G.R. No.

168338 February 15, 2008

FRANCISCO CHAVEZ, petitioner,

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

SEPARATE CONCURRING OPINION

CARPIO, J.:

The Case

This is a petition for the writs of certiorari and prohibition to set aside "acts, issuances, and orders" of respondents
Secretary of Justice Raul M. Gonzalez (respondent Gonzales) and the National Telecommunications Commission
(NTC), particularly an NTC "press release" dated 11 June 2005, warning radio and television stations against airing
taped conversations allegedly between President Gloria Macapagal-Arroyo and Commission on Elections
(COMELEC) Commissioner Virgilio Garcillano (Garcillano) 1 under pain of suspension or revocation of their airwave
licenses.

The Facts

On 24 June 2004, Congress, acting as national board of canvassers, proclaimed President Arroyo winner in the
2004 presidential elections.2 President Arroyo received a total of 12,905,808 votes, 1,123,576 more than the votes
of her nearest rival, Fernando Poe, Jr. Sometime before 6 June 2005, the radio station dzMM aired the Garci Tapes
where the parties to the conversation discussed "rigging" the results of the 2004 elections to favor President Arroyo.
On 6 June 2005, Presidential spokesperson Ignacio Bunye (Bunye) held a press conference in Malacaang Palace,
where he played before the presidential press corps two compact disc recordings of conversations between a
woman and a man. Bunye identified the woman in both recordings as President Arroyo but claimed that the contents
of the second compact disc had been "spliced" to make it appear that President Arroyo was talking to Garcillano.

However, on 9 June 2005, Bunye backtracked and stated that the woman's voice in the compact discs was not
President Arroyos after all.3 Meanwhile, other individuals went public, claiming possession of the genuine copy of
the Garci Tapes.4 Respondent Gonzalez ordered the National Bureau of Investigation to investigate media
organizations which aired the Garci Tapes for possible violation of Republic Act No. 4200 or the Anti-Wiretapping
Law.

On 11 June 2005, the NTC issued a press release warning radio and television stations that airing the Garci Tapes
is a "cause for the suspension, revocation and/or cancellation of the licenses or authorizations" issued to them. 5 On
14 June 2005, NTC officers met with officers of the broadcasters group, Kapisanan ng mga Broadcasters sa
Pilipinas (KBP), to dispel fears of censorship. The NTC and KBP issued a joint press statement expressing
commitment to press freedom.6

On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this petition to nullify the "acts,
issuances, and orders" of the NTC and respondent Gonzalez (respondents) on the following grounds: (1)
respondents conduct violated freedom of expression and the right of the people to information on matters of public
concern under Section 7, Article III of the Constitution, and (2) the NTC acted ultra vires when it warned radio and
television stations against airing the Garci Tapes.

In their Comment to the petition, respondents raised threshold objections that (1) petitioner has no standing to
litigate and (2) the petition fails to meet the case or controversy requirement in constitutional adjudication. On the
merits, respondents claim that (1) the NTC's press release of 11 June 2005 is a mere "fair warning," not censorship,
cautioning radio and television networks on the lack of authentication of the Garci Tapes and of the consequences of
airing false or fraudulent material, and (2) the NTC did not act ultra vires in issuing the warning to radio and
television stations.
In his Reply, petitioner belied respondents' claim on his lack of standing to litigate, contending that his status as a
citizen asserting the enforcement of a public right vested him with sufficient interest to maintain this suit. Petitioner
also contests respondents' claim that the NTC press release of 11 June 2005 is a mere warning as it already
prejudged the Garci Tapes as inauthentic and violative of the Anti-Wiretapping Law, making it a "cleverly disguised x
x x gag order."

ISSUE

The principal issue for resolution is whether the NTC warning embodied in the press release of 11 June 2005
constitutes an impermissible prior restraint on freedom of expression.

I vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11 June 2005, an
unconstitutional prior restraint on protected expression, and (3) enjoin the NTC from enforcing the same.

1. Standing to File Petition

Petitioner has standing to file this petition. When the issue involves freedom of expression, as in the present case,
any citizen has the right to bring suit to question the constitutionality of a government action in violation of freedom
of expression, whether or not the government action is directed at such citizen. The government action may chill into
silence those to whom the action is directed. Any citizen must be allowed to take up the cudgels for those who have
been cowed into inaction because freedom of expression is a vital public right that must be defended by everyone
and anyone.

Freedom of expression, being fundamental to the preservation of a free, open and democratic society, is
oftranscendental importance that must be defended by every patriotic citizen at the earliest opportunity. We have
held that any concerned citizen has standing to raise an issue of transcendental importance to the nation,7 and
petitioner in this present petition raises such issue.

2. Overview of Freedom of Expression, Prior Restraint and Subsequent Punishment

Freedom of expression is the foundation of a free, open and democratic society. Freedom of expression is an
indispensable condition8 to the exercise of almost all other civil and political rights. No society can remain free, open
and democratic without freedom of expression. Freedom of expression guarantees full, spirited, and even
contentious discussion of all social, economic and political issues. To survive, a free and democratic society must
zealously safeguard freedom of expression.

Freedom of expression allows citizens to expose and check abuses of public officials. Freedom of expression allows
citizens to make informed choices of candidates for public office. Freedom of expression crystallizes important
public policy issues, and allows citizens to participate in the discussion and resolution of such issues. Freedom of
expression allows the competition of ideas, the clash of claims and counterclaims, from which the truth will likely
emerge. Freedom of expression allows the airing of social grievances, mitigating sudden eruptions of violence from
marginalized groups who otherwise would not be heard by government. Freedom of expression provides a civilized
way of engagement among political, ideological, religious or ethnic opponents for if one cannot use his tongue to
argue, he might use his fist instead.

Freedom of expression is the freedom to disseminate ideas and beliefs, whether competing, conforming or
otherwise. It is the freedom to express to others what one likes or dislikes, as it is the freedom of others to express
to one and all what they favor or disfavor. It is the free expression for the ideas we love, as well as the free
expression for the ideas we hate.9 Indeed, the function of freedom of expression is to stir disputes:

[I]t may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may
strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of
an idea.10

Section 4, Article III of the Constitution prohibits the enactment of any law curtailing freedom of expression:
 No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.

Thus, the rule is that expression is not subject to any prior restraint or censorship because the Constitution
commands that freedom of expression shall not be abridged. Over time, however, courts have carved out narrow
and well defined exceptions to this rule out of necessity.

The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to only four
categories of expression, namely: pornography,11 false or misleading advertisement,12 advocacy of imminent lawless
action,13 and danger to national security.14 All other expression is not subject to prior restraint. As stated
in Turner Broadcasting System v. Federal Communication Commission, "[T]he First Amendment (Free Speech
Clause), subject only to narrow and well understood exceptions, does not countenance governmental control over
the content of messages expressed by private individuals." 15

Expression not subject to prior restraint is protected expression or high-value expression. Any content-based
prior restraint on protected expression is unconstitutional without exception. A protected expression means
what it says it is absolutely protected from censorship. Thus, there can be no prior restraint on public debates on
the amendment or repeal of existing laws, on the ratification of treaties, on the imposition of new tax measures, or
on proposed amendments to the Constitution.

Prior restraint on expression is content-based if the restraint is aimed at the message or idea of the expression.
Courts will subject to strict scrutiny content-based restraint. If the content-based prior restraint is directed at
protected expression, courts will strike down the restraint as unconstitutional because there can be no content-
based prior restraint on protected expression. The analysis thus turns on whether the prior restraint is content-
based, and if so, whether such restraint is directed at protected expression, that is, those not falling under any of the
recognized categories of unprotected expression.

If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even if it burdens
expression. A content-neutral restraint is a restraint which regulates the time, place or manner of the expression in
public places16 without any restraint on the content of the expression. Courts will subject content-neutral restraints to
intermediate scrutiny.17

An example of a content-neutral restraint is a permit specifying the date, time and route of a rally passing through
busy public streets. A content-neutral prior restraint on protected expression which does not touch on the content of
the expression enjoys the presumption of validity and is thus enforceable subject to appeal to the courts. 18Courts will
uphold time, place or manner restraints if they are content-neutral, narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of expression. 19

In content-neutral prior restraint on protected speech, there should be no prior restraint on the content of the
expression itself. Thus, submission of movies or pre-taped television programs to a government review board is
constitutional only if the review is for classification and not for censoring any part of the content of the submitted
materials.20 However, failure to submit such materials to the review board may be penalized without regard to the
content of the materials.21 The review board has no power to reject the airing of the submitted materials. The review
boards power is only to classify the materials, whether for general patronage, for adults only, or for some other
classification. The power to classify expressions applies only to movies and pre-taped television programs 22but not
to live television programs. Any classification of live television programs necessarily entails prior restraint on
expression.

Expression that may be subject to prior restraint is unprotected expression or low-value expression. By definition,
prior restraint on unprotected expression is content-based 23 since the restraint is imposed because of the content
itself. In this jurisdiction, there are currently only four categories of unprotected expression that may be subject to
prior restraint. This Court recognized false or misleading advertisement as unprotected expression only in October
2007.24

Only unprotected expression may be subject to prior restraint. However, any such prior restraint on
unprotected expression must hurdle a high barrier. First, such prior restraint is presumed
unconstitutional.Second, the government bears a heavy burden of proving the constitutionality of the prior
restraint.25
Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected expression. 26The
government action will be sustained if there is a compelling State interest, and prior restraint is necessary to protect
such State interest. In such a case, the prior restraint shall be narrowly drawn - only to the extent necessary to
protect or attain the compelling State interest.

Prior restraint is a more severe restriction on freedom of expression than subsequent punishment. Although
subsequent punishment also deters expression, still the ideas are disseminated to the public. Prior restraint
prevents even the dissemination of ideas to the public.

While there can be no prior restraint on protected expression, such expression may be subject to subsequent
punishment,27 either civilly or criminally. Thus, the publication of election surveys cannot be subject to prior
restraint,28 but an aggrieved person can sue for redress of injury if the survey turns out to be fabricated. Also, while
Article 201 (2)(b)(3) of the Revised Penal Code punishing "shows which offend any race or religion" cannot be used
to justify prior restraint on religious expression, this provision can be invoked to justify subsequent punishment of the
perpetrator of such offensive shows.29

Similarly, if the unprotected expression does not warrant prior restraint, the same expression may still be subject to
subsequent punishment, civilly or criminally. Libel falls under this class of unprotected expression. However, if the
expression cannot be subject to the lesser restriction of subsequent punishment, logically it cannot also be subject
to the more severe restriction of prior restraint. Thus, since profane language or "hate speech" against a religious
minority is not subject to subsequent punishment in this jurisdiction, 30 such expression cannot be subject to prior
restraint.

If the unprotected expression warrants prior restraint, necessarily the same expression is subject to subsequent
punishment. There must be a law punishing criminally the unprotected expression before prior restraint on such
expression can be justified. The legislature must punish the unprotected expression because it creates a
substantive evil that the State must prevent. Otherwise, there will be no legal basis for imposing a prior restraint on
such expression.

The prevailing test in this jurisdiction to determine the constitutionality of government action imposing prior restraint
on three categories of unprotected expression pornography,31 advocacy of imminent lawless action, and danger to
national security - is the clear and present danger test.32 The expression restrained must present a clear and present
danger of bringing about a substantive evil that the State has a right and duty to prevent, and such danger must be
grave and imminent.33

Prior restraint on unprotected expression takes many forms - it may be a law, administrative regulation, or
impermissible pressures like threats of revoking licenses or withholding of benefits. 34 The impermissible pressures
need not be embodied in a government agency regulation, but may emanate from policies, advisories or conduct of
officials of government agencies.

3. Government Action in the Present Case

The government action in the present case is a warning by the NTC that the airing or broadcasting of the Garci
Tapes by radio and television stations is a "cause for the suspension, revocation and/or cancellation of the
licenses or authorizations" issued to radio and television stations. The NTC warning, embodied in a press
release, relies on two grounds. First, the airing of the Garci Tapes "is a continuing violation of the Anti-Wiretapping
Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to radio and TV stations."
Second, the Garci Tapes have not been authenticated, and subsequent investigation may establish that the tapes
contain false information or willful misrepresentation.

Specifically, the NTC press release contains the following categorical warning:

Taking into consideration the countrys unusual situation, and in order not to unnecessarily aggravate the
same, the NTC warns all radio stations and television networks owners/operators that the conditions of the
authorizations and permits issued to them by Government like the Provisional Authority and/or Certificate of
Authority explicitly provides that said companies shall not use its stations for the broadcasting or telecasting
of false information or willful misrepresentation. Relative thereto, it has come to the attention of the
 Commission that certain personalities are in possession of alleged taped conversation which they claim,
(sic) involve the President of the Philippines and a Commissioner of the COMELEC regarding their
supposed violation of election laws. These personalities have admitted that the taped conversations are
product of illegal wiretapping operations.

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

The NTC does not claim that the public airing of the Garci Tapes constitutes unprotected expression that may be
subject to prior restraint. The NTC does not specify what substantive evil the State seeks to prevent in imposing
prior restraint on the airing of the Garci Tapes. The NTC does not claim that the public airing of the Garci Tapes
constitutes a clear and present danger of a substantive evil, of grave and imminent character, that the State has a
right and duty to prevent.

The NTC did not conduct any hearing in reaching its conclusion that the airing of the Garci Tapes constitutes a
continuing violation of the Anti-Wiretapping Law. At the time of issuance of the NTC press release, and even up to
now, the parties to the conversations in the Garci Tapes have not complained that the wire-tapping was without their
consent, an essential element for violation of the Anti-Wiretapping Law.35 It was even the Office of the President,
through the Press Secretary, that played and released to media the Garci Tapes containing the alleged "spliced"
conversation between President Arroyo and Commissioner Garcillano. There is also the issue of whether
a wireless cellular phone conversation is covered by the Anti-Wiretapping Law.

Clearly, the NTC has no factual or legal basis in claiming that the airing of the Garci Tapes constitutes a violation of
the Anti-Wiretapping Law. The radio and television stations were not even given an opportunity to be heard by the
NTC. The NTC did not observe basic due process as mandated in Ang Tibay v. Court of Industrial Relations.36

The NTC claims that the Garci Tapes, "after a prosecution or the appropriate investigation," may constitute "false
information and/or willful misrepresentation." However, the NTC does not claim that such possible false information
or willful misrepresentation constitutes misleading commercial advertisement. In the United States, false or
deceptive commercial speech is categorized as unprotected expression that may be subject to prior restraint.
Recently, this Court upheld the constitutionality of Section 6 of the Milk Code requiring the submission to a
government screening committee of advertising materials for infant formula milk to prevent false or deceptive claims
to the public.37 There is, however, no claim here by respondents that the Garci Tapes constitute false or misleading
commercial advertisement.

The NTC concedes that the Garci Tapes have not been authenticated as accurate or truthful. The NTC also
concedes that only "after a prosecution or appropriate investigation" can it be established that the Garci Tapes
constitute "false information and/or willful misrepresentation." Clearly, the NTC admits that it does not even know
if the Garci Tapes contain false information or willful misrepresentation.

4. Nature of Prior Restraint in the Present Case

The NTC action restraining the airing of the Garci Tapes is a content-based prior restraint because it is directed at
the message of the Garci Tapes. The NTCs claim that the Garci Tapes might contain "false information and/or willful
misrepresentation," and thus should not be publicly aired, is an admission that the restraint is content-based.

5. Nature of Expression in the Present Case

The public airing of the Garci Tapes is a protected expression because it does not fall under any of the four
existing categories of unprotected expression recognized in this jurisdiction. The airing of the Garci Tapes is
essentially a political expression because it exposes that a presidential candidate had allegedly improper
conversations with a COMELEC Commissioner right after the close of voting in the last presidential elections.

Obviously, the content of the Garci Tapes affects gravely the sanctity of the ballot. Public discussion on the
sanctity of the ballot is indisputably a protected expression that cannot be subject to prior restraint. Public discussion
on the credibility of the electoral process is one of the highest political expressions of any electorate, and thus
deserves the utmost protection. If ever there is a hierarchy of protected expressions, political expression would
occupy the highest rank,38 and among different kinds of political expression, the subject of fair and honest elections
would be at the top. In any event, public discussion on all political issues should always remain uninhibited, robust
and wide open.

The rule, which recognizes no exception, is that there can be no content-based prior restraint on protected
expression. On this ground alone, the NTC press release is unconstitutional. Of course, if the courts
determine that the subject matter of a wiretapping, illegal or not, endangers the security of the State, the public
airing of the tape becomes unprotected expression that may be subject to prior restraint. However, there is no claim
here by respondents that the subject matter of the Garci Tapes involves national security and publicly airing the
tapes would endanger the security of the State. 39

The alleged violation of the Anti-Wiretapping Law is not in itself a ground to impose a prior restraint on the airing of
the Garci Tapes because the Constitution expressly prohibits the enactment of any law, and that includes anti-
wiretapping laws, curtailing freedom of expression. 40 The only exceptions to this rule are the four recognized
categories of unprotected expression. However, the content of the Garci Tapes does not fall under any of these
categories of unprotected expression.

The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci Tapes is a matter
of important public concern. The Constitution guarantees the peoples right to information on matters of public
concern.41 The remedy of any person aggrieved by the public airing of the Garci Tapes is to file a complaint for
violation of the Anti-Wiretapping Law after the commission of the crime. Subsequent punishment,absent a lawful
defense, is the remedy available in case of violation of the Anti-Wiretapping Law.

The present case involves a prior restraint on protected expression. Prior restraint on protected expression differs
significantly from subsequent punishment of protected expression. While there can be no prior restraint on protected
expression, there can be subsequent punishment for protected expression under libel, tort or other laws. In the
present case, the NTC action seeks prior restraint on the airing of the Garci Tapes, not punishment of personnel of
radio and television stations for actual violation of the Anti-Wiretapping Law.

6. Only the Courts May Impose Content-Based Prior Restraint

The NTC has no power to impose content-based prior restraint on expression. The charter of the NTC does not vest
NTC with any content-based censorship power over radio and television stations.

In the present case, the airing of the Garci Tapes is a protected expression that can never be subject to prior
restraint. However, even assuming for the sake of argument that the airing of the Garci Tapes constitutes
unprotected expression, only the courts have the power to adjudicate on the factual and legal issue of whether the
airing of the Garci Tapes presents a clear and present danger of bringing about a substantive evil that the State has
a right and duty to prevent, so as to justify the prior restraint.

Any order imposing prior restraint on unprotected expression requires prior adjudication by the courts on whether
the prior restraint is constitutional. This is a necessary consequence from the presumption of invalidity of any prior
restraint on unprotected expression. Unless ruled by the courts as a valid prior restraint, government agencies
cannot implement outright such prior restraint because such restraint is presumed unconstitutional at inception.

As an agency that allocates frequencies or airwaves, the NTC may regulate the bandwidth position, transmitter
wattage, and location of radio and television stations, but not the content of the broadcasts. Such content-neutral
prior restraint may make operating radio and television stations more costly. However, such content-neutral restraint
does not restrict the content of the broadcast.

7. Government Failed to Overcome Presumption of Invalidity

Assuming that the airing of the Garci Tapes constitutes unprotected expression, the NTC action imposing prior
restraint on the airing is presumed unconstitutional. The Government bears a heavy burden to prove that the NTC
action is constitutional. The Government has failed to meet this burden.

In their Comment, respondents did not invoke any compelling State interest to impose prior restraint on the public
airing of the Garci Tapes. The respondents claim that they merely "fairly warned" radio and television stations to
observe the Anti-Wiretapping Law and pertinent NTC circulars on program standards. Respondents have not
explained how and why the observance by radio and television stations of the Anti-Wiretapping Law and pertinent
NTC circulars constitutes a compelling State interest justifying prior restraint on the public airing of the Garci Tapes.

Violation of the Anti-Wiretapping Law, like the violation of any criminal statute, can always be subject to criminal
prosecution after the violation is committed. Respondents have not explained why there is a need in the present
case to impose prior restraint just to prevent a possible future violation of the Anti-Wiretapping Law. Respondents
have not explained how the violation of the Anti-Wiretapping Law, or of the pertinent NTC circulars, can incite
imminent lawless behavior or endanger the security of the State. To allow such restraint is to allow prior restraint on
all future broadcasts that may possibly violate any of the existing criminal statutes. That would be the dawn of
sweeping and endless censorship on broadcast media.

8. The NTC Warning is a Classic Form of Prior Restraint

The NTC press release threatening to suspend or cancel the airwave permits of radio and television stations
constitutes impermissible pressure amounting to prior restraint on protected expression. Whether the threat is made
in an order, regulation, advisory or press release, the chilling effect is the same: the threat freezes radio and
television stations into deafening silence. Radio and television stations that have invested substantial sums in
capital equipment and market development suddenly face suspension or cancellation of their permits. The NTC
threat is thus real and potent.

In Burgos v. Chief of Staff,42 this Court ruled that the closure of the We Forum newspapers under a general warrant
"is in the nature of a previous restraint or censorship abhorrent to the freedom of the press guaranteed under the
fundamental law." The NTC warning to radio and television stations not to air the Garci Tapes or else their permits
will be suspended or cancelled has the same effect a prior restraint on constitutionally protected expression.

In the recent case of David v. Macapagal-Arroyo,43 this Court declared unconstitutional government threats to close
down mass media establishments that refused to comply with government prescribed "standards" on news reporting
following the declaration of a State of National Emergency by President Arroyo on 24 February 2006. The Court
described these threats in this manner:

Thereafter, a wave of warning[s] came from government officials. Presidential Chief of Staff Michael
Defensor was quoted as saying that such raid was "meant to show a 'strong presence,' to tell media outlets
not to connive or do anything that would help the rebels in bringing down this government." Director General
Lomibao further stated that "if they do not follow the standards and the standards are if they would
contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and
Proc. No. 1017 we will recommend a 'takeover.'" National Telecommunications Commissioner Ronald
Solis urged television and radio networks to "cooperate" with the government for the duration of the
state of national emergency. He warned that his agency will not hesitate to recommend the closure
of any broadcast outfit that violates rules set out for media coverage during times when the national
security is threatened.44 (Emphasis supplied)

The Court struck down this "wave of warning[s]" as impermissible restraint on freedom of expression. The Court
ruled that "the imposition of standards on media or any form of prior restraint on the press, as well as the
warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are
declared UNCONSTITUTIONAL."45
The history of press freedom has been a constant struggle against the censor whose weapon is the suspension or
cancellation of licenses to publish or broadcast. The NTC warning resurrects the weapon of the censor. The NTC
warning is a classic form of prior restraint on protected expression, which in the words of Near v. Minnesota is
"the essence of censorship."46 Long before the American Declaration of Independence in 1776, William Blackstone
had already written in his Commentaries on the Law of England, "The liberty of the press x x x consists in laying no
previous restraints upon publication x x x."47

Although couched in a press release and not in an administrative regulation, the NTC threat to suspend or cancel
permits remains real and effective, for without airwaves or frequencies, radio and television stations will fall silent
and die. The NTC press release does not seek to advance a legitimate regulatory objective, but to suppress through
coercion information on a matter of vital public concern.

9. Conclusion

In sum, the NTC press release constitutes an unconstitutional prior restraint on protected expression. There can be
no content-based prior restraint on protected expression. This rule has no exception.

I therefore vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11 June
2005, an unconstitutional prior restraint on protected expression, and (3) enjoin the NTC from enforcing the same.

ANTONIO T. CARPIO
Associate Justice
G.R. No. 82380 April 29, 1988

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

G.R. No. 82398 April 29, 1988

HAL MCELROY petitioner,

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

FELICIANO, J.:

Petitioner Hal McElroy an Australian film maker, and his movie production company, Petitioner Ayer Productions pty
Ltd. (Ayer Productions), 1 envisioned, sometime in 1987, the for commercial viewing and for Philippine and international
release, the histolic peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners discussed this
Project with local movie producer Lope V. Juban who suggested th they consult with the appropriate government agencies
and also with General Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles in the events proposed
to be filmed.

The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie Television Review and
Classification Board as wel as the other government agencies consulted. General Fidel Ramos also signified his
approval of the intended film production.

In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan Ponce Enrile about
the projected motion picture enclosing a synopsis of it, the full text of which is set out below:

The Four Day Revolution is a six hour mini-series about People Powera unique event in modern
history that-made possible the Peaceful revolution in the Philippines in 1986.

Faced with the task of dramatising these rerkble events, screenwriter David Williamson and history
Prof Al McCoy have chosen a "docu-drama" style and created [four] fictitious characters to trace the
revolution from the death of Senator Aquino, to the Feb revolution and the fleeing of Marcos from the
country.

These character stories have been woven through the real events to help our huge international
audience understand this ordinary period inFilipino history.

First, there's Tony O'Neil, an American television journalist working for major network. Tony reflects
the average American attitude to the Phihppinence once a colony, now the home of crucially
important military bases. Although Tony is aware of the corruption and of Marcos' megalomania, for
him, there appears to be no alternative to Marcos except the Communists.

Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly caught up in the
events as it becomes dear that the time has come for a change. Through Angle and her relationship
with one of the Reform Army Movement Colonels (a fictitious character), we follow the developing
discontent in the armed forces. Their dislike for General Ver, their strong loyalty to Defense Minister
Enrile, and ultimately their defection from Marcos.

The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper who
despises the Marcos regime and is a supporter an promoter of Cory Aquino. Ben has two daughters,
 Cehea left wing lawyer who is a secret member of the New People's Army, and Eva--a -P.R. girl,
politically moderate and very much in love with Tony. Ultimately, she must choose between her love
and the revolution.

Through the interviews and experiences of these central characters, we show the complex nature of
Filipino society, and thintertwining series of events and characters that triggered these remarkable
changes. Through them also, we meet all of the principal characters and experience directly
dramatic recreation of the revolution. The story incorporates actual documentary footage filmed
during the period which we hope will capture the unique atmosphere and forces that combined to
overthrow President Marcos.

David Williamson is Australia's leading playwright with some 14 hugely successful plays to his
credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The Year of Living
Dangerously,' Gallipoli,' 'Phar Lap').

Professor McCoy (University of New South Wales) is an American historian with a deep
understanding of the Philippines, who has worked on the research for this project for some 18
months. Together with Davi Wilhamgon they have developed a script we believe accurately depicts
the complex issues and events that occurred during th period .

The six hour series is a McElroy and McElroy co-production with Home Box Office in American, the
Australian Broadcast Corporation in Australia and Zenith Productions in the United Kingdom

The proposed motion picture would be essentially a re-enact. ment of the events that made possible the EDSA
revolution; it is designed to be viewed in a six-hour mini-series television play, presented in a "docu-drama" style,
creating four (4) fictional characters interwoven with real events, and utilizing actual documentary footage as
background.

On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of the use,
appropriation, reproduction and/or exhibition of his name, or picture, or that of any member of his family in any
cinema or television production, film or other medium for advertising or commercial exploitation" and further advised
petitioners that 'in the production, airing, showing, distribution or exhibition of said or similar film, no reference
whatsoever (whether written, verbal or visual) should not be made to [him] or any member of his family, much less to
any matter purely personal to them.

It appears that petitioners acceded to this demand and the name of private respondent Enrile was deleted from the
movie script, and petitioners proceeded to film the projected motion picture.

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

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

In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the petitioners, the
dispositive portion of which reads thus:

WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all persons
and entities employed or under contract with them, including actors, actresses and members of the
production staff and crew as well as all persons and entities acting on defendants' behalf, to cease
 and desist from producing and filming the mini-series entitled 'The Four Day Revolution" and from
making any reference whatsoever to plaintiff or his family and from creating any fictitious character
in lieu of plaintiff which nevertheless is based on, or bears rent substantial or marked resemblance
or similarity to, or is otherwise Identifiable with, plaintiff in the production and any similar film or
photoplay, until further orders from this Court, upon plaintiff's filing of a bond in the amount of P
2,000,000.00, to answer for whatever damages defendants may suffer by reason of the injunction if
the Court should finally decide that plaintiff was not entitled thereto.

xxx xxx xxx

(Emphasis supplied)

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

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

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

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

The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim that in
producing and "The Four Day Revolution," they are exercising their freedom of speech and of expression protected
under our Constitution. Private respondent, upon the other hand, asserts a right of privacy and claims that the
production and filming of the projected mini-series would constitute an unlawful intrusion into his privacy which he is
entitled to enjoy.

Considering first petitioners' claim to freedom of speech and of expression the Court would once more stress that
this freedom includes the freedom to film and produce motion pictures and to exhibit such motion pictures in
theaters or to diffuse them through television. In our day and age, motion pictures are a univesally utilized vehicle of
communication and medium Of expression. Along with the press, radio and television, motion pictures constitute a
principal medium of mass communication for information, education and entertainment. In Gonzales v.
Katigbak,3 former Chief Justice Fernando, speaking for the Court, explained:

1. Motion pictures are important both as a medium for the communication of Ideas and the
expression of the artistic impulse. Their effect on the perception by our people of issues and public
officials or public figures as well as the pre cultural traits is considerable. Nor as pointed out
in Burstyn v. Wilson(343 US 495 [19421) is the Importance of motion pictures as an organ of public
opinion lessened by the fact that they are designed to entertain as well as to inform' (Ibid, 501).
There is no clear dividing line between what involves knowledge and what affords pleasure. If such a
distinction were sustained, there is a diminution of the basic right to free expression. ... 4

This freedom is available in our country both to locally-owned and to foreign-owned motion picture companies.
Furthermore the circumstance that the production of motion picture films is a commercial activity expected to yield
monetary profit, is not a disqualification for availing of freedom of speech and of expression. In our community as in
many other countries, media facilities are owned either by the government or the private sector but the private
sector-owned media facilities commonly require to be sustained by being devoted in whole or in pailt to revenue
producing activities. Indeed, commercial media constitute the bulk of such facilities available in our country and
hence to exclude commercially owned and operated media from the exerciseof constitutionally protected om of
speech and of expression can only result in the drastic contraction of such constitutional liberties in our country.

The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime ago by the then
Dean Irene R. Cortes that our law, constitutional and statutory, does include a right of privacy. 5 It is left to case law,
however, to mark out the precise scope and content of this right in differing types of particular situations. The right of
privacy or "the right to be let alone," 6 like the right of free expression, is not an absolute right. A limited intrusion into a
person's privacy has long been regarded as permissible where that person is a public figure and the information sought to
be elicited from him or to be published about him constitute of apublic character. 7 Succinctly put, the right of privacy
cannot be invoked resist publication and dissemination of matters of public interest. 8 The interest sought to be protected
by the right of privacy is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs
and activities of an individual which are outside the realm of legitimate public concern. 9

Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a right to privacy in a context
which included a claim to freedom of speech and of expression. Lagunzad involved a suit fortion picture producer as
licensee and the widow and family of the late Moises Padilla as licensors. This agreement gave the licensee the right to
produce a motion Picture Portraying the life of Moises Padilla, a mayoralty candidate of the Nacionalista Party for the
Municipality of Magallon, Negros Occidental during the November 1951 elections and for whose murder, Governor Rafael
Lacson, a member of the Liberal Party then in power and his men were tried and convicted. 11 In the judgment of the lower
court enforcing the licensing agreement against the licensee who had produced the motion picture and exhibited it but
refused to pay the stipulated royalties, the Court, through Justice Melencio-Herrera, said:

Neither do we agree with petitioner's subon that the Licensing Agreement is null and void for lack of,
or for having an illegal cause or consideration, while it is true that petitioner bad pled the rights to the
book entitled "The Moises Padilla Story," that did not dispense with the need for prior consent and
authority from the deceased heirs to portray publicly episodes in said deceased's life and in that of
his mother and the member of his family. As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31
LRA 286.49 Am St Rep 671), 'a privilege may be given the surviving relatives of a deperson to
protect his memory, but the privilege wts for the benefit of the living, to protect their feelings and to
preventa violation of their own rights in the character and memory of the deceased.'

Petitioners averment that private respondent did not have any property right over the life of Moises
Padilla since the latter was a public figure, is neither well taken. Being a public figure ipso facto does
not automatically destroy in toto a person's right to privacy. The right to invade a person's privacy to
disseminate public information does not extend to a fictional or novelized representation of a person,
no matter how public a he or she may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU
549 [1951]). In the case at bar, while it is true that petitioner exerted efforts to present a true-to-life
Story Of Moises Padilla, petitioner admits that he included a little romance in the film because
without it, it would be a drab story of torture and brutality. 12

In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to freedom of
speech and of expression and to privacy. Lagunzad the licensee in effect claimed, in the name of freedom of speech
and expression, a right to produce a motion picture biography at least partly "fictionalized" of Moises Padilla without
the consent of and without paying pre-agreed royalties to the widow and family of Padilla. In rejecting the licensee's
claim, the Court said:

Lastly, neither do we find merit in petitioners contention that the Licensing Agreement infringes on
the constitutional right of freedom of speech and of the press, in that, as a citizen and as a
newspaperman, he had the right to express his thoughts in film on the public life of Moises Padilla
without prior restraint.The right freedom of expression, indeed, occupies a preferred position in the
"hierarchy of civil liberties" (Philippine Blooming Mills Employees Organization v. Philippine Blooming
Mills Co., Inc., 51 SCRA 191 [1963]). It is not, however, without limitations. As held in Gonzales v.
Commission on Elections, 27 SCRA 835, 858 [1960]:

xxx xxx xxx

The prevailing doctine is that the clear and present danger rule is such a limitation. Another criterion
for permissible limitation on freedom of speech and the press, which includes such vehicles of the
 mass media as radio, television and the movies, is the "balancing of interest test" (Chief Justice
Enrique M. Fernando on the Bill of Rights, 1970 ed. p. 79). The principle "requires a court to take
conscious and detailed consideration of the interplay of interests observable in given situation or
type of situation" (Separation Opinion of the late Chief Justice Castro in Gonzales v. Commission on
Elections, supra, p. 899).

In the case at bar, the interests observable are the right to privacy asserted by respondent and the
right of freedom of expression invoked by petitioner. taking into account the interplay of those
interests, we hold that under the particular circumstances presented, and considering the obligations
assumed in the Licensing Agreement entered into by petitioner, the validity of such agreement will
have to be upheld particularly because the limits of freedom of expression are reached when
expression touches upon matters of essentially private concern." 13

Whether the "balancing of interests test" or the clear and present danger test" be applied in respect of the instant
Petitions, the Court believes that a different conclusion must here be reached: The production and filming by
petitioners of the projected motion picture "The Four Day Revolution" does not, in the circumstances of this case,
constitute an unlawful intrusion upon private respondent's "right of privacy."

1. It may be observed at the outset that what is involved in the instant case is a prior and direct restraint on the part
of the respondent Judge upon the exercise of speech and of expression by petitioners. The respondent Judge has
restrained petitioners from filming and producing the entire proposed motion picture. It is important to note that in
Lagunzad, there was no prior restrain of any kind imposed upon the movie producer who in fact completed and
exhibited the film biography of Moises Padilla. Because of the speech and of expression, a weighty presumption of
invalidity vitiates. 14 The invalidity of a measure of prior restraint doesnot, of course, mean that no subsequent liability
may lawfully be imposed upon a person claiming to exercise such constitutional freedoms. The respondent Judge should
have stayed his hand, instead of issuing an ex-parte Temporary Restraining Order one day after filing of a complaint by
the private respondent and issuing a Preliminary Injunction twenty (20) days later; for the projected motion picture was as
yet uncompleted and hence not exhibited to any audience. Neither private respondent nor the respondent trial Judge
knew what the completed film would precisely look like. There was, in other words, no "clear and present danger" of any
violation of any right to privacy that private respondent could lawfully assert.

2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government that took place
at Epifanio de los Santos Avenue in February 1986, and the trian of events which led up to that denouement.
Clearly, such subject matter is one of public interest and concern. Indeed, it is, petitioners' argue, of international
interest. The subject thus relates to a highly critical stage in the history of this countryand as such, must be regarded
as having passed into the public domain and as an appropriate subject for speech and expression and coverage by
any form of mass media. The subject mater, as set out in the synopsis provided by the petitioners and quoted
above, does not relate to the individual life and certainly not to the private life of private respondent Ponce Enrile.
Unlike in Lagunzad, which concerned the life story of Moises Padilla necessarily including at least his immediate
family, what we have here is not a film biography, more or less fictionalized, of private respondent Ponce Enrile.
"The Four Day Revolution" is not principally about, nor is it focused upon, the man Juan Ponce Enrile' but it is
compelled, if it is to be historical, to refer to the role played by Juan Ponce Enrile in the precipitating and the
constituent events of the change of government in February 1986.

3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would be entailed by the
production and exhibition of "The Four Day Revolution" would, therefore, be limited in character. The extent of that
intrusion, as this Court understands the synopsis of the proposed film, may be generally described as such intrusion
as is reasonably necessary to keep that film a truthful historical account. Private respondent does not claim that
petitioners threatened to depict in "The Four Day Revolution" any part of the private life of private respondent or that
of any member of his family.

4. At all relevant times, during which the momentous events, clearly of public concern, that petitioners propose to
film were taking place, private respondent was what Profs. Prosser and Keeton have referred to as a "public figure:"

A public figure has been defined as a person who, by his accomplishments, fame, or mode of living,
or by adopting a profession or calling which gives the public a legitimate interest in his doings, his
affairs, and his character, has become a 'public personage.' He is, in other words, a celebrity.
Obviously to be included in this category are those who have achieved some degree of reputation
 by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist,
or any other entertainment. The list is, however, broader than this. It includes public officers, famous
inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a
personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at
a position where public attention is focused upon him as a person.

Such public figures were held to have lost, to some extent at least, their tight to privacy. Three
reasons were given, more or less indiscrimately, in the decisions" that they had sought publicity and
consented to it, and so could not complaint when they received it; that their personalities and their
affairs has already public, and could no longer be regarded as their own private business; and that
the press had a privilege, under the Constitution, to inform the public about those who have become
legitimate matters of public interest. On one or another of these grounds, and sometimes all, it was
held that there was no liability when they were given additional publicity, as to matters legitimately
within the scope of the public interest they had aroused.

