compelling state interest test based on the evidence presented by the parties,
especially the government.
On the sincerity of religious belief, the Solicitor General categorically concedes that
the sincerity and centrality of respondent's claimed religious belief and practice are
beyond serious doubt. 147 Thus, having previously established the preliminary
conditions required by the compelling state interest test, i.e., that a law or
government practice inhibits the free exercise of respondent's religious beliefs, and
there being no doubt as to the sincerity and centrality of her faith to claim the
exemption based on the free exercise clause, the burden shifted to the
government to demonstrate that the law or practice justifies a compelling secular
objective and that it is the least restrictive means of achieving that objective.

A look at the evidence that the OSG has presented fails to demonstrate "the gravest
abuses, endangering paramount interests" which could limit or override
respondent's fundamental right to religious freedom. Neither did the government
exert any effort to show that the means it seeks to achieve its legitimate state
objective is the least intrusive means.
The OSG merely offered the following as exhibits and their purposes:
1. Exhibit "A-OSG" AND SUBMARKING The September 30, 2003 Letter to the OSG
of Bro. Raymond B. Leach, Legal Representative of the Watch Tower Bible and Tract
Society of the Philippines, Inc.
PURPOSE: To show that the OSG exerted efforts to examine the sincerity and
centrality of respondent's claimed religious belief and practice.
2. Exhibit "B-OSG" AND SUBMARKING The duly notarized certification dated
September 30, 2003 issued and signed by Bro. Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of respondent's claimed
religious belief and practice; and (2) to prove that the Declaration of Pledging
Faithfulness, being a purely internal arrangement within the congregation of the
Jehovah's Witnesses, cannot be a source of any legal protection for respondent.
In its Memorandum-In-Intervention, the OSG contends that the State has a
compelling interest to override respondent's claimed religious belief and practice, in
order to protect marriage and the family as basic social institutions. The Solicitor
General, quoting the Constitution 148 and the Family Code, 149 argues that
marriage and the family are so crucial to the stability and peace of the nation that
the conjugal arrangement embraced in the Declaration of Pledging Faithfulness
should not be recognized or given effect, as "it is utterly destructive of the avowed
institutions of marriage and the family for it reduces to a mockery these legally
exalted and socially significant institutions which in their purity demand respect and
dignity." 150
Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor
General in so far as he asserts that the State has a compelling interest in the
preservation of marriage and the family as basic social institutions, which is
ultimately the public policy underlying the criminal sanctions against concubinage
and bigamy. He also argues that in dismissing the administrative complaint against
respondent, "the majority opinion effectively condones and accords a semblance of
legitimacy to her patently unlawful cohabitation . . ." and "facilitates the
circumvention of the Revised Penal Code." According to Mr. Justice Carpio, by
choosing to turn a blind eye to respondent's criminal conduct, the majority is in fact
recognizing a practice, custom or agreement that subverts marriage. He argues in a
similar fashion as regards the state's interest in the sound administration of justice.
There has never been any question that the state has an interest in protecting the
institutions of marriage and the family, or even in the sound administration of
justice. Indeed, the provisions by which respondent's relationship is said to have
impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised

Administrative Code, Articles 334 and 349 of the Revised Penal Code, and even the
provisions on marriage and family in the Civil Code and Family Code, all clearly
demonstrate the State's need to protect these secular interests.