The privilege of giving publicity to news, and other matters of public interest, was held to arise out of
the desire and the right of the public to know what is going on in the world, and the freedom of the
press and other agencies of information to tell it. "News" includes all events and items of information
which are out of the ordinary hum-drum routine, and which have 'that indefinable quality of
information which arouses public attention.' To a very great extent the press, with its experience or
instinct as to what its readers will want, has succeeded in making its own definination of news, as a
glance at any morning newspaper will sufficiently indicate. It includes homicide and othe crimes,
arrests and police raides, suicides, marriages and divorces, accidents, a death from the use of
narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the
reappearance of one supposed to have been murdered years ago, and undoubtedly many other
similar matters of genuine, if more or less deplorable, popular appeal.

The privilege of enlightening the public was not, however, limited, to the dissemination of news in the
scene of current events. It extended also to information or education, or even entertainment and
amusement, by books, articles, pictures, films and broadcasts concerning interesting phases of
human activity in general, as well as the reproduction of the public scene in newsreels and
travelogues. In determining where to draw the line, the courts were invited to exercise a species of
censorship over what the public may be permitted to read; and they were understandably liberal in
allowing the benefit of the doubt. 15

Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal actor in the
culminating events of the change of government in February 1986. Because his participation therein was major in
character, a film reenactment of the peaceful revolution that fails to make reference to the role played by private
respondent would be grossly unhistorical. The right of privacy of a "public figure" is necessarily narrower than that of
an ordinary citizen. Private respondent has not retired into the seclusion of simple private citizenship. he continues
to be a "public figure." After a successful political campaign during which his participation in the EDSA Revolution
was directly or indirectly referred to in the press, radio and television, he sits in a very public place, the Senate of the
Philippines.

5. The line of equilibrium in the specific context of the instant case between the constitutional freedom of speech
and of expression and the right of privacy, may be marked out in terms of a requirement that the proposed motion
picture must be fairly truthful and historical in its presentation of events. There must, in other words, be no knowing
or reckless disregard of truth in depicting the participation of private respondent in the EDSA Revolution. 16 There
must, further, be no presentation of the private life of the unwilling private respondent and certainly no revelation of
intimate or embarrassing personal facts. 17 The proposed motion picture should not enter into what Mme. Justice
Melencio-Herrera in Lagunzad referred to as "matters of essentially private concern." 18 To the extent that "The
Four Day Revolution" limits itself in portraying the participation of private respondent in the EDSA Revolution to
those events which are directly and reasonably related to the public facts of the EDSA Revolution, the intrusion into
private respondent's privacy cannot be regarded as unreasonable and actionable. Such portrayal may be carried out
even without a license from private respondent.

II
In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a Temporary Restraining
Order dated 25 March 1988, was issued by Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147,
in Civil Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer Productions Pty. Ltd., McElroy Film Productions,
Hal McElroy, Lope Juban and PMP Motion for Pictures Production" enjoining him and his production company from
further filimg any scene of the projected mini-series film. Petitioner alleged that Honasan's complaint was a "scissors
and paste" pleading, cut out straight grom the complaint of private respondent Ponce Enrile in Civil Case No. 88-
151. Petitioner Ayer Productions, in a separate Manifestation dated 4 April 1988, brought to the attention of the
Court the same information given by petitoner Hal McElroy, reiterating that the complaint of Gregorio B. Honasan
was substantially identical to that filed by private respondent herein and stating that in refusing to join Honasan in
Civil Case No. 88-151, counsel for private respondent, with whom counsel for Gregorio Honasan are apparently
associated, deliberately engaged in "forum shopping."

Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity" between private
respondent's complaint and that on Honasan in the construction of their legal basis of the right to privacy as a
component of the cause of action is understandable considering that court pleadings are public records; that private
respondent's cause of action for invasion of privacy is separate and distinct from that of Honasan's although they
arose from the same tortious act of petitioners' that the rule on permissive joinder of parties is not mandatory and
that, the cited cases on "forum shopping" were not in point because the parties here and those in Civil Case No. 88-
413 are not identical.

For reasons that by now have become clear, it is not necessary for the Court to deal with the question of whether or
not the lawyers of private respondent Ponce Enrile have engaged in "forum shopping." It is, however, important to
dispose to the complaint filed by former Colonel Honasan who, having refused to subject himself to the legal
processes of the Republic and having become once again in fugitive from justice, must be deemed to have forfeited
any right the might have had to protect his privacy through court processes.

WHEREFORE,

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

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

No pronouncement as to costs.

SO ORDERED.
 EN BANC

[G.R. No. 133486. January 28, 2000]

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

DECISION

PANGANIBAN, J.:

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

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections
(Comelec) en banc Resolution No. 98-1419[1] dated April 21, 1998. In the said Resolution, the poll body

"RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other
groups, its agents or representatives from conducting such exit survey and to authorize the
Honorable Chairman to issue the same."

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

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

The Issues

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

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

The Court's Ruling

The Petition[5] is meritorious.

Procedural Issues: Mootness and Prematurity

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

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

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

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

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

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

Main Issue: Validity of Conducting Exit Polls

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

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

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

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

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

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

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

Nature and Scope of Freedoms of Speech and of the Press

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

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

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

Limitations

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

In Cabansag v. Fernandez[22] this Court had occasion to discuss two theoretical tests in determining the validity
of restrictions to such freedoms, as follows:

"These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as
interpreted in a number of cases, means that the evil consequence of the comment or utterance
must be 'extremely serious and the degree of imminence extremely high' before the utterance
can be punished. The danger to be guarded against is the 'substantive evil' sought to be
prevented. x x x"[23]
 "The 'dangerous tendency' rule, on the other hand, x x x may be epitomized as follows: If the
words uttered create a dangerous tendency which the state has a right to prevent, then such
words are punishable. It is not necessary that some definite or immediate acts of force,
violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general
terms. Nor is it necessary that the language used be reasonably calculated to incite persons to
acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect
of the utterance be to bring about the substantive evil which the legislative body seeks to
prevent."[24]

Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions
in Primicias v. Fugoso[25] and American Bible Society v. City of Manila;[26] as well as in later ones, Vera v. Arca,
[27]
Navarro v. Villegas,[28] Imbong v. Ferrer,[29] Blo Umpar Adiong v. Comelec[30] and, more recently, in Iglesia ni
Cristo v. MTRCB.[31] In setting the standard or test for the "clear and present danger" doctrine, the Court
echoed the words of justice Holmes: "The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question of proximity and degree."[32]

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

Justification for a Restriction

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

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

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

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

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

True, the government has a stake in protecting the fundamental right to vote by providing voting places that are
safe and accessible. It has the duty to secure the secrecy of the ballot and to preserve the sanctity and the
integrity of the electoral process. However, in order to justify a restriction of the people's freedoms of speech
and of the press, the state's responsibility of ensuring orderly voting must far outweigh them.
These freedoms have additional importance, because exit polls generate important research data which may
be used to study influencing factors and trends in voting behavior. An absolute prohibition would thus be
unreasonably restrictive, because it effectively prevents the use of exit poll data not only for election-day
projections, but also for long-term research.[43]

Comelec Ban on Exit Polling

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

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

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

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

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

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

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

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

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

Violation of Ballot Secrecy

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

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

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

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

SO ORDERED.
G.R. No. 159751 December 6, 2006

GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,

vs.
COURT OF APPEALS, respondent.

DECISION

QUISUMBING, J.:

This petition for review on certiorari assails the Decision1 dated March 21, 2003 and the Resolution dated
September 2, 2003, of the Court of Appeals in CA-G.R. CR No. 25796, which affirmed the Decision of the Regional
Trial Court of Manila (RTC), Branch 21, in Criminal Case No. 99-176582.

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

The facts as culled from the records are as follows.

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

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

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

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

d. Copies of VHS tapes containing pornographic shows. 3

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

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

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

Contrary to law.4
When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter, trial ensued.

The prosecution offered the confiscated materials in evidence and presented the following witnesses: Police
Inspector Rodolfo L. Tababan, SPO4 Rolando Buenaventura and Barangay Chairperson Socorro Lipana, who were
all present during the raid. After the prosecution presented its evidence, the counsel for the accused moved for
leave of court to file a demurrer to evidence, which the court granted. On October 5, 2000, the RTC however denied
the demurrer to evidence and scheduled the reception of evidence for the accused. A motion for reconsideration
was likewise denied.

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

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

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

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

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

SO ORDERED.6

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

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

Costs against accused-appellants.

SO ORDERED.7

Hence the instant petition assigning the following errors:

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

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

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

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

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

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

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

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

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

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

In People v. Go Pin, the Court said:

If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be
viewed and appreciated by people interested in art, there would be no offense committed. However, the
pictures here in question were used not exactly for arts sake but rather for commercial purposes. In other
words, the supposed artistic qualities of said pictures were being commercialized so that the cause of art
was of secondary or minor importance. Gain and profit would appear to have been the main, if not the
exclusive consideration in their exhibition; and it would not be surprising if the persons who went to see
those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons
interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic
tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love [of]
excitement, including the youth who because of their immaturity are not in a position to resist and shield
themselves from the ill and perverting effects of these pictures.20

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

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

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

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

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

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

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

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

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

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

In one (1) case the Supreme Court ruled:

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

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

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

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

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

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

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

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

SO ORDERED.
 [G.R. No. 127930. December 15, 2000]

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

DECISION
KAPUNAN, J.:

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

xxx a story, clearly fiction, entitled Kaskas written by one Gerald Garry Renacido xxx.

Kaskas, written in Tagalog, treats of the experience of a group of young, male, combo players who, one
evening, after their performance went to see a bold show in a place called Flirtation. This was the way the
author described the groups exposure during that stage show:

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

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

Kaskas mo babe, sige kaskas.

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

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

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

Kaskas mo pa, kaskas mo pa!

Palpakan at halagpakan na tawanan ang tumambad sa kanya ng biglang halikan siya nito sa labi at iniwang
bigla, upang kanyang muniin ang naudlot niyang pagtikim ng karnal na nektar. Hindi niya maanto kung siya ay
nanalo o natalo sa nangyaring sagupaan ng libog. Ang alam lang niya ay nanlata na siya.
After the show the group went home in a car with the bokalista driving. A pedestrian happened to cross the
street and the driver deliberately hit him with these words:

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

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

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

In his foreword which Jerome Gomez entitled Foreplay, Jerome wrote: Alam ko, nakakagulat ang aming
pamagat. Jerome then proceeded to write about previous reactions of readers to women-writers writing about
matters erotic and to gay literature. He justified the Magazines erotic theme on the ground that many of the
poems passed on to the editors were about sekswalidad at ibat ibang karanasan nito. Nakakagulat ang tapang
ng mga manunulat tungkol sa maselang usaping ito xxx at sa isang institusyon pang katulad ng Miriam!

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

may mga palangganang nakatiwangwang

mga putang biyak na sa gitna,

di na puwedeng paglabhan,

di na maaaring pagbabaran

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

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

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

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

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

Na picture mo na ba

nong magkatabi tayong dalawa

sa pantatluhang sofa

ikaw, the legitimate asawa

at ako, biro mo, ang kerida?

tapos, tumabi siya, shit!

kumpleto na:

ikaw, ako at siya

kulang na lang, kamera.

A poem Sa Gilid ng Itim by Gerald Renacido in the Chi-Rho broadsheet spoke of a fox (lobo) yearning for
karneng sariwa, karneng bata, karneng may kalambutan. isang bahid ng dugong dalaga, maamot malasa,
ipahid sa mga labing sakim sa romansa and ended with hinog na para himukin bungang bibiyakin.[2]

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

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

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

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

None of the students submitted their respective answers. They instead requested Dr. Sevilla to transfer
the case to the Regional Office of the Department of Education, Culture and Sports (DECS) which under Rule
XII of DECS Order No. 94, Series of 1992, supposedly had jurisdiction over the case.[5]
In a Letter dated 21 November 1994, Dr. Sevilla again required the students to file their written answers.
In response, Atty. Ricardo Valmonte, lawyer for the students, submitted a letter [6] to the Discipline
Committee reiterating his clients position that said Committee had no jurisdiction over them.According to Atty.
Valmonte, the Committee was trying to impose discipline on [his clients] on account of their having written
articles and poems in their capacity as campus journalists. Hence, he argued that what applies is Republic Act
No. 7079 [The Campus Journalism Act] and its implementing rules and regulations. He also questioned the
partiality of the members of said Committee who allegedly had already articulated their position against his
clients.
The Discipline Committee proceeded with its investigation ex parte. Thereafter, the Discipline Board, after
a review of the Discipline Committees report, imposed disciplinary sanctions upon the students, thus:
1. Jasper Briones Expulsion. Briones is the Editor-in-Chief of Chi-Rho and a 4th year student;
2. Daphne Cowper suspension up to (summer) March, 1995;
3. Imelda Hilario suspension for two (2) weeks to expire on February 2, 1995;
4. Deborah Ligon suspension up to May, 1995. Miss Ligon is a 4th year student and could graduate
as summa cum laude;
 5. Elizabeth Valdezco suspension up to (summer) March, 1995;
6. Camille Portugal graduation privileges withheld, including diploma. She is an Octoberian;
7. Joel Tan suspension for two (2) weeks to expire on February 2, 1995;
8. Gerald Gary Renacido Expelled and given transfer credentials. He is a 2nd year student. He wrote
the fiction story Kaskas;
9. Relly Carpio Dismissed and given transfer credentials. He is in 3rd year and wrote the poem Libog;
10. Jerome Gomez Dismissed and given transfer credentials. He is in 3rd year. He wrote the foreword
Foreplay to the questioned Anthology of Poems; and
11. Jose Mari Ramos Expelled and given transfer papers. He is a 2nd year student and art editor of
Chi-Rho.[7]
The above students thus filed a petition for prohibition and certiorari with preliminary injunction/restraining
order before the Regional Trial Court of Quezon City questioning the jurisdiction of the Discipline Board of
Miriam College over them.
On 17 January 1995, the Regional Trial Court, Branch CIII, presided by Judge Jaime N. Salazar, Jr.,
issued an order denying the plaintiffs prayer for a Temporary Restraining Order. It held:

There is nothing in the DECS Order No. 94, S. 1992 dated August 19, 1992 that excludes school
Administrators from exercising jurisdiction over cases of the nature involved in the instant petition. R.A. 7079
also does not state anything on the matter of jurisdiction. The DECS undoubtedly cannot determine the extent
of the nature of jurisdiction of schools over disciplinary cases.Moreover, as this Court reads that DECS Order
No. 94, S. of 1992, it merely prescribes for purposes of internal administration which DECS officer or body
shall hear cases arising from R.A. 7079 if and when brought to it for resolution. The said order never
mentioned that it has exclusive jurisdiction over cases falling under R.A. 707.[8]

The students thereafter filed a Supplemental Petition and Motion for Reconsideration. The College
followed with its Answer.
Subsequently, the RTC issued an Order dated 10 February 1995 granting the writ of preliminary injunction.

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

1. Enforcing and/or implementing the expulsion or dismissal resolutions or orders complained of

against herein plaintiffs (a) Jasper Briones; (b) Gerald Gary Renacido; (c) Relly Carpio; (d) Jerome
Gomez; and (e) Jose Mari Ramos, but otherwise allowing the defendants to impose lesser
sanctions on aforementioned plaintiffs; and
2. Disallowing, refusing, barring or in any way preventing the herein plaintiffs (all eleven of them) from
taking tests or exams and entering the Miriam campus for such purpose as extended to all
students of Miriam College Foundation, Inc.; neither should their respective course or subject
teachers or professors withhold their grades, including final grades, if and when they meet the
requirements similarly prescribed for all other students, this current 2nd Semester of 1994-95.

The sanctions imposed on the other plaintiffs, namely, Deborah Ligon, Imelda Hilario, Elizabeth Valdezco,
Camille Portugal and Daphne Cowper, shall remain in force and shall not be covered by this
Injunction: Provided, that Camille Portugal now a graduate, shall have the right to receive her diploma, but
defendants are not hereby prevented from refusing her the privilege of walking on the graduation stage so as
to prevent any likely public tumults.
The plaintiffs are required to post an injunction bond in the sum of Four Thousand Pesos (P4,000.00) each.

SO ORDERED.[9]

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

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

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

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

SO ORDERED.[10]

The students, excluding Deborah Ligon, Imelda Hilario and Daphne Cowper, sought relief in this Court
through a petition for certiorari and prohibition of preliminary injunction/restraining order [11] questioning the
Orders of the RTC dated 10 and 24 February 1995.
On 15 March 1995, the Court resolved to refer the case to the Court of Appeals (CA) for disposition. [12] On
19 May 1995, the CA issued a resolution stating:

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

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

SO ORDERED.[13]

In its Decision dated 26 September 1996, respondent court granted the students petition. The CA declared
the RTC Order dated 22 February 1995, as well as the students suspension and dismissal, void.
Hence, this petition by Miriam College.
We limit our decision to the resolution of the following issues:
(1) The alleged moot character of the case.
(2) The jurisdiction of the trial court to entertain the petition for certiorari filed by the students.
(3) The power of petitioner to suspend or dismiss respondent students.
(4) The jurisdiction of petitioner over the complaints against the students.
We do not tackle the alleged obscenity of the publication, the propriety of the penalty imposed or the
manner of the imposition thereof. These issues, though touched upon by the parties in the proceedings below,
were not fully ventilated therein.

Petitioner asserts the Court of Appeals found the case moot thus:
While this petition may be considered moot and academic since more than one year have passed since May
19, 1995 when this court issued a temporary restraining order enjoining respondents from enforcing the
dismissal and suspension on petitioners.[14]

Since courts do not adjudicate moot cases, petitioner argues that the CA should not have proceeded with the
adjudication of the merits of the case.
We find that the case is not moot.
It may be noted that what the court issued in 19 May 1995 was a temporary restraining order, not a
preliminary injunction. The records do not show that the CA ever issued a preliminary injunction.
Preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or
final order, requiring a party or a court, agency or a person to perform to refrain from performing a particular act
or acts.[15] As an extraordinary remedy, injunction is calculated to preserve or maintain the status quo of things
and is generally availed of to prevent actual or threatened acts, until the merits of the case can be heard. [16] A
preliminary injunction persists until it is dissolved or until the termination of the action without the court issuing
a final injunction.
The basic purpose of restraining order, on the other hand, is to preserve the status quo until the hearing of
the application for preliminary injunction. [17] Under the former 5, Rule 58 of the Rules of Court, as amended by
5, Batas Pambansa Blg. 224, a judge (or justice) may issue a temporary restraining order with a limited life of
twenty days from date of issue.[18] If before the expiration of the 20-day period the application for preliminary
injunction is denied, the temporary order would thereby be deemed automatically vacated. If no action is taken
by the judge on the application for preliminary injunction within the said 20 days, the temporary restraining
order would automatically expire on the 20th day by the sheer force of law, no judicial declaration to that effect
being necessary.[19] In the instant case, no such preliminary injunction was issued; hence, the TRO earlier
issued automatically expired under the aforesaid provision of the Rules of Court.[20]
This limitation as to the duration of the temporary restraining order was the rule prevailing when the CA
issued its TRO dated 19 May 1995. [21] By that time respondents Elizabeth Valdezco and Joel Tan had already
served their respective suspensions. The TRO was applicable only to respondents Jasper Briones, Jerome
Gomez, Relly Carpio, Jose Mari Ramos and Gerald Gary Renacido all of whom were dismissed, and
respondent Camille Portugal whose graduation privileges were withheld. The TRO, however, lost its effectivity
upon the lapse of the twenty days. It can hardly be said that in that short span of time, these students had
already graduated as to render the case moot.
Either the CA was of the notion that its TRO was effective throughout the pendency of the case or that
what is issued was a preliminary injunction. In either case, it was error on the part of the CA to assume that its
order supposedly enjoining Miriam from enforcing the dismissal and suspension was complied with. A case
becomes moot and academic when there is no more actual controversy between the parties or no useful
purpose can be served in passing upon the merits.[22] To determine the moot character of a question before it,
the appellate court may receive proof or take notice of facts appearing outside the record. [23] In the absence of
such proof or notice of facts, the Court of Appeals should not have assumed that its TRO was enforced, and
that the case was rendered moot by the mere lapse of time.
Indeed, private respondents in their Comment herein [24] deny that the case has become moot since Miriam
refused them readmission in violation of the TRO. This fact is unwittingly conceded by Miriam itself when, to
counter this allegation by the students, it says that private respondents never sought readmission after the
restraining order was issued.[25] In truth, Miriam relied on legal technicalities to subvert the clear intent of said
order, which states:

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

Petitioner says that the above order is absurd since the order incorrectly directs public respondent, the Hon.
Jaime Salazar, presiding judge of the Regional Trial Court of Quezon City not to dismiss or suspend the
students.[26]
 We do not agree. Padua vs. Robles[27]lays down the rules in construing judgments. We find these rules to
be applicable to court orders as well:

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

Tested by such standards, we find that the order was indeed intended for private respondents (in the
appellate court) Miriam College, et al., and not public respondent Judge. In dismissing the case, the trial judge
recalled and set aside all orders it had previously issued, including the writ of preliminary injunction. In doing
so, the trial court allowed the dismissal and suspension of the students to remain in force. Thus, it would
indeed be absurd to construe the order as being directed to the RTC. Obviously, the TRO was intended for
Miriam College.
True, respondent-students should have asked for a clarification of the above order. They did
not. Nevertheless, if Miriam College found the order absurd, then it should have sought a clarification itself so
the Court of Appeals could have cleared up any confusion. It chose not to. Instead, it took advantage of the
supposed vagueness of the order and used the same to justify its refusal to readmit the students.
As Miriam never readmitted the students, the CAs ruling that the case is moot has no basis. How then can
Miriam argue in good faith that the case had become moot when it knew all along that the facts on which the
purported moot character of the case were based did not exist? Obviously, Miriam is clutching to the CAs
wrongful assumption that the TRO it issued was enforced to justify the reversal of the CAs decision.
Accordingly, we hold that the case is not moot, Miriams pretensions to the contrary notwithstanding.

II

To uphold and protect the freedom of the press even at the campus level and to promote the development
and growth of campus journalism as a means of strengthening ethical values, encouraging critical and creative
thinking, and developing moral character and personal discipline of the Filipino youth, [28] Congress enacted in
1991 Republic Act No. 7079.
Entitled AN ACT PROVIDING FOR THE DEVELOPMENT AND PROMOTION OF CAMPUS JOURNALISM
AND FOR OTHER PURPOSES,[29] the law contains provisions for the selection of the editorial board [30] and
publication adviser,[31] the funding of the school publication, [32] and the grant of exemption to donations used
actually, directly and exclusively for the promotion of campus journalism from donors or gift tax. [33]
Noteworthy are provisions clearly intended to provide autonomy to the editorial board and its
members. Thus, the second paragraph of Section 4 states that (o)nce the publication is established, its
editorial board shall freely determine its editorial policies and manage the publications funds.
Section 7, in particular, provides:

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

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

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

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

The latter two provisions of law appear to be decisive of the present case.
It may be recalled that after the Miriam Disciplinary Board imposed disciplinary sanctions upon the
students, the latter filed a petition for certiorari and prohibition in the Regional Trial Court raising, as grounds
therefor, that:
I

DEFENDANTS DISCIPLINARY COMMITTEE AND DISCIPLINARY BOARD OF DEFENDANT SCHOOL HAVE

NO JURISDICTION OVER THE CASE.[35]

II

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

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

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

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

Before we address the question of which between the DECS Regional Office and Miriam College has
jurisdiction over the complaints against the students, we first delve into the power of either to impose
disciplinary sanctions upon the students. Indeed, the resolution of the issue of jurisdiction would be reduced to
an academic exercise if neither the DECS Regional Office nor Miriam College had the power to impose
sanctions upon the students.
Recall, for purposes of this discussion, that Section 7 of the Campus Journalism Act prohibits the
expulsion or suspension of a student solely on the basis of articles he or she has written.

A.

Section 5 (2), Article XIV of the Constitution guarantees all institutions of higher learning academic
freedom. This institutional academic freedom includes the right of the school or college to decide for itself, its
aims and objectives, and how best to attain them free from outside coercion or interference save possibly
when the overriding public welfare calls for some restraint. [39] The essential freedoms subsumed in the term
"academic freedom" encompasses the freedom to determine for itself on academic grounds:
(1) Who may teach,
(2) What may be taught,
(3) How it shall be taught, and
(4) Who may be admitted to study.[40]
The right of the school to discipline its students is at once apparent in the third freedom, i.e., "how it shall
be taught." A school certainly cannot function in an atmosphere of anarchy.

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

Moreover, the school has an interest in teaching the student discipline, a necessary, if not indispensable,
value in any field of learning. By instilling discipline, the school teaches discipline.Accordingly, the right to
discipline the student likewise finds basis in the freedom "what to teach."
Incidentally, the school not only has the right but the duty to develop discipline in its students. The
Constitution no less imposes such duty.

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

In Angeles vs. Sison, we also said that discipline was a means for the school to carry out its responsibility to
help its students "grow and develop into mature, responsible, effective and worthy citizens of the
community."[43]
Finally, nowhere in the above formulation is the right to discipline more evident than in "who may be
admitted to study." If a school has the freedom to determine whom to admit, logic dictates that it also has the
right to determine whom to exclude or expel, as well as upon whom to impose lesser sanctions such as
suspension and the withholding of graduation privileges.
 Thus, in Ateneo de Manila vs. Capulong,[44] the Court upheld the expulsion of students found guilty of
hazing by petitioner therein, holding that:

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

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

Tracing the development of academic freedom, the Court continued:

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

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

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

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

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

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

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

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

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

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

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

C.

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

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

The Malabanan ruling was followed in Villar vs. Technological Institute of the Philippines,[50] Arreza vs.
Gregorio Araneta University Foundation,[51] and Non vs. Dames II.[52]
The right of the students to free speech in school premises, however, is not absolute. The right to free
speech must always be applied in light of the special characteristics of the school environment. [53] Thus, while
we upheld the right of the students to free expression in these cases, we did not rule out disciplinary action by
the school for "conduct by the student, in class or out of it, which for any reason - whether it stems from time,
place, or type of behavior - which materially disrupts classwork or involves substantial disorder or invasion of
the rights of others."[54] Thus, inMalabanan, we held:

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

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

IV.

From the foregoing, the answer to the question of who has jurisdiction over the cases filed against
respondent students becomes self-evident. The power of the school to investigate is an adjunct of its power to
suspend or expel. It is a necessary corollary to the enforcement of rules and regulations and the maintenance
of a safe and orderly educational environment conducive to learning. [58] That power, like the power to suspend
or expel, is an inherent part of the academic freedom of institutions of higher learning guaranteed by the
Constitution. We therefore rule that Miriam College has the authority to hear and decide the cases filed against
respondent students.
WHEREFORE, the decision of the Court of Appeals is REVERSED and SET ASIDE. Petitioner Miriam
College is ordered to READMIT private respondent Joel Tan whose suspension has long lapsed.
SO ORDERED.
 EN BANC

[G.R. No. 126183. March 25, 1999]

LUZVIMINDA DE LA CRUZ, MERCY DE LEON, TERESITA EUGENIO, CORAZON GOMEZ, ELENA

GUEVARRA, ROSALINA JINGCO, LOIDA IGNACIO, and EMERITA PIZARRO, petitioners vs.,
COURT OF APPEALS, CIVIL SERVICE COMMISSION and THE SECRETARY OF THE
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, respondents.

[G.R. No. 129221. March 25, 1999]

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

DECISION
BELLOSILLO, J.:

These consolidated petitions[1] are among several petitions filed with this Court arising from the much-
publicized public school teachers' mass actions of September/October 1990.
Petitioners are public school teachers from various schools in Metro Manila who were simultaneously
charged, preventively suspended, and eventually dismissed in October 1990 by then Secretary Isidro D. Cariio
of the Department of Education, Culture and Sports (DECS), in decisions issued by him which uniformly read -

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

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

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

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

The decisions dismissing petitioners were immediately implemented.

Petitioners appealed to the Merit Systems Protection Board (MSPB) and then to the Civil Service
Commission (CSC). In 1993 the CSC found petitioners guilty of conduct prejudicial to the best interest of the
service" for having participated in the mass actions and imposed upon them the reduced penalty of six (6)
months' suspension. However, in view of the length of time that petitioners had been out of the service by
reason of the immediate implementation of the dismissal orders of Secretary Cario, the CSC likewise ordered
petitioners' automatic reinstatement in the service without back wages.
Petitioners were unhappy with the CSC decision. They initially filed petitions for certiorari with this Court,
docketed as G.R. Nos. 111998,[2] 114435-5506,[3] and 116312-19,[4] which were all referred to the Court of
Appeals pursuant to Revised Administrative Circular No. 1-95, [5] and there re-docketed as CA-G.R. SP No.
37620, CA-G.R. SP No. 37619 and CA-G.R. SP Nos. 37784, 37808-37014, respectively.
On 29 November 1995 the Special Third Division of the Court of Appeals[6] rendered a joint decision in CA-
G.R. SP Nos. 37619-20 dismissing the petitions for lack of merit. [7] The appellate court ruled that the
questioned resolutions of the Civil Service Commission finding petitioners guilty of conduct prejudicial to the
best interest of the service were based on reasonable and justifiable grounds; that petitioners' perceived
grievances were no excuse for them not to conduct classes and defy the return-to-work order issued by their
superiors; that the immediate execution of the dismissal orders of Secretary Cario was sanctioned by Sec. 47,
par. (2), of the Administrative Code of 1987 (E.O. No. 292) as well as Sec. 37, par. (b), Art. IX of PD No. 807,
[8]
and Sec. 32, Rule XIV of the Omnibus Rules Implementing Book V of E.0. No. 292. Their motion for
reconsideration having been denied on 15 May 1997, [9] petitioners then appealed by certiorari to this Court on
26 June 1997, docketed as G.R. No. 129221.
Meanwhile, on 24 April 1998 the Tenth Division of the Court of Appeals[10] rendered a joint decision in CA-
G.R. SP No. 37784 and Nos. 37808-14 likewise dismissing the petitions for lack of merit.[11] The appellate court
rejected petitioners' contention that they should not have been penalized for participating in the
September/October 1990 mass actions because they were merely exercising their constitutional right to free
assembly. In so ruling the Court of Appeals cited Manila Public School Teachers Association v. Laguio, Jr.
[12]
wherein this Court ruled that the public school teachers' mass actions of September/October 1990 were"to
all intents and purposes a strike x x x constitut[ing] a concealed and unauthorized stoppage of, or absence
from, work which it was the teachers' duty to perform, undertaken for essentially economic
reasons." Petitioners' contention that Secretary Cario's decision to dismiss them was not supported by
evidence was likewise rejected in view of petitioners' admissions and/or failure to refute the factual finding that
petitioners actually joined the mass actions based on the report of absences submitted by their respective
school principals. Their motion for reconsideration having been denied in the resolution of 20 August 1996,
[13]
petitioners then filed a petition for review on certiorari with this Court on 1 October 1996, docketed as G.R.
No, 126183.
By resolution of 7 October 1997 we granted petitioners' motion for the consolidation of G.R. Nos. 126183
and 129221 involving as they did common questions of fact and law.
 Petitioners contend that the Court of Appeals grievously erred in affirming the CSC resolutions finding
them guilty of conduct prejudicial to the best interest of the service when their only "offense" was to exercise
their constitutional right to peaceably assemble and petition the government for redress of their
grievances. Moreover petitioners insist that the mass actions of September/October 1990 were not "strikes" as
there was no actual disruption of classes. Petitioners therefore ask for exoneration or, in the alternative, award
of back wages for the period of three (3) years when they were not allowed to work while awaiting resolution of
their appeals by the MSPB and CSC, deducting the period of six (6) months' suspension eventually meted
them.
The petitions must be denied in view of previous rulings of this Court already settling all the issues raised
by petitioners. It is a very desirable and necessary judicial practice that when a court has laid down a principle
of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases
where the facts are substantially the same. [14] Stare decisis et non quieta movere. Stand by the decisions and
disturb not what is settled.[15]
As early as 18 December 1990 we have categorically ruled in the consolidated cases of Manila Public
School Teachers Association v. Laguio Jr.[16] and Alliance of Concerned Teachers v. Hon. Isidro Cario[17] that the
mass actions of September/October 1990 staged by Metro Manila public school teachers "amounted to a strike
in every sense of the term, constituting as they did, a concerted and unauthorized stoppage of or absence
from work which it was said teachers' sworn duty to perform, carried out for essentially economic reasons -- to
protest and pressure the Government to correct what, among other grievances, the strikers perceived to be the
unjust or prejudicial implementation of the salary standardization law insofar as they were concerned, the non-
payment or delay in payment of various fringe benefits and allowances to which they were entitled, and the
imposition of additional teaching loads and longer teaching hours." In Rolando Gan v. Civil Service
Commission,[18] we denied the claim that the teachers were thereby denied their rights to peaceably assemble
and petition the government for redress of grievances reasoning that this constitutional liberty to be upheld, like
any other liberty, must be exercised within reasonable limits so as not to prejudice the public welfare. But the
public school teachers in the case of the 1990 mass actions did not exercise their constitutional rights within
reasonable limits. On the contrary, they committed acts prejudicial to the best interest of the service by staging
the mass protests on regular school days, abandoning their classes and refusing to go back even after they
had been ordered to do so. Had the teachers availed of their free time - recess, after classes, weekends or
holidays - to dramatize their grievances and to dialogue with the proper authorities within the bounds of law, no
one - not the DECS, the CSC or even the Supreme Court - could have held them liable for their participation in
the mass actions.[19]
With respect to our ruling in PBM Employees Organization v. Philippine Blooming Mills Co., Inc., [20] invoked
by petitioners, we have likewise already ruled in the Rolando Gan case[21] that the PBM ruling - that the rights
of free expression and assembly could not be lightly disregarded as they occupy a preferred position in the
hierarchy of civil liberties - was not applicable to defend the validity of the 1990 mass actions because what
were pitted therein against the rights of free expression and of assembly were inferior property rights while the
higher consideration involved in the case of the striking teachers was the education of the youth which must, at
the very least, be equated with the freedom of assembly and to petition the government for redress of
grievances.[22]
We affirmed the foregoing rulings in Bagana v. Court of Appeals[23] by denying a similar petition filed by
another group of teachers who participated in the 1990 mass actions but who claimed to have been merely
exercising their constitutional right to free assembly. We held in Bagana that the Court of Appeals committed
no reversible error in affirming the CSC resolutions finding the teachers guilty of conduct prejudicial to the best
interest of the service and imposing penalties of six (6) months' suspension without pay. In Bangalisan v. Court
of Appeals[24] we added that the persistent refusal of the striking teachers to call the mass actions by the
conventional term "strike" did not erase the true nature of the mass actions as unauthorized stoppages of work
the purpose of which was to obtain a favorable response to the teachers' economic grievances. We again
stressed that the teachers were penalized not because they exercised their right to peaceably assemble but
because of the manner by which such right was exercised, i.e., going on unauthorized and unilateral absences
thus disrupting classes in various schools in Metro Manila which produced adverse effects upon the students
for whose education the teachers were responsible. But herein petitioners contend that classes were not
actually disrupted because substitute teachers were immediately appointed by Secretary Cario. Besides being
a purely factual assertion which this Court cannot take cognizance of in a petition for review, the fact that the
prompt remedial action taken by Secretary Cario might have partially deflected the adverse effects of the mass
protests did not erase the administrative liability of petitioners for the intended consequences thereof which
were the very reason why such prompt remedial action became necessary.
Considering the foregoing, we find that respondent Court of Appeals did not err in sustaining the CSC
resolutions finding petitioners guilty of conduct prejudicial to the best interest of the service.
As an alternative prayer, petitioners ask that in the event their exoneration is not decreed they be awarded
back wages for the period when they were not allowed to work by reason of the supposed unjustified
immediate implementation of the dismissal orders of Secretary Cario while awaiting resolution of their appeals
by the MSPB and CSC.
The issue of whether back wages may be awarded to teachers ordered reinstated to the service after the
dismissal orders of Secretary Cario were commuted by the CSC to six (6) months' suspension is already
settled.
In Bangalisan v. Court of Appeals[25] we resolved the issue in the negative on the ground that the teachers
were neither exonerated nor unjustifiably suspended, two (2) circumstances necessary for the grant of back
wages in administrative disciplinary cases. Like herein petitioners, those in Bangalisan were also teachers who
participated in the 1990 mass actions for which they were dismissed by Secretary Cario but ordered merely
suspended for six (6) months by the Civil Service Commission. On a plea that the immediate implementation of
the dismissal orders of Secretary Cario was unjustified, thus warranting an award of back wages the Court said
-

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

And since it was already the final dismissal orders of Secretary Cario which were being carried out, immediate
implementation even pending appeal was clearly sanctioned by the aforequoted provision of the Administrative
Code of 1987.[26] Hence, being legal, the immediate execution of the dismissal orders could not be considered
unjustified.
The cases cited by petitioners to support their prayer for back salaries, namely, Abellera v. City of
Baguio[27] and Bautista v. Peralta[28] being cases which involved the unjustified immediate execution of the
dismissal orders of the then Civil Service Commissioner pending appeal to the Civil Service Board of Appeals
are therefore not applicable to justify petitioners' prayer. Neither could petitioners be considered to have been
exonerated from the charges levelled against them by Secretary Cario from the mere fact that they were found
guilty only of conduct prejudicial to the best interest of the service by the CSC. It must be remembered that
Secretary Cario charged petitioners with grave misconduct, gross neglect of duty, gross violation of civil service
law, rules and regulations, etc., for having participated in the 1990 illegal mass actions. On appeal the CSC
while affirming the factual finding that petitioners indeed participated in the mass actions found them liable only
for conduct prejudicial to the best interest of the service. Clearly the CSC decision did not proceed from a
finding that petitioners did not commit the acts complained of. Having been found to have actually participated
in the illegal mass actions although found answerable for a lesser offense, petitioners could not be considered
as fully innocent of the charges against them. [29] Being found liable for a lesser offense is not equivalent to
exoneration.[30]
Thus in Bangalisan we denied the claim for back wages of those teachers who were found to have
actually participated in the 1990 mass actions but granted the claim of one Rodolfo Mariano who was absent
only because he attended the wake and interment of his grandmother. In Jacinto v. Court of
Appeals[31] we again denied the claim for back wages of teachers found to have given cause for their
suspension, i.e., their unjustified abandonment of classes to the prejudice of their students but granted the
claim of Merlinda Jacinto who was absent because of illness.
 Petitioners do not deny, nay they even admit, having participated in the 1990 mass actions. Thus having
given cause for their supension, their prayer for back wages must be denied conformably with settled rulings of
this Court.
WHEREFORE, the petitions are DENIED and the assailed Decisions of the Court of Appeals dated 29
November 1995 and 24 April 1996 are AFFIRMED. No costs.
SO ORDERED.

SECOND DIVISION

GOVERNMENT SERVICE INSURANCE G.R. No. 170132

SYSTEM (GSIS) and WINSTON F. GARCIA, in
his capacity as GSIS President & General Present:
Manager,
PUNO, J., Chairperson,
Petitioners, SANDOVAL-GUTIERREZ,
*
CORONA,
AZCUNA, and
- versus - GARCIA, JJ.

Promulgated:

December 6, 2006
KAPISANAN NG MGA MANGGAGAWA SA
GSIS,
Respondent.
x------------------------------------------------------------------------------------x

DECISION

GARCIA, J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, the Government Service
Insurance System (GSIS) and its President and General Manager Winston F. Garcia (Garcia, for short) assail
and seek to nullify the Decision[1] dated June 16, 2005 of the Court of Appeals (CA) in CA-G.R. SP No.
87220, as reiterated in its Resolution[2] of October 18, 2005 denying Garcias motion for reconsideration.

The recourse is cast against the following setting:

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

On or about October 10, 2004, the manager of the GSIS Investigating Unit issued a memorandum
directing 131 union and non-union members to show cause why they should not be charged administratively
for their participation in said rally. In reaction, KMGs counsel, Atty. Manuel Molina, sought reconsideration of
said directive on the ground, among others, that the subject employees resumed work on October 8, 2004 in
obedience to the return-to-work order thus issued. The plea for reconsideration was, however, effectively
denied by the filing, on October 25, 2004, of administrative charges against some 110 KMG members for grave
misconduct and conduct prejudicial to the best interest of the service.[4]
 What happened next is summarized by the CA in its challenged decision of June 16, 2005, albeit the
herein petitioners would except from some of the details of the appellate courts narration:

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

In his December 14, 2004 comment to the foregoing petition, respondent [Garcia]
averred that the case at bench was filed by an unauthorized representative in view of the fact
that Albert Velasco had already been dropped from the GSIS rolls and, by said token, had
ceased to be a member much less the President of KMG. Invoking the rule against forum
shopping, respondent [Garcia] called [the CAs] attention to the supposed fact that the
allegations in the subject petition merely duplicated those already set forth in two petitions for
certiorari and prohibition earlier filed by Albert Velasco . Because said petitions are, in point of
fact, pending before this court as CA-G.R. SP Nos. 86130 and 86365, respondent [Garcia]
prayed for the dismissal of the petition at bench .[5] (Words in bracket added.)

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

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

WHEREFORE, premises considered, the petition [of KMG] is GRANTED and

respondent [Winston F. Garcia] is hereby PERPETUALLY ENJOINED from implementing the
issued formal charges and from issuing other formal charges arising from the same facts and
events.

SO ORDERED. (Emphasis in the original)

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

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

We resolve to GRANT the petition.

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

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

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

Although the filing of administrative charges against [respondent KMGs] members is well within
[petitioner Garcias] official [disciplinary] prerogatives, [his] exercise of the power vested under
Section 45 of Republic Act No. 8291 was tainted with arbitrariness and vindictiveness against
which prohibition was sought by [respondent]. xxx the fact that the subject mass demonstrations
were directed against [Garcias] supposed mismanagement of the financial resources of the
GSIS, by and of itself, renders the filing of administrative charges against [KMGs] member
suspect. More significantly, we find thegravity of the offenses and the sheer number of persons
charged administratively to be, at the very least, antithetical to the best interest of the service.
 It matters little that, instead of the 361 alleged by petitioner, only 278 charges were actually filed
[and] in the meantime, disposed of and of the said number, 20 resulted to exoneration, 182 to
reprimand and 5 to the imposition of a penalty of one month suspension. Irrespective of their
outcome, the severe penalties prescribed for the offense with which petitioners members were
charged, to our mind, bespeak of bellicose and castigatory reaction . The fact that most of the
employees [Garcia] administratively charged were eventually meted with what appears to be a
virtual slap on the wrist even makes us wonder why respondent even bothered to file said
charges at all. xxx.

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

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

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

We are unable to lend concurrence to the above CA posture. For, let alone the fact that it ignores what
the Court has uniformly held all along, the appellate courts position is contrary to what Section 4 in relation to
Section 5 of CSC Resolution No. 021316[17] provides. Besides, the appellate courts invocation of Justice Cruzs
opinion in MPSTA is clearly off-tangent, the good Justices opinion thereat being a dissent. It may be, as the
appellate court urged that the freedom of expression and assembly and the right to petition the government for
a redress of grievances stand on a level higher than economic and other liberties. Any suggestion, however,
about these rights as including the right on the part of government personnel to strike ought to be, as it has
been, trashed. We have made this abundantly clear in our past determinations. For instance, in Alliance of
Government Workers v. Minister of Labor and Employment,[18] a case decided under the aegis of the 1973
Constitution, an en banc Court declared that it would be unfair to allow employees of government corporations
to resort to concerted activity with the ever present threat of a strike to wring benefits from Government. Then
came the 1987 Constitution expressly guaranteeing, for the first time, the right of government personnel to self-
organization[19] to complement the provision according workers the right to engage in peaceful concerted
activities, including the right to strike in accordance with law.[20]
 It was against the backdrop of the aforesaid provisions of the 1987 Constitution that the Court
resolved Bangalisan v. Court of Appeals.[21] In it, we held, citing MPSTA v. Laguio, Jr.,[22] that employees in the
public service may not engage in strikes or in concerted and unauthorized stoppage of work; that the right of
government employees to organize is limited to the formation of unions or associations, without including the
right to strike.

Jacinto v. Court of Appeals[23] came next and there we explained:

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

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

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

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

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

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

When we proposed this amendment providing for self organization of government employees, it
does not mean that because they have the right to organize, they have also the right to strike.
That is a different matter. xxx[25]
 With the view we take of the events that transpired on October 4-7, 2004, what respondents members
launched or participated in during that time partook of a strike or, what contextually amounts to the same thing,
a prohibited concerted activity. The phrase prohibited concerted activity refers to any collective activity
undertaken by government employees, by themselves or through their employees organization, with the intent
of effecting work stoppage or service disruption in order to realize their demands or force concessions,
economic or otherwise; it includes mass leaves, walkouts, pickets and acts of similar nature.[26] Indeed,
for four straight days, participating KMG members and other GSIS employees staged a walk out and waged or
participated in a mass protest or demonstration right at the very doorstep of the GSIS main office building. The
record of attendance[27] for the period material shows that, on the first day of the protest, 851 employees,
or forty eight per cent (48%) of the total number of employees in the main office (1,756) took to the streets
during office hours, from 6 a.m. to 2 p.m., [28] leaving the other employees to fend for themselves in an office
where a host of transactions take place every business day. On the second day, 707 employees left their
respective work stations, while 538 participated in the mass action on the third day. A smaller number, i.e., 306
employees, but by no means an insignificant few, joined the fourth day activity.

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

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

We are not convinced.

In whatever name respondent desires to call the four-day mass action in October 2004, the stubborn
fact remains that the erring employees, instead of exploring non-crippling activities during their free time, had
taken a disruptive approach to attain whatever it was they were specifically after. As events evolved, they
assembled in front of the GSIS main office building during office hours and staged rallies and protests, and
even tried to convince others to join their cause, thus provoking work stoppage and service-delivery disruption,
the very evil sought to be forestalled by the prohibition against strikes by government personnel.[30]

The Court can concede hypothetically that the protest rally and gathering in question did not involve
some specific material demand. But then the absence of such economic-related demand, even if true, did not,
under the premises, make such mass action less of a prohibited concerted activity. For, as articulated earlier,
any collective activity undertaken by government employees with the intent of effecting work stoppage or
service disruption in order to realize their demands or force concessions, economic or otherwise, is a
prohibited concerted mass action[31] and doubtless actionable administratively. Bangalisan even went further to
say the following: [i]n the absence of statute, public employees do not have the right to engage in concerted
work stoppages for any purpose.
To petitioner Garcia, as President and General Manager of GSIS, rests the authority and responsibility,
under Section 45 of Republic Act No. 8291, the GSIS Act of 1997, to remove, suspend or otherwise discipline
GSIS personnel for cause.[32] At bottom then, petitioner Garcia, by filing or causing the filing of administrative
charges against the absenting participants of the October 4-7, 2004 mass action, merely performed a duty
expected of him and enjoined by law. Regardless of the mood petitioner Garcia was in when he signed the
charge sheet, his act can easily be sustained as legally correct and doubtless within his jurisdiction.

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

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

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

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

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

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

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

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

As a final consideration, the Court notes or reiterates the following relevant incidents surrounding the
disposition of the case below:
 1. The CA had invoked as part of its ratio decidendi a dissenting opinion in MPSTA, even going to the
extent of describing as instructive and timely a portion, when the majority opinion thereat, which the appellate
court ignored, is the controlling jurisprudence.

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

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

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

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

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals are REVERSED and SET
ASIDE and the writ of prohibition issued by that court isNULLIFIED.
 [G.R. No. 107566. November 25, 2004]

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

DECISION
CHICO-NAZARIO, J.:

This is a petition for review on certiorari seeking to set aside the Decision[1] of the Court of Appeals, dated
07 January 1992, and the Resolution, [2] dated 29 September 1992, reversing the decision of the Regional Trial
Court (RTC), dated 14 June 1990, which dismissed herein private respondents claim for damages.
Culled from the records are the following facts:
During the time material to this case, petitioner Oseo C. Hamada (Hamada) was the president and general
manager of the Baguio Printing and Publishing Co., Inc., which publishes the Baguio Midland Courier, a weekly
newspaper published and circulated in Baguio City and other provinces within the Cordillera region. He was
also, at that time, the business manager of said newsweekly. Petitioner Cecille Afable (Afable) was Baguio
Midland Couriers editor-in-chief and one of its columnists who ran the column In and Out of Baguio.
On the other hand, private respondent Ramon L. Labo, Jr., was among the mayoralty candidates in
Baguio City for the 18 January 1988 local elections. [3] Prior to this, in 1984, private respondent had already
embarked on a political career by running for a seat in the former Batasang Pambansa during which time he
appointed a certain Benedicto Carantes (Carantes) as his campaign manager. It appears that as part of the
campaign propaganda for private respondent in the 1984 local elections, political ads appeared in the various
issues of Baguio Midland Courier and campaign paraphernalia were printed by Baguio Printing and Publishing
Co., Inc., on his behalf.
Apart from his political endeavors, private respondent was also an active member of the civic group Lions
Club having been elected governor of said organization in 1984, 1986, and 1988.
Before the 18 January 1988 local elections, petitioner Afable wrote in her column a series of articles
dealing with the candidates for the various elective positions in Baguio City. Quoted hereunder are excerpts
from said articles, as well as the respective dates when they were published in the Baguio Midland Courier

January 3, 1988

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

January 10, 1988

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

Claiming that the aforequoted portions of petitioner Afables column were tainted with malice, private
respondent instituted separate criminal and civil actions for libel against herein petitioners. In a resolution,
dated 26 December 1988, the Department of Justice dismissed the criminal case due to insufficiency of
evidence[6] while the civil suit was raffled off to RTC, Branch 6, Baguio City.
In the complaint for damages, private respondent alleged that in her 03 January 1988 and 10 January
1988 columns, petitioner Afable made it appear that he (private respondent) could not comply with his financial
obligations; that Yuko Narukawa Labo (Narukawa Labo), his co-plaintiff in the case before the trial court, was
accused of misrepresenting her social status to the general public thereby subjecting her to public ridicule; that
the subject articles were written solely for the purpose of destroying his reputation, integrity, and personality as
well as that of Ms. Narukawa Labo; and that said articles were false, untrue, libelous, and published with evil
intent. Private respondent and Ms. Narukawa Labo, therefore, prayed for moral damages, exemplary
damages, litigation expenses, attorneys fees, and costs of litigation.
Prior to filing their respective answers, petitioners filed separate motions to dismiss [7] upon the ground that
there was failure to comply with Section 6 of Presidential Decree (P.D.) No. 1508, [8] otherwise known as
the Katarungang Pambarangay Law, which required the referral of certain disputes to the barangay conciliation
process before they are filed in court. Petitioner Hamada also claimed that the complaint stated no cause of
action.
On 05 April 1988, private respondent and Ms. Narukawa Labo filed a motion with leave of court to amend
and admit attached amended complaint.[9] Impleaded in the amended complaint[10]was the Baguio Printing and
Publishing Co., Inc., as the publisher of the Baguio Midland Courier.
In its Order, dated 12 April 1988,[11] the trial court denied petitioners motions to dismiss. According to the
trial court, as one of the parties to this case was a corporation, P.D. No. 1508 was not applicable as said
statute pertained only to actions involving natural persons. In the same order, the trial court granted private
respondent and Ms. Narukawa Labos motion to admit their amended complaint and directed the petitioners to
file their answers.
In their answer,[12] petitioners Baguio Midland Courier and Hamada denied that petitioner Afables 03 and
10 January 1988 articles were libelous. They also claimed that per their companys records, private respondent
still owed them a certain sum of money for the political ads and campaign paraphernalia printed by Baguio
Printing and Publishing Co., Inc., during private respondents 1984 campaign, and that the 03 January 1988
column did not accuse Ms. Narukawa Labo of misrepresenting herself before the public. Moreover, they
asserted that petitioner Afables write-ups were fair comments on facts and reports that were of public interest
as private respondent was a mayoralty candidate at that time. Finally, petitioners Baguio Midland Courier and
Hamada interposed counterclaims for moral damages, exemplary damages, attorneys fees, and costs.
In her answer,[13] petitioner Afable also denied that the quoted portions of her 03 and 10 January 1988
column were libelous, insisting that they were devoid of malice and at most contained valid and timely doubts.
[14]
She also contended that the contents of her column were protected by the constitutional guarantees of
freedom of speech and of the press and that the same were privileged as they dealt with a public figure.
Petitioner Afable likewise sought counterclaims for moral damages, exemplary damages, and attorneys fees.
During the pre-trial of the case on 31 March 1989, the parties agreed to limit the issues to the following:
(1) whether the published items were libelous, false and malicious; (2) whether plaintiffs below were entitled to
damages; and (3) whether petitioners (defendants therein) were entitled to damages as claimed in their
respective counterclaims.
On 17 July 1989, private respondents counsel manifested before the trial court that Ms. Narukawa Labo
would no longer testify in support of the allegations in the amended complaint as far as they pertain to her. [15] In
addition, the 03 January 1988 article was no longer offered in evidence by the private respondents counsel
thus, the trial court interpreted this development to mean that the same ceased to be a part of this suit. The
court a quo thereafter proceeded with the trial of the case taking into consideration only the 10 January 1988
column.
In the trial that ensued, private respondent testified that he felt that the phrase dumpty in the egg referred
to him, interpreting the same to mean someone who is a failure in his business undertakings. [16] Private
respondent asserted that such allegation was baseless as he was successful in his various endeavors abroad.
With regard to the remainder of the article, private respondent insisted that petitioner Afable made it appear to
the public that he owed P27,000 in unpaid medical expenses while in truth, he could not remember having
been hospitalized.[17]
Subsequently, private respondent presented Dr. Pedro Rovillos, his fellow Lions Club member, who
testified that he understood the term dumpty in the egg to mean a zero or a big lie. [18] He further testified that
the 10 January 1988 article painted private respondent as a balasubas[19] due to the latters alleged failure to
pay his medical expenses.
On the other hand, the petitioners presented Ms. Sylvia Lambino (Lambino), Baguio Printing and
Publishing Co., Inc.s, bookkeeper and accountant, as their first witness. According to Lambino, Baguio
Printing and Publishing Co., Inc., sent several statements of accounts and demand letters to private
respondent pertaining to his unpaid obligations amounting to P27,415 which he incurred during his campaign
for the Batasang Pambansa in 1984.[20] She further testified that despite the repeated demands to private
respondent, the aforementioned obligations remained unpaid.[21]
Thereafter, petitioner Hamada himself took the witness stand. In his testimony, petitioner Hamada stated
that as the president and general manager of the Baguio Printing and Publishing Co., Inc., and as the business
manager of the Baguio Midland Courier, he only dealt with the business and advertising aspects of their
newspaper business and that the contents of the articles appearing in the pages of the Baguio Midland Courier
were overseen by the rest of the staff. [22] In addition, petitioner Hamada also corroborated the earlier testimony
of Lambino with respect to the outstanding obligations of private respondent.
On 20 December 1989, Carantes took the witness stand for the petitioners. Carantes testified that he was
appointed as private respondents campaign manager when the latter ran for assemblyman in Batasang
Pambansa in 1984 and that in his capacity as campaign manager,[23] he hired the services of a certain Noli
Balatero to oversee the printing of campaign paraphernalia and publication of political advertisements of
private respondent.[24] Carantes further testified that the P27,415 indebtedness to Baguio Printing and
Publishing Co., Inc., had remained unpaid because the campaign funds private respondent entrusted to him
were already fully exhausted. Besides, according to Carantes, the campaign materials printed by the Baguio
Printing and Publishing Co., Inc., and political advertisements published in Baguio Midland Courier were no
longer covered by the agreement he had with Balatero. However, these materials were printed and published
upon the instructions of one Atty. Conrado Bueno who acted as private respondents unofficial campaign
manager during the said election. Carantes thus concluded that private respondent was supposed to pay for
these campaign materials and advertisements before or after the 1984 election.
For her part, petitioner Afable acknowledged having written the 10 January 1988 article but denied that the
same was malicious and intended to destroy private respondents reputation and integrity; that the phrase
dumpty in the egg referred to Horato Aquino who was among the candidates for the 1988 local elections in
Baguio City; and that the P27,000 pertained to private respondents unpaid obligation to Baguio Printing and
Publishing Co., Inc., the exact amount of which was P27,415.
In its decision, dated 14 June 1990, the trial court dismissed the complaint for lack of merit. According to
the trial court, the article in question was privileged and constituted fair comment on matters of public interest
as it dealt with the integrity, reputation, and honesty of private respondent who was a candidate for local
elective office at that time.
This decision of the trial court was, however, reversed by the appellate court in a decision, dated 07
January 1992, the dispositive portion of which reads:

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

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

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

3) The amount of P50,000.00 for attorneys fees plus costs of litigation.[25]

In brushing aside the conclusion reached by the trial court, the Court of Appeals noted that private
respondent was, at the time the article in question was published, not a public official but a private citizen
seeking an elective office and petitioner Afables article was intended to impeach his honesty, virtue or
reputation and to make him appear in the eyes of the public as unfit for public office.
The appellate court also declared that the malicious nature of the article may be deduced from the fact
that it was published in the Baguio Midland Courier a few days before the scheduled local elections and from
the style and tone of writing employed by petitioner Afable. According to the Court of Appeals, while the entire
article was composed of ten paragraphs and referred to several unnamed personalities, it was only in the
disputed paragraph where a specific individual was named herein private respondent. The appellate court
therefore concluded that the phrase dumpty in the egg could only refer to private respondent and the claimed
P27,000 indebtedness is imputable solely to him.
Petitioners thereafter filed their respective motions for reconsideration[26] of the aforementioned decision of
the Court of Appeals but these were denied through a resolution [27] of the appellate court, dated 29 September
1992. Thus, petitioners now come before us raising the following issues:
I

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

II

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT PLAINTIFF-

APPELLANT RAMON LABO, JR. WAS THE ONE REFERRED TO AS THE DUMPTY IN THE EGG.

III

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

IV

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

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

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

We shall first address the contention of petitioners with regard to alleged errors of facts committed by the
Court of Appeals. While we adhere to the principle that findings of fact of the appellate court are binding and
conclusive upon us,[30] such adherence has not prevented this Court from setting aside the findings of fact of
the Court of Appeals when circumstances so warrant. In the recent case of The Insular Life Assurance
Company, Ltd. v. Court of Appeals and Sun Brothers & Company,[31] this Court had the occasion to enumerate
the exceptions to the general rule as regards the conclusiveness of the findings of fact of the appellate court, to
wit: (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the
inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4)
when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6)
when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are
contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial
court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9)
when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the
respondent; (10) when the findings of facts are premised on the supposed absence of evidence and
contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion.[32]
In the case at bar, except for numbers (1), (6), (9), and (10), all of the above exceptions are present.
First. Contrary to the findings of the Court of Appeals that private respondent was the only candidate
named in petitioner Afables column on 10 January 1988, said article actually dealt with the other named
candidates for the 1988 local elections in Baguio City and Benguet. A perusal of said article would likewise
reveal that it contained not only the opinion of petitioner Afable regarding private respondent but also her take
on the other issues involving the other candidates. It would be grave error to impute malice on the subject
article based upon a finding that private respondent was unduly singled out by petitioner Afable in her column.
In this regard, we dismiss the following conclusion of the appellate court:

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

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

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

Third. In its assailed decision, the Court of Appeals likewise highlighted the fact that petitioners Hamada
and Afable were husband and wife and went on to conclude, albeit erroneously, that (t)here is good reason and
reasonable ground to assume that the publication of the libelous article was a manifestation of the spouses
thinking on the merit or demerit of candidates for Baguio City mayor for the 18 January 1988 elections.
[35]
Again, we disagree in this conclusion of the appellate court. The records of this case clearly establish the
fact that petitioners Hamada and Afable were siblings and not spouses in that during his testimony on 19
December 1989, petitioner Hamada referred to petitioner Afable as his sister.[36] The Court of Appeals
supposition, therefore, that the article subject of this petition reflected the stance of the husband and wife team
of the petitioners utterly lacks factual support.
Having addressed the factual issues of this case, we shall now proceed to discuss its substantive question
of whether the 10 January 1988 article of petitioner Afable was defamatory.
It is a basic precept that in cases involving claims for damages arising out of alleged defamatory articles, it
is essential that the alleged victim be identifiable although it is not necessary that he be named. [37] It is enough
if by intrinsic reference the allusion is apparent or if the publication contains matters of descriptions or
reference to facts and circumstances from which others reading the article may know the plaintiff was intended,
or if extraneous circumstances point to him such that persons knowing him could and did understand that he
was the person referred to.[38]
In the case of Borjal v. Court of Appeals,[39] this Court declared that [i]t is also not sufficient that the
offended party recognized himself as the person attacked or defamed, but it must be shown that at least a third
person could identify him as the object of the libelous publication. [40] Plainly, private respondent has the
bounden duty to present before the court evidence that a third person could easily identify him as the person
libeled. In this case, private respondent has utterly failed to dispose of this responsibility.
To be sure, private respondents lone witness, Dr. Rovillos, was able to offer his own understanding of what
the phrase dumpty in the egg meant.[41] However, during his cross-examination, he failed to sufficiently explain
before the court a quo how he arrived at the conclusion that the term referred to private respondent, thus:
Q Now, you said you read this first sentence that says: I heard that the Dumpty in the egg is
campaigning for Cortes. Then you gave us what you thought was the meaning of Dumpty in the
egg. You did not tell us, however, whether you thought that was Ramon Labo or somebody else.
Could you tell us, Doctor, when you heard that, you understood that to be Ramon Labo?
A That is what I understand.
Q You understood that to be Ramon Labo because a dumpty in the egg means a big zero. Why?
You consider Labo a big zero that is why you understood him to be referred to when Cecille C.
Afable said dumpty in the egg?
A That is what I understand.
Q You also said a dumpty in the egg is a big lie. You consider Ramon Labo a big lie that you also
thought he was referred to as dumpty in the egg?
A No, sir.
Q In fact, Ramon Labo, in your assessment, is the exact opposite of a dumpty [in] the egg?
A That I cannot answer.
A So, from your honest perception, some this this Labo (sic) is a big zero or a big lie that is why you
cannot say he is the exact opposite?
A Maybe.[42]
This Court finds Dr. Rovilloss proposition as to what dumpty in the egg meant is insufficient to support any
finding of liability on the part of the petitioners as he was unable to offer an iota of justification for his
conclusion that it pertained to private respondent.
The Court of Appeals also maintained that petitioners could not invoke public interest in their defense. It
ruled that [a]n abuse of the freedom of speech and the press should not be tolerated and encouraged if the
article published transcends the limit of decent, fair and impartial news reporting and instead becomes a
bludgeon or a scalpel to brow beat or slice into shreds a private citizen, of his rights to his good name.[43]
We do not agree.
 Concededly, private respondent was not yet a public official at the time the 10 January 1988 article was
published. Nevertheless, this fact does not remove said article from the mantle of protection guaranteed by the
freedom of expression provision of the Constitution. Indeed, as early as 1909, in the case of United States v.
Sedano,[44] this Court had recognized the publics right to be informed on the mental, moral, and physical fitness
of candidates for public office.
Subsequently, in the leading case of New York Times Co. vs. Sullivan, [45] the US Supreme Court
expounded on this principle, viz:

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

...

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

Plainly, the rule only applies to fair comment on matters of public interest, fair comment being that which is
true, or which if false, expresses the real opinion of the author based upon reasonable degree of care and on
reasonable grounds.[47] The principle, therefore, does not grant an absolute license to authors or writers to
destroy the persons of candidates for public office by exposing the latter to public contempt or ridicule by
providing the general public with publications tainted with express or actual malice. In the latter case, the
remedy of the person allegedly libeled is to show proof that an article was written with the authors knowledge
that it was false or with reckless disregard of whether it was false or not. While the law itself creates the
presumption that every defamatory imputation is malicious, [48] nevertheless, the privileged character of a
communication destroys said presumption. The burden of proving actual malice shall then rest on the plaintiff,
private respondent herein.[49]
In the present case, private respondent was unable to prove that petitioner Afables column was tainted
with actual malice. Verily, the records are replete with evidence that, indeed, private respondent incurred an
obligation which had remained unpaid until the time the questioned article was published. While counsel for
private respondent persistently harped at the difference between the P27,000 which appeared in petitioner
Afables column and the P27,415 actual indebtedness of private respondent to Baguio Printing and Publishing
Co., Inc., the minuscule difference in the amount fails to establish reckless disregard for truth on the part of
petitioners. As held by this Court in the Borjal case

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

Lastly, we hold that petitioner Afables article constitutes a fair comment on a matter of public interest as it
dealt with the character of private respondent who was running for the top elective post in Baguio City at the
time. Considering that private respondent assured his would-be constituents that he would be donating
millions of his own money, petitioner Afables column with respect to private respondents indebtedness
provided the public with information as regards his financial status which, in all probability, was still
unbeknownst to them at that time. Indeed, the information might have dissuaded some members of the
electorate from voting in favor of private respondent but such is the inevitable result of the application of the
law. The effect would have been adverse to the private respondent but public interest in this case far
outweighs the interest of private respondent.
 WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals, dated 07 January 1992,
and its Resolution, dated 29 September 1992, denying reconsideration are REVERSED and SET ASIDE, and
the trial courts Decision of 14 June 1990 is AFFIRMED. No costs.
SO ORDERED.
 [G.R. No. 153888. July 9, 2003]

ISLAMIC DAWAH COUNCIL OF THE PHILIPPINES, INC., herein represented by PROF. ABDULRAFIH H.
SAYEDY, petitioner, vs. OFFICE OF THE EXECUTIVE SECRETARY of the Office of the President
of the Philippines, herein represented by HON. ALBERTO G. ROMULO, Executive Secretary, and
the OFFICE ON MUSLIM AFFAIRS, herein represented by its Executive Director, HABIB
MUJAHAB HASHIM, respondents.

DECISION
CORONA, J.:

Before us is a petition for prohibition filed by petitioner Islamic Dawah Council of the Philippines, Inc.
(IDCP) praying for the declaration of nullity of Executive Order (EO) 46, s. 2001 and the prohibition of herein
respondents Office of the Executive Secretary and Office of Muslim Affairs (OMA) from implementing the
subject EO.
Petitioner IDCP, a corporation that operates under Department of Social Welfare and Development
License No. SB-01-085, is a non-governmental organization that extends voluntary services to the Filipino
people, especially to Muslim communities. It claims to be a federation of national Islamic organizations and an
active member of international organizations such as the Regional Islamic Dawah Council of Southeast Asia
and the Pacific (RISEAP)[1] and The World Assembly of Muslim Youth. The RISEAP accredited petitioner to
issue halal[2] certifications in the Philippines. Thus, among the functions petitioner carries out is to conduct
seminars, orient manufacturers on halal food and issue halal certifications to qualified products and
manufacturers.
Petitioner alleges that, on account of the actual need to certify food products as halal and also due to halal
food producers request, petitioner formulated in 1995 internal rules and procedures based on the Quran [3] and
the Sunnah[4] for the analysis of food, inspection thereof and issuance of halal certifications. In that same year,
petitioner began to issue, for a fee, certifications to qualified products and food manufacturers. Petitioner even
adopted for use on its halal certificates a distinct sign or logo registered in the Philippine Patent Office under
Patent No. 4-2000-03664.
On October 26, 2001, respondent Office of the Executive Secretary issued EO 46 [5] creating the Philippine
Halal Certification Scheme and designating respondent OMA to oversee its implementation. Under the EO,
respondent OMA has the exclusive authority to issue halal certificates and perform other related regulatory
activities.
On May 8, 2002, a news article entitled OMA Warns NGOs Issuing Illegal Halal Certification was published
in the Manila Bulletin, a newspaper of general circulation. In said article, OMA warned Muslim consumers to
buy only products with its official halal certification since those without said certification had not been subjected
to careful analysis and therefore could contain pork or its derivatives. Respondent OMA also sent letters to
food manufacturers asking them to secure the halal certification only from OMA lest they violate EO 46 and RA
4109.[6] As a result, petitioner lost revenues after food manufacturers stopped securing certifications from it.
Hence, this petition for prohibition.
Petitioner contends that the subject EO violates the constitutional provision on the separation of Church
and State.[7] It is unconstitutional for the government to formulate policies and guidelines on the halal
certification scheme because said scheme is a function only religious organizations, entity or scholars can
lawfully and validly perform for the Muslims. According to petitioner, a food product becomes halal only after
the performance of Islamic religious ritual and prayer. Thus, only practicing Muslims are qualified to slaughter
animals for food. A government agency like herein respondent OMA cannot therefore perform a religious
function like certifying qualified food products as halal.
Petitioner also maintains that the respondents violated Section 10, Article III of the 1987 Constitution which
provides that (n)o law impairing the obligation of contracts, shall be passed. After the subject EO was
implemented, food manufacturers with existing contracts with petitioner ceased to obtain certifications from the
latter.
Moreover, petitioner argues that the subject EO violates Sections 15 and 16 of Article XIII of the 1987
Constitution which respectively provide:

ROLE AND RIGHTS OF PEOPLES ORGANIZATIONS

Sec. 15. The State shall respect the role of independent peoples organizations to enable the people to pursue
and protect, within the democratic framework, their legitimate and collective interests and aspirations through
peaceful and lawful means.

Peoples organizations are bona fide associations of citizens with demonstrated capacity to promote the public
interest and with identifiable leadership, membership, and structure.

Sec. 16. The rights of the people and their organizations to effective and reasonable participation at all levels
of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate, the
establishment of adequate consultation mechanisms.

According to petitioner, the subject EO was issued with utter haste and without even consulting Muslim
peoples organizations like petitioner before it became effective.
We grant the petition.
OMA was created in 1981 through Executive Order No. 697 (EO 697) to ensure the integration of Muslim
Filipinos into the mainstream of Filipino society with due regard to their beliefs, customs, traditions, and
institutions.[8] OMA deals with the societal, legal, political and economic concerns of the Muslim community as
a national cultural community and not as a religious group. Thus, bearing in mind the constitutional barrier
between the Church and State, the latter must make sure that OMA does not intrude into purely religious
matters lest it violate the non-establishment clause and the free exercise of religion provision found in Article
III, Section 5 of the 1987 Constitution.[9]
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court
has consistently affirmed this preferred status, well aware that it is "designed to protect the broadest possible
liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live
as he believes he ought to live, consistent with the liberty of others and with the common good.[10]
Without doubt, classifying a food product as halal is a religious function because the standards used are
drawn from the Quran and Islamic beliefs. By giving OMA the exclusive power to classify food products as
halal, EO 46 encroached on the religious freedom of Muslim organizations like herein petitioner to interpret for
Filipino Muslims what food products are fit for Muslim consumption. Also, by arrogating to itself the task of
issuing halal certifications, the State has in effect forced Muslims to accept its own interpretation of the Quran
and Sunnah on halal food.
To justify EO 46s intrusion into the subject religious activity, the Solicitor General argues that the freedom
of religion is subservient to the police power of the State. By delegating to OMA the authority to issue halal
certifications, the government allegedly seeks to protect and promote the muslim Filipinos right to health, and
to instill health consciousness in them.
We disagree.
Only the prevention of an immediate and grave danger to the security and welfare of the community can
justify the infringement of religious freedom.[11] If the government fails to show the seriousness and immediacy
of the threat, State intrusion is constitutionally unacceptable. In a society with a democratic framework like
ours, the State must minimize its interference with the affairs of its citizens and instead allow them to exercise
reasonable freedom of personal and religious activity.
In the case at bar, we find no compelling justification for the government to deprive Muslim organizations,
like herein petitioner, of their religious right to classify a product as halal, even on the premise that the health of
Muslim Filipinos can be effectively protected by assigning to OMA the exclusive power to issue halal
certifications. The protection and promotion of the Muslim Filipinos right to health are already provided for in
existing laws and ministered to by government agencies charged with ensuring that food products released in
the market are fit for human consumption, properly labeled and safe. Unlike EO 46, these laws do not
encroach on the religious freedom of Muslims.
Section 48(4) of the Administrative Code of 1987 gives to the National Meat Inspection Commission
(NMIC) of the Department of Agriculture (DOA) the power to inspect slaughtered animals intended for human
consumption to ensure the safety of the meat released in the market. Another law, RA 7394, otherwise known
as The Consumer Act of 1992, gives to certain government departments the duty to protect the interests of the
consumer, promote his general welfare and to establish standards of conduct for business and industry. [12] To
this end, a food product, before its distribution to the market, is required to secure the Philippine Standard
Certification Mark after the concerned department inspects and certifies its compliance with quality and safety
standards.[13]
One such government agency designated by RA 7394 is the Bureau of Food and Drugs (BFD) of the
Department of Health (DOH). Under Article 22 of said law, BFD has the duty to promulgate and enforce rules
and regulations fixing and establishing a reasonable definition and standard of identity, a standard of quality
and a standard of fill of containers for food. The BFD also ensures that food products released in the market
are not adulterated.[14]
Furthermore, under Article 48 of RA 7394, the Department of Trade and Industry (DTI) is tasked to protect
the consumer against deceptive, unfair and unconscionable sales acts or practices as defined in Article 50.
[15]
DTI also enforces compulsory labeling and fair packaging to enable the consumer to obtain accurate
information as to the nature, quality and quantity of the contents of consumer products and to facilitate his
comparison of the value of such products.[16]
With these regulatory bodies given detailed functions on how to screen and check the quality and safety of
food products, the perceived danger against the health of Muslim and non-Muslim Filipinos alike is totally
avoided. Of great help are the provisions on labeling of food products (Articles 74 to 85) [17] of RA 7394. In fact,
through these labeling provisions, the State ably informs the consuming public of the contents of food products
released in the market. Stiff sanctions are imposed on violators of said labeling requirements.
Through the laws on food safety and quality, therefore, the State indirectly aids Muslim consumers in
differentiating food from non-food products. The NMIC guarantees that the meat sold in the market has been
thoroughly inspected and fit for consumption. Meanwhile, BFD ensures that food products are properly
categorized and have passed safety and quality standards. Then, through the labeling provisions enforced by
the DTI, Muslim consumers are adequately apprised of the products that contain substances or ingredients
that, according to their Islamic beliefs, are not fit for human intake. These are the non-secular steps put in
place by the State to ensure that the Muslim consumers right to health is protected. The halal certifications
issued by petitioner and similar organizations come forward as the official religious approval of a food product
fit for Muslim consumption.
We do not share respondents apprehension that the absence of a central administrative body to regulate
halal certifications might give rise to schemers who, for profit, will issue certifications for products that are not
actually halal. Aside from the fact that Muslim consumers can actually verify through the labels whether a
product contains non-food substances, we believe that they are discerning enough to know who the reliable
and competent certifying organizations in their community are. Before purchasing a product, they can easily
avert this perceived evil by a diligent inquiry on the reliability of the concerned certifying organization.
WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2001, is hereby declared NULL AND
VOID. Consequently, respondents are prohibited from enforcing the same.
SO ORDERED.
 [G.R. No. 144801. March 10, 2005]

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

DECISION
CORONA, J.:

This is an appeal under Rule 45 of the Revised Rules of Court of the decision of the Court of Appeals in
CA-G.R. SP No. 45480 which reversed and set aside the decision of the Regional Trial Court of Surigao City,
Branch 32 in Civil Case No. 4907 and ordered said case dismissed for lack of jurisdiction.
The antecedents show that petitioners were lay members of the Philippine Independent Church (PIC) in
Socorro, Surigao del Norte. Respondents Porfirio de la Cruz and Rustom Florano were the bishop and parish
priest, respectively, of the same church in that locality. Petitioners, led by Dominador Taruc, clamored for the
transfer of Fr. Florano to another parish but Bishop de la Cruz denied their request. It appears from the records
that the family of Fr. Floranos wife belonged to a political party opposed to petitioner Tarucs, thus the animosity
between the two factions with Fr. Florano being identified with his wifes political camp. Bishop de la Cruz,
however, found this too flimsy a reason for transferring Fr. Florano to another parish.
Meanwhile, hostility among the members of the PIC in Socorro, Surigao del Norte worsened when
petitioner Taruc tried to organize an open mass to be celebrated by a certain Fr. Renato Z. Ambong during the
town fiesta of Socorro. When Taruc informed Bishop de la Cruz of his plan, the Bishop tried to dissuade him
from pushing through with it because Fr. Ambong was not a member of the clergy of the diocese of Surigao
and his credentials as a parish priest were in doubt. The Bishop also appealed to petitioner Taruc to refrain
from committing acts inimical and prejudicial to the best interests of the PIC. He likewise advised petitioners to
air their complaints before the higher authorities of PIC if they believed they had valid grievances against him,
the parish priest, the laws and canons of the PIC.
Bishop de la Cruz, however, failed to stop Taruc from carrying out his plans. On June 19, 1993, at around
3:00 p.m., Taruc and his sympathizers proceeded to hold the open mass with Fr. Ambong as the celebrant.
On June 28, 1993, Bishop de la Cruz declared petitioners expelled/excommunicated from the Philippine
Independent Church for reasons of:

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

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

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

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

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

In the meantime, Bishop de la Cruz was reassigned to the diocese of Odmoczan and was replaced by
Bishop Rhee M. Timbang. Like his predecessor, Bishop Timbang did not find a valid reason for transferring Fr.
Florano to another parish. He issued a circular denying petitioners persistent clamor for the transfer/re-
assignment of Fr. Florano. Petitioners were informed of such denial but they continued to celebrate mass and
hold other religious activities through Fr. Ambong who had been restrained from performing any priestly
functions in the PIC parish of Socorro, Surigao del Norte.
Because of the order of expulsion/excommunication, petitioners filed a complaint for damages with
preliminary injunction against Bishop de la Cruz before the Regional Trial Court of Surigao City, Branch 32.
They impleaded Fr. Florano and one Delfin T. Bordas on the theory that they conspired with the Bishop to have
petitioners expelled and excommunicated from the PIC. They contended that their expulsion was illegal
because it was done without trial thus violating their right to due process of law.
Respondents filed a motion to dismiss the case before the lower court on the ground of lack of jurisdiction
but it was denied. Their motion for reconsideration was likewise denied so they elevated the case to the Court
of Appeals.
The appellate court reversed and set aside the decision of the court a quo and ordered the dismissal of
the case without prejudice to its being refiled before the proper forum. It held:

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

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

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

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

Petitioners appealed from the above decision but their petition was denied. Their motion for
reconsideration was likewise denied, hence, this appeal.
The only issue to be resolved in this case is whether or not the courts have jurisdiction to hear a case
involving the expulsion/excommunication of members of a religious institution.
We rule that the courts do not.
Section 5, Article III or the Bill of Rights of the 1987 Constitution specifically provides that:

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

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

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

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

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

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

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

We would, however, like to comment on petitioners claim that they were not heard before they were
expelled from their church. The records show that Bishop de la Cruz pleaded with petitioners several times not
to commit acts inimical to the best interests of PIC. They were also warned of the consequences of their
actions, among them their expulsion/excommunication from PIC. Yet, these pleas and warnings fell on deaf
ears and petitioners went ahead with their plans to defy their Bishop and foment hostility and disunity among
the members of PIC in Socorro, Surigao del Norte. They should now take full responsibility for the chaos and
dissension they caused.
WHEREFORE, the petition is herby DENIED for lack of merit.
Costs against petitioners.
SO ORDERED.
 [A.M. No. P-02-1651. August 4, 2003]

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

DECISION
PUNO, J.:

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

I. Facts

The facts of the case will determine whether respondent will prevail in her plea of religious freedom. It is
necessary therefore to lay down the facts in detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge Jose F.
Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Pias City, requesting for an
investigation of rumors that respondent Soledad Escritor, court interpreter in said court, is living with a man not
her husband. They allegedly have a child of eighteen to twenty years old. Estrada is not personally related
either to Escritor or her partner and is a resident not of Las Pias City but of Bacoor, Cavite. Nevertheless, he
filed the charge against Escritor as he believes that she is committing an immoral act that tarnishes the image
of the court, thus she should not be allowed to remain employed therein as it might appear that the court
condones her act.[5]
Judge Caoibes referred the letter to Escritor who stated that there is no truth as to the veracity of the
allegation and challenged Estrada to appear in the open and prove his allegation in the proper forum. [6] Judge
Caoibes set a preliminary conference on October 12, 2000. Escritor moved for the inhibition of Judge Caoibes
from hearing her case to avoid suspicion and bias as she previously filed an administrative complaint against
him and said case was still pending in the Office of the Court Administrator (OCA). Escritors motion was
denied. The preliminary conference proceeded with both Estrada and Escritor in attendance. Estrada
confirmed that he filed the letter-complaint for immorality against Escritor because in his frequent visits to the
Hall of Justice of Las Pias City, he learned from conversations therein that Escritor was living with a man not
her husband and that she had an eighteen to twenty-year old son by this man. This prompted him to write to
Judge Caoibes as he believed that employees of the judiciary should be respectable and Escritors live-in
arrangement did not command respect.[7]
Respondent Escritor testified that when she entered the judiciary in 1999,[8] she was already a widow, her
husband having died in 1998.[9] She admitted that she has been living with Luciano Quilapio, Jr. without the
benefit of marriage for twenty years and that they have a son. But as a member of the religious sect known as
the Jehovahs Witnesses and the Watch Tower and Bible Tract Society, their conjugal arrangement is in
conformity with their religious beliefs. In fact, after ten years of living together, she executed on July 28, 1991 a
Declaration of Pledging Faithfulness,viz:

DECLARATION OF PLEDGING FAITHFULNESS

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

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

Signed this 28th day of July 1991.[10]

Escritors partner, Quilapio, executed a similar pledge on the same day.[11] Both pledges were executed in
Atimonan, Quezon and signed by three witnesses. At the time Escritor executed her pledge, her husband was
still alive but living with another woman. Quilapio was likewise married at that time, but had been separated in
fact from his wife. During her testimony, Escritor volunteered to present members of her congregation to
confirm the truthfulness of their Declarations of Pledging Faithfulness, but Judge Caoibes deemed it
unnecessary and considered her identification of her signature and the signature of Quilapio sufficient
authentication of the documents.[12]
Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in turn,
endorsed the same to Court Administrator Alfredo L. Benipayo. On July 17, 2001, the Court, upon
recommendation of Acting Court Administrator Zenaida N. Elepao, directed Escritor to comment on the charge
against her. In her comment, Escritor reiterated her religious congregations approval of her conjugal
arrangement with Quilapio, viz:

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

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

xxx xxx xxx

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

Deputy Court Administrator Christopher O. Lock recommended that the case be referred to Executive
Judge Bonifacio Sanz Maceda, RTC Branch 255, Las Pias City for investigation, report and
recommendation. In the course of Judge Macedas investigation, Escritor again testified that her congregation
allows her conjugal arrangement with Quilapio and it does not consider it immoral. She offered to supply the
investigating judge some clippings which explain the basis of her congregations belief and practice regarding
her conjugal arrangement. Escritor started living with Quilapio twenty years ago when her husband was still
alive but living with another woman. She met this woman who confirmed to her that she was living with her
(Escritors) husband.[14]
 Gregorio Salazar, a member of the Jehovahs Witnesses since 1985, also testified. He had been a
presiding minister since 1991 and in such capacity is aware of the rules and regulations of their
congregation. He explained the import of and procedure for executing a Declaration of Pledging
Faithfulness, viz:
Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some particular rules and
regulations in your congregation?
A: Well, we of course, talk to the persons with regards (sic) to all the parties involved and then we
request them to execute a Public Declaration of Pledge of faithfulness.
Q: What is that document?
A: Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of Pledge of faithfulness, who are suppose
(sic) to execute this document?
A: This must be signed, the document must be signed by the elders of the congregation; the couple,
who is a member (sic) of the congregation, baptized member and true member of the
congregation.
Q: What standard rules and regulations do you have in relation with this document?
A: Actually, sir, the signing of that document, ah, with the couple has consent to marital relationship
(sic) gives the Christian Congregation view that the couple has put themselves on record before
God and man that they are faithful to each other. As if that relation is validated by God.
Q: From your explanation, Minister, do you consider it a pledge or a document between the parties,
who are members of the congregation?
A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the one who contracted with the opposite
member of my congregation, opposite sex, and that this document will give us the right to a
marital relationship.
Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for you to
enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or living under the same roof?
A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital relationship.
Q: Do you mean to say, Minister, by executing this document the contracting parties have the right to
cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we Christians
follow. The basis is herein stated in the Book of Matthew, Chapter Five, Verse Twenty-two. So, in
that verse of the Bible, Jesus said that everyone divorcing his wife, except on account of
fornication, makes her a subject for adultery, and whoever marries a divorced woman commits
adultery.[15]
Escritor and Quilapio transferred to Salazars Congregation, the Almanza Congregation in Las Pias, in May
2001. The declarations having been executed in Atimonan, Quezon in 1991, Salazar had no personal
knowledge of the personal circumstances of Escritor and Quilapio when they executed their
declarations. However, when the two transferred to Almanza, Salazar inquired about their status from the
Atimonan Congregation, gathered comments of the elders therein, and requested a copy of their
declarations. The Almanza Congregation assumed that the personal circumstances of the couple had been
considered by the Atimonan Congregation when they executed their declarations.
 Escritor and Quilapios declarations are recorded in the Watch Tower Central office. They were executed in
the usual and approved form prescribed by the Watch Tower Bible and Tract Society which was lifted from the
article, Maintaining Marriage in Honor Before God and Men, [16] in the March 15, 1977 issue of the Watch Tower
magazine, entitled The Watchtower.
The declaration requires the approval of the elders of the Jehovahs Witnesses congregation and is binding
within the congregation all over the world except in countries where divorce is allowed. The Jehovahs
congregation requires that at the time the declarations are executed, the couple cannot secure the civil
authorities approval of the marital relationship because of legal impediments. It is thus standard practice of the
congregation to check the couples marital status before giving imprimatur to the conjugal arrangement. The
execution of the declaration finds scriptural basis in Matthew 5:32 that when the spouse commits adultery, the
offended spouse can remarry. The marital status of the declarants and their respective spouses commission of
adultery are investigated before the declarations are executed. Thus, in the case of Escritor, it is presumed that
the Atimonan Congregation conducted an investigation on her marital status before the declaration was
approved and the declaration is valid everywhere, including the Almanza Congregation. That Escritors and
Quilapios declarations were approved are shown by the signatures of three witnesses, the elders in the
Atimonan Congregation. Salazar confirmed from the congregations branch office that these three witnesses
are elders in the Atimonan Congregation. Although in 1998 Escritor was widowed, thereby lifting the legal
impediment to marry on her part, her mate is still not capacitated to remarry. Thus, their declarations remain
valid.Once all legal impediments for both are lifted, the couple can already register their marriage with the civil
authorities and the validity of the declarations ceases. The elders in the congregations can then solemnize
their marriage as authorized by Philippine law. In sum, therefore, insofar as the congregation is concerned,
there is nothing immoral about the conjugal arrangement between Escritor and Quilapio and they remain
members in good standing in the congregation.[17]
Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovahs
Witnesses since 1974 and member of the headquarters of the Watch Tower Bible and Tract Society of the
Philippines, Inc., presented the original copy of the magazine article entitled, Maintaining Marriage Before God
and Men to which Escritor and Minister Salazar referred in their testimonies. The article appeared in the March
15, 1977 issue of the Watchtower magazine published in Pennsylvania, U.S.A. Felix S. Fajardo, President of
the Watch Tower Bible and Tract Society of the Philippines, Inc., authorized Reyes to represent him in
authenticating the article. The article is distributed to the Jehovahs Witnesses congregations which also
distribute them to the public.[18]
The parties submitted their respective memoranda to the investigating judge. Both stated that the issue for
resolution is whether or not the relationship between respondent Escritor and Quilapio is valid and binding in
their own religious congregation, the Jehovahs Witnesses. Complainant Estrada adds however, that the effect
of the relationship to Escritors administrative liability must likewise be determined. Estrada argued, through
counsel, that the Declaration of Pledging Faithfulness recognizes the supremacy of the proper public
authorities such that she bound herself to seek means to . . . legalize their union. Thus, even
assuming arguendo that the declaration is valid and binding in her congregation, it is binding only to her co-
members in the congregation and serves only the internal purpose of displaying to the rest of the congregation
that she and her mate are a respectable and morally upright couple. Their religious belief and practice,
however, cannot override the norms of conduct required by law for government employees. To rule otherwise
would create a dangerous precedent as those who cannot legalize their live-in relationship can simply join the
Jehovahs Witnesses congregation and use their religion as a defense against legal liability.[19]
On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with Quilapio
based on the belief and practice of her religion, the Jehovahs Witnesses. She quoted portions of the magazine
article entitled, Maintaining Marriage Before God and Men, in her memorandum signed by herself, viz:

The Declaration of Pledging of Faithfulness (Exhibits 1 and 2) executed by the respondent and her mate
greatly affect the administrative liability of respondent. Jehovahs Witnesses admit and recognize (sic) the
supremacy of the proper public authorities in the marriage arrangement. However, it is helpful to understand
the relative nature of Caesars authority regarding marriage. From country to country, marriage and divorce
legislation presents a multitude of different angles and aspects. Rather than becoming entangled in a
confusion of technicalities, the Christian, or the one desiring to become a disciple of Gods Son, can be guided
by basic Scriptural principles that hold true in all cases.
Gods view is of first concern. So, first of all the person must consider whether that ones present relationship, or
the relationship into which he or she contemplates entering, is one that could meet with Gods approval, or
whether in itself, it violates the standards of Gods Word. Take, for example, the situation where a man lives
with a wife but also spends time living with another woman as a concubine. As long as such a state of
concubinage prevails, the relationship of the second woman can never be harmonized with Christian
principles, nor could any declaration on the part of the woman or the man make it so. The only right course is
cessation of the relationship. Similarly with an incestuous relationship with a member of ones immediate family,
or a homosexual relationship or other such situation condemned by Gods Word. It is not the lack of any legal
validation that makes such relationships unacceptable; they are in themselves unscriptural and hence,
immoral. Hence, a person involved in such a situation could not make any kind of Declaration of Faithfulness,
since it would have no merit in Gods eyes.

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

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

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

Respondent also brought to the attention of the investigating judge that complainants Memorandum came
from Judge Caoibes chambers[21] whom she claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found Escritors factual allegations
credible as they were supported by testimonial and documentary evidence. He also noted that (b)y strict
Catholic standards, the live-in relationship of respondent with her mate should fall within the definition of
immoral conduct, to wit: that which is willful, flagrant, or shameless, and which shows a moral indifference to
the opinion of the good and respectable members of the community (7 C.J.S. 959) (Delos Reyes vs. Aznar,
179 SCRA, at p. 666). He pointed out, however, that the more relevant question is whether or not to exact from
respondent Escritor, a member of Jehovahs Witnesses, the strict moral standards of the Catholic faith in
determining her administrative responsibility in the case at bar.[22] The investigating judge acknowledged that
religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection
among human rights, for it involves the relationship of man to his Creator (at p. 270, EBRALINAG supra, citing
Chief Justice Enrique M. Fernandos separate opinion in German vs. Barangan, 135 SCRA 514, 530-531) and
thereby recommended the dismissal of the complaint against Escritor.[23]
After considering the Report and Recommendation of Executive Judge Maceda, the Office of the Court
Administrator, through Deputy Court Administrator (DCA) Lock and with the approval of Court Administrator
Presbitero Velasco, concurred with the factual findings of Judge Maceda but departed from his
recommendation to dismiss the complaint. DCA Lock stressed that although Escritor had become capacitated
to marry by the time she joined the judiciary as her husband had died a year before, it is due to her relationship
with a married man, voluntarily carried on, that respondent may still be subject to disciplinary action.
[24]
Considering the ruling of the Court in Dicdican v. Fernan, et al.[25] that court personnel have been enjoined
to adhere to the exacting standards of morality and decency in their professional and private conduct in order
to preserve the good name and integrity of the court of justice, DCA Lock found Escritors defense of freedom
of religion unavailing to warrant dismissal of the charge of immorality. Accordingly, he recommended that
respondent be found guilty of immorality and that she be penalized with suspension of six months and one day
without pay with a warning that a repetition of a similar act will be dealt with more severely in accordance with
the Civil Service Rules.[26]

II. Issue

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

III. Applicable Laws

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

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

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

xxx xxx xxx

(5) Disgraceful and immoral conduct; xxx.

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

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

IV. Old World Antecedents of the American Religion Clauses

To understand the life that the religion clauses have taken, it would be well to understand not only its birth
in the United States, but its conception in the Old World. One cannot understand, much less intelligently
criticize the approaches of the courts and the political branches to religious freedom in the recent past in the
United States without a deep appreciation of the roots of these controversies in the ancient and medieval world
and in the American experience.[27] This fresh look at the religion clauses is proper in deciding this case of first
impression.
In primitive times, all of life may be said to have been religious. Every significant event in the primitive
mans life, from birth to death, was marked by religious ceremonies. Tribal society survived because religious
sanctions effectively elicited adherence to social customs. A person who broke a custom violated a taboo
which would then bring upon him the wrathful vengeance of a superhuman mysterious power. [28] Distinction
between the religious and non-religious would thus have been meaningless to him. He sought protection from
all kinds of evil - whether a wild beast or tribe enemy and lightning or wind - from the same person. The head
of the clan or the Old Man of the tribe or the king protected his wards against both human and superhuman
enemies.In time, the king not only interceded for his people with the divine powers, but he himself was looked
upon as a divine being and his laws as divine decrees.[29]
Time came, however, when the function of acting as intermediary between human and spiritual powers
became sufficiently differentiated from the responsibility of leading the tribe in war and policing it in peace as to
require the full-time services of a special priest class. This saw the birth of the social and communal problem of
the competing claims of the king and priest.Nevertheless, from the beginning, the king and not the priest was
superior. The head of the tribe was the warrior, and although he also performed priestly functions, he carried
out these functions because he was the head and representative of the community.[30]
There being no distinction between the religious and the secular, the same authority that promulgated laws
regulating relations between man and man promulgated laws concerning mans obligations to the
supernatural. This authority was the king who was the head of the state and the source of all law and who only
delegated performance of rituals and sacrifice to the priests. The Code of Hammurabi, king of Babylonia,
imposed penalties for homicide, larceny, perjury, and other crimes; regulated the fees of surgeons and the
wages of masons and tailors and prescribed rules for inheritance of property; [31] and also catalogued the gods
and assigned them their places in the divine hierarchy so as to put Hammurabis own god to a position of
equality with existing gods.[32] In sum, the relationship of religion to the state (king) in pre-Hebreic times may be
characterized as a union of the two forces, with the state almost universally the dominant partner.[33]
With the rise of the Hebrew state, a new term had to be coined to describe the relation of the Hebrew state
with the Mosaic religion: theocracy. The authority and power of the state was ascribed to God. [34] The Mosaic
creed was not merely regarded as the religion of the state, it was (at least until Saul) the state itself. Among the
Hebrews, patriarch, prophet, and priest preceded king and prince. As man of God, Moses decided when the
people should travel and when to pitch camp, when they should make war and when peace. Saul and David
were made kings by the prophet Samuel, disciple of Eli the priest. Like the Code of Hammurabi, the Mosaic
code combined civil laws with religious mandates, but unlike the Hammurabi Code, religious laws were not of
secondary importance. On the contrary, religious motivation was primary and all-embracing: sacrifices were
made and Israel was prohibited from exacting usury, mistreating aliens or using false weights, all because God
commanded these.
Moses of the Bible led not like the ancient kings. The latter used religion as an engine to advance the
purposes of the state. Hammurabi unified Mesopotamia and established Babylon as its capital by elevating its
city-god to a primary position over the previous reigning gods. [35] Moses, on the other hand, capitalized on the
natural yearnings of the Hebrew slaves for freedom and independence to further Gods purposes. Liberation
and Exodus were preludes to Sinai and the receipt of the Divine Law. The conquest of Canaan was a
preparation for the building of the temple and the full worship of God.[36]
Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism, more than
anything else, charted not only the future of religion in western civilization, but equally, the future of the
relationship between religion and state in the west. This fact is acknowledged by many writers, among whom is
Northcott who pointed out, viz:

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

The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was not only
superior to the state, but it was all of the state. The Law of God as transmitted through Moses and his
successors was the whole of government.
With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and David
each received their kingdom from Samuel the prophet and disciple of Eli the priest, but soon the king
dominated prophet and priest. Saul disobeyed and even sought to slay Samuel the prophet of God. [38] Under
Solomon, the subordination of religion to state became complete; he used religion as an engine to further the
states purposes. He reformed the order of priesthood established by Moses because the high priest under that
order endorsed the claim of his rival to the throne.[39]
The subordination of religion to the state was also true in pre-Christian Rome which engaged in emperor-
worship. When Augustus became head of the Roman state and the priestly hierarchy, he placed religion at a
high esteem as part of a political plan to establish the real religion of pre-Christian Rome - the worship of the
head of the state. He set his great uncle Julius Caesar among the gods, and commanded that worship of
Divine Julius should not be less than worship of Apollo, Jupiter and other gods. When Augustus died, he also
joined the ranks of the gods, as other emperors before him.[40]
The onset of Christianity, however, posed a difficulty to the emperor as the Christians dogmatic
exclusiveness prevented them from paying homage to publicly accepted gods. In the first two centuries after
the death of Jesus, Christians were subjected to persecution. By the time of the emperor Trajan, Christians
were considered outlaws. Their crime was hatred of the human race, placing them in the same category as
pirates and brigands and other enemies of mankind who were subject to summary punishments.[41]
In 284, Diocletian became emperor and sought to reorganize the empire and make its administration more
efficient. But the closely-knit hierarchically controlled church presented a serious problem, being a state within
a state over which he had no control. He had two options: either to force it into submission and break its power
or enter into an alliance with it and procure political control over it. He opted for force and revived the
persecution, destroyed the churches, confiscated sacred books, imprisoned the clergy and by torture forced
them to sacrifice.[42] But his efforts proved futile.
The later emperor, Constantine, took the second option of alliance. Constantine joined with Galerius and
Licinius, his two co-rulers of the empire, in issuing an edict of toleration to Christians on condition that nothing
is done by them contrary to discipline.[43] A year later, after Galerius died, Constantine and Licius jointly issued
the epochal Edict of Milan (312 or 313), a document of monumental importance in the history of religious
liberty. It provided that liberty of worship shall not be denied to any, but that the mind and will of every
individual shall be free to manage divine affairs according to his own choice. (emphasis supplied) Thus, all
restrictive statutes were abrogated and it was enacted that every person who cherishes the desire to observe
the Christian religion shall freely and unconditionally proceed to observe the same without let or
hindrance. Furthermore, it was provided that the same free and open power to follow their own religion or
worship is granted also to others, in accordance with the tranquillity of our times, in order that every person
may have free opportunity to worship the object of his choice.(emphasis supplied)[44]
Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige, and
eventually, exclusive power. Religion became an engine of state policy as Constantine considered Christianity
a means of unifying his complex empire. Within seven years after the Edict of Milan, under the emperors
command, great Christian edifices were erected, the clergy were freed from public burdens others had to bear,
and private heathen sacrifices were forbidden.
The favors granted to Christianity came at a price: state interference in religious
affairs. Constantine and his successors called and dismissed church councils, and enforced unity of belief and
practice. Until recently the church had been the victim of persecution and repression, but this time it welcomed
the states persecution and repression of the nonconformist and the orthodox on the belief that it was better for
heretics to be purged of their error than to die unsaved.
Both in theory as in practice, the partnership between church and state was not easy. It was a constant
struggle of one claiming dominance over the other. In time, however, after the collapse and disintegration of
the Roman Empire, and while monarchical states were gradually being consolidated among the
numerous feudal holdings, the church stood as the one permanent, stable and universal power. Not
surprisingly, therefore, it claimed not merely equality but superiority over the secular states. This claim,
symbolized by Pope Leos crowning of Charlemagne, became the churchs accepted principle of its relationship
to the state in the Middle Ages. As viewed by the church, the union of church and state was now a union of the
state in the church. The rulers of the states did not concede to this claim of supremacy. Thus, while
Charlemagne received his crown from the Pope, he himself crowned his own son as successor to nullify the
inference of supremacy.[45] The whole history of medieval Europe was a struggle for supremacy between
prince and Pope and the resulting religious wars and persecution of heretics and nonconformists. At
about the second quarter of the 13th century, the Inquisition was established, the purpose of which was the
discovery and extermination of heresy. Accused heretics were tortured with the approval of the church in the
bull Ad extirpanda issued by Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the
Catholic Church and resulting in the establishment of Protestant churches. While Protestants are accustomed
to ascribe to the Reformation the rise of religious liberty and its acceptance as the principle governing the
relations between a democratic state and its citizens, history shows that it is more accurate to say that the
same causes that gave rise to the Protestant revolution also resulted in the widespread acceptance of the
principle of religious liberty, and ultimately of the principle of separation of church and state. [46] Pleas for
tolerance and freedom of conscience can without doubt be found in the writings of leaders of the
Reformation. But just as Protestants living in the countries of papists pleaded for toleration of religion, so did
the papists that lived where Protestants were dominant.[47] Papist and Protestant governments alike accepted
the idea of cooperation between church and state and regarded as essential to national unity the uniformity of
at least the outward manifestations of religion. [48] Certainly, Luther, leader of the Reformation, stated that
neither pope, nor bishop, nor any man whatever has the right of making one syllable binding on a Christian
man, unless it be done with his own consent.[49] But when the tables had turned and he was no longer the
hunted heretic, he likewise stated when he made an alliance with the secular powers that (h)eretics are not to
be disputed with, but to be condemned unheard, and whilst they perish by fire, the faithful ought to pursue the
evil to its source, and bathe their hands in the blood of the Catholic bishops, and of the Pope, who is a devil in
disguise.[50] To Luther, unity among the peoples in the interests of the state was an important
consideration. Other personalities in the Reformation such as Melanchton, Zwingli and Calvin strongly
espoused theocracy or the use of the state as an engine to further religion. In establishing theocracy in
Geneva, Calvin made absence from the sermon a crime, he included criticism of the clergy in the crime of
blasphemy punishable by death, and to eliminate heresy, he cooperated in the Inquisition.[51]
There were, however, those who truly advocated religious liberty. Erasmus, who belonged to the
Renaissance than the Reformation, wrote that (t)he terrible papal edict, the more terrible imperial edict, the
imprisonments, the confiscations, the recantations, the fagots and burnings, all these things I can see
accomplish nothing except to make the evil more widespread. [52]The minority or dissident sects also
ardently advocated religious liberty. The Anabaptists, persecuted and despised, along with the Socinians
(Unitarians) and the Friends of the Quakers founded by George Fox in the 17 th century, endorsed the
supremacy and freedom of the individual conscience. They regarded religion as outside the realm of political
governments.[53] The English Baptists proclaimed that the magistrate is not to meddle with religion or matters of
conscience, nor compel men to this or that form of religion.[54]
Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished:
the Erastian (after the German doctor Erastus), the theocratic, and the separatist. The first assumed state
superiority in ecclesiastical affairs and the use of religion as an engine of state policy as demonstrated by
Luthers belief that civic cohesion could not exist without religious unity so that coercion to achieve religious
unity was justified. The second was founded on ecclesiastical supremacy and the use of state machinery to
further religious interests as promoted by Calvin.The third, which was yet to achieve ultimate and complete
expression in the New World, was discernibly in its incipient form in the arguments of some dissident
minorities that the magistrate should not intermeddle in religious affairs.[55] After the Reformation,
Erastianism pervaded all Europe except for Calvins theocratic Geneva. In England, perhaps more than in
any other country, Erastianism was at its height. To illustrate, a statute was enacted by Parliament in 1678,
which, to encourage woolen trade, imposed on all clergymen the duty of seeing to it that no person was buried
in a shroud made of any substance other than wool. [56] Under Elizabeth, supremacy of the crown over the
church was complete: ecclesiastical offices were regulated by her proclamations, recusants were fined and
imprisoned, Jesuits and proselytizing priests were put to death for high treason, the thirty-nine Articles of the
Church of England were adopted and English Protestantism attained its present doctrinal status. [57] Elizabeth
was to be recognized as the only Supreme Governor of this realm . . . as well in all spiritual or ecclesiastical
things or causes as temporal. She and her successors were vested, in their dominions, with all manner of
jurisdictions, privileges, and preeminences, in any wise touching or concerning any spiritual or ecclesiastical
jurisdiction.[58] Later, however, Cromwell established the constitution in 1647 which granted full liberty to all
Protestant sects, but denied toleration to Catholics. [59] In 1689, William III issued the Act of
Toleration which established a de facto toleration for all except Catholics. The Catholics achieved religious
liberty in the 19th century when the Roman Catholic Relief Act of 1829 was adopted. The Jews followed
suit in 1858 when they were finally permitted to sit in Parliament.[60]
When the representatives of the American states met in Philadelphia in 1787 to draft the
constitutional foundation of the new republic, the theocratic state which had flourished intermittently in
Israel, Judea, the Holy Roman Empire and Geneva was completely gone. The prevailing church-state
relationship in Europe was Erastianism embodied in the system of jurisdictionalism whereby one faith was
favored as the official state-supported religion, but other faiths were permitted to exist with freedom in various
degrees. No nation had yet adopted as the basis of its church-state relations the principle of the mutual
independence of religion and government and the concomitant principle that neither might be used as
an engine to further the policies of the other, although the principle was in its seminal form in the
arguments of some dissident minorities and intellectual leaders of the Renaissance. The religious wars
of 16th and 17th century Europe were a thing of the past by the time America declared its independence
from the Old World, but their memory was still vivid in the minds of the Constitutional Fathers as
expressed by the United States Supreme Court, viz:

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

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

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

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

V. Factors Contributing to the Adoption

of the American Religion Clauses

Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated England, established
many of the American colonies. British thought pervaded these colonies as the immigrants brought with them
their religious and political ideas from England and English books and pamphlets largely provided their cultural
fare.[64] But although these settlers escaped from Europe to be freed from bondage of laws which compelled
them to support and attend government favored churches, some of these settlers themselves transplanted into
American soil the oppressive practices they escaped from. The charters granted by the English Crown to the
individuals and companies designated to make the laws which would control the destinies of the colonials
authorized them to erect religious establishments, which all, whether believers or not, were required to support
or attend.[65] At one time, six of the colonies established a state religion. Other colonies, however, such as
Rhode Island and Delaware tolerated a high degree of religious diversity. Still others, which originally tolerated
only a single religion, eventually extended support to several different faiths.[66]
This was the state of the American colonies when the unique American experiment of separation of
church and state came about. The birth of the experiment cannot be attributed to a single cause or
event. Rather, a number of interdependent practical and ideological factors contributed in bringing it
forth. Among these were the English Act of Toleration of 1689, the multiplicity of sects, the lack of church
affiliation on the part of most Americans, the rise of commercial intercourse, the exigencies of the
Revolutionary War, the Williams-Penn tradition and the success of their experiments, the writings of Locke, the
social contract theory, the Great Awakening, and the influence of European rationalism and deism. [67] Each of
these factors shall be briefly discussed.
First, the practical factors. Englands policy of opening the gates of the American colonies to different
faiths resulted in the multiplicity of sects in the colonies. With an Erastian justification, English lords chose to
forego protecting what was considered to be the true and eternal church of a particular time in order to
encourage trade and commerce. The colonies were large financial investments which would be profitable only
if people would settle there. It would be difficult to engage in trade with persons one seeks to destroy for
religious belief, thus tolerance was a necessity. This tended to distract the colonies from their preoccupations
over their religion and its exclusiveness, encouraging them to think less of the Church and more of the State
and of commerce.[68] The diversity brought about by the colonies open gates encouraged religious freedom and
non-establishment in several ways. First, as there were too many dissenting sects to abolish, there was no
alternative but to learn to live together. Secondly, because of the daily exposure to different religions, the
passionate conviction in the exclusive rightness of ones religion, which impels persecution for the sake of ones
religion, waned. Finally, because of the great diversity of the sects, religious uniformity was not possible, and
without such uniformity, establishment could not survive.[69]
But while there was a multiplicity of denomination, paradoxically, there was a scarcity of adherents. Only
about four percent of the entire population of the country had a church affiliation at the time the republic was
founded.[70] This might be attributed to the drifting to the American colonies of the skepticism that characterized
European Enlightenment.[71] Economic considerations might have also been a factor. The individualism of the
American colonist, manifested in the multiplicity of sects, also resulted in much unaffiliated religion which
treated religion as a personal non-institutional matter. The prevalence of lack of church affiliation contributed to
religious liberty and disestablishment as persons who were not connected with any church were not likely to
persecute others for similar independence nor accede to compulsory taxation to support a church to which they
did not belong.[72]
However, for those who were affiliated to churches, the colonial policy regarding their worship generally
followed the tenor of the English Act of Toleration of 1689. In England, this Act conferred on Protestant
dissenters the right to hold public services subject to registration of their ministers and places of worship.
[73]
Although the toleration accorded to Protestant dissenters who qualified under its terms was only a modest
advance in religious freedom, it nevertheless was of some influence to the American experiment. [74] Even then,
for practical considerations, concessions had to be made to other dissenting churches to ensure their
cooperation in the War of Independence which thus had a unifying effect on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-18th century, an evangelical religious
revival originating in New England, caused a break with formal church religion and a resistance to coercion by
established churches. This movement emphasized an emotional, personal religion that appealed directly to the
individual, putting emphasis on the rights and duties of the individual conscience and its answerability
exclusively to God. Thus, although they had no quarrel with orthodox Christian theology as in fact they were
fundamentalists, this group became staunch advocates of separation of church and state.[75]
Then there was the Williams-Penn tradition. Roger Williams was the founder of the colony of Rhode
Island where he established a community of Baptists, Quakers and other nonconformists. In this colony,
religious freedom was not based on practical considerations but on the concept of mutual independence of
religion and government. In 1663, Rhode Island obtained a charter from the British crown which declared that
settlers have it much on their heart to hold forth a livelie experiment that a most flourishing civil state may best
be maintained . . . with full libertie in religious concernments. [76] In Williams pamphlet, The Bloudy Tenent of
Persecution for cause of Conscience, discussed in a Conference between Truth and Peace,[77] he articulated
the philosophical basis for his argument of religious liberty. To him, religious freedom and separation of church
and state did not constitute two but only one principle. Religious persecution is wrong because it confounds the
Civil and Religious and because States . . . are proved essentially Civil. The power of true discerning the true
fear of God is not one of the powers that the people have transferred to Civil Authority.[78] Williams Bloudy
Tenet is considered an epochal milestone in the history of religious freedom and the separation of church and
state.[79]
William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of toleration,
having been imprisoned for his religious convictions as a member of the despised Quakers. He opposed
coercion in matters of conscience because imposition, restraint and persecution for conscience sake, highly
invade the Divine prerogative. Aside from his idealism, proprietary interests made toleration in Pennsylvania
necessary. He attracted large numbers of settlers by promising religious toleration, thus bringing in immigrants
both from the Continent and Britain. At the end of the colonial period, Pennsylvania had the greatest variety of
religious groups. Penn was responsible in large part for the Concessions and agreements of the Proprietors,
Freeholders, and inhabitants of West Jersey, in America, a monumental document in the history of civil liberty
which provided among others, for liberty of conscience. [80] The Baptist followers of Williams and the Quakers
who came after Penn continued the tradition started by the leaders of their denominations. Aside from the
Baptists and the Quakers, the Presbyterians likewise greatly contributed to the evolution of separation and
freedom.[81] The Constitutional fathers who convened in Philadelphia in 1787, and Congress and the states that
adopted the First Amendment in 1791 were very familiar with and strongly influenced by the successful
examples of Rhode Island and Pennsylvania.[82]
Undeniably, John Locke and the social contract theory also contributed to the American
experiment. The social contract theory popularized by Locke was so widely accepted as to be deemed self-
evident truth in Americas Declaration of Independence. With the doctrine of natural rights and equality set forth
in the Declaration of Independence, there was no room for religious discrimination. It was difficult to justify
inequality in religious treatment by a new nation that severed its political bonds with the English crown which
violated the self-evident truth that all men are created equal.[83]
The social contract theory was applied by many religious groups in arguing against establishment, putting
emphasis on religion as a natural right that is entirely personal and not within the scope of the powers of a
political body. That Locke and the social contract theory were influential in the development of religious
freedom and separation is evident from the memorial presented by the Baptists to the Continental Congress in
1774, viz:

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

The idea that religion was outside the jurisdiction of civil government was acceptable to both the religionist and
rationalist. To the religionist, God or Christ did not desire that government have that jurisdiction (render unto
Caesar that which is Caesars; my kingdom is not of this world) and to the rationalist, the power to act in the
realm of religion was not one of the powers conferred on government as part of the social contract.[85]
Not only the social contract theory drifted to the colonies from Europe. Many of the leaders of the
Revolutionary and post-revolutionary period were also influenced by European deism and rationalism,
[86]
in general, and some were apathetic if not antagonistic to formal religious worship and
institutionalized religion. Jefferson, Paine, John Adams, Washington, Franklin, Madison, among others were
reckoned to be among the Unitarians or Deists. Unitarianism and Deism contributed to the emphasis on
secular interests and the relegation of historic theology to the background. [87] For these men of the
enlightenment, religion should be allowed to rise and fall on its own, and the state must be protected from the
clutches of the church whose entanglements has caused intolerance and corruption as witnessed throughout
history.[88] Not only the leaders but also the masses embraced rationalism at the end of the eighteenth century,
accounting for the popularity of Paines Age of Reason.[89]
Finally, the events leading to religious freedom and separation in Virginia contributed significantly to the
American experiment of the First Amendment. Virginia was the first state in the history of the world to
proclaim the decree of absolute divorce between church and state. [90] Many factors contributed to this,
among which were that half to two-thirds of the population were organized dissenting sects, the Great
Awakening had won many converts, the established Anglican Church of Virginia found themselves on the
losing side of the Revolution and had alienated many influential laymen with its identification with the Crowns
tyranny, and above all, present in Virginia was a group of political leaders who were devoted to liberty
generally,[91] who had accepted the social contract as self-evident, and who had been greatly influenced by
Deism and Unitarianism. Among these leaders were Washington, Patrick Henry, George Mason, James
Madison and above the rest, Thomas Jefferson.
The first major step towards separation in Virginia was the adoption of the following provision in the Bill of
Rights of the states first constitution:

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

The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists, Presbyterians
and Lutherans flooded the first legislative assembly with petitions for abolition of establishment. While the
majority of the population were dissenters, a majority of the legislature were churchmen. The legislature
compromised and enacted a bill in 1776 abolishing the more oppressive features of establishment and granting
exemptions to the dissenters, but not guaranteeing separation. It repealed the laws punishing heresy and
absence from worship and requiring the dissenters to contribute to the support of the establishment. [93] But the
dissenters were not satisfied; they not only wanted abolition of support for the establishment, they opposed the
compulsory support of their own religion as others. As members of the established church would not allow that
only they would pay taxes while the rest did not, the legislature enacted in 1779 a bill making permanent the
establishments loss of its exclusive status and its power to tax its members; but those who voted for it did so in
the hope that a general assessment bill would be passed. Without the latter, the establishment would not
survive. Thus, a bill was introduced in 1779 requiring every person to enroll his name with the county clerk and
indicate which society for the purpose of Religious Worship he wished to support. On the basis of this list,
collections were to be made by the sheriff and turned over to the clergymen and teachers designated by the
religious congregation. The assessment of any person who failed to enroll in any society was to be divided
proportionately among the societies.[94] The bill evoked strong opposition.
In 1784, another bill, entitled Bill Establishing a Provision for Teachers of the Christian Religion was
introduced requiring all persons to pay a moderate tax or contribution annually for the support of the Christian
religion, or of some Christian church, denomination or communion of Christians, or for some form of Christian
worship.[95] This likewise aroused the same opposition to the 1779 bill. The most telling blow against the 1784
bill was the monumental Memorial and Remonstrance against Religious Assessments written by Madison and
widely distributed before the reconvening of legislature in the fall of 1785. [96] It stressed natural rights, the
governments lack of jurisdiction over the domain of religion, and the social contract as the ideological
basis of separation while also citing practical considerations such as loss of population through migration. He
wrote, viz:

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

Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the great number of
signatures appended to the Memorial. The assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier 1779 bill of Jefferson which had not
been voted on, the Bill for Establishing Religious Freedom, and it was finally passed in January 1786. It
provided, viz:

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

xxx xxx xxx

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

This statute forbade any kind of taxation in support of religion and effectually ended any thought of a general or
particular establishment in Virginia.[99] But the passage of this law was obtained not only because of the
influence of the great leaders in Virginia but also because of substantial popular support coming mainly from
the two great dissenting sects, namely the Presbyterians and the Baptists. The former were never established
in Virginia and an underprivileged minority of the population. This made them anxious to pull down the existing
state church as they realized that it was impossible for them to be elevated to that privileged position. Apart
from these expediential considerations, however, many of the Presbyterians were sincere advocates of
separation[100]grounded on rational, secular arguments and to the language of natural religion. [101] Influenced by
Roger Williams, the Baptists, on the other hand, assumed that religion was essentially a matter of concern of
the individual and his God, i.e., subjective, spiritual and supernatural, having no relation with the social order.
[102]
To them, the Holy Ghost was sufficient to maintain and direct the Church without governmental assistance
and state-supported religion was contrary ti the spirit of the Gospel. [103] Thus, separation was necessary.
[104]
Jeffersons religious freedom statute was amilestone in the history of religious freedom. The United States
Supreme Court has not just once acknowledged that the provisions of the First Amendment of the U.S.
Constitution had the same objectives and intended to afford the same protection against government
interference with religious liberty as the Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that government had no power to legislate in the
area of religion by restricting its free exercise or establishing it was implicit in the Constitution of 1787. This
could be deduced from the prohibition of any religious test for federal office in Article VI of the Constitution and
the assumed lack of power of Congress to act on any subject not expressly mentioned in the Constitution.
[105]
However, omission of an express guaranty of religious freedom and other natural rights nearly prevented
the ratification of the Constitution.[106] In the ratifying conventions of almost every state, some objection was
expressed to the absence of a restriction on the Federal Government as regards legislation on religion.
[107]
Thus, in 1791, this restriction was made explicit with the adoption of the religion clauses in the First
Amendment as they are worded to this day, with the first part usually referred to as the Establishment Clause
and the second part, the Free Exercise Clause, viz:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
 VI. Religion Clauses in the United States:
Concept, Jurisprudence, Standards

With the widespread agreement regarding the value of the First Amendment religion clauses comes an
equally broad disagreement as to what these clauses specifically require, permit and forbid. No agreement has
been reached by those who have studied the religion clauses as regards its exact meaning and the paucity of
records in Congress renders it difficult to ascertain its meaning. [108] Consequently, the jurisprudence in this
area is volatile and fraught with inconsistencies whether within a Court decision or across decisions.
One source of difficulty is the difference in the context in which the First Amendment was adopted and in
which it is applied today. In the 1780s, religion played a primary role in social life - i.e., family responsibilities,
education, health care, poor relief, and other aspects of social life with significant moral dimension - while
government played a supportive and indirect role by maintaining conditions in which these activities may be
carried out by religious or religiously-motivated associations. Today, government plays this primary role and
religion plays the supportive role. [109] Government runs even family planning, sex education, adoption and
foster care programs.[110] Stated otherwise and with some exaggeration, (w)hereas two centuries ago, in
matters of social life which have a significant moral dimension, government was the handmaid of religion,
today religion, in its social responsibilities, as contrasted with personal faith and collective worship, is the
handmaid of government.[111] With government regulation of individual conduct having become more
pervasive, inevitably some of those regulations would reach conduct that for some individuals are religious. As
a result, increasingly, there may be inadvertent collisions between purely secular government actions and
religion clause values.[112]
Parallel to this expansion of government has been the expansion of religious organizations in population,
physical institutions, types of activities undertaken, and sheer variety of denominations, sects and
cults. Churches run day-care centers, retirement homes, hospitals, schools at all levels, research centers,
settlement houses, halfway houses for prisoners, sports facilities, theme parks, publishing houses and mass
media programs. In these activities, religious organizations complement and compete with commercial
enterprises, thus blurring the line between many types of activities undertaken by religious groups and secular
activities. Churches have also concerned themselves with social and political issues as a necessary outgrowth
of religious faith as witnessed in pastoral letters on war and peace, economic justice, and human life, or in
ringing affirmations for racial equality on religious foundations. Inevitably, these developments have brought
about substantial entanglement of religion and government. Likewise, the growth in population density, mobility
and diversity has significantly changed the environment in which religious organizations and activities exist and
the laws affecting them are made. It is no longer easy for individuals to live solely among their own kind or to
shelter their children from exposure to competing values. The result is disagreement over what laws should
require, permit or prohibit;[113] and agreement that if the rights of believers as well as non-believers are all to be
respected and given their just due, a rigid, wooden interpretation of the religion clauses that is blind to societal
and political realities must be avoided.[114]
Religion cases arise from different circumstances. The more obvious ones arise from a government action
which purposely aids or inhibits religion. These cases are easier to resolve as, in general, these actions are
plainly unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof of intent to aid or inhibit
religion.[115] The more difficult religion clause cases involve government action with a secular purpose and
general applicability which incidentally or inadvertently aids or burdens religious exercise. In Free Exercise
Clause cases, these government actions are referred to as those with burdensome effect on religious exercise
even if the government action is not religiously motivated. [116] Ideally, the legislature would recognize the
religions and their practices and would consider them, when practical, in enacting laws of general
application. But when the legislature fails to do so, religions that are threatened and burdened turn to the
courts for protection.[117] Most of these free exercise claims brought to the Court are for exemption, not
invalidation of the facially neutral law that has a burdensome effect.[118]
With the change in political and social context and the increasing inadvertent collisions between law and
religious exercise, the definition of religion for purposes of interpreting the religion clauses has also
been modified to suit current realities. Defining religion is a difficult task for even theologians, philosophers
and moralists cannot agree on a comprehensive definition.Nevertheless, courts must define religion for
constitutional and other legal purposes.[119] It was in the 1890 case of Davis v. Beason[120] that the United
States Supreme Court first had occasion to define religion, viz:

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

The definition was clearly theistic which was reflective of the popular attitudes in 1890.
In 1944, the Court stated in United States v. Ballard[122] that the free exercise of religion embraces the
right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the
orthodox faiths.[123] By the 1960s, American pluralism in religion had flourished to include non-theistic
creeds from Asia such as Buddhism and Taoism. [124] In 1961, the Court, in Torcaso v. Watkins,[125] expanded
the term religion to non-theistic beliefs such as Buddhism, Taoism, Ethical Culture, and Secular
Humanism. Four years later, the Court faced a definitional problem in United States v. Seeger[126] which
involved four men who claimed conscientious objector status in refusing to serve in the Vietnam War. One of
the four, Seeger, was not a member of any organized religion opposed to war, but when specifically asked
about his belief in a Supreme Being, Seeger stated that you could call (it) a belief in a Supreme Being or
God.These just do not happen to be the words that I use. Forest Peter, another one of the four claimed that
after considerable meditation and reflection on values derived from the Western religious and philosophical
tradition, he determined that it would be a violation of his moral code to take human life and that he considered
this belief superior to any obligation to the state. The Court avoided a constitutional question by broadly
interpreting not the Free Exercise Clause, but the statutory definition of religion in the Universal Military
Training and Service Act of 1940 which exempt from combat anyone who, by reason of religious training and
belief, is conscientiously opposed to participation in war in any form. Speaking for the Court, Justice Clark
ruled, viz:

Congress, in using the expression Supreme Being rather than the designation God, was merely clarifying the
meaning of religious tradition and belief so as to embrace all religions and to exclude essentially political,
sociological, or philosophical views (and) the test of belief in relation to a Supreme Being is whether a
given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to the
orthodox belief in God. (emphasis supplied)

The Court was convinced that Seeger, Peter and the others were conscientious objectors possessed of such
religious belief and training.
Federal and state courts have expanded the definition of religion in Seeger to include even non-theistic
beliefs such as Taoism or Zen Buddhism. It has been proposed that basically, a creed must meet four criteria
to qualify as religion under the First Amendment. First, there must be belief in God or some parallel belief that
occupies a central place in the believers life. Second, the religion must involve a moral code transcending
individual belief, i.e., it cannot be purely subjective. Third, a demonstrable sincerity in belief is necessary, but
the court must not inquire into the truth or reasonableness of the belief. [127] Fourth, there must be some
associational ties,[128] although there is also a view that religious beliefs held by a single person rather than
being part of the teachings of any kind of group or sect are entitled to the protection of the Free Exercise
Clause.[129]
Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having
hurdled the issue of definition, the court then has to draw lines to determine what is or is not
permissible under the religion clauses. In this task, the purpose of the clauses is the yardstick. Their
purpose is singular; they are two sides of the same coin. [130] In devoting two clauses to religion, the Founders
were stating not two opposing thoughts that would cancel each other out, but two complementary thoughts that
apply in different ways in different circumstances. [131] The purpose of the religion clauses - both in the
restriction it imposes on the power of the government to interfere with the free exercise of religion and the
limitation on the power of government to establish, aid, and support religion - is the protection and promotion
of religious liberty.[132] The end, the goal, and the rationale of the religion clauses is this liberty. [133] Both
clauses were adopted to prevent government imposition of religious orthodoxy; the great evil against which
they are directed is government-induced homogeneity.[134] The Free Exercise Clause directly articulates the
common objective of the two clauses and the Establishment Clause specifically addresses a form of
interference with religious liberty with which the Framers were most familiar and for which government
historically had demonstrated a propensity.[135] In other words, free exercise is the end, proscribing
establishment is a necessary means to this end to protect the rights of those who might dissent from whatever
religion is established.[136] It has even been suggested that the sense of the First Amendment is captured if it
were to read as Congress shall make no law respecting an establishment of religion or otherwise prohibiting
the free exercise thereof because the fundamental and single purpose of the two religious clauses is to avoid
any infringement on the free exercise of religions [137] Thus, the Establishment Clause mandates separation of
church and state to protect each from the other, in service of the larger goal of preserving religious liberty. The
effect of the separation is to limit the opportunities for any religious group to capture the state apparatus to the
disadvantage of those of other faiths, or of no faith at all [138] because history has shown that religious fervor
conjoined with state power is likely to tolerate far less religious disagreement and disobedience from those who
hold different beliefs than an enlightened secular state. [139] In the words of the U.S. Supreme Court, the two
clauses are interrelated, viz: (t)he structure of our government has, for the preservation of civil liberty, rescued
the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the
invasion of the civil authority.[140]
In upholding religious liberty as the end goal in religious clause cases, the line the court draws to
ensure that government does not establish and instead remains neutral toward religion is not
absolutely straight. Chief Justice Burger explains, viz:

The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well
defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none
commanded and none inhibited.[141] (emphasis supplied)

Consequently, U.S. jurisprudence has produced two identifiably different, [142] even opposing, strains of
jurisprudence on the religion clauses: separation (in the form of strict separation or the tamer version of
strict neutrality or separation) and benevolent neutrality or accommodation. A view of the landscape of
U.S. religion clause cases would be useful in understanding these two strains, the scope of protection of each
clause, and the tests used in religious clause cases. Most of these cases are cited as authorities in Philippine
religion clause cases.

A. Free Exercise Clause

The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v. United States.
[143]
This landmark case involved Reynolds, a Mormon who proved that it was his religious duty to have several
wives and that the failure to practice polygamy by male members of his religion when circumstances would
permit would be punished with damnation in the life to come. Reynolds act of contracting a second marriage
violated Section 5352, Revised Statutes prohibiting and penalizing bigamy, for which he was convicted. The
Court affirmed Reynolds conviction, using what in jurisprudence would be called the belief-action test which
allows absolute protection to belief but not to action. It cited Jeffersons Bill Establishing Religious Freedom
which, according to the Court, declares the true distinction between what properly belongs to the Church and
what to the State.[144] The bill, making a distinction between belief and action, states in relevant part, viz:

That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the
profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at
once destroys all religious liberty;
that it is time enough for the rightful purposes of civil government for its officers to interfere when
principles break out into overt acts against peace and good order.[145] (emphasis supplied)

The Court then held, viz:

Congress was deprived of all legislative power over mere opinion, but was left free to reach actions
which were in violation of social duties or subversive of good order. . .

Laws are made for the government of actions, and while they cannot interfere with mere religious
belief and opinions, they may with practices. Suppose one believed that human sacrifice were a necessary
part of religious worship, would it be seriously contended that the civil government under which he lived could
not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the
funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying
her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is
provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of
his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the
law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only
in name under such circumstances.[146]

The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause from
regulating individual religious beliefs, but placed no restriction on the ability of the state to regulate religiously
motivated conduct. It was logical for belief to be accorded absolute protection because any statute designed to
prohibit a particular religious belief unaccompanied by any conduct would most certainly be motivated only by
the legislatures preference of a competing religious belief. Thus, all cases of regulation of belief would amount
to regulation of religion for religious reasons violative of the Free Exercise Clause. On the other hand, most
state regulations of conduct are for public welfare purposes and have nothing to do with the legislatures
religious preferences. Any burden on religion that results from state regulation of conduct arises only when
particular individuals are engaging in the generally regulated conduct because of their particular religious
beliefs. These burdens are thus usually inadvertent and did not figure in the belief-action test. As long as the
Court found that regulation address action rather than belief, the Free Exercise Clause did not pose any
problem.[147] The Free Exercise Clause thus gave no protection against the proscription of actions even if
considered central to a religion unless the legislature formally outlawed the belief itself.[148]
This belief-action distinction was held by the Court for some years as shown by cases where the Court
upheld other laws which burdened the practice of the Mormon religion by imposing various penalties on
polygamy such as the Davis case and Church of Latter Day Saints v. United States.[149] However, more than
a century since Reynolds was decided, the Court hasexpanded the scope of protection from belief to
speech and conduct. But while the belief-action test has been abandoned, the rulings in the earlier Free
Exercise cases have gone unchallenged. The belief-action distinction is still of some importance though as
there remains an absolute prohibition of governmental proscription of beliefs.[150]
The Free Exercise Clause accords absolute protection to individual religious convictions and
beliefs[151] and proscribes government from questioning a persons beliefs or imposing penalties or disabilities
based solely on those beliefs. The Clause extends protection to both beliefs and unbelief. Thus,
in Torcaso v. Watkins,[152] a unanimous Court struck down a state law requiring as a qualification for public
office an oath declaring belief in the existence of God. The protection also allows courts to look into the good
faith of a person in his belief, but prohibitsinquiry into the truth of a persons religious beliefs. As held
in United States v. Ballard,[153] (h)eresy trials are foreign to the Constitution. Men may believe what they
cannot prove. They may not be put to the proof of their religious doctrines or beliefs.
Next to belief which enjoys virtually absolute protection, religious speech and expressive religious
conduct are accorded the highest degree of protection. Thus, in the 1940 case of Cantwell v.
Connecticut,[154] the Court struck down a state law prohibiting door-to-door solicitation for any religious or
charitable cause without prior approval of a state agency. The law was challenged by Cantwell, a member of
the Jehovahs Witnesses which is committed to active proselytizing. The Court invalidated the state statute as
the prior approval necessary was held to be a censorship of religion prohibited by the Free Exercise
Clause. The Court held, viz:

In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of
one may seem the rankest error to his neighbor. To persuade others to his point of view, the pleader, as we
know, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and
even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the
probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and
right conduct on the part of citizens of a democracy.[155]

Cantwell took a step forward from the protection afforded by the Reynolds case in that it not only affirmed
protection of belief but also freedom to act for the propagation of that belief, viz:

Thus the Amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute
but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of
society. . . In every case, the power to regulate must be so exercised as not, in attaining a permissible
end, unduly to infringe the protected freedom. (emphasis supplied)[156]

The Court stated, however, that government had the power to regulate the times, places, and manner of
solicitation on the streets and assure the peace and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of Jeanette,[157] ruled that police could not
prohibit members of the Jehovahs Witnesses from peaceably and orderly proselytizing on Sundays merely
because other citizens complained. In another case likewise involving the Jehovahs Witnesses, Niemotko v.
Maryland,[158] the Court unanimously held unconstitutional a city councils denial of a permit to the Jehovahs
Witnesses to use the city park for a public meeting. The city councils refusal was because of the unsatisfactory
answers of the Jehovahs Witnesses to questions about Catholicism, military service, and other issues. The
denial of the public forum was considered blatant censorship. While protected, religious speech in the public
forum is still subject to reasonable time, place and manner regulations similar to non-religious
speech. Religious proselytizing in congested areas, for example, may be limited to certain areas to maintain
the safe and orderly flow of pedestrians and vehicular traffic as held in the case of Heffron v. International
Society for Krishna Consciousness.[159]
The least protected under the Free Exercise Clause is religious conduct, usually in the form of
unconventional religious practices. Protection in this realm depends on the character of the action and the
government rationale for regulating the action.[160] The Mormons religious conduct of polygamy is an example
of unconventional religious practice. As discussed in the Reynolds case above, the Court did not afford
protection to the practice. Reynolds was reiterated in the 1890 case of Davis again involving Mormons, where
the Court held, viz: (c)rime is not the less odious because sanctioned by what any particular sect may
designate as religion.[161]
The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test, regulation of
religiously dictated conduct would be upheld no matter how central the conduct was to the exercise of religion
and no matter how insignificant was the governments non-religious regulatory interest so long as the
government is proscribing action and not belief. Thus, the Court abandoned the simplistic belief-
action distinction and instead recognized the deliberate-inadvertent distinction, i.e., the distinction between
deliberate state interference of religious exercise for religious reasons which was plainly unconstitutional and
governments inadvertent interference with religion in pursuing some secular objective. [162] In the 1940 case
of Minersville School District v. Gobitis,[163] the Court upheld a local school board requirement that all public
school students participate in a daily flag salute program, including the Jehovahs Witnesses who were forced
to salute the American flag in violation of their religious training, which considered flag salute to be worship of a
graven image. The Court recognized that the general requirement of compulsory flag salute inadvertently
burdened the Jehovah Witnesses practice of their religion, but justified the government regulation as an
appropriate means of attaining national unity, which was the basis of national security. Thus, although the
Court was already aware of the deliberate-inadvertent distinction in government interference with religion, it
continued to hold that the Free Exercise Clause presented no problem to interference with religion that was
inadvertent no matter how serious the interference, no matter how trivial the states non-religious objectives,
and no matter how many alternative approaches were available to the state to pursue its objectives with less
impact on religion, so long as government was acting in pursuit of a secular objective.
Three years later, the Gobitis decision was overturned in West Virginia v. Barnette[164] which involved a
similar set of facts and issue. The Court recognized that saluting the flag, in connection with the pledges, was a
form of utterance and the flag salute program was a compulsion of students to declare a belief. The Court ruled
that compulsory unification of opinions leads only to the unanimity of the graveyard and exempt the students
who were members of the Jehovahs Witnesses from saluting the flag. A close scrutiny of the case, however,
would show that it was decided not on the issue of religious conduct as the Court said, (n)or does the issue as
we see it turn on ones possession of particular religious views or the sincerity with which they are held.While
religion supplies appellees motive for enduring the discomforts of making the issue in this case, many citizens
who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the
individual. (emphasis supplied)[165] The Court pronounced, however, that, freedoms of speech and of press, of
assembly, and of worship . . . are susceptible only of restriction only to prevent grave and immediate danger
to interests which the state may lawfully protect. [166] The Court seemed to recognize the extent to which its
approach in Gobitis subordinated the religious liberty of political minorities - a specially protected constitutional
value - to the common everyday economic and public welfare objectives of the majority in the legislature. This
time, even inadvertent interference with religion must pass judicial scrutiny under the Free Exercise Clause
with only grave and immediate danger sufficing to override religious liberty. But the seeds of this heightened
scrutiny would only grow to a full flower in the 1960s.[167]
Nearly a century after Reynolds employed the belief-action test, the Warren Court began the modern
free exercise jurisprudence.[168] A two-part balancing test was established inBraunfeld v. Brown[169] where
the Court considered the constitutionality of applying Sunday closing laws to Orthodox Jews whose beliefs
required them to observe another day as the Sabbath and abstain from commercial activity on Saturday. Chief
Justice Warren, writing for the Court, found that the law placed a severe burden on Sabattarian retailers. He
noted, however, that since the burden was the indirect effect of a law with a secular purpose, it would violate
the Free Exercise Clause only if there were alternative ways of achieving the states interest. He
employed a two-part balancing test of validity where the first step was for plaintiff to show that the regulation
placed a real burden on his religious exercise. Next, the burden would be upheld only if the state showed that it
was pursuing an overriding secular goal by the means which imposed the least burden on religious practices.
[170]
The Court found that the state had an overriding secular interest in setting aside a single day for rest,
recreation and tranquility and there was no alternative means of pursuing this interest but to require Sunday as
a uniform rest day.
Two years after came the stricter compelling state interest test in the 1963 case of Sherbert v. Verner.
[171]
This test was similar to the two-part balancing test in Braunfeld, [172] but this latter test stressed that the
state interest was not merely any colorable state interest, but must be paramount and compelling to
override the free exercise claim. In this case, Sherbert, a Seventh Day Adventist, claimed unemployment
compensation under the law as her employment was terminated for refusal to work on Saturdays on religious
grounds. Her claim was denied. She sought recourse in the Supreme Court. In laying down the standard for
determining whether the denial of benefits could withstand constitutional scrutiny, the Court ruled, viz:

Plainly enough, appellees 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 appellants constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the State of her constitutional rights of
free exercise, or because any incidental burden on the free exercise of appellants religion may be
justified by a compelling state interest in the regulation of a subject within the States constitutional
power to regulate. . . NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.[173] (emphasis
supplied)

The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show
a rational relationship of the substantial infringement to the religious right and a colorable state
interest. (I)n this highly sensitive constitutional area, [o]nly the gravest abuses, endangering paramount
interests, give occasion for permissible limitation. Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S
Ct 315.[174] The Court found that there was no such compelling state interest to override Sherberts religious
liberty. It added that even if the state could show that Sherberts exemption would pose serious detrimental
effects to the unemployment compensation fund and scheduling of work, it was incumbent upon the state to
show thatno 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 Sherberts benefits would force her to
choose between receiving benefits and following her religion. This choice placed the same kind of burden upon
the free exercise of religion as would a fine imposed against (her) for her Saturday worship. This germinal case
of Sherbert firmly established the exemption doctrine, [175] viz:

It is certain that not every conscience can be accommodated by all the laws of the land; but when general
laws conflict with scruples of conscience, exemptions ought to be granted unless some compelling
state interest intervenes.

Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early as Braunfeld), the
Court moved from the doctrine that inadvertent or incidental interferences with religion raise no problem under
the Free Exercise Clause to the doctrine that such interferences violate the Free Exercise Clause in the
absence of a compelling state interest - the highest level of constitutional scrutiny short of a holding of a per
se violation. Thus, the problem posed by the belief-action test and the deliberate-inadvertent distinction was
addressed.[176]
Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court, the rationale
in Sherbert continued to be applied. In Thomas v. Review Board[177] and Hobbie v. Unemployment Appeals
Division,[178] for example, the Court reiterated the exemption doctrine and held that in the absence of a
compelling justification, a state could not withhold unemployment compensation from an employee who
resigned or was discharged due to unwillingness to depart from religious practices and beliefs that conflicted
with job requirements. But not every governmental refusal to allow an exemption from a regulation which
burdens a sincerely held religious belief has been invalidated, even though strict or heightened scrutiny is
applied. InUnited States v. Lee,[179] for instance, the Court using strict scrutiny and referring to Thomas,
upheld the federal governments refusal to exempt Amish employers who requested for exemption from paying
social security taxes on wages on the ground of religious beliefs. The Court held that (b)ecause the broad
public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the
payment of taxes affords no basis for resisting the tax. [180] It reasoned that unlike in Sherbert, an exemption
would significantly impair governments achievement of its objective - the fiscal vitality of the social security
system; mandatory participation is indispensable to attain this objective. The Court noted that if an exemption
were made, it would be hard to justify not allowing a similar exemption from general federal taxes where the
taxpayer argues that his religious beliefs require him to reduce or eliminate his payments so that he will not
contribute to the governments war-related activities, for example.
The strict scrutiny and compelling state interest test significantly increased the degree of
protection afforded to religiously motivated conduct. While not affording absolute immunity to religious
activity, a compelling secular justification was necessary to uphold public policies that collided with religious
practices. Although the members of the Court often disagreed over which governmental interests should be
considered compelling, thereby producing dissenting and separate opinions in religious conduct cases,
this general test established a strong presumption in favor of the free exercise of religion. [181]
Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder[182] where the Court upheld
the religious practice of the Old Order Amish faith over the states compulsory high school attendance law. The
Amish parents in this case did not permit secular education of their children beyond the eighth grade. Chief
Justice Burger, writing for the majority, held, viz:

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

The essence of all that has been said and written on the subject is that only those interests of the highest
order and those not otherwise served can overbalance legitimate claims to the free exercise of
religion. . .

. . . our decisions have rejected the idea that that religiously grounded conduct is always outside the protection
of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often
subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and
general welfare, or the Federal government in the exercise of its delegated powers . . . But to agree that
religiously grounded conduct must often be subject to the broad police power of the State is not to
deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment
and thus beyond the power of the State to control, even under regulations of general applicability. . .
.This case, therefore, does not become easier because respondents were convicted for their actions in
refusing to send their children to the public high school; in this context belief and action cannot be neatly
confined in logic-tight compartments. . . [183]

The onset of the 1990s, however, saw a major setback in the protection afforded by the Free
Exercise Clause. In Employment Division, Oregon Department of Human Resources v. Smith,[184] the
sharply divided Rehnquist Court dramatically departed from the heightened scrutiny and compelling
justification approach and imposed serious limits on the scope of protection of religious freedom afforded by
the First Amendment. In this case, the well-established practice of the Native American Church, a sect outside
the Judeo-Christian mainstream of American religion, came in conflict with the states interest in prohibiting the
use of illicit drugs. Oregons controlled substances statute made the possession of peyote a criminal
offense. Two members of the church, Smith and Black, worked as drug rehabilitation counselors for a private
social service agency in Oregon. Along with other church members, Smith and Black ingested peyote, a
hallucinogenic drug, at a sacramental ceremony practiced by Native Americans for hundreds of years. The
social service agency fired Smith and Black citing their use of peyote as job-related misconduct. They applied
for unemployment compensation, but the Oregon Employment Appeals Board denied their application as they
were discharged for job-related misconduct. Justice Scalia, writing for the majority, ruled that if prohibiting the
exercise of religion . . . is . . . merely the incidental effect of a generally applicable and otherwise valid
law, the First Amendment has not been offended. In other words, the Free Exercise Clause would be
offended only if a particular religious practice were singled out for proscription. The majority opinion relied
heavily on the Reynolds case and in effect, equated Oregons drug prohibition law with the anti-polygamy
statute in Reynolds. The relevant portion of the majority opinion held, viz:

We have never invalidated any governmental action on the basis of the Sherbert test except the denial of
unemployment compensation.

Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we
would not apply it to require exemptions from a generally applicable criminal law. . .

We conclude today that the sounder approach, and the approach in accord with the vast majority of
our precedents, is to hold the test inapplicable to such challenges. The governments ability to enforce
generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public
policy, cannot depend on measuring the effects of a governmental action on a religious objectors spiritual
development. . . .To make an individuals obligation to obey such a law contingent upon the laws
coincidence with his religious beliefs except where the States interest is compelling - permitting him,
by virtue of his beliefs, to become a law unto himself, . . . - contradicts both constitutional tradition and
common sense.

Justice OConnor wrote a concurring opinion pointing out that the majoritys rejection of the compelling
governmental interest test was the most controversial part of the decision. Although she concurred in the result
that the Free Exercise Clause had not been offended, she sharply criticized the majority opinion as a dramatic
departure from well-settled First Amendment jurisprudence. . . and . . . (as) incompatible with our Nations
fundamental commitment to religious liberty. This portion of her concurring opinion was supported by Justices
Brennan, Marshall and Blackmun who dissented from the Courts decision. Justice OConnor asserted that (t)he
compelling state interest test effectuates the First Amendments command that religious liberty is an
independent liberty, that it occupies a preferred position, and that the Court will not permit
encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling
government interest of the highest order. Justice Blackmun registered a separate dissenting opinion, joined
by Justices Brennan and Marshall. He charged the majority with mischaracterizing precedents and overturning.
. . settled law concerning the Religion Clauses of our Constitution. He pointed out that the Native American
Church restricted and supervised the sacramental use of peyote. Thus, the state had no significant health or
safety justification for regulating the sacramental drug use. He also observed that Oregon had not attempted to
prosecute Smith or Black, or any Native Americans, for that matter, for the sacramental use of peyote. In
conclusion, he said that Oregons interest in enforcing its drug laws against religious use of peyote (was) not
sufficiently compelling to outweigh respondents right to the free exercise of their religion.
The Court went back to the Reynolds and Gobitis doctrine in Smith. The Courts standard
in Smith virtually eliminated the requirement that the government justify with a compelling state interest the
burdens on religious exercise imposed by laws neutral toward religion. The Smith doctrine is highly
unsatisfactory in several respects and has been criticized as exhibiting a shallow understanding of free
exercise jurisprudence.[185] First, the First amendment was intended to protect minority religions from the
tyranny of the religious and political majority. A deliberate regulatory interference with minority religious
freedom is the worst form of this tyranny. But regulatory interference with a minority religion as a result of
ignorance or sensitivity of the religious and political majority is no less an interference with the minoritys
religious freedom. If the regulation had instead restricted the majoritys religious practice, the majoritarian
legislative process would in all probability have modified or rejected the regulation. Thus, the imposition of the
political majoritys non-religious objectives at the expense of the minoritys religious interests implements the
majoritys religious viewpoint at the expense of the minoritys. Second, government impairment of religious
liberty would most often be of the inadvertent kind as in Smith considering the political culture where direct and
deliberate regulatory imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise Clause
could not afford protection to inadvertent interference, it would be left almost meaningless. Third,
the Reynolds-Gobitis-Smith doctrine simply defies common sense. The state should not be allowed to
interfere with the most deeply held fundamental religious convictions of an individual in order to pursue some
trivial state economic or bureaucratic objective. This is especially true when there are alternative approaches
for the state to effectively pursue its objective without serious inadvertent impact on religion.[186]
Thus, the Smith decision has been criticized not only for increasing the power of the state over religion
but as discriminating in favor of mainstream religious groups against smaller, more peripheral groups who lack
legislative clout,[187] contrary to the original theory of the First Amendment. [188] Undeniably, claims for judicial
exemption emanate almost invariably from relatively politically powerless minority religions and Smith virtually
wiped out their judicial recourse for exemption.[189] Thus, the Smith decision elicited much negative public
reaction especially from the religious community, and commentaries insisted that the Court was allowing the
Free Exercise Clause to disappear.[190] So much was the uproar that a majority in Congress was convinced to
enact the Religious Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited government at all levels
from substantially burdening a persons free exercise of religion, even if such burden resulted from a generally
applicable rule, unless the government could demonstrate a compelling state interest and the rule constituted
the least restrictive means of furthering that interest. [191]RFRA, in effect, sought to overturn the substance of
the Smith ruling and restore the status quo prior to Smith. Three years after the RFRA was enacted, however,
the Court, dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne v. Flores.[192] The Court ruled
that RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance. It
emphasized the primacy of its role as interpreter of the Constitution and unequivocally rejected, on broad
institutional grounds, a direct congressional challenge of final judicial authority on a question of constitutional
interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah [193] which was ruled
consistent with the Smith doctrine. This case involved animal sacrifice of the Santeria, a blend of Roman
Catholicism and West African religions brought to the Carribean by East African slaves. An ordinance made it a
crime to unnecessarily kill, torment, torture, or mutilate an animal in public or private ritual or ceremony not for
the primary purpose of food consumption. The ordinance came as a response to the local concern over the
sacrificial practices of the Santeria.Justice Kennedy, writing for the majority, carefully pointed out that the
questioned ordinance was not a generally applicable criminal prohibition, but instead singled out practitioners
of the Santeria in that it forbade animal slaughter only insofar as it took place within the context of religious
rituals.
It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is absolutely
protected, religious speech and proselytizing are highly protected but subject to restraints applicable to non-
religious speech, and unconventional religious practice receives less protection; nevertheless conduct, even if
its violates a law, could be accorded protection as shown in Wisconsin.[194]

B. Establishment Clause

The Courts first encounter with the Establishment Clause was in the 1947 case of Everson v. Board of
Education.[195] Prior cases had made passing reference to the Establishment Clause [196] and raised
establishment questions but were decided on other grounds. [197] It was in the Everson case that the U.S.
Supreme Court adopted Jeffersons metaphor of a wall of separation between church and state as
encapsulating the meaning of the Establishment Clause. The often and loosely used phrase separation of
church and state does not appear in the U.S. Constitution. It became part of U.S. jurisprudence when the Court
in the 1878 case of Reynolds v. United States[198] quoted Jeffersons famous letter of 1802 to the Danbury
Baptist Association in narrating the history of the religion clauses, viz:

Believing with you that religion is a matter which lies solely between man and his God; that he owes account to
none other for his faith or his worship; that the legislative powers of the Government reach actions only, and
not opinions, I contemplate with sovereign reverence that act of the whole American people which declared
that their Legislature should make no law respecting an establishment of religion or prohibiting the free
exercise thereof, thus building a wall of separation between Church and State.[199] (emphasis supplied)

Chief Justice Waite, speaking for the majority, then added, (c)oming as this does from an acknowledged leader
of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and
effect of the amendment thus secured.[200]
The interpretation of the Establishment Clause has in large part been in cases involving education, notably
state aid to private religious schools and prayer in public schools. [201] In Everson v. Board of Education, for
example, the issue was whether a New Jersey local school board could reimburse parents for expenses
incurred in transporting their children to and from Catholic schools. The reimbursement was part of a general
program under which all parents of children in public schools and nonprofit private schools, regardless of
religion, were entitled to reimbursement for transportation costs. Justice Hugo Black, writing for a sharply
divided Court, justified the reimbursements on the child benefit theory, i.e., that the school board was merely
furthering the states legitimate interest in getting children regardless of their religion, safely and expeditiously
to and from accredited schools. The Court, after narrating the history of the First Amendment in Virginia,
interpreted the Establishment Clause, viz:

The establishment of religion clause of the First Amendment means at least this: Neither a state nor the
Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions,
or prefer one religion over another. Neither can force nor influence a person to go to or remain away from
church against his will or force him to profess a belief or disbelief in any religion. No person can be punished
for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in
any amount, large or small, can be levied to support any religious activities or institutions, whatever they may
be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal
Government can, openly or secretly participate in the affairs of any religious organizations or groups and vice
versa. In the words of Jefferson, the clause against establishment of religion by law was intended to
erect a wall of separation between Church and State.[202]

The Court then ended the opinion, viz:

The First Amendment has erected a wall between church and state. That wall must be kept high and
impregnable. We could not approve the slightest breach. New Jersey has not breached it here.[203]