Be that as it may, the free exercise of religion is specifically articulated as one of the
fundamental rights in our Constitution. It is a fundamental right that enjoys a
preferred position in the hierarchy of rights "the most inalienable and sacred of
human rights," in the words of Jefferson. Hence, it is not enough to contend that the
state's interest is important, because our Constitution itself holds the right to
religious freedom sacred. The State must articulate in specific terms the state
interest involved in preventing the exemption, which must be compelling, for only
the gravest abuses, endangering paramount interests can limit the fundamental
right to religious freedom. To rule otherwise would be to emasculate the Free
Exercise Clause as a source of right by itself.
Thus, it is not the State's broad interest in "protecting the institutions of marriage
and the family," or even "in the sound administration of justice" that must be
weighed against respondent's claim, but the State's narrow interest in refusing to
make an exception for the cohabitation which respondent's faith finds moral. In
other words,the government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those objectives
will be undermined if exemptions are granted. 151 This, the Solicitor General failed
to do.
To paraphrase Justice Blackmun's application of the compelling interest test, the
State's interest in enforcing its prohibition, in order to be sufficiently compelling to
outweigh a free exercise claim, cannot be merely abstract or symbolic. The State
cannot plausibly assert that unbending application of a criminal prohibition is
essential to fulfill any compelling interest, if it does not, in fact, attempt to enforce
that prohibition. In the case at bar, the State has not evinced any concrete interest
in enforcing the concubinage or bigamy charges against respondent or her partner.
The State has never sought to prosecute respondent nor her partner. The State's
asserted interest thus amounts only to the symbolic preservation of an unenforced
prohibition. Incidentally, as echoes of the words of Messrs. J. Bellosillo and Vitug, in
their concurring opinions in our Decision, dated August 4, 2003, to deny the
exemption would effectively break up "an otherwise ideal union of two individuals
who have managed to stay together as husband and wife [approximately twentyfive years]" and have the effect of defeating the very substance of marriage and the
family. ETHIDa
The Solicitor General also argued against respondent's religious freedom on the
basis of morality, i.e., that "the conjugal arrangement of respondent and her live-in
partner should not be condoned because adulterous relationships are constantly
frowned upon by society"; 152 and "that State laws on marriage, which are moral in
nature, take clear precedence over the religious beliefs and practices of any church,
religious sect or denomination on marriage. Verily, religious beliefs and practices

should not be permitted to override laws relating to public policy such as those of
marriage." 153
The above arguments are mere reiterations of the arguments raised by Mme. Justice
Ynares-Santiago in her dissenting opinion to our Decision dated August 4, 2003,
which she offers again in toto. These arguments have already been addressed in our
decision dated August 4, 2003. 154 In said Decision, we noted that Mme. Justice
Ynares-Santiago's dissenting opinion dwelt more on the standards of morality,
without categorically holding that religious freedom is not in issue. 155 We,
therefore, went into a discussion on morality, in order to show that:
(a) The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from establishing a
religion, including the morality it sanctions. 156 Thus, when the law speaks of
"immorality" in the Civil Service Law or "immoral" in the Code of Professional
Responsibility for lawyers, 157 or "public morals" in the Revised Penal Code, 158 or
"morals"
in
the
New
Civil
Code, 159 or
"moral
character"
in
the
Constitution, 160 the distinction between public and secular morality on the one
hand, and religious morality, on the other, should be kept in mind; 161
(b) Although the morality contemplated by laws is secular, benevolent
neutrality could allow for accommodation of morality based on religion, provided it
does not offend compelling state interests; 162
(c) The jurisdiction of the Court extends only to public and secular morality.
Whatever pronouncement the Court makes in the case at bar should be understood
only in this realm where it has authority. 163
(d) Having distinguished between public and secular morality and religious morality,
the more difficult task is determining which immoral acts under this public and
secular morality fall under the phrase "disgraceful and immoral conduct" for which a
government employee may be held administratively liable. 164 Only one conduct is
in question before this Court, i.e., the conjugal arrangement of a government
employee whose partner is legally married to another which Philippine law and
jurisprudence consider both immoral and illegal. 165
(e) While there is no dispute that under settled jurisprudence, respondent's conduct
constitutes "disgraceful and immoral conduct," the case at bar involves the defense
of religious freedom, therefore none of the cases cited by Mme. Justice YnaresSantiago apply. 166 There is no jurisprudence in Philippine jurisdiction holding that
the defense of religious freedom of a member of the Jehovah's Witnesses under the
same circumstances as respondent will not prevail over the laws on adultery,
concubinage or some other law. We cannot summarily conclude therefore that her
conduct is likewise so "odious" and "barbaric" as to be immoral and punishable by
law. 167
Again, we note the arguments raised by Mr. Justice Carpio with respect to charging
respondent with conduct prejudicial to the best interest of the service, and we
reiterate that the dissent offends due process as respondent was not given an
opportunity to defend herself against the charge of "conduct prejudicial to the best