By 1971, the Court integrated the different elements of the Courts Establishment Clause jurisprudence that
evolved in the 1950s and 1960s and laid down a three-pronged test in Lemon v. Kurtzman[204] in determining
the constitutionality of policies challenged under the Establishment Clause. This case involved a Pennsylvania
statutory program providing publicly funded reimbursement for the cost of teachers salaries, textbooks, and
instructional materials in secular subjects and a Rhode Island statute providing salary supplements to teachers
in parochial schools. The Lemon test requires a challenged policy to meet the following criteria to pass
scrutiny under the Establishment Clause. First, the statute must have a secular legislative purpose;
second, its primary or principal effect must be one that neither advances nor inhibits religion (Board of
Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute
must not foster an excessive entanglement with religion. (Walz v.Tax Commission, 397 US 664, 668, 25
L Ed 2d 697, 701, 90 S Ct 1409 [1970]) (emphasis supplied)[205] Using this test, the Court held that the
Pennsylvania statutory program and Rhode Island statute were unconstitutional as fostering excessive
entanglement between government and religion.
The most controversial of the education cases involving the Establishment Clause are the school prayer
decisions. Few decisions of the modern Supreme Court have been criticized more intensely than the school
prayer decisions of the early 1960s. [206] In the 1962 case of Engel v. Vitale,[207] the Court invalidated a New
York Board of Regents policy that established the voluntary recitation of a brief generic prayer by children in
the public schools at the start of each school day. The majority opinion written by Justice Black stated that in
this country it is no part of the business of government to compose official prayers for any group of the
American people to recite as part of a religious program carried on by government. In fact, history shows that
this very practice of establishing governmentally composed prayers for religious services was one of the
reasons that caused many of the early colonists to leave England and seek religious freedom in America. The
Court called to mind that the first and most immediate purpose of the Establishment Clause rested on the
belief that a union of government and religion tends to destroy government and to degrade religion. The
following year, the Engel decision was reinforced in Abington School District v. Schempp [208] and Murray v.
Curlett[209] where the Court struck down the practice of Bible reading and the recitation of the Lords prayer in
the Pennsylvania and Maryland schools. The Court held that to withstand the strictures of the Establishment
Clause, a statute must have a secular legislative purpose and a primary effect that neither advances nor
inhibits religion. It reiterated, viz:

The wholesome neutrality of which this Courts cases speak thus stems from a recognition of the teachings of
history that powerful sects or groups might bring about a fusion of governmental and religious functions or a
concert or dependency of one upon the other to the end that official support of the State of Federal
Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause
prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value
of religious training, teaching and observance and, more particularly, the right of every person to freely choose
his own course with reference thereto, free of any compulsion from the state.[210]

The school prayer decisions drew furious reactions. Religious leaders and conservative members of Congress
and resolutions passed by several state legislatures condemned these decisions. [211] On several occasions,
constitutional amendments have been introduced in Congress to overturn the school prayer decisions. Still, the
Court has maintained its position and has in fact reinforced it in the 1985 case of Wallace v. Jaffree[212] where
the Court struck down an Alabama law that required public school students to observe a moment of silence for
the purpose of meditation or voluntary prayer at the start of each school day.
Religious instruction in public schools has also pressed the Court to interpret the Establishment
Clause. Optional religious instruction within public school premises and instructional time were declared
offensive of the Establishment Clause in the 1948 case of McCollum v. Board of Education,[213] decided just
a year after the seminal Everson case. In this case, interested members of the Jewish, Roman Catholic and a
few Protestant faiths obtained permission from the Board of Education to offer classes in religious instruction to
public school students in grades four to nine. Religion classes were attended by pupils whose parents signed
printed cards requesting that their children be permitted to attend. The classes were taught in three separate
groups by Protestant teachers, Catholic priests and a Jewish rabbi and were held weekly from thirty to forty
minutes during regular class hours in the regular classrooms of the school building. The religious teachers
were employed at no expense to the school authorities but they were subject to the approval and supervision
of the superintendent of schools. Students who did not choose to take religious instruction were required to
leave their classrooms and go to some other place in the school building for their secular studies while those
who were released from their secular study for religious instruction were required to attend the religious
classes. The Court held that the use of tax-supported property for religious instruction and the close
cooperation between the school authorities and the religious council in promoting religious education
amounted to a prohibited use of tax-established and tax-supported public school system to aid religious groups
spread their faith. The Court rejected the claim that the Establishment Clause only prohibited government
preference of one religion over another and not an impartial governmental assistance of all religions.In Zorach
v. Clauson,[214] however, the Court upheld released time programs allowing students in public schools to leave
campus upon parental permission to attend religious services while other students attended study hall. Justice
Douglas, the writer of the opinion, stressed that (t)he First Amendment does not require that in every and all
respects there shall be a separation of Church and State. The Court
distinguished Zorach from McCollum, viz:

In the McCollum case the classrooms were used for religious instruction and the force of the public school was
used to promote that instruction. . . We follow the McCollum case. But we cannot expand it to cover the
present released time program unless separation of Church and State means that public institutions can make
no adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the
Bill of Rights such a philosophy of hostility to religion.[215]

In the area of government displays or affirmations of belief, the Court has given leeway to religious beliefs
and practices which have acquired a secular meaning and have become deeply entrenched in history. For
instance, in McGowan v. Maryland,[216] the Court upheld laws that prohibited certain businesses from
operating on Sunday despite the obvious religious underpinnings of the restrictions. Citing the secular purpose
of the Sunday closing laws and treating as incidental the fact that this day of rest happened to be the day of
worship for most Christians, the Court held, viz:

It is common knowledge that the first day of the week has come to have special significance as a rest day in
this country. People of all religions and people with no religion regard Sunday as a time for family activity, for
visiting friends and relatives, for later sleeping, for passive and active entertainments, for dining out, and the
like.[217]

In the 1983 case of Marsh v. Chambers,[218] the Court refused to invalidate Nebraskas policy of beginning
legislative sessions with prayers offered by a Protestant chaplain retained at the taxpayers expense. The
majority opinion did not rely on the Lemon test and instead drew heavily from history and the need for
accommodation of popular religious beliefs, viz:

In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the
practice of opening legislative sessions with prayer has become the fabric of our society. To invoke Divine
guidance on a public body entrusted with making the laws is not, in these circumstances, an establishment of
religion or a step toward establishment; it is simply a tolerable acknowledgement of beliefs widely held
among the people of this country. As Justice Douglas observed, (w)e are a religious people whose
institutions presuppose a Supreme Being. (Zorach c. Clauson, 343 US 306, 313 [1952])[219] (emphasis
supplied)

Some view the Marsh ruling as a mere aberration as the Court would inevitably be embarrassed if it were
to attempt to strike down a practice that occurs in nearly every legislature in the United States, including the
U.S. Congress.[220] That Marsh was not an aberration is suggested by subsequent cases. In the 1984 case
of Lynch v. Donnelly,[221] the Court upheld a city-sponsored nativity scene in Rhode Island. By a 5-4 decision,
the majority opinion hardly employed the Lemon test and again relied on history and the fact that the
creche had become a neutral harbinger of the holiday season for many, rather than a symbol of
Christianity.
 The Establishment Clause has also been interpreted in the area of tax exemption. By tradition, church and
charitable institutions have been exempt from local property taxes and their income exempt from federal and
state income taxes. In the 1970 case of Walz v. Tax Commission,[222] the New York City Tax Commissions
grant of property tax exemptions to churches as allowed by state law was challenged by Walz on the theory
that this required him to subsidize those churches indirectly. The Court upheld the law stressing its
neutrality, viz:

It has not singled out one particular church or religious group or even churches as such; rather, it has granted
exemptions to all houses of religious worship within a broad class of property owned by non-profit, quasi-public
corporations . . . The State has an affirmative policy that considers these groups as beneficial and stabilizing
influences in community life and finds this classification useful, desirable, and in the public interest.[223]

The Court added that the exemption was not establishing religion but sparing the exercise of religion from the
burden of property taxation levied on private profit institutions [224] and preventing excessive entanglement
between state and religion. At the same time, the Court acknowledged the long-standing practice of religious
tax exemption and the Courts traditional deference to legislative bodies with respect to the taxing power, viz:

(f)ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary
colonial times, than for the government to exercise . . . this kind of benevolent neutrality toward
churches and religious exercise generally so long as none was favored over others and none suffered
interference.[225] (emphasis supplied)

C. Strict Neutrality v. Benevolent Neutrality

To be sure, the cases discussed above, while citing many landmark decisions in the religious clauses
area, are but a small fraction of the hundreds of religion clauses cases that the U.S. Supreme Court has
passed upon. Court rulings contrary to or making nuances of the above cases may be cited. Professor
McConnell poignantly recognizes this, viz:

Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead the legislature in daily
prayers (Marsh v. Chambers, 463 US783, 792-93[1983]), but unconstitutional for a state to set aside a moment
of silence in the schools for children to pray if they want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is
unconstitutional for a state to require employers to accommodate their employees work schedules to their
sabbath observances (Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but constitutionally
mandatory for a state to require employers to pay workers compensation when the resulting inconsistency
between work and sabbath leads to discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is
constitutional for the government to give money to religiously-affiliated organizations to teach adolescents
about proper sexual behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not to teach them science or
history (Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the government to provide
religious school pupils with books (Board of Education v. Allen, 392 US 236, 238 [1968]), but not with maps
(Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to religious schools (Everson v. Board of
Education, 330 US 1, 17 [1947]), but not from school to a museum on a field trip (Wolman v. Walter, 433 US
229, 252-55 [1977]); with cash to pay for state-mandated standardized tests (Committee for Pub. Educ. and
Religious Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-related maintenance
(Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess.[226]

But the purpose of the overview is not to review the entirety of the U.S. religion clause jurisprudence nor to
extract the prevailing case law regarding particular religious beliefs or conduct colliding with particular
government regulations. Rather, the cases discussed above suffice to show that, as legal scholars observe,
this area of jurisprudence has demonstrated two main standards used by the Court in deciding religion
clause cases: separation (in the form of strict separation or the tamer version of strict neutrality or
separation) and benevolent neutrality or accommodation. The weight of current authority, judicial and in
terms of sheer volume, appears to lie with the separationists, strict or tame. [227] But the accommodationists
have also attracted a number of influential scholars and jurists. [228] The two standards producing two streams of
jurisprudence branch out respectively from the history of the First Amendment in England and the American
colonies and climaxing in Virginia as narrated in this opinion and officially acknowledged by the Court
in Everson, and from American societal life which reveres religion and practices age-old religious
traditions. Stated otherwise, separation - strict or tame - protects the principle of church-state separation with
a rigid reading of the principle whilebenevolent neutrality protects religious realities, tradition and established
practice with a flexible reading of the principle. [229] The latter also appeals to history in support of its
position, viz:

The opposing school of thought argues that the First Congress intended to allow government support of
religion, at least as long as that support did not discriminate in favor of one particular religion. . . the
Supreme Court has overlooked many important pieces of history. Madison, for example, was on the
congressional committee that appointed a chaplain, he declared several national days of prayer and fasting
during his presidency, and he sponsored Jeffersons bill for punishing Sabbath breakers; moreover, while
president, Jefferson allowed federal support of religious missions to the Indians. . . And so, concludes one
recent book, there is no support in the Congressional records that either the First Congress, which framed the
First Amendment, or its principal author and sponsor, James Madison, intended that Amendment to create a
state of complete independence between religion and government. In fact, the evidence in the public
documents goes the other way.[230] (emphasis supplied)

To succinctly and poignantly illustrate the historical basis of benevolent neutrality that gives room
for accommodation, less than twenty-four hours after Congress adopted the First Amendments prohibition on
laws respecting an establishment of religion, Congress decided to express its thanks to God Almighty for the
many blessings enjoyed by the nation with a resolution in favor of a presidential proclamation declaring a
national day of Thanksgiving and Prayer. Only two members of Congress opposed the resolution, one on the
ground that the move was a mimicking of European customs, where they made a mere mockery of
thanksgivings, the other on establishment clause concerns. Nevertheless, the salutary effect of thanksgivings
throughout Western history was acknowledged and the motion was passed without further recorded
discussion.[231] Thus, accommodationists also go back to the framers to ascertain the meaning of the First
Amendment, but prefer to focus on acts rather than words. Contrary to the claim of separationists that
rationalism pervaded America in the late 19th century and that America was less specifically Christian during
those years than at any other time before or since, [232] accommodationaists claim that American citizens at the
time of the Constitutions origins were a remarkably religious people in particularly Christian terms.[233]
The two streams of jurisprudence - separationist or accommodationist - are anchored on a
different reading of the wall of separation. The strict separtionist view holds that Jefferson meant the wall
of separation to protect the state from the church. Jefferson was a man of the Enlightenment Era of the
eighteenth century, characterized by the rationalism and anticlericalism of that philosophic bent. [234] He has
often been regarded as espousing Deism or the rationalistic belief in a natural religion and natural law divorced
from its medieval connection with divine law, and instead adhering to a secular belief in a universal harmony.
[235]
Thus, according to this Jeffersonian view, the Establishment Clause being meant to protect the state from
the church, the states hostility towards religion allows no interaction between the two. [236] In fact, when
Jefferson became President, he refused to proclaim fast or thanksgiving days on the ground that these are
religious exercises and the Constitution prohibited the government from intermeddling with religion. [237] This
approach erects an absolute barrier to formal interdependence of religion and state. Religious institutions could
not receive aid, whether direct or indirect, from the state. Nor could the state adjust its secular programs to
alleviate burdens the programs placed on believers. [238] Only the complete separation of religion from politics
would eliminate the formal influence of religious institutions and provide for a free choice among political views
thus a strict wall of separation is necessary.[239] Strict separation faces difficulties, however, as it is deeply
embedded in history and contemporary practice that enormous amounts of aid, both direct and indirect, flow to
religion from government in return for huge amounts of mostly indirect aid from religion. Thus, strict
separationists are caught in an awkward position of claiming a constitutional principle that has never existed
and is never likely to.[240]
A tamer version of the strict separationist view, the strict neutrality or separationist view is largely used
by the Court, showing the Courts tendency to press relentlessly towards a more secular society. [241] It finds
basis in the Everson case where the Court declared that Jeffersons wall of separation encapsulated the
meaning of the First Amendment but at the same time held that the First Amendment requires the state to
be neutral in its relations with groups of religious believers and non-believers; it does not require the state to
be their adversary. State power is no more to be used so as to handicap religions than it is to favor
them. (emphasis supplied)[242] While the strict neutrality approach is not hostile to religion, it is strict in holding
that religion may not be used as a basis for classification for purposes of governmental action, whether the
action confers rights or privileges or imposes duties or obligations. Only secular criteria may be the basis of
government action. It does not permit, much less require, accommodation of secular programs to religious
belief.[243] Professor Kurland wrote, viz:

The thesis proposed here as the proper construction of the religion clauses of the first amendment is that the
freedom and separation clauses should be read as a single precept that government cannot utilize religion as a
standard for action or inaction because these clauses prohibit classification in terms of religion either to confer
a benefit or to impose a burden.[244]

The Court has repeatedly declared that religious freedom means government neutrality in religious matters and
the Court has also repeatedly interpreted this policy of neutrality to prohibit government from acting except for
secular purposes and in ways that have primarily secular effects.[245]
Prayer in public schools is an area where the Court has applied strict neutrality and refused to allow any
form of prayer, spoken or silent, in the public schools as in Engel and Schempp.[246]The McCollum
case prohibiting optional religious instruction within public school premises during regular class hours also
demonstrates strict neutrality. In these education cases, the Court refused to uphold the government action as
they were based not on a secular but on a religious purpose. Strict neutrality was also used
in Reynolds and Smith which both held that if government acts in pursuit of a generally applicable law with a
secular purpose that merely incidentally burdens religious exercise, the First Amendment has not been
offended. However, if the strict neutrality standard is applied in interpreting the Establishment Clause, it
could de facto void religious expression in the Free Exercise Clause. As pointed out by Justice Goldberg in his
concurring opinion in Schempp, strict neutrality could lead to a brooding and pervasive devotion to the secular
and a passive, or even active, hostility to the religious which is prohibited by the Constitution. [247] Professor
Laurence Tribe commented in his authoritative treatise, viz:

To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise
clause. The Framers, whatever specific applications they may have intended, clearly envisioned religion as
something special; they enacted that vision into law by guaranteeing the free exercise of religion but not, say,
of philosophy or science. The strict neutrality approach all but erases this distinction. Thus it is not surprising
that the Supreme Court has rejected strict neutrality, permitting and sometimes mandating religious
classifications.[248]

The separationist approach, whether strict or tame, is caught in a dilemma because while the Jeffersonian
wall of separation captures the spirit of the American ideal of church-state separation, in real life church and
state are not and cannot be totally separate. [249] This is all the more true in contemporary times when both the
government and religion are growing and expanding their spheres of involvement and activity, resulting in the
intersection of government and religion at many points.[250]
Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent
neutrality which gives room for accommodation is buttressed by a different view of the wall of separation
associated with Williams, founder of the Rhode Island colony. In Mark DeWolfe Howes classic, The Garden
and the Wilderness, he asserts that to the extent the Founders had a wall of separation in mind, it was unlike
the Jeffersonian wall that is meant to protect the state from the church; instead, the wall is meant to protect the
church from the state,[251] i.e., the garden of the church must be walled in for its own protection from the
wilderness of the world[252] with its potential for corrupting those values so necessary to religious commitment.
[253]
Howe called this the theological or evangelical rationale for church-state separation while the wall
espoused by enlightened statesmen such as Jefferson and Madison, was a political rationale seeking to
protect politics from intrusions by the church.[254] But it has been asserted that this contrast between the
Williams and Jeffersonian positions is more accurately described as a difference in kinds or styles of religious
thinking, not as a conflict between religious and secular (political); the religious style was biblical and
evangelical in character while the secular style was grounded in natural religion, more generic and
philosophical in its religious orientation.[255]
 The Williams wall is, however, breached for the church is in the state and so the remaining purpose of the
wall is to safeguard religious liberty. Williams view would therefore allow for interaction between church and
state, but is strict with regard to state action which would threaten the integrity of religious commitment. [256] His
conception of separation is not total such that it provides basis for certain interactions between church and
state dictated by apparent necessity or practicality.[257] This theological view of separation is found in Williams
writings, viz:

. . . when they have opened a gap in the hedge or wall of separation between the garden of the church and the
wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and made his
garden a wilderness, as this day. And that therefore if He will eer please to restore His garden and paradise
again, it must of necessity be walled in peculiarly unto Himself from the world. . .[258]

Chief Justice Burger spoke of benevolent neutrality in Walz, viz:

The general principle deducible from the First Amendment and all that has been said by the Court is this: that
we will not tolerate either governmentally established religion or governmental interference with religion. Short
of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent
neutrality which will permit religious exercise to exist without sponsorship and without interference.
[259]
(emphasis supplied)

The Zorach case expressed the doctrine of accommodation,[260] viz:

The First Amendment, however, does not say that in every and all respects there shall be a separation
of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be
no concert or union or dependency one or the other. That is the common sense of the
matter. Otherwise, the state and religion would be aliens to each other - hostile, suspicious, and even
unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted
to render police or fire protection to religious groups. Policemen who helped parishioners into their places of
worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the
messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; so help me God in
our courtroom oaths- these and all other references to the Almighty that run through our laws, our public rituals,
our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the
supplication with which the Court opens each session: God save the United States and this Honorable Court.

xxx xxx xxx

We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to
worship as one chooses. . . When the state encourages religious instruction or cooperates with religious
authorities by adjusting the schedule of public events, it follows the best of our traditions. For it then
respects the religious nature of our people and accommodates the public service to their spiritual
needs. To hold that it may not would be to find in the Constitution a requirement that the government
show a callous indifference to religious groups. . . But we find no constitutional requirement which
makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen
their effective scope of religious influence.[261] (emphases supplied)

Benevolent neutrality is congruent with the sociological proposition that religion serves a function essential to
the survival of society itself, thus there is no human society without one or more ways of performing the
essential function of religion. Although for some individuals there may be no felt need for religion and thus it is
optional or even dispensable, for society it is not, which is why there is no human society without one or more
ways of performing the essential function of religion. Even in ostensibly atheistic societies, there are vigorous
underground religion(s) and surrogate religion(s) in their ideology.[262] As one sociologist wrote:

It is widely held by students of society that there are certain functional prerequisites without which society
would not continue to exist. At first glance, this seems to be obvious - scarcely more than to say that an
automobile could not exist, as a going system, without a carburetor. . . Most writers list religion among the
functional prerequisites.[263]

Another noted sociologist, Talcott Parsons, wrote: There is no known human society without something which
modern social scientists would classify as a religionReligion is as much a human universal as language.[264]
Benevolent neutrality thus recognizes that religion plays an important role in the public life of the United
States as shown by many traditional government practices which, to strict neutrality, pose Establishment
Clause questions. Among these are the inscription of In God We Trust on American currency, the recognition of
America as one nation under God in the official pledge of allegiance to the flag, the Supreme Courts time-
honored practice of opening oral argument with the invocation God save the United States and this honorable
Court, and the practice of Congress and every state legislature of paying a chaplain, usually of a particular
Protestant denomination to lead representatives in prayer.[265] These practices clearly show the preference for
one theological viewpoint -the existence of and potential for intervention by a god - over the contrary
theological viewpoint of atheism. Church and government agencies also cooperate in the building of low-cost
housing and in other forms of poor relief, in the treatment of alcoholism and drug addiction, in foreign aid and
other government activities with strong moral dimension. [266] The persistence of these de facto establishments
are in large part explained by the fact that throughout history, the evangelical theory of separation, i.e.,
Williams wall, has demanded respect for these de facto establishments.[267] But the separationists have a
different explanation. To characterize these as de jure establishments according to the principle of the
Jeffersonian wall, the U.S. Supreme Court, the many dissenting and concurring opinions explain some of these
practices as de minimis instances of government endorsement or as historic governmental practices that have
largely lost their religious significance or at least have proven not to lead the government into further
involvement with religion.[268]
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances. Accommodations are government
policies that take religion specifically into account not to promote the governments favored form of religion, but
to allow individuals and groups to exercise their religion without hindrance.Their purpose or effect
therefore is to remove a burden on, or facilitate the exercise of, a persons or institutions religion. As Justice
Brennan explained, the government [may] take religion into accountto exempt, when possible, from
generally applicable governmental regulation individuals whose religious beliefs and practices would
otherwise thereby be infringed, or to create without state involvement an atmosphere in which voluntary
religious exercise may flourish. [269] (emphasis supplied) Accommodation is forbearance and not alliance. it
does not reflectagreement with the minority, but respect for the conflict between the temporal and spiritual
authority in which the minority finds itself.[270]
Accommodation is distinguished from strict neutrality in that the latter holds that government
should base public policy solely on secular considerations, without regard to the religious
consequences of its actions. The debate between accommodation and strict neutrality is at base a question
of means: Is the freedom of religion best achieved when the government is conscious of the effects of its action
on the various religious practices of its people, and seeks to minimize interferences with those practices? Or is
it best advanced through a policy of religious blindness - keeping government aloof from religious practices
and issues? An accommodationist holds that it is good public policy, and sometimes constitutionally required,
for the state to make conscious and deliberate efforts to avoid interference with religious freedom. On the other
hand, the strict neutrality adherent believes that it is good public policy, and also constitutionally required, for
the government to avoid religion-specific policy even at the cost of inhibiting religious exercise.[271]
There are strong and compelling reasons, however, to take the accommodationist position rather than
the strict neutrality position. First, the accommodationist interpretation is most consistent with the
language of the First Amendment. The religion clauses contain two parallel provisions, both specifically
directed at religion. The government may not establish religion and neither may government prohibit it. Taken
together, the religion clauses can be read most plausibly as warding off two equal and opposite threats to
religious freedom - government action that promotes the (political) majoritys favored brand of religion and
government action that impedes religious practices not favored by the majority. The substantive end in view is
the preservation of the autonomy of religious life and not just the formal process value of ensuring that
government does not act on the basis of religious bias. On the other hand, strict neutrality interprets the
religion clauses as allowing government to do whatever it desires to or for religion, as long as it does the same
to or for comparable secular entities. Thus, for example, if government prohibits all alcoholic consumption by
minors, it can prohibit minors from taking part in communion. Paradoxically, this view would make the religion
clauses violate the religion clauses, so to speak, since the religion clauses single out religion by name for
special protection. Second, the accommodationist position best achieves the purposes of the First
Amendment. The principle underlying the First Amendment is that freedom to carry out ones duties to a
Supreme Being is an inalienable right, not one dependent on the grace of legislature. Although
inalienable, it is necessarily limited by the rights of others, including the public right of peace and good
order. Nevertheless it is a substantive right and not merely a privilege against discriminatory legislation. The
accomplishment of the purpose of the First Amendment requires more than the religion blindness of strict
neutrality. With the pervasiveness of government regulation, conflicts with religious practices become frequent
and intense. Laws that are suitable for secular entities are sometimes inappropriate for religious entities, thus
the government must make special provisions to preserve a degree of independence for religious entities for
them to carry out their religious missions according to their religious beliefs. Otherwise, religion will become
just like other secular entities subject to pervasive regulation by majoritarian institutions. Third, the
accommodationist interpretation is particularly necessary to protect adherents of minority religions
from the inevitable effects of majoritarianism, which include ignorance and indifference and overt hostility
to the minority. In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus
not infrequently, they come into conflict with the religious scruples of those holding different world views, even
in the absence of a deliberate intent to interfere with religious practice. At times, this effect is unavoidable as a
practical matter because some laws are so necessary to the common good that exceptions are intolerable. But
in other instances, the injury to religious conscience is so great and the advancement of public purposes so
small or incomparable that only indifference or hostility could explain a refusal to make exemptions. Because of
plural traditions, legislators and executive officials are frequently willing to make such exemptions when the
need is brought to their attention, but this may not always be the case when the religious practice is either
unknown at the time of enactment or is for some reason unpopular. In these cases, a constitutional
interpretation that allowsaccommodations prevents needless injury to the religious consciences of
those who can have an influence in the legislature; while a constitutional interpretation
that requiresaccommodations extends this treatment to religious faiths that are less able to protect
themselves in the political arena. Fourth, the accommodationist position is practical as it is a
commonsensical way to deal with the various needs and beliefs of different faiths in a pluralistic nation. Without
accommodation, many otherwise beneficial laws would interfere severely with religious freedom. Aside from
laws against serving alcoholic beverages to minors conflicting with celebration of communion, regulations
requiring hard hats in construction areas can effectively exclude Amish and Sikhs from the workplace, or
employment anti-discrimination laws can conflict with the Roman Catholic male priesthood, among
others. Exemptions from such laws are easy to craft and administer and contribute much to promoting religious
freedom at little cost to public policy. Without exemptions, legislature would be frequently forced to
choose between violating religious conscience of a segment of the population or dispensing with
legislation it considers beneficial to society as a whole. Exemption seems manifestly more reasonable
than either of the alternative: no exemption or no law.[272]
Benevolent neutrality gives room for different kinds of accommodation: those which are constitutionally
compelled, i.e., required by the Free Exercise Clause; and those which are discretionary or legislative, i.e., and
those not required by the Free Exercise Clause but nonetheless permitted by the Establishment Clause.
[273]
Some Justices of the Supreme Court have also used the term accommodation to describe government
actions that acknowledge or express prevailing religious sentiments of the community such as display of a
religious symbol on public property or the delivery of a prayer at public ceremonial events. [274] Stated otherwise,
using benevolent neutrality as a standard could result to three situations of accommodation: those
where accommodation is required, those where it is permissible, and those where it is prohibited. In the first
situation, accommodation is required to preserve free exercise protections and not unconstitutionally infringe
on religious liberty or create penalties for religious freedom. Contrary to the Smith declaration that free
exercise exemptions are intentional government advancement, these exemptions merely relieve the prohibition
on the free exercise thus allowing the burdened religious adherent to be left alone. The state must create
exceptions to laws of general applicability when these laws threaten religious convictions or practices in the
absence of a compelling state interest.[275] By allowing such exemptions, the Free Exercise Clause does not
give believers the right or privilege to choose for themselves to override socially-prescribed decision; it allows
them to obey spiritual rather than temporal authority[276] for those who seriously invoke the Free Exercise
Clause claim to be fulfilling a solemn duty. Religious freedom is a matter less of rights than duties; more
precisely, it is a matter of rights derived from duties. To deny a person or a community the right to act upon
such a duty can be justified only by appeal to a yet more compelling duty. Of course, those denied will usually
not find the reason for the denial compelling. Because they may turn out to be right about the duty in question,
and because, even if they are wrong, religion bears witness to that which transcends the political order, such
denials should be rare and painfully reluctant.[277]
The Yoder case is an example where the Court held that the state must accommodate the religious
beliefs of the Amish who objected to enrolling their children in high school as required by law. The Sherbert
case is another example where the Court held that the state unemployment compensation plan must
accommodate the religious convictions of Sherbert.[278] In these cases of burdensome effect, the modern
approach of the Court has been to apply strict scrutiny, i.e., to declare the burden as permissible, the Court
requires the state to demonstrate that the regulation which burdens the religious exercise pursues a
particularly important or compelling government goal through the least restrictive means. If the states objective
could be served as well or almost as well by granting an exemption to those whose religious beliefs are
burdened by the regulation, such an exemption must be given.[279] This approach of the Court on burdensome
effect was only applied since the 1960s. Prior to this time, the Court took the separationist view that as long as
the state was acting in pursuit of non-religious ends and regulating conduct rather than pure religious beliefs,
the Free Exercise Clause did not pose a hindrance such as in Reynolds.[280] In the second situation where
accommodation is permissible, the state may, but is not required to, accommodate religious
interests. The Walz case illustrates this situation where the Court upheld the constitutionality of tax exemption
given by New York to church properties, but did not rule that the state was required to provide tax
exemptions. The Court declared that (t)he limits of permissible state accommodation to religion are by no
means co-extensive with the noninterference mandated by the Free Exercise Clause. [281] The Court held that
New York could have an interest in encouraging religious values and avoiding threats to those values through
the burden of property taxes. Other examples are the Zorach case allowing released time in public schools
and Marsh allowing payment of legislative chaplains from public funds. Finally, in the situation where
accommodation is prohibited, establishment concerns prevail over potential accommodation interests. To say
that there are valid exemptions buttressed by the Free Exercise Clause does not mean that all claims for free
exercise exemptions are valid.[282] An example where accommodation was prohibited is McCollum where the
Court ruled against optional religious instruction in the public school premises. [283] In effect, the last situation
would arrive at a strict neutrality conclusion.
In the first situation where accommodation is required, the approach follows this basic framework:

If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs, the
burden shifts to the government to demonstrate that the law or practice is necessary to the accomplishment of
some important (or compelling) secular objective and that it is the least restrictive means of achieving that
objective. If the plaintiff meets this burden and the government does not, the plaintiff is entitled to exemption
from the law or practice at issue. In order to be protected, the claimants beliefs must be sincere, but they need
not necessarily be consistent, coherent, clearly articulated, or congruent with those of the claimants religious
denomination. Only beliefs rooted in religion are protected by the Free Exercise Clause; secular beliefs,
however sincere and conscientious, do not suffice.[284]

In other words, a three-step process (also referred to as the two-step balancing process supra when the
second and third steps are combined) as in Sherbert is followed in weighing the states interest and
religious freedom when these collide. Three questions are answered in this process. First, (h)as the statute or
government action created a burden on the free exercise of religion? The courts often look into the sincerity of
the religious belief, but without inquiring into the truth of the belief because the Free Exercise Clause prohibits
inquiring about its truth as held in Ballard and Cantwell. The sincerity of the claimants belief is ascertained to
avoid the mere claim of religious beliefs to escape a mandatory regulation. As evidence of sincerity, the U.S.
Supreme Court has considered historical evidence as in Wisconsin where the Amish people had held a long-
standing objection to enrolling their children in ninth and tenth grades in public high schools. In another case,
Dobkin v. District of Columbia,[285] the Court denied the claim of a party who refused to appear in court on
Saturday alleging he was a Sabbatarian, but the Court noted that he regularly conducted business on
Saturday. Although it is true that the Court might erroneously deny some claims because of a misjudgment of
sincerity, this is not as argument to reject all claims by not allowing accommodation as a rule. There might be
injury to the particular claimant or to his religious community, but for the most part, the injustice is done only in
the particular case.[286] Aside from the sincerity, the court may look into the centrality of those beliefs, assessing
them not on an objective basis but in terms of the opinion and belief of the person seeking exemption. In
Wisconsin, for example, the Court noted that the Amish peoples convictions against becoming involved in
public high schools were central to their way of life and faith. Similarly, in Sherbert, the Court concluded that
the prohibition against Saturday work was a cardinal principle. [287] Professor Lupu puts to task the person
claiming exemption, viz:

On the claimants side, the meaning and significance of the relevant religious practice must be
demonstrated. Religious command should outweigh custom, individual conscience should count for more than
personal convenience, and theological principle should be of greater significance than institutional
ease. Sincerity matters, (footnote omitted) and longevity of practice - both by the individual and within the
individuals religious tradition - reinforces sincerity. Most importantly, the law of free exercise must be inclusive
and expansive, recognizing non-Christian religions - eastern, Western, aboriginal and otherwise - as
constitutionally equal to their Christian counterparts, and accepting of the intensity and scope of fundamentalist
creed.[288]

Second, the court asks: (i)s there a sufficiently compelling state interest to justify this infringement of
religious liberty? In this step, the government has to establish that its purposes are legitimate for the
state and that they are compelling. Government must do more than assert the objectives at risk if exemption
is given; it must precisely show how and to what extent those objectives will be undermined if exemptions are
granted.[289] The person claiming religious freedom, on the other hand, will endeavor to show that the interest is
not legitimate or that the purpose, although legitimate, is not compelling compared to infringement of religious
liberty. This step involves balancing, i.e., weighing the interest of the state against religious liberty to
determine which is more compelling under the particular set of facts. The greater the states interests, the more
central the religious belief would have to be to overcome it. In assessing the state interest, the court will have
to determine the importance of the secular interest and the extent to which that interest will be impaired by an
exemption for the religious practice. Should the court find the interest truly compelling, there will be no
requirement that the state diminish the effectiveness of its regulation by granting the exemption.[290]
Third, the court asks: (h)as the state in achieving its legitimate purposes used the least intrusive means
possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the
state?[291] The analysis requires the state to show that the means in which it is achieving its legitimate state
objective is the least intrusive means, i.e., it has chosen a way to achieve its legitimate state end that
imposes as little as possible on religious liberties. In Cantwell, for example, the Court invalidated the license
requirement for the door-to-door solicitation as it was a forbidden burden on religious liberty, noting that less
drastic means of insuring peace and tranquility existed. As a whole, in carrying out the compelling state
interest test, the Court should give careful attention to context, both religious and regulatory, to achieve
refined judgment.[292]
In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular
government and religious freedom create tensions that make constitutional law on the subject of religious
liberty unsettled, mirroring the evolving views of a dynamic society.[293]

VII. Religion Clauses in the Philippines

A. History
Before our country fell under American rule, the blanket of Catholicism covered the archipelago. There
was a union of church and state and Catholicism was the state religion under theSpanish Constitution of
1876. Civil authorities exercised religious functions and the friars exercised civil powers. [294] Catholics alone
enjoyed the right of engaging in public ceremonies of worship. [295] Although the Spanish Constitution itself was
not extended to the Philippines, Catholicism was also the established church in our country under the Spanish
rule. Catholicism was in fact protected by the Spanish Penal Code of 1884 which was in effect in the
Philippines. Some of the offenses in chapter six of the Penal Code entitled Crimes against Religion and
Worship referred to crimes against the state religion. [296] The coming of the Americans to our country, however,
changed this state-church scheme for with the advent of this regime, the unique American experiment of
separation of church and state was transported to Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the United States and Spain on December
10, 1898, the American guarantee of religious freedom had been extended to the Philippines. The Treaty
provided that the inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be
secured in the free exercise of religion. [297] Even the Filipinos themselves guaranteed religious freedom a
month later or on January 22, 1899 upon the adoption of the Malolos Constitution of the Philippine Republic
under General Emilio Aguinaldo. It provided that the State recognizes the liberty and equality of all religion (de
todos los cultos) in the same manner as the separation of the Church and State. But the Malolos Constitution
and government was short-lived as the Americans took over the reigns of government.[298]
With the Philippines under the American regime, President McKinley issued Instructions to the Second
Philippine Commission, the body created to take over the civil government in the Philippines in
1900. The Instructions guaranteed religious freedom, viz:

That no law shall be made respecting the establishment of religion or prohibiting the free exercise thereof, and
that the free exercise and enjoyment of religious profession and worship without discrimination or preference
shall forever be allowed ... that no form of religion and no minister of religion shall be forced upon the
community or upon any citizen of the Islands, that, on the other hand, no minister of religion shall be interfered
with or molested in following his calling.[299]

This provision was based on the First Amendment of the United States Constitution. Likewise,
the Instructions declared that (t)he separation between State and Church shall be real, entire and absolute.[300]
Thereafter, every organic act of the Philippines contained a provision on freedom of religion. Similar to the
religious freedom clause in the Instructions, the Philippine Bill of 1902 provided that:

No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that
free exercise and enjoyment of religious worship, without discrimination or preference, shall forever be allowed.

In U.S. v. Balcorta,[301] the Court stated that the Philippine Bill of 1902 caused the complete separation of
church and state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed
upon any particular religious sect.[302]
The Jones Law of 1916 carried the same provision, but expanded it with a restriction against using public
money or property for religious purposes, viz:

That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and
that the free exercise and enjoyment of religious profession and worship without discrimination or preference,
shall forever be allowed; and no religious test shall be required for the exercise of civil or political rights. No
public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the
use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or for the
use, benefit or support of any priest, preacher, minister, or other religious teachers or dignitary as such.

This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934 which
guaranteed independence to the Philippines and authorized the drafting of a Philippine constitution. It enjoined
Filipinos to include freedom of religion in drafting their constitution preparatory to the grant of
independence. The law prescribed that (a)bsolute toleration of religious sentiment shall be secured and no
inhabitant or religious organization shall be molested in person or property on account of religious belief or
mode of worship.[303]
The Constitutional Convention then began working on the 1935 Constitution. In their proceedings,
Delegate Jose P. Laurel as Chairman of the Committee on Bill of Rights acknowledged that (i)t was the Treaty
of Paris of December 10, 1898, which first introduced religious toleration in our country. President
McKinleys Instructions to the Second Philippine Commission reasserted this right which later was incorporated
into the Philippine Bill of 1902 and in the Jones Law.[304] In accordance with the Tydings-McDuffie Law, the
1935 Constitution provided in the Bill of Rights, Article IV, Section 7, viz:
Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof,
and the free exercise and enjoyment of religious profession and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

This provision, borrowed from the Jones Law, was readily approved by the Convention. [305] In his speech as
Chairman of the Committee on Bill of Rights, Delegate Laurel said that modifications in phraseology of the Bill
of Rights in the Jones Law were avoided whenever possible because the principles must remain couched in a
language expressive of their historical background, nature, extent and limitations as construed and interpreted
by the great statesmen and jurists that vitalized them.[306]
The 1973 Constitution which superseded the 1935 Constitution contained an almost identical provision
on religious freedom in the Bill of Rights in Article IV, Section 8, viz:

Sec. 8. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political
rights.

This time, however, the General Provisions in Article XV added in Section 15 that (t)he separation of church
and state shall be inviolable.
Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were reproduced in
the 1987 Constitution under the Bill of Rights in Article III, Section 5. [307]Likewise, the provision on separation
of church and state was included verbatim in the 1987 Constitution, but this time as a principle in Section 6,
Article II entitled Declaration of Principles and State Policies.
Considering the American origin of the Philippine religion clauses and the intent to adopt the historical
background, nature, extent and limitations of the First Amendment of the U.S. Constitution when it was
included in the 1935 Bill of Rights, it is not surprising that nearly all the major Philippine cases involving the
religion clauses turn to U.S. jurisprudence in explaining the nature, extent and limitations of these
clauses. However, a close scrutiny of these cases would also reveal that while U.S. jurisprudence on religion
clauses flows into two main streams of interpretation - separation and benevolent neutrality - the well-
spring of Philippine jurisprudence on this subject is for the most part, benevolent neutrality which
gives room for accommodation.

B. Jurisprudence

In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin with the
definition of religion. Religion is derived from the Middle English religioun, from Old French religion, from
Latin religio, vaguely referring to a bond between man and the gods.[308] This pre-Christian term for the cult and
rituals of pagan Rome was first Christianized in the Latin translation of the Bible. [309] While the U.S. Supreme
Court has had to take up the challenge of defining the parameters and contours of religion to determine
whether a non-theistic belief or act is covered by the religion clauses, this Court has not been confronted with
the same issue. In Philippine jurisprudence, religion, for purposes of the religion clauses, has thus far been
interpreted as theistic. In 1937, the Philippine case of Aglipay v. Ruiz[310] involving the Establishment Clause,
defined religion as a profession of faith to an active power that binds and elevates man to his Creator. Twenty
years later, the Court cited the Aglipay definition in American Bible Society v. City of Manila, [311] a case
involving the Free Exercise clause. The latter also cited the American case of Davis in defining religion, viz: (i)t
has reference to ones views of his relations to His Creator and to the obligations they impose of reverence to
His being and character and obedience to His Will. The Beason definition, however, has been expanded in
U.S. jurisprudence to include non-theistic beliefs.

1. Free Exercise Clause

 Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of
compulsion or burden, whether direct or indirect, in the practice of ones religion. The Free Exercise Clause
principally guarantees voluntarism, although the Establishment Clause also assures voluntarism by placing the
burden of the advancement of religious groups on their intrinsic merits and not on the support of the state.[312]
In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The early case of Gerona
v. Secretary of Education[313] is instructive on the matter, viz:

The realm of belief and creed is infinite and limitless bounded only by ones imagination and
thought. So is the freedom of belief, including religious belief, limitless and without bounds. One may
believe in most anything, however strange, bizarre and unreasonable the same may appear to others, even
heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of belief
and the exercise of said belief, there is quite a stretch of road to travel.[314]

The difficulty in interpretation sets in when belief is externalized into speech and action.
Religious speech comes within the pale of the Free Exercise Clause as illustrated in the American Bible
Society case. In that case, plaintiff American Bible Society was a foreign, non-stock, non-profit, religious
missionary corporation which sold bibles and gospel portions of the bible in the course of its ministry. The
defendant City of Manila required plaintiff to secure a mayors permit and a municipal license as ordinarily
required of those engaged in the business of general merchandise under the citys ordinances. Plaintiff argued
that this amounted to religious censorship and restrained the free exercise and enjoyment of religious
profession, to wit: the distribution and sale of bibles and other religious literature to the people of the
Philippines.
After defining religion, the Court, citing Tanada and Fernando, made this statement, viz:

The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with
it the right to disseminate religious information. Any restraint of such right can only be justified like other
restraints of freedom of expression on the grounds that there is a clear and present danger of any
substantive evil which the State has the right to prevent. (Tanada and Fernando on the Constitution of the
Philippines, vol. 1, 4th ed., p. 297) (emphasis supplied)

This was the Courts maiden unequivocal affirmation of the clear and present danger rule in the
religious freedom area, and in Philippine jurisprudence, for that matter.[315] The case did not clearly show,
however, whether the Court proceeded to apply the test to the facts and issues of the case, i.e., it did not
identify the secular value the government regulation sought to protect, whether the religious speech posed a
clear and present danger to this or other secular value protected by government, or whether there was danger
but it could not be characterized as clear and present. It is one thing to apply the test and find that there is no
clear and present danger, and quite another not to apply the test altogether.
Instead, the Court categorically held that the questioned ordinances were not applicable to plaintiff as it
was not engaged in the business or occupation of selling said merchandise for profit.To add, the Court,
citing Murdock v. Pennsylvania,[316] ruled that applying the ordinance requiring it to secure a license and pay
a license fee or tax would impair its free exercise of religious profession and worship and its right of
dissemination of religious beliefs as the power to tax the exercise of a privilege is the power to control or
suppress its enjoyment. Thus, in American Bible Society, the clear and present danger rule was laid down
but it was not clearly applied.
In the much later case of Tolentino v. Secretary of Finance,[317] also involving the sale of religious books,
the Court distinguished the American Bible Society case from the facts and issues in Tolentino and did not
apply the American Bible Society ruling. In Tolentino, the Philippine Bible Society challenged the validity of
the registration provisions of the Value Added Tax (VAT) Law as a prior restraint. The Court held, however, that
the fixed amount of registration fee was not imposed for the exercise of a privilege like a license tax
which American Bible Societyruled was violative of religious freedom. Rather, the registration fee was merely
an administrative fee to defray part of the cost of registration which was a central feature of the VAT
system. CitingJimmy Swaggart Ministries v. Board of Equalization,[318] the Court also declared prefatorily
that the Free Exercise of Religion Clause does not prohibit imposing a generally applicable sales and use tax
on the sale of religious materials by a religious organization. In the Courts resolution of the motion for
reconsideration of the Tolentino decision, the Court noted that the burden on religious freedom caused by the
tax was just similar to any other economic imposition that might make the right to disseminate religious
doctrines costly.
Two years after American Bible Society came the 1959 case of Gerona v. Secretary of Education,
[319]
this time involving conduct expressive of religious belief colliding with a rule prescribed in accordance with
law. In this case, petitioners were members of the Jehovahs Witnesses. They challenged a Department Order
issued by the Secretary of Education implementing Republic Act No. 1265 which prescribed compulsory flag
ceremonies in all public schools. In violation of the Order, petitioners children refused to salute the Philippine
flag, sing the national anthem, or recite the patriotic pledge, hence they were expelled from school. Seeking
protection under the Free Exercise Clause, petitioners claimed that their refusal was on account of their
religious belief that the Philippine flag is an image and saluting the same is contrary to their religious
belief. The Court stated, viz:

. . . If the exercise of religious belief clashes with the established institutions of society and with the law, then
the former must yield to the latter. The Government steps in and either restrains said exercise or even
prosecutes the one exercising it. (emphasis supplied)[320]

The Court then proceeded to determine if the acts involved constituted a religious ceremony in conflict with the
beliefs of the petitioners with the following justification:

After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the
courts. It cannot be left to a religious group or sect, much less to a follower of said group or sect; otherwise,
there would be confusion and misunderstanding for there might be as many interpretations and meaning to be
given to a certain ritual or ceremony as there are religious groups or sects or followers, all depending upon the
meaning which they, though in all sincerity and good faith, may want to give to such ritual or ceremony.[321]

It was held that the flag was not an image, the flag salute was not a religious ceremony, and there was nothing
objectionable about the singing of the national anthem as it speaks only of love of country, patriotism, liberty
and the glory of suffering and dying for it. The Court upheld the questioned Order and the expulsion of
petitioners children, stressing that:

Men may differ and do differ on religious beliefs and creeds, government policies, the wisdom and legality of
laws, even the correctness of judicial decisions and decrees; but in the field of love of country, reverence for
the flag, national unity and patriotism, they can hardly afford to differ, for these are matters in which they are
mutually and vitally interested, for to them, they mean national existence and survival as a nation or national
extinction.[322]

In support of its ruling, the Court cited Justice Frankfurters dissent in the Barnette case, viz:

The constitutional protection of religious freedom x x x gave religious equality, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma.
[323]

It stated in categorical terms, viz:

The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from
or non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by
competent authority.[324]

Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon the Court
to determine whether a certain ritual is religious or not; (2) religious freedom will not be upheld if it clashes
with the established institutions of society and with the law such that when a law of general
applicability (in this case the Department Order) incidentally burdens the exercise of ones religion,
ones right to religious freedom cannot justify exemption from compliance with the law. The Gerona
ruling was reiterated inBalbuna, et al. v. Secretary of Education, et al.[325]
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union.[326] In
this unanimously decided en banc case, Victoriano was a member of the Iglesia ni Cristo which prohibits the
affiliation of its members with any labor organization. He worked in the Elizalde Rope Factory, Inc. and was a
member of the Elizalde Rope Workers Union which had with the company a closed shop provision pursuant to
Republic Act No. 875 allowing closed shop arrangements. Subsequently, Republic Act No. 3350 was enacted
exempting from the application and coverage of a closed shop agreement employees belonging to any
religious sect which prohibits affiliation of their members with any labor organization. Victoriano resigned from
the union after Republic Act No. 3350 took effect. The union notified the company of Victorianos resignation,
which in turn notified Victoriano that unless he could make a satisfactory arrangement with the union, the
company would be constrained to dismiss him from the service. Victoriano sought to enjoin the company and
the union from dismissing him. The court having granted the injunction, the union came to this Court on
questions of law, among which was whether Republic Act No. 3350 was unconstitutional for impairing the
obligation of contracts and for granting an exemption offensive of the Establishment Clause. With respect to
the first issue, the Court ruled, viz:

Religious freedom, although not unlimited, is a fundamental personal right and liberty (Schneider v. Irgington,
308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a preferred position in the hierarchy of
values.Contractual rights, therefore, must yield to freedom of religion. It is only where unavoidably
necessary to prevent an immediate and grave danger to the security and welfare of the community that
infringement of religious freedom may be justified, and only to the smallest extent necessary.
[327]
(emphasis supplied)

As regards the Establishment Clause issue, the Court after citing the constitutional provision on establishment
and free exercise of religion, declared, viz:

The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes
of worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of
any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of
ones chosen form of religion within limits of utmost amplitude. It has been said that the religion clauses of
the Constitution are all designed to protect the broadest possible liberty of conscience, to allow each
man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to
live, consistent with the liberty of others and with the common good. (footnote omitted). Any legislation
whose effect or purpose is to impede the observance of one or all religions, or to discriminate
invidiously between the religions, is invalid, even though the burden may be characterized as being
only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates
conduct by enacting, within its power, a general law which has for its purpose and effect to advance
the states secular goals, the statute is valid despite its indirect burden on religious observance, unless
the state can accomplish its purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599,
6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)[328] (emphasis supplied)

Quoting Aglipay v. Ruiz,[329] the Court held that government is not precluded from pursuing valid
objectives secular in character even if the incidental result would be favorable to a religion or sect. It also
cited Board of Education v. Allen,[330] which held that in order to withstand the strictures of constitutional
prohibition, a statute must have a secular legislative purpose and a primary effect that neither advances nor
inhibits religion. Using these criteria in upholding Republic Act No. 3350, the Court pointed out, viz:

(Republic Act No. 3350) was intended to serve the secular purpose of advancing the constitutional right to the
free exercise of religion, by averting that certain persons be refused work, or be dismissed from work, or be
dispossessed of their right to work and of being impeded to pursue a modest means of livelihood, by reason of
union security agreements. . . . The primary effects of the exemption from closed shop agreements in favor of
members of religious sects that prohibit their members from affiliating with a labor organization, is the
protection of said employees against the aggregate force of the collective bargaining agreement, and relieving
certain citizens of a burden on their religious beliefs, and . . . eliminating to a certain extent economic insecurity
due to unemployment.[331]

The Court stressed that (a)lthough the exemption may benefit those who are members of religious sects
that prohibit their members from joining labor unions, the benefit upon the religious sects is merely incidental
and indirect.[332] In enacting Republic Act No. 3350, Congress merely relieved the exercise of religion by
certain persons of a burden imposed by union security agreements which Congress itself also
imposed through the Industrial Peace Act. The Court concluded the issue of exemption by
citing Sherbert which laid down the rule that when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some compelling state interest intervenes. The Court then abruptly
added that (i)n the instant case, We see no compelling state interest to withhold exemption.[333]
A close look at Victoriano would show that the Court mentioned several tests in determining when
religious freedom may be validly limited. First, the Court mentioned the test of immediate and grave danger to
the security and welfare of the community and infringement of religious freedom only to the smallest extent
necessary to justify limitation of religious freedom. Second,religious exercise may be indirectly burdened by a
general law which has for its purpose and effect the advancement of the states secular goals, provided that
there is no other means by which the state can accomplish this purpose without imposing such
burden. Third, the Court referred to the compelling state interest test which grants exemptions when general
laws conflict with religious exercise, unless a compelling state interest intervenes.
It is worth noting, however, that the first two tests were mentioned only for the purpose of highlighting the
importance of the protection of religious freedom as the secular purpose of Republic Act No. 3350. Upholding
religious freedom was a secular purpose insofar as it relieved the burden on religious freedom caused by
another law, i.e, the Industrial Peace Act providing for union shop agreements. The first two tests were only
mentioned in Victoriano but were not applied by the Court to the facts and issues of the case. The third, the
compelling state interest test was employed by the Court to determine whether the exemption provided by
Republic Act No. 3350 was not unconstitutional. It upheld the exemption, stating that there was no compelling
state interest to strike it down. However, after careful consideration of the Sherbert case from
which Victoriano borrowed this test, the inevitable conclusion is that the compelling state interest test was not
appropriate and could not find application in the Victoriano case. In Sherbert, appellant Sherbert invoked
religious freedom in seeking exemption from the provisions of the South Carolina Unemployment
Compensation Act which disqualified her from claiming unemployment benefits. It was the appellees, members
of the South Carolina Employment Commission, a government agency, who propounded the state interest to
justify overriding Sherberts claim of religious freedom. The U.S. Supreme Court, considering Sherberts and the
Commissions arguments, found that the state interest was not sufficiently compelling to prevail over Sherberts
free exercise claim. This situation did not obtain in the Victoriano case where it was the government itself,
through Congress, which provided the exemption in Republic Act No. 3350 to allow Victorianos exercise of
religion. Thus, the government could not argue against the exemption on the basis of a compelling state
interest as it would be arguing against itself; while Victoriano would not seek exemption from the questioned
law to allow the free exercose of religion as the law in fact provides such an exemption. In sum,
although Victoriano involved a religious belief and conduct, it did not involve a free exercise issue where the
Free Exercise Clause is invoked to exempt him from the burden imposed by a law on his religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et al. v.
Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas,[334]Anucension v.
National Labor Union, et al.,[335] and Gonzales, et al. v. Central Azucarera de Tarlac Labor Union.[336]
Then came German v. Barangan in 1985 at the height of the anti-administration rallies. Petitioners were
walking to St. Jude Church within the Malacanang security area to pray for an end to violence when they were
barred by the police. Invoking their constitutional freedom of religious worship and locomotion, they came to
the Court on a petition for mandamus to allow them to enter and pray inside the St. Jude Chapel. The Court
was divided on the issue. The slim majority of six recognized their freedom of religion but noted their absence
of good faith and concluded that they were using their religious liberty to express their opposition to the
government. Citing Cantwell, the Court distinguished between freedom to believe and freedom to act on
matters of religion, viz:
. . . Thus the (First) amendment embraces two concepts - freedom to believe and freedom to act. The first is
absolute, but in the nature of things, the second cannot be.[337]

The Court reiterated the Gerona ruling, viz:

In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion,
but only in the manner by which they had attempted to translate the same to action. This curtailment is in
accord with the pronouncement of this Court in Gerona v. Secretary of Education (106 Phil. 2), thus:

. . . But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If
the exercise of said religious belief clashes with the established institutions of society and with the law, then the
former must yield and give way to the latter. The government steps in and either restrains said exercise or
even prosecutes the one exercising it. (italics supplied)

The majority found that the restriction imposed upon petitioners was necessary to maintain the smooth
functioning of the executive branch of the government, which petitioners mass action would certainly
disrupt[338] and denied the petition. Thus, without considering the tests mentioned in Victoriano, German went
back to the Gerona rule that religious freedom will not be upheld if it clashes with the established
institutions of society and the law.
Then Associate Justice Teehankee registered a dissent which in subsequent jurisprudence would be cited
as a test in religious freedom cases. His dissent stated in relevant part, viz:

A brief restatement of the applicable constitutional principles as set forth in the landmark case of J.B.L. Reyes
v. Bagatsing (125 SCRA 553[1983]) should guide us in resolving the issues.

1. The right to freely exercise ones religion is guaranteed in Section 8 of our Bill of Rights. (footnote
omitted) Freedom of worship, alongside with freedom of expression and speech and peaceable
assembly along with the other intellectual freedoms, are highly ranked in our scheme of constitutional
values. It cannot be too strongly stressed that on the judiciary - even more so than on the other departments -
rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No
verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitously termed by
Justice Holmes as the sovereign prerogative of judgment. Nonetheless, the presumption must be to incline
the weight of the scales of justice on the side of such rights, enjoying as they do precedence and
primacy. (J.B.L. Reyes, 125 SCRA at pp. 569-570)

2. In the free exercise of such preferred rights, there is to be no prior restraint although there may be
subsequent punishment of any illegal acts committed during the exercise of such basic rights. The sole
justification for a prior restraint or limitation on the exercise of these basic rights is the existence of a
grave and present danger of a character both grave and imminent, of a serious evil to public safety,
public morals, public health or any other legitimate public interest, that the State has a right (and duty)
to prevent (Idem, at pp. 560-561).[339] (emphasis supplied)

The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankees dissent was taken
involved the rights to free speech and assembly, and not the exercise of religious freedom. At issue in that
case was a permit sought by retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, from the City
of Manila to hold a peaceful march and rally from the Luneta to the gates of the U.S.
Embassy. Nevertheless Bagatsing was used by Justice Teehankee in his dissent which had overtones of
petitioner German and his companions right to assemble and petition the government for redress of
grievances.[340]
In 1993, the issue on the Jehovahs Witnesses participation in the flag ceremony again came before the
Court in Ebralinag v. The Division Superintendent of Schools. [341] A unanimous Court overturned the
Gerona ruling after three decades. Similar to Gerona, this case involved several Jehovahs Witnesses who
were expelled from school for refusing to salute the flag, sing the national anthem and recite the patriotic
pledge, in violation of the Administrative Code of 1987. In resolving the same religious freedom issue as
in Gerona, the Court this time transported the grave and imminent danger test laid down in Justice
Teehankees dissent in German, viz:

The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the
late Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is
the existence of a grave and present danger of a character both grave and imminent, of a serious evil to
public safety, public morals, public health or any other legitimate public interest, that the State has a right (and
duty) to prevent. Absent such a threat to public safety, the expulsion of the petitioners from the schools is not
justified.[342] (emphasis supplied)

The Court added, viz:

We are not persuaded that by exempting the Jehovahs Witnesses from saluting the flag, singing the national
anthem and reciting the patriotic pledge, this religious group which admittedly comprises a small portion of the
school population will shake up our part of the globe and suddenly produce a nation untaught and uninculcated
in and unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes
(Gerona v. Secretary of Education, 106 Phil. 224). After all, what the petitioners seek only is exemption from
the flag ceremony, not exclusion from the public schools where they may study the Constitution, the
democratic way of life and form of government, and learn not only the arts, sciences, Philippine history and
culture but also receive training for a vocation or profession and be taught the virtues of patriotism, respect for
human rights, appreciation of national heroes, the rights and duties of citizenship, and moral and spiritual
values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from
Philippine schools will bring about the very situation that this Court has feared in Gerona. Forcing a small
religious group, through the iron hand of the law, to participate in a ceremony that violates their religious
beliefs, will hardly be conducive to love of country or respect for duly constituted authorities.[343]

Barnette also found its way to the opinion, viz:

Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x- assuming that such unity
and loyalty can be attained through coercion- is not a goal that is constitutionally obtainable at the expense of
religious liberty. A desirable end cannot be promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390,
67 L. ed. 1042, 1046).[344]

Towards the end of the decision, the Court also cited the Victoriano case and its use of the compelling state
interest test in according exemption to the Jehovahs Witnesses, viz:

In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we upheld the exemption of members of
the Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union
because it would violate the teaching of their church not to join any group:

x x x It is certain that not every conscience can be accommodated by all the laws of the land; but when general
laws conflict with scruples of conscience, exemptions ought to be granted unless some compelling state
interest intervenes. (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)

We hold that a similar exemption may be accorded to the Jehovahs Witnesses with regard to the observance
of the flag ceremony out of respect for their religious beliefs, however bizarre those beliefs may seem to
others.[345]

The Court annulled the orders expelling petitioners from school.

Thus, the grave and imminent danger test laid down in a dissenting opinion in German which involved
prior restraint of religious worship with overtones of the right to free speech and assembly, was transported
to Ebralinag which did not involve prior restraint of religious worship, speech or assembly. Although, it might
be observed that the Court faintly implied that Ebralinagalso involved the right to free speech when in its
preliminary remarks, the Court stated that compelling petitioners to participate in the flag ceremony is alien to
the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees
their rights to free speech and the free exercise of religious profession and worship; the Court then stated in a
footnote that the flag salute, singing the national anthem and reciting the patriotic pledge are all forms of
utterances.[346]
The compelling state interest test was not fully applied by the Court in Ebralinag. In the Solicitor Generals
consolidated comment, one of the grounds cited to defend the expulsion orders issued by the public
respondents was that (t)he States compelling interests being pursued by the DECs lawful regulations in
question do not warrant exemption of the school children of the Jehovahs Witnesses from the flag salute
ceremonies on the basis of their own self-perceived religious convictions. [347] The Court, however, referred to
the test only towards the end of the decision and did not even mention what the Solicitor General argued as
the compelling state interest, much less did the Court explain why the interest was not sufficiently compelling to
override petitioners religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v. Court of Appeals, et
[348]
al. Although there was a dissent with respect to the applicability of the clear and present danger test in this
case, the majority opinion in unequivocal terms applied the clear and present danger test to religious
speech. This case involved the television program, Ang Iglesia ni Cristo, regularly aired over the
television. Upon petitioner Iglesia ni Cristos submission of the VTR tapes of some of its episodes, respondent
Board of Review for Motion Pictures and Television classified these as X or not for public viewing on the
ground that they offend and constitute an attack against other religions which is expressly prohibited by
law. Invoking religious freedom, petitioner alleged that the Board acted without jurisdiction or with grave abuse
of discretion in requiring it to submit the VTR tapes of its television program and x-rating them. While upholding
the Boards power to review the Iglesia television show, the Court was emphatic about the preferred status
of religious freedom. Quoting Justice Cruz commentary on the constitution, the Court held that freedom to
believe is absolute but freedom to act on ones belief, where it affects the public, is subject to the authority of
the state. The commentary quoted Justice Frankfurters dissent in Barnette which was quoted in Gerona, viz:
(t)he constitutional provision on religious freedom terminated disabilities, it did not create new privileges. It
gave religious liberty, not civil immunity. Its essence is freedom from conformity to religious dogma, not
freedom from conformity to law because of religious dogma. [349] Nevertheless, the Court was quick to add the
criteria by which the state can regulate the exercise of religious freedom, that is, when the exercise will bring
about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e.,
serious detriment to the more overriding interest of public health, public morals, or public welfare. [350]
In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile to all prior
restraints on speech, including religious speech and the x-rating was a suppression of petitioners freedom of
speech as much as it was an interference with its right to free exercise of religion. Citing Cantwell, the Court
recognized that the different religions may criticize one another and their tenets may collide, but the
Establishment Clause prohibits the state from protecting any religion from this kind of attack.
The Court then called to mind the clear and present danger test first laid down in the American Bible
Society case and the test of immediate and grave danger with infringement only to the smallest extent
necessary to avoid danger in Victoriano and pointed out that the reviewing board failed to apply the clear and
present danger test. Applying the test, the Court noted, viz:

The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is
completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute
impermissible attacks against another religion. There is no showing whatsoever of the type of harm the tapes
will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech,
including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive
and imminent evil which has taken the life of a reality already on ground.

Replying to the challenge on the applicability of the clear and present danger test to the case, the Court
acknowledged the permutations that the test has undergone, but stressed that the test is still applied to four
types of speech: speech that advocates dangerous ideas, speech that provokes a hostile audience reaction,
out of court contempt and release of information that endangers a fair trial[351] and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is reason to apply the clear and present danger test
to the case at bar which concerns speech that attacks other religions and could readily provoke hostile
audience reaction. It cannot be doubted that religious truths disturb and disturb terribly.[352]

In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom cannot be
invoked to seek exemption from compliance with a law that burdens ones religious exercise. It also reiterated
the clear and present danger test in American Bible Society and the grave and imminent danger
in Victoriano, but this time clearly justifying its applicability and showing how the test was applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law offensive to
religious freedom, but carving out an exception or upholding an exception to accommodate religious
exercise where it is justified.[353]

2. Establishment Clause

In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by

the Establishment Clause, namely, voluntarism and insulation of the political process from interfaith
dissension. The first, voluntarism, has both a personal and a social dimension. As a personal value, it refers
to the inviolability of the human conscience which, as discussed above, is also protected by the free exercise
clause. From the religious perspective, religion requires voluntarism because compulsory faith lacks religious
efficacy.Compelled religion is a contradiction in terms. [354] As a social value, it means that the growth of a
religious sect as a social force must come from the voluntary support of its members because of the belief that
both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit
without benefit of official patronage. Such voluntarism cannot be achieved unless the political process is
insulated from religion and unless religion is insulated from politics.[355] Non-establishment thus calls for
government neutrality in religious matters to uphold voluntarism and avoid breeding interfaith
dissension.[356]
The neutrality principle was applied in the first significant non-establishment case under the 1935
Constitution. In the 1937 case of Aglipay v. Ruiz,[357] the Philippine Independent Church challenged the
issuance and sale of postage stamps commemorating the Thirty-Third International Eucharistic Congress of
the Catholic Church on the ground that the constitutional prohibition against the use of public money for
religious purposes has been violated. It appears that the Director of Posts issued the questioned stamps under
the provisions of Act No. 4052[358] which appropriated a sum for the cost of plates and printing of postage
stamps with new designs and authorized the Director of Posts to dispose of the sum in a manner and
frequency advantageous to the Government. The printing and issuance of the postage stamps in question
appears to have been approved by authority of the President. Justice Laurel, speaking for the Court, took pains
explaining religious freedom and the role of religion in society, and in conclusion, found no constitutional
infirmity in the issuance and sale of the stamps, viz:

The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without
the necessity of adverting to the historical background of this principle in our country, it is sufficient to say that
our history, not to speak of the history of mankind, has taught us that the union of church and state is
prejudicial to both, for occasions might arise when the state will use the church, and the church the
state, as a weapon in the furtherance of their respective ends and aims . . . It is almost trite to say now
that in this country we enjoy both religious and civil freedom. All the officers of the Government, from the
highest to the lowest, in taking their oath to support and defend the Constitution, bind themselves to recognize
and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized
implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere
toleration.

Religious freedom, however, as a constitutional mandate is not an inhibition of profound reverence for
religion and is not a denial of its influence in human affairs. Religion as a profession of faith to an
active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into
the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When
the Filipino people, in the preamble of their Constitution, implored the aid of Divine Providence, in
order to establish a government that shall embody their ideals, conserve and develop the patrimony of
the nation, promote the general welfare, and secure to themselves and their posterity the blessings of
independence under a regime of justice, liberty and democracy, they thereby manifested their intense
religious nature and placed unfaltering reliance upon Him who guides the destinies of men and
nations. The elevating influence of religion in human society is recognized here as elsewhere. In fact,
certain general concessions are indiscriminately accorded to religious sects and denominations. . .[359]

xxx xxx xxx

It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked
with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic
Church, was not the aim and purpose of the Government. We are of the opinion that the Government should
not be embarrassed in its activities simply because of incidental results, more or less religious in
character, if the purpose had in view is one which could legitimately be undertaken by appropriate
legislation. The main purpose should not be frustrated by its subordination to mere incidental results not
contemplated. (Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168)
[360]
(emphases supplied)

In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or government
action with a legitimate secular purpose does not offend the Establishment Clause even if it
incidentally aids a particular religion.
Almost forty-five years after Aglipay came Garces v. Estenzo.[361] Although the Court found that the
separation of church and state was not at issue as the controversy was over who should have custody of a
saints image, it nevertheless made pronouncements on the separation of church and state along the same line
as the Aglipay ruling. The Court held that there was nothing unconstitutional or illegal in holding a fiesta and
having a patron saint for the barrio. It adhered to the barrio resolutions of the barangay involved in the case
stating that the barrio fiesta is a socio-religious affair, the celebration of which is an ingrained tradition in rural
communities that relieves the monotony and drudgery of the lives of the masses. Corollarily, the Court found
nothing illegal about any activity intended to facilitate the worship of the patron saint such as the acquisition
and display of his image bought with funds obtained through solicitation from the barrio residents.The Court
pointed out that the image of the patron saint was purchased in connection with the celebration of the barrio
fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor
interfering with religious matters or the religious beliefs of the barrio residents. Citing the Aglipay ruling, the
Court declared, viz:

Not every governmental activity which involves the expenditure of public funds and which has some religious
tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship
and banning the use of public money or property.

Then came the 1978 case of Pamil v. Teleron, et al.[362] which presented a novel issue involving the
religion clauses. In this case, Section 2175 of the Revised Administrative Code of 1917 disqualifying
ecclesiastics from appointment or election as municipal officer was challenged. After protracted deliberation,
the Court was sharply divided on the issue. Seven members of the Court, one short of the number necessary
to declare a law unconstitutional, approached the problem from a free exercise perspective and considered the
law a religious test offensive of the constitution. They were Justices Fernando, Teehankee, Muoz-Palma,
Concepcion, Jr., Santos, Fernandez, and Guerrero. Then Associate Justice Fernando, the ponente, stated, viz:
The challenged Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any
elective or appointive office, is, on its face, inconsistent with the religious freedom guaranteed by the
Constitution. Citing Torcaso v. Watkins,[363] the ponencia held, viz:

Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was there involved
was the validity of a provision in the Maryland Constitution prescribing that no religious test ought ever to be
required as a disqualification for any office or profit or trust in this State, other than a declaration of belief in the
existence of God ***. Such a constitutional requirement was assailed as contrary to the First Amendment of the
United States Constitution by an appointee to the office of notary public in Maryland, who was refused a
commission as he would not declare a belief in God. He failed in the Maryland Court of Appeals but prevailed
in the United States Supreme Court, which reversed the state court decision. It could not have been
otherwise. As emphatically declared by Justice Black: this Maryland religious test for public office
unconstitutionally invades the appellants freedom of belief and religion and therefore cannot be enforced
against him.

The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here
being an ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is
thus an incompatibility between the Administrative Code provision relied upon by petitioner and an express
constitutional mandate.[364]

On the other hand, the prevailing five other members of the Court - Chief Justice Castro, Justices Barredo,
Makasiar, Antonio and Aquino - approached the case from a non-establishment perspective and upheld the law
as a safeguard against the constant threat of union of church and state that has marked Philippine
history. Justice Makasiar stated: To allow an ecclesiastic to head the executive department of a municipality is
to permit the erosion of the principle of separation of Church and State and thus open the floodgates for the
violation of the cherished liberty of religion which the constitutional provision seeks to enforce and
protect. Consequently, the Court upheld the validity of Section 2175 of the Revised Administrative Code and
declared respondent priest ineligible for the office of municipal mayor.
Another type of cases interpreting the establishment clause deals with intramural religious
disputes. Fonacier v. Court of Appeals[365] is the leading case. The issue therein was the right of control over
certain properties of the Philippine Independent Church, the resolution of which necessitated the determination
of who was the legitimate bishop of the church. The Court cited American Jurisprudence,[366] viz:

Where, however, a decision of an ecclesiastical court plainly violates the law it professes to administer, or is in
conflict with the law of the land, it will not be followed by the civil courts. . . In some instances, not only have
the civil courts the right to inquire into the jurisdiction of the religious tribunals and the regularity of their
procedure, but they have subjected their decisions to the test of fairness or to the test furnished by the
constitution and the law of the church. . .[367]

The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de los Reyes was the
duly elected head of the Church, based on their internal laws. To finally dispose of the property issue, the
Court, citing Watson v. Jones,[368] declared that the rule in property controversies within religious
congregations strictly independent of any other superior ecclesiastical association (such as the Philippine
Independent Church) is that the rules for resolving such controversies should be those of any voluntary
association. If the congregation adopts the majority rule then the majority should prevail; if it adopts adherence
to duly constituted authorities within the congregation, then that should be followed. Applying these rules,
Fonacier lost the case. While the Court exercised jurisdiction over the case, it nevertheless refused to touch
doctrinal and disciplinary differences raised, viz:

The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration
alleged by appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and
rule of a church and having reference to the power of excluding from the church those allegedly unworthy of
membership, are unquestionably ecclesiastical matters which are outside the province of the civil courts.[369]

VIII. Free Exercise Clause vis--vis Establishment Clause

In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free
Exercise Clause and the Establishment Clause in their application. There is a natural antagonism
between a command not to establish religion and a command not to inhibit its practice; this tension between
the religion clauses often leaves the courts with a choice between competing values in religion cases.[370]
 One set of facts, for instance, can be differently viewed from the Establishment Clause perspective and
the Free Exercise Clause point of view, and decided in opposite directions. In Pamil, the majority gave more
weight to the religious liberty of the priest in holding that the prohibition of ecclesiastics to assume elective or
appointive government positions was violative of the Free Exercise Clause. On the other hand, the prevailing
five justices gave importance to the Establishment Clause in stating that the principle of separation of church
and state justified the prohibition.
Tension is also apparent when a case is decided to uphold the Free Exercise Clause and consequently
exemptions from a law of general applicability are afforded by the Court to the person claiming religious
freedom; the question arises whether the exemption does not amount to support of the religion in violation of
the Establishment Clause. This was the case in the Free Exercise Clause case of Sherbert where the U.S.
Supreme Court ruled, viz:

In holding as we do, plainly we are not fostering the establishment of the Seventh-day Adventist religion in
South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday
worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious
differences, and does not represent that involvement of religious with secular institutions which it is the object
of the Establishment Clause to forestall.[371] (emphasis supplied)

Tension also exists when a law of general application provides exemption in order to uphold free exercise
as in the Walz case where the appellant argued that the exemption granted to religious organizations, in effect,
required him to contribute to religious bodies in violation of the Establishment Clause. But the Court held that
the exemption was not a case of establishing religion but merely upholding the Free Exercise Clause by
sparing the exercise of religion from the burden of property taxation levied on private profit institutions. Justice
Burger wrote, viz:

(t)he Court has struggled to find a neutral course between the two religion clauses, both of which are cast in
absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.[372]

Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption afforded by law to
religious sects who prohibit their members from joining unions did not offend the Establishment Clause. We
ruled, viz:

We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the
constitutional provision. It acted merely to relieve the exercise of religion, by certain persons, of a burden
that is imposed by union security agreements.[373] (emphasis supplied)

Finally, in some cases, a practice is obviously violative of the Establishment Clause but the Court
nevertheless upholds it. In Schempp, Justice Brennan stated: (t)here are certain practices, conceivably
violative of the Establishment Clause, the striking down of which might seriously interfere with certain religious
liberties also protected by the First Amendment.
How the tension between the Establishment Clause and the Free Exercise Clause will be resolved is a
question for determination in the actual cases that come to the Court. In cases involving both the
Establishment Clause and the Free Exercise Clause, the two clauses should be balanced against each
other. The courts must review all the relevant facts and determine whether there is a sufficiently strong free
exercise right that should prevail over the Establishment Clause problem. In the United States, it has been
proposed that in balancing, the free exercise claim must be given an edge not only because of abundant
historical evidence in the colonial and early national period of the United States that the free exercise principle
long antedated any broad-based support of disestablishment, but also because an Establishment Clause
concern raised by merely accommodating a citizens free exercise of religion seems far less dangerous to the
republic than pure establishment cases. Each time the courts side with the Establishment Clause in cases
involving tension between the two religion clauses, the courts convey a message of hostility to the religion that
in that case cannot be freely exercised. [374] American professor of constitutional law, Laurence Tribe, similarly
suggests that the free exercise principle should be dominant in any conflict with the anti-establishment
principle. This dominance would be the result of commitment to religious tolerance instead of thwarting at all
costs even the faintest appearance of establishment.[375] In our jurisdiction, Fr. Joaquin Bernas, S.J. asserts
that a literal interpretation of the religion clauses does not suffice. Modern society is characterized by the
expanding regulatory arm of government that reaches a variety of areas of human conduct and an expanding
concept of religion. To adequately meet the demands of this modern society, the societal values the religion
clauses are intended to protect must be considered in their interpretation and resolution of the tension. This, in
fact, has been the approach followed by the Philippine Court.[376]

IX. Philippine Religion Clauses: Nature, Purpose, Tests

Based on Philippine and American Religion Clause History,
Law and Jurisprudence

The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted
from the First Amendment of the U.S. Constitution. The religion clauses in the First Amendment were
contained in every organic Act of the Philippines under the American regime. When the delegates of the 1934
Constitutional Convention adopted a Bill of Rights in the 1935 Constitution, they purposely retained the
phraseology of the religion clauses in the First Amendment as contained in the Jones Law in order to adopt its
historical background, nature, extent and limitations. At that time, there were not too many religion clause
cases in the United States as the U.S. Supreme Court decided an Establishment Clause issue only in the
1947 Everson case.The Free Exercise Clause cases were also scarce then. Over the years, however, with the
expanding reach of government regulation to a whole gamut of human actions and the growing plurality and
activities of religions, the number of religion clause cases in the U.S. exponentially increased. With this
increase came an expansion of the interpretation of the religion clauses, at times reinforcing prevailing case
law, at other times modifying it, and still at other times creating contradictions so that two main streams of
jurisprudence had become identifiable. The first stream employs separation while the second
employs benevolent neutrality in interpreting the religious clauses. Alongside this change in the landscape of
U.S. religion clause jurisprudence, the Philippines continued to adopt the 1935 Constitution religion clauses in
the 1973 Constitution and later, the 1987 Constitution. Philippine jurisprudence and commentaries on the
religious clauses also continued to borrow authorities from U.S. jurisprudence without articulating the
stark distinction between the two streams of U.S. jurisprudence. One might simply conclude that the
Philippine Constitutions and jurisprudence also inherited the disarray of U.S. religion clause jurisprudence and
the two identifiable streams; thus, when a religion clause case comes before the Court,
a separationist approach or a benevolent neutrality approach might be adopted and each will have U.S.
authorities to support it. Or, one might conclude that as the history of the First Amendment as narrated by the
Court in Everson supports the separationist approach, Philippine jurisprudence should also follow this
approach in light of the Philippine religion clauses history. As a result, in a case where the party claims
religious liberty in the face of a general law that inadvertently burdens his religious exercise, he faces an
almost insurmountable wall in convincing the Court that the wall of separation would not be breached if the
Court grants him an exemption. These conclusions, however, are not and were never warranted by the
1987, 1973 and 1935 Constitutions as shown by other provisions on religion in all three constitutions. It
is a cardinal rule in constitutional construction that the constitution must be interpreted as a whole and
apparently conflicting provisions should be reconciled and harmonized in a manner that will give to all of them
full force and effect.[377] From this construction, it will be ascertained that the intent of the framers was to
adopt a benevolent neutrality approach in interpreting the religious clauses in the Philippine
constitutions, and the enforcement of this intent is the goal of construing the constitution.[378]
We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the same time that the 1935
Constitution provided for an Establishment Clause, it also provided for tax exemption of church property in
Article VI, Section 22, par. 3(b), viz:

(3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all lands, buildings, and
improvements used exclusively for religious, charitable, or educational purposes shall be exempt from
taxation.