interest of the service." Indeed, there is no evidence of the alleged prejudice to the
best interest of the service. 168
Mr. Justice Carpio's slippery slope argument, on the other hand, is non-sequitur. If
the Court grants respondent exemption from the laws which respondent Escritor has
been charged to have violated, the exemption would not apply to Catholics who
have secured church annulment of their marriage even without a final annulment
from a civil court. First, unlike Jehovah's Witnesses, the Catholic faith considers
cohabitation without marriage as immoral. Second, but more important, the
Jehovah's Witnesses have standards and procedures which must be followed before
cohabitation without marriage is given the blessing of the congregation. This
includes an investigative process whereby the elders of the congregation verify the
circumstances of the declarants. Also, the Declaration is not a blanket authority to
cohabit without marriage because once all legal impediments for the couple are
lifted, the validity of the Declaration ceases, and the congregation requires that the
couple legalize their union.
At bottom, the slippery slope argument of Mr. Justice Carpio is speculative.
Nevertheless, insofar as he raises the issue of equality among religions, we look to
the words of the Religion Clauses, which clearly single out religion for both a benefit
and a burden: "No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. . ." On its face, the language grants a unique
advantage to religious conduct, protecting it from governmental imposition; and
imposes a unique disadvantage, preventing the government from supporting it. To
understand this as a provision which puts religion on an equal footing with other
bases for action seems to be a curious reading. There are no "free exercise" of
"establishment" provisions for science, sports, philosophy, or family relations. The
language itself thus seems to answer whether we have a paradigm of equality or
liberty; the language of the Clause is clearly in the form of a grant of liberty. 169
In this case, the government's conduct may appear innocent and nondiscriminatory
but in effect, it is oppressive to the minority. In the interpretation of a document,
such as the Bill of Rights, designed to protect the minority from the majority, the
question of which perspective is appropriate would seem easy to answer. Moreover,
the text, history, structure and values implicated in the interpretation of the clauses,
all point toward this perspective. Thus, substantive equality a reading of the
religion clauses which leaves both politically dominant and the politically weak
religious groups equal in their inability to use the government (law) to assist their
own religion or burden others makes the most sense in the interpretation of the
Bill of Rights, a document designed to protect minorities and individuals from
mobocracy in a democracy (the majority or a coalition of minorities). 170
As
previously
discussed,
our
Constitution
adheres
to
the benevolent
neutrality approach that gives room for accommodation of religious exercises as
required by the Free Exercise Clause. 171 Thus, in arguing that respondent should
be held administratively liable as the arrangement she had was "illegal per
se because, by universally recognized standards, it is inherently or by its very
nature bad, improper, immoral and contrary to good conscience," 172 the Solicitor
General
failed
to
appreciate
thatbenevolent
neutrality could
allow

for accommodation of morality based on religion, provided it does not offend

compelling state interests. 173

Finally, even assuming that the OSG has proved a compelling state interest, it has
to further demonstrate that the state has used the least intrusive means possible so
that the free exercise is not infringed any more than necessary to achieve the
legitimate goal of the state, i.e., it has chosen a way to achieve its legitimate state
end that imposes as little as possible on religious liberties. 174 Again, the Solicitor
General utterly failed to prove this element of the test. Other than the two
documents offered as cited above which established the sincerity of respondent's
religious belief and the fact that the agreement was an internal arrangement within
respondent's congregation, no iota of evidence was offered. In fact, the records are
bereft of even a feeble attempt to procure any such evidence to show that the
means the state adopted in pursuing this compelling interest is the least restrictive
to respondent's religious freedom.
Thus, we find that in this particular case and under these distinct circumstances,
respondent Escritor's conjugal arrangement cannot be penalized as she has made
out a case for exemption from the law based on her fundamental right to freedom of
religion. The Court recognizes that state interests must be upheld in order that
freedoms including religious freedom may be enjoyed. In the area of religious
exercise as a preferred freedom, however, man stands accountable to an authority
higher than the state, and so the state interest sought to be upheld must be so
compelling that its violation will erode the very fabric of the state that will also
protect the freedom. In the absence of a showing that such state interest exists,
man must be allowed to subscribe to the Infinite.
IN VIEW WHEREOF, the instant administrative complaint is dismissed.
SO ORDERED.
Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Corona, Azcuna, Tinga, ChicoNazario and Garcia, JJ., concur.
Panganiban, C.J., joins J. Carpio dissent.
Ynares-Santiago and Carpio, JJ., see dissenting opinion.
Carpio-Morales, J., I maintain my vote articulated in the dissenting opinion of J.
Carpio in the Aug. 4, 2003 decision. I thus concur with his present dissent.
Callejo, J., concurs to the dissent made by Justice Carpio.
Velasco, Jr., J., took no part due to prior action of OCA.
||| (Estrada v. Escritor, A.M. No. P-02-1651, June 22, 2006)