Before the advent of the 1935 Constitution, Section 344 of the Administrative Code provided for a similar
exemption. To the same effect, the Tydings-McDuffie Law contained a limitation on the taxing power of the
Philippine government during the Commonwealth period. [379] The original draft of the Constitution placed this
provision in an ordinance to be appended to the Constitution because this was among the provisions
prescribed by the Tydings-McDuffie Law. However, in order to have a constitutional guarantee for such an
exemption even beyond the Commonwealth period, the provision was introduced in the body of the
Constitution on the rationale that if churches, convents [rectories or parsonages] and their accessories are
always necessary for facilitating the exercise of such [religious] freedom, it would also be natural that their
existence be also guaranteed by exempting them from taxation. [380] The amendment was readily approved with
83 affirmative votes against 15 negative votes.[381]
The Philippine constitutional provision on tax exemption is not found in the U.S. Constitution. In the U.S.
case of Walz, the Court struggled to justify this kind of exemption to withstand Establishment Clause scrutiny
by stating that church property was not singled out but was exempt along with property owned by non-profit,
quasi-public corporations because the state upheld the secular policy that considers these groups as beneficial
and stabilizing influences in community life and finds this classification useful, desirable, and in the public
interest. The Court also stated that the exemption was meant to relieve the burden on free exercise imposed
by property taxation. At the same time, however, the Court acknowledged that the exemption was an exercise
ofbenevolent neutrality to accommodate a long-standing tradition of exemption. With the inclusion of the
church property tax exemption in the body of the 1935 Constitution and not merely as an ordinance appended
to the Constitution, the benevolent neutrality referred to in the Walz case was given constitutional imprimatur
under the regime of the 1935 Constitution. The provision, as stated in the deliberations, was an
acknowledgment of the necessity of the exempt institutions to the exercise of religious liberty, thereby evincing
benevolence towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:

(3) No public money, or property shall ever be appropriated, applied, or used, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, sectarian institution or system of religion, for the use,
benefit or support of any priest, preacher, ministers or other religious teacher or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal
institution, orphanage, or leprosarium. (emphasis supplied)

The original draft of this provision was a reproduction of a portion of section 3 of the Jones Law which did not
contain the above exception, viz:

No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use,
benefit, or support of any sect, church denomination, sectarian institution, or system of religion, or for the use,
benefit or support of any priest, preacher, minister, or dignitary as such[382]

In the deliberations of this draft provision, an amendment was proposed to strike down everything after church
denomination.[383] The proposal intended to imitate the silence of the U.S. Constitution on the subject of support
for priests and ministers. It was also an imitation of the silence of the Malolos Constitution to restore the
situation under the Malolos Constitution and prior to the Jones Law, when chaplains of the revolutionary army
received pay from public funds with no doubt about its legality. It was pointed out, however, that even with the
prohibition under the Jones Law, appropriations were made to chaplains of the national penitentiary and the
Auditor General upheld its validity on the basis of a similar United States practice. But it was also pointed out
that the U.S. Constitution did not contain a prohibition on appropriations similar to the Jones Law. [384] To settle
the question on the constitutionality of payment of salaries of religious officers in certain government
institutions and to avoid the feared situation where the enumerated government institutions could not employ
religious officials with compensation, the exception in the 1935 provision was introduced and approved. The
provision garnered 74 affirmative votes against 34 negative votes. [385] As pointed out in the deliberations, the
U.S. Constitution does not provide for this exemption. However, the U.S. Supreme Court in Cruz v.
Beto, apparently taking a benevolent neutrality approach, implicitly approved the state of Texas payment of
prison chaplains salaries as reasonably necessary to permit inmates to practice their religion. Also, in
the Marsh case, the U.S. Supreme Court upheld the long-standing tradition of beginning legislative sessions
with prayers offered by legislative chaplains retained at taxpayers expense. The constitutional provision
exempting religious officers in government institutions affirms the departure of the Philippine Constitution from
the U.S. Constitution in its adoption of benevolent neutrality in Philippine jurisdiction. While the provision
prohibiting aid to religion protects the wall of separation between church and state, the provision at the same
time gives constitutional sanction to a breach in the wall.
To further buttress the thesis that benevolent neutrality is contemplated in the Philippine Establishment
Clause, the 1935 Constitution provides for optional religious instruction in public schools in Article XIII, Section
5, viz:

. . . Optional religious instruction shall be maintained in the public schools as now authorized by law. . .

The law then applicable was Section 928 of the Administrative Code, viz:

It shall be lawful, however, for the priest or minister of any church established in the town where a public school
is situated, either in person or by a designated teacher of religion, to teach religion for one-half hour three
times a week, in the school building, to those public-school pupils whose parents or guardians desire it and
express their desire therefor in writing filed with the principal of the school . . .

During the debates of the Constitutional Convention, there were three positions on the issue of religious
instruction in public schools. The first held that the teaching of religion in public schools should be prohibited as
this was a violation of the principle of separation of church and state and the prohibition against the use of
public funds for religious purposes. The second favored the proposed optional religious instruction as
authorized by the Administrative Code and recognized that the actual practice of allowing religious instruction
in the public schools was sufficient proof that religious instruction was not and would not be a source of
religious discord in the schools.[386] The third wanted religion to be included as a course in the curriculum of the
public schools but would only be taken by pupils at the option of their parents or guardians. After several
rounds of debate, the second camp prevailed, thus raising to constitutional stature the optional teaching of
religion in public schools, despite the opposition to the provision on the ground of separation of church and
state.[387] As in the provisions on church property tax exemption and compensation of religious officers in
government institutions, the U.S. Constitution does not provide for optional religious instruction in public
schools. In fact, in the McCollum case, the Court, using strict neutrality, prohibited this kind of religious
instruction where the religion teachers would conduct class within the school premises. The constitutional
provision on optional religious instruction shows that Philippine jurisdiction rejects the strict neutrality approach
which does not allow such accommodation of religion.
Finally, to make certain the Constitutions benevolence to religion, the Filipino people implored (ing) the aid
of Divine Providence (,) in order to establish a government that shall embody their ideals, conserve and
develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity
the blessings of independence under a regime of justice, liberty, and democracy, (in) ordain(ing) and
promulgat(ing) this Constitution. A preamble is a key to open the mind of the authors of the constitution as to
the evil sought to be prevented and the objects sought to be accomplished by the provisions thereof. [388] There
was no debate on the inclusion of a Divine Providence in the preamble. In Aglipay, Justice Laurel noted that
when the Filipino people implored the aid of Divine Providence, (t)hey thereby manifested their intense
religious nature and placed unfaltering reliance upon Him who guides the destinies of men and nations. [389] The
1935 Constitutions religion clauses, understood alongside the other provisions on religion in the Constitution,
indubitably shows not hostility, but benevolence, to religion.[390]
The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to Article VI, Section 22,
par. 3(b) of the 1935 Constitution on exemption of church property from taxation, with the modification that the
property should not only be used directly, but also actually and exclusively for religious or charitable
purposes. Parallel to Article VI, Section 23(3) of the 1935 Constitution, the 1973 Constitution also contained a
similar provision on salaries of religious officials employed in the enumerated government institutions. Article
XIII, Section 5 of the 1935 Constitution on optional religious instruction was also carried to the 1973
Constitution in Article XV, Section 8(8) with the modification that optional religious instruction shall be
conducted as may be provided by law and not as now authorized by law as stated in the 1935
Constitution. The 1973 counterpart, however, made explicit in the constitution that the religious instruction in
public elementary and high schools shall be done (a)t the option expressed in writing by the parents or
guardians, and without cost to them and the government. With the adoption of these provisions in the 1973
Constitution, the benevolent neutrality approach continued to enjoy constitutional sanction. In Article XV,
Section 15 of the General Provisions of the 1973 Constitution this provision made its maiden appearance: (t)he
separation of church and state shall be inviolable. The 1973 Constitution retained the portion of the preamble
imploring the aid of Divine Providence.
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on
Church and State of the 1971 Constitutional Convention, the question arose as to whether the absolute
separation of Church and State as enunciated in the Everson case and reiterated in Schempp - i.e., neutrality
not only as between one religion and another but even as between religion and non-religion - is embodied in
the Philippine Constitution. The sub-committees answer was that it did not seem so. Citing the Aglipay
case where Justice Laurel recognized the elevating influence of religion in human society and the Filipinos
imploring of Divine Providence in the 1935 Constitution, the sub-committee asserted that the state may not
prefer or aid one religion over another, but may aid all religions equally or the cause of religion in general.
[391]
Among the position papers submitted to the Committee on Church on State was a background paper for
reconsideration of the religion provisions of the constitution by Fr. Bernas, S.J. He stated therein that the
Philippine Constitution is not hostile to religion and in fact recognizes the value of religion and accommodates
religious values.[392] Stated otherwise, the Establishment Clause contemplates not a strict neutrality but
benevolent neutrality. While the Committee introduced the provision on separation of church and state in the
General Provisions of the 1973 Constitution, this was nothing new as according to it, this principle was implied
in the 1935 Constitution even in the absence of a similar provision.[393]
Then came the 1987 Constitution. The 1973 Constitutional provision on tax exemption of church property
was retained with minor modification in Article VI, Section 28(3) of the 1987 Constitution. The same is true with
respect to the prohibition on the use of public money and property for religious purposes and the salaries of
religious officers serving in the enumerated government institutions, now contained in Article VI, Section
29(2). Commissioner Bacani, however, probed into the possibility of allowing the government to spend public
money for purposes which might have religious connections but which would benefit the public generally. Citing
the Aglipay case, Commissioner Rodrigo explained that if a public expenditure would benefit the government
directly, such expense would be constitutional even if it results to an incidental benefit to religion. With that
explanation, Commissioner Bacani no longer pursued his proposal.[394]
The provision on optional religious instruction was also adopted in the 1987 Constitution in Article XIV,
Section 3(3) with the modification that it was expressly provided that optional instruction shall be conducted
within the regular class hours and without additional cost to the government. There were protracted debates on
what additional cost meant, i.e., cost over and above what is needed for normal operations such as wear and
tear, electricity, janitorial services,[395] and when during the day instruction would be conducted.[396] In
deliberating on the phrase within the regular class hours, Commissioner Aquino expressed her reservations to
this proposal as this would violate the time-honored principle of separation of church and state. She cited
theMcCullom case where religious instruction during regular school hours was stricken down as
unconstitutional and also cited what she considered the most liberal interpretation of separation of church and
state in Surach v. Clauson where the U.S. Supreme Court allowed only release time for religious
instruction. Fr. Bernas replied, viz:

. . . the whole purpose of the provision was to provide for an exception to the rule on non-establishment of
religion, because if it were not necessary to make this exception for purposes of allowing religious instruction,
then we could just drop the amendment. But, as a matter of fact, this is necessary because we are trying to
introduce something here which is contrary to American practices.[397] (emphasis supplied)

(W)ithin regular class hours was approved.

The provision on the separation of church and state was retained but placed under the Principles in the
Declaration of Principles and State Policies in Article II, Section 6. In opting to retain the wording of the
provision, Fr. Bernas stated, viz:

. . . It is true, I maintain, that as a legal statement the sentence The separation of Church and State is
inviolable, is almost a useless statement; but at the same time it is a harmless statement. Hence, I am willing
to tolerate it there, because, in the end, if we look at the jurisprudence on Church and State, arguments are
based not on the statement of separation of church and state but on the non-establishment clause in the Bill of
Rights.[398]
 The preamble changed Divine Providence in the 1935 and 1973 Constitutions to Almighty God. There was
considerable debate on whether to use Almighty God which Commissioner Bacani said was more reflective of
Filipino religiosity, but Commissioner Rodrigo recalled that a number of atheistic delegates in the 1971
Constitutional Convention objected to reference to a personal God. [399] God of History, Lord of History and God
were also proposed, but the phrase Almighty God prevailed. Similar to the 1935 and 1971 Constitutions, it is
obvious that the 1987 Constitution is not hostile nor indifferent to religion; [400] its wall of separation is not a wall
of hostility or indifference.[401]
The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church property, salary of
religious officers in government institutions, optional religious instruction and the preamble all reveal without
doubt that the Filipino people, in adopting these constitutions, did not intend to erect a high and impregnable
wall of separation between the church and state.[402] The strict neutrality approach which examines only
whether government action is for a secular purpose and does not consider inadvertent burden on religious
exercise protects such a rigid barrier. By adopting the above constitutional provisions on religion, the Filipinos
manifested their adherence to the benevolent neutrality approach in interpreting the religion clauses, an
approach that looks further than the secular purposes of government action and examines the effect of these
actions on religious exercise. Benevolent neutrality recognizes the religious nature of the Filipino people and
the elevating influence of religion in society; at the same time, it acknowledges that government must pursue
its secular goals. In pursuing these goals, however, government might adopt laws or actions of general
applicability which inadvertently burden religious exercise. Benevolent neutrality gives room
for accommodation of these religious exercises as required by the Free Exercise Clause. It allows these
breaches in the wall of separation to uphold religious liberty, which after all is the integral purpose of the
religion clauses. The case at bar involves this first type of accommodation where an exemption is sought from
a law of general applicability that inadvertently burdens religious exercise.
Although our constitutional history and interpretation mandate benevolent neutrality, benevolent
neutrality does not mean that the Court ought to grant exemptions every time a free exercise claim
comes before it. But it does mean that the Court will not look with hostility or act indifferently towards
religious beliefs and practices and that it will strive to accommodate them when it can within flexible
constitutional limits; it does mean that the Court will not simply dismiss a claim under the Free
Exercise Clause because the conduct in question offends a law or the orthodox view for this precisely
is the protection afforded by the religion clauses of the Constitution, i.e., that in the absence of
legislation granting exemption from a law of general applicability, the Court can carve out an exception
when the religion clauses justify it. While the Court cannot adopt a doctrinal formulation that can eliminate
the difficult questions of judgment in determining the degree of burden on religious practice or importance of
the state interest or the sufficiency of the means adopted by the state to pursue its interest, the Court can set a
doctrine on the ideal towards which religious clause jurisprudence should be directed. [403] We here lay down
the doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach not only
because of its merits as discussed above, but more importantly, because our constitutional history
and interpretation indubitably show that benevolent neutrality is the launching pad from which the
Court should take off in interpreting religion clause cases. The ideal towards which this approach is
directed is the protection of religious liberty not only for a minority, however small- not only for a
majority, however large- but for each of us to the greatest extent possible within flexible constitutional
limits.
Benevolent neutrality is manifest not only in the Constitution but has also been recognized in Philippine
jurisprudence, albeit not expressly called benevolent neutrality or accommodation.In Aglipay, the Court not
only stressed the elevating influence of religion in human society but acknowledged the Constitutional
provisions on exemption from tax of church property, salary of religious officers in government institutions, and
optional religious instruction as well as the provisions of the Administrative Code making Thursday and Friday
of the Holy Week, Christmas Day and Sundays legal holidays. In Garces, the Court not only recognized the
Constitutional provisions indiscriminately granting concessions to religious sects and denominations, but also
acknowledged that government participation in long-standing traditions which have acquired a social character
- the barrio fiesta is a socio-religious affair - does not offend the Establishment Clause. In Victoriano, the Court
upheld the exemption from closed shop provisions of members of religious sects who prohibited their members
from joining unions upon the justification that the exemption was not a violation of the Establishment Clause
but was only meant to relieve the burden on free exercise of religion. In Ebralinag, members of the Jehovahs
Witnesses were exempt from saluting the flag as required by law, on the basis not of a statute granting
exemption but of the Free Exercise Clause without offending the Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form and origin, Philippine
constitutional law has departed from the U.S. jurisprudence of employing a separationist or strict
neutrality approach. The Philippine religion clauses have taken a life of their own, breathing the air
of benevolent neutrality and accommodation. Thus, the wall of separation in Philippine jurisdiction is not as
high and impregnable as the wall created by the U.S. Supreme Court in Everson.[404] While the religion clauses
are a unique American experiment which understandably came about as a result of Americas English
background and colonization, the life that these clauses have taken in this jurisdiction is the Philippines own
experiment, reflective of the Filipinos own national soul, history and tradition. After all, the life of the law. . . has
been experience.
But while history, constitutional construction, and earlier jurisprudence unmistakably show that benevolent
neutrality is the lens with which the Court ought to view religion clause cases, it must be stressed that the
interest of the state should also be afforded utmost protection. To do this, a test must be applied to draw
the line between permissible and forbidden religious exercise. It is quite paradoxical that in order for the
members of a society to exercise their freedoms, including their religious liberty, the law must set a limit when
their exercise offends the higher interest of the state. To do otherwise is self-defeating for unlimited freedom
would erode order in the state and foment anarchy, eventually destroying the very state its members
established to protect their freedoms. The very purpose of the social contract by which people establish the
state is for the state to protect their liberties; for this purpose, they give up a portion of these freedoms -
including the natural right to free exercise - to the state. It was certainly not the intention of the authors of the
constitution that free exercise could be used to countenance actions that would undo the constitutional order
that guarantees free exercise.[405]
The all important question then is the test that should be used in ascertaining the limits of the exercise of
religious freedom. Philippine jurisprudence articulates several tests to determine these limits. Beginning with
the first case on the Free Exercise Clause, American Bible Society, the Court mentioned the clear and
present danger test but did not employ it. Nevertheless, this test continued to be cited in subsequent cases on
religious liberty. The Gerona case then pronounced that the test of permissibility of religious freedom is
whether it violates the established institutions of society and law. The Victoriano case mentioned the
immediate and grave danger test as well as the doctrine that a law of general applicability may burden religious
exercise provided the law is the least restrictive means to accomplish the goal of the law. The case also used,
albeit inappropriately, the compelling state interest test. After Victoriano, German went back to the Gerona
rule. Ebralinag then employed the grave and immediate danger test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the clear and present danger test in the maiden case
of American Bible Society. Not surprisingly, all the cases which employed the clear and present danger
or grave and immediate danger test involved, in one form or another, religious speech as this test is
often used in cases on freedom of expression. On the other hand, the Gerona and German cases set the
rule that religious freedom will not prevail over established institutions of society and law. Gerona, however,
which was the authority cited by German has been overruled by Ebralinag which employed the grave and
immediate danger test. Victoriano was the only case that employed the compelling state interest test, but as
explained previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni
Cristo where the clear and present danger and grave and immediate danger tests were appropriate as speech
has easily discernible or immediate effects. The Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent neutralityapproach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious
belief. The compelling state interest test is proper where conduct is involved for the whole gamut of
human conduct has different effects on the states interests: some effects may be immediate and short-
term while others delayed and far-reaching. A test that would protect the interests of the state in preventing
a substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the state
would suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - the most inalienable and sacred of all human rights, in the words of
Jefferson.[406] This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of limited government is premised upon an acknowledgment of
such higher sovereignty,[407] thus the Filipinos implore the aid of Almighty God in order to build a just and
humane society and establish a government. As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere balancing of interests which
balances a right with just a colorable state interest is therefore not appropriate. Instead, only a compelling
interest of the state can prevail over the fundamental right to religious liberty. The test requires the state to
carry a heavy burden, a compelling one, for to do otherwise would allow the state to batter religion, especially
the less powerful ones until they are destroyed. [408] In determining which shall prevail between the states
interest and religious liberty, reasonableness shall be the guide. [409] The compelling state interest serves the
purpose of revering religious liberty while at the same time affording protection to the paramount interests of
the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the
end, the compelling state interest test, by upholding the paramount interests of the state, seeks to protect the
very state, without which, religious liberty will not be preserved.

X. Application of the Religion Clauses to the Case at Bar

A. The Religion Clauses and Morality

In a catena of cases, the Court has ruled that government employees engaged in illicit relations are guilty
of disgraceful and immoral conduct for which he/she may be held administratively liable. [410] In these cases,
there was not one dissent to the majoritys ruling that their conduct was immoral. The respondents themselves
did not foist the defense that their conduct was not immoral, but instead sought to prove that they did not
commit the alleged act or have abated from committing the act. The facts of the 1975 case of De Dios v.
Alejo[411] and the 1999 case ofMaguad v. De Guzman,[412] are similar to the case at bar - i.e., the complainant
is a mere stranger and the legal wife has not registered any objection to the illicit relation, there is no proof of
scandal or offense to the moral sensibilities of the community in which the respondent and the partner live and
work, and the government employee is capacitated to marry while the partner is not capacitated but has long
been separated in fact. Still, the Court found the government employees administratively liable for disgraceful
and immoral conduct and only considered the foregoing circumstances to mitigate the penalty. Respondent
Escritor does not claim that there is error in the settled jurisprudence that an illicit relation constitutes
disgraceful and immoral conduct for which a government employee is held liable. Nor is there an allegation that
the norms of morality with respect to illicit relations have shifted towards leniency from the time these
precedent cases were decided. The Court finds that there is no such error or shift, thus we find no reason to
deviate from these rulings that such illicit relationship constitutes disgraceful and immoral conduct punishable
under the Civil Service Law. Respondent having admitted the alleged immoral conduct, she, like the
respondents in the above-cited cases, could be held administratively liable.However, there is a distinguishing
factor that sets the case at bar apart from the cited precedents, i.e., as a defense, respondent invokes religious
freedom since her religion, the Jehovahs Witnesses, has, after thorough investigation, allowed her conjugal
arrangement with Quilapio based on the churchs religious beliefs and practices. This distinguishing factor
compels the Court to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion of
Mme. Justice Ynares-Santiago and the separate opinion of Mr. Justice Vitug dwell more on the standards of
morality than on the religion clauses in deciding the instant case. A discussion on morality is in order.
At base, morality refers to, in Socrates words, how we ought to live and why. Any definition of morality
beyond Socrates simple formulation is bound to offend one or another of the many rival theories regarding
what it means to live morally.[413] The answer to the question of how we ought to live necessarily considers that
man does not live in isolation, but in society. Devlin posits that a society is held together by a community of
ideas, made up not only of political ideas but also of ideas about the manner its members should behave and
govern their lives. The latter are their morals; they constitute the public morality. Each member of society has
ideas about what is good and what is evil. If people try to create a society wherein there is no fundamental
agreement about good and evil, they will fail; if having established the society on common agreement, the
agreement collapses, the society will disintegrate. Society is kept together by the invisible bonds of common
thought so that if the bonds are too loose, the members would drift apart. A common morality is part of the
bondage and the bondage is part of the price of society; and mankind, which needs society, must pay its price.
[414]
This design is parallel with the social contract in the realm of politics: people give up a portion of their
liberties to the state to allow the state to protect their liberties. In a constitutional order, people make a
fundamental agreement about the powers of government and their liberties and embody this agreement in a
constitution, hence referred to as the fundamental law of the land. A complete break of this fundamental
agreement such as by revolution destroys the old order and creates a new one. [415] Similarly, in the realm of
morality, the breakdown of the fundamental agreement about the manner a societys members should behave
and govern their lives would disintegrate society. Thus, society is justified in taking steps to preserve its moral
code by law as it does to preserve its government and other essential institutions. [416] From these propositions
of Devlin, one cannot conclude that Devlin negates diversity in society for he is merely saying that in the midst
of this diversity, there should nevertheless be a fundamental agreement about good and evil that will govern
how people in a society ought to live.His propositions, in fact, presuppose diversity hence the need to come to
an agreement; his position also allows for change of morality from time to time which may be brought about by
this diversity. In the same vein, a pluralistic society lays down fundamental rights and principles in their
constitution in establishing and maintaining their society, and these fundamental values and principles are
translated into legislation that governs the order of society, laws that may be amended from time to time. Harts
argument propounded in Mr. Justice Vitugs separate opinion that, Devlins view of people living in a single
society as having common moral foundation (is) overly simplistic because societies have always been diverse
fails to recognize the necessity of Devlins proposition in a democracy. Without fundamental agreement on
political and moral ideas, society will fall into anarchy; the agreement is necessary to the existence and
progress of society.
In a democracy, this common agreement on political and moral ideas is distilled in the public
square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment
has access to the public square where people deliberate the order of their life together. Citizens are the
bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal
access to the public square. In this representative democracy, the state is prohibited from determining which
convictions and moral judgments may be proposed for public deliberation. Through a constitutionally designed
process, the people deliberate and decide. Majority rule is a necessary principle in this democratic governance.
[417]
Thus, when public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect
the beliefs and preferences of the majority, i.e., the mainstream or median groups. [418]Nevertheless, in the very
act of adopting and accepting a constitution and the limits it specifies -- including protection of religious
freedom not only for a minority, however small- not only for a majority, however large- but for each of us -- the
majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride
roughshod over the dissenting minorities.[419] In the realm of religious exercise, benevolent neutrality that
gives room for accommodation carries out this promise, provided the compelling interests of the state are not
eroded for the preservation of the state is necessary to the preservation of religious liberty. That is
why benevolent neutrality is necessary in a pluralistic society such as the United States and the Philippines
to accommodate those minority religions which are politically powerless. It is not surprising that Smith is much
criticized for it blocks the judicial recourse of the minority for religious accommodations.
The laws enacted become expressions of public morality. As Justice Holmes put it, (t)he law is the witness
and deposit of our moral life. [420] In a liberal democracy, the law reflects social morality over a period of time.
[421]
Occasionally though, a disproportionate political influence might cause a law to be enacted at odds with
public morality or legislature might fail to repeal laws embodying outdated traditional moral views. [422] Law has
also been defined as something men create in their best moments to protect themselves in their worst
moments.[423] Even then, laws are subject to amendment or repeal just as judicial pronouncements are subject
to modification and reversal to better reflect the public morals of a society at a given time. After all, the life of
the law...has been experience, in the words of Justice Holmes. This is not to say though that law is all of
morality. Law deals with the minimum standards of human conduct while morality is concerned with the
maximum. A person who regulates his conduct with the sole object of avoiding punishment under the law does
not meet the higher moral standards set by society for him to be called a morally upright person. [424] Law also
serves as a helpful starting point for thinking about a proper or ideal public morality for a society [425] in pursuit of
moral progress.
In Magno v. Court of Appeals, et al., [426] we articulated the relationship between law and public
morality. We held that under the utilitarian theory, the protective theory in criminal law, criminal law is founded
upon the moral disapprobation x x x of actions which are immoral, i.e., which are detrimental (or
dangerous) to those conditions upon which depend the existence and progress of human society. This
disapprobation is inevitable to the extent that morality is generally founded and built upon a certain
concurrence in the moral opinions of all. x x x That which we call punishment is only an external means of
emphasizing moral disapprobation: the method of punishment is in reality the amount of punishment. [427] Stated
otherwise, there are certain standards of behavior or moral principles which society requires to be observed
and these form the bases of criminal law. Their breach is an offense not only against the person injured but
against society as a whole. [428] Thus, even if all involved in the misdeed are consenting parties, such as in the
case at bar, the injury done is to the public morals and the public interest in the moral order.[429] Mr. Justice
Vitug expresses concern on this point in his separate opinion. He observes that certain immoral acts which
appear private and not harmful to society such as sexual congress between a man and a prostitute, though
consensual and private, and with no injured third party, remains illegal in this country. His opinion asks whether
these laws on private morality are justified or they constitute impingement on ones freedom of
belief. Discussion on private morality, however, is not material to the case at bar for whether respondents
conduct, which constitutes concubinage,[430] is private in the sense that there is no injured party or the offended
spouse consents to the concubinage, the inescapable fact is that the legislature has taken concubinage out of
the sphere of private morals. The legislature included concubinage as a crime under the Revised Penal Code
and the constitutionality of this law is not being raised in the case at bar. In the definition of the crime of
concubinage, consent of the injured party, i.e., the legal spouse, does not alter or negate the crime unlike in
rape[431] where consent of the supposed victim negates the crime. If at all, the consent or pardon of the
offended spouse in concubinage negates the prosecution of the action,[432] but does not alter the legislatures
characterization of the act as a moral disapprobation punishable by law. The separate opinion states that,
(t)he ponencia has taken pains to distinguish between secular and private morality, and reached the conclusion
that the law, as an instrument of the secular State should only concern itself with secular morality. The Court
does not draw this distinction in the case at bar. The distinction relevant to the case is not, as averred and
discussed by the separate opinion, between secular and private morality, but between public and secular
morality on the one hand, and religious morality on the other, which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this reality
in Velayo, et al. v. Shell Co. of the Philippine Islands, et al., where we explained that for those wrongs
which are not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of the New Civil Code,
dealing with Human Relations, provide for the recognition of the wrong and the concomitant punishment in the
form of damages. Articles 19 and 21 provide, viz:

Art. 19. Any person must, in the exercise of his rights and in the performance of his duties, act with justice, give
everyone his due and observe honesty and good faith.

xxx xxx xxx

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage. (emphasis supplied)

We then cited in Velayo the Code Commissions comment on Article 21:

Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved), would vouchsafe
adequate legal remedy for that untold numbers of moral wrongs which is impossible for human foresight
to provide for specifically in the statutes.

But, it may be asked, would this proposed article obliterate the boundary line between morality and law? The
answer is that, in the last analysis, every good law draws its breath of life from morals, from those
principles which are written with words of fire in the conscience of man. If this premise is admitted, then the
proposed rule is a prudent earnest of justice in the face of the impossibility of enumerating, one by one, all
wrongs which cause damages. When it is reflected that while codes of law and statutes have changed from
age to age, the conscience of man has remained fixed to its ancient moorings, one can not but feel that it is
safe and salutary to transmute, as far as may be, moral norms into legal rules, thus imparting to every
legal system that enduring quality which ought to be one of its superlative attributes.
Furthermore, there is no belief of more baneful consequence upon the social order than that a person may with
impunity cause damage to his fellow-men so long as he does not break any law of the State, though he may be
defying the most sacred postulates of morality. What is more, the victim loses faith in the ability of the
government to afford him protection or relief.

A provision similar to the one under consideration is embodied in article 826 of the German Civil Code.
[433]
(emphases supplied)

The public morality expressed in the law is necessarily secular for in our constitutional order, the religion
clauses prohibit the state from establishing a religion, including the morality it sanctions. Religious morality
proceeds from a persons views of his relations to His Creator and to the obligations they impose of reverence
to His being and character and obedience to His Will, in accordance with this Courts definition of religion
in American Bible Society citing Davis. Religion also dictates how we ought to live for the nature of religion is
not just to know, but often, to act in accordance with mans views of his relations to His Creator. [434] But the
Establishment Clause puts a negative bar against establishment of this morality arising from one religion or the
other, and implies the affirmative establishment of a civil order for the resolution of public moral disputes. This
agreement on a secular mechanism is the price of ending the war of all sects against all; the establishment of a
secular public moral order is the social contract produced by religious truce.[435]
Thus, when the law speaks of immorality in the Civil Service Law or immoral in the Code of Professional
Responsibility for lawyers [436], or public morals in the Revised Penal Code, [437] or morals in the New Civil Code,
[438]
or moral character in the Constitution,[439] the distinction between public and secular morality on the one
hand, and religious morality, on the other, should be kept in mind. [440] The morality referred to in the law is
public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. Religious teachings as
expressed in public debate may influence the civil public order but public moral disputes may be resolved only
on grounds articulable in secular terms. [441] Otherwise, if government relies upon religious beliefs in formulating
public policies and morals, the resulting policies and morals would require conformity to what some might
regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a
standard of conduct buttressed by a religious belief, i.e., to a compelled religion, anathema to religious
freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse
that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support
the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it
appear that those whose beliefs are disapproved are second-class citizens. Expansive religious freedom
therefore requires that government be neutral in matters of religion; governmental reliance upon religious
justification is inconsistent with this policy of neutrality.[442]
In other words, government action, including its proscription of immorality as expressed in criminal law like
concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is
detrimental (or dangerous) to those conditions upon which depend the existence and progress of human
society and not because the conduct is proscribed by the beliefs of one religion or the other. Although
admittedly, moral judgments based on religion might have a compelling influence on those engaged in public
deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they
might also be adherents of a religion and thus have religious opinions and moral codes with a compelling
influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a
uniform manner, harmonizing earth with heaven.[443] Succinctly put, a law could be religious or Kantian or
Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and
justification to pass scrutiny of the religion clauses. Otherwise, if a law has an apparent secular purpose but
upon closer examination shows a discriminatory and prohibitory religious purpose, the law will be struck down
for being offensive of the religion clauses as inChurch of the Lukumi Babalu Aye, Inc. where the U.S.
Supreme Court invalidated an ordinance prohibiting animal sacrifice of the Santeria. Recognizing the religious
nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitutions
religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the same time strives to uphold religious liberty
to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by
laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided
it does not offend compelling state interests.
 Mr. Justice Vitugs separate opinion embraces the benevolent neutrality approach when it states that in
deciding the case at bar, the approach should consider that, (a)s a rule . . . moral laws are justified only to the
extent that they directly or indirectly serve to protect the interests of the larger society. It is only where their
rigid application would serve to obliterate the value which society seeks to uphold, or defeat the purpose for
which they are enacted would, a departure be justified. In religion clause parlance, the separate opinion holds
that laws of general applicability governing morals should have a secular purpose of directly or indirectly
protecting the interests of the state. If the strict application of these laws (which are the Civil Service Law and
the laws on marriage) would erode the secular purposes of the law (which the separate opinion identifies as
upholding the sanctity of marriage and the family), then in a benevolent neutrality framework,
an accommodation of the unconventional religious belief and practice (which the separate opinion holds
should be respected on the ground of freedom of belief) that would promote the very same secular purpose of
upholding the sanctity of marriage and family through the Declaration Pledging Faithfulness that makes the
union binding and honorable before God and men, is required by the Free Exercise Clause. The separate
opinion then makes a preliminary discussion of the values society seeks to protect in adhering to monogamous
marriage, but concludes that these values and the purposes of the applicable laws should be thoroughly
examined and evidence in relation thereto presented in the OCA. The accommodation approach in the case
at bar would also require a similar discussion of these values and presentation of evidence before the OCA by
the state that seeks to protect its interest on marriage and opposes theaccommodation of the unconventional
religious belief and practice regarding marriage.
The distinction between public and secular morality as expressed - albeit not exclusively - in the law, on
the one hand, and religious morality, on the other, is important because the jurisdiction of the Court extends
only to public and secular morality. Whatever pronouncement the Court makes in the case at bar should be
understood only in this realm where it has authority. More concretely, should the Court declare respondents
conduct as immoral and hold her administratively liable, the Court will be holding that in the realm of public
morality, her conduct is reprehensible or there are state interests overriding her religious freedom. For as long
as her conduct is being judged within this realm, she will be accountable to the state. But in so ruling, the Court
does not and cannot say that her conduct should be made reprehensible in the realm of her church where it is
presently sanctioned and that she is answerable for her immorality to her Jehovah God nor that other religions
prohibiting her conduct are correct. On the other hand, should the Court declare her conduct permissible, the
Court will be holding that under her unique circumstances, public morality is not offended or that upholding her
religious freedom is an interest higher than upholding public morality thus her conduct should not be
penalized. But the Court is not ruling that the tenets and practice of her religion are correct nor that other
churches which do not allow respondents conjugal arrangement should likewise allow such conjugal
arrangement or should not find anything immoral about it and therefore members of these churches are not
answerable for immorality to their Supreme Being. The Court cannot speak more than what it has authority to
say. In Ballard, the U.S. Supreme Court held that courts cannot inquire about the truth of religious
beliefs. Similarly, in Fonacier, this Court declared that matters dealing with faith, practice, doctrine, form of
worship, ecclesiastical law, custom and rule of a churchare unquestionably ecclesiastical matters which are
outside the province of the civil courts.[444] But while the state, including the Court, accords such deference to
religious belief and exercise which enjoy protection under the religious clauses, the social contract and the
constitutional order are designed in such a way that when religious belief flows into speech and conduct that
step out of the religious sphere and overlap with the secular and public realm, the state has the power to
regulate, prohibit and penalize these expressions and embodiments of belief insofar as they affect the interests
of the state. The states inroad on religion exercise in excess of this constitutional design is prohibited by the
religion clauses; the Old World, European and American history narrated above bears out the wisdom of this
proscription.
Having distinguished between public and secular morality and religious morality, the more difficult task is
determining which immoral acts under this public and secular morality fall under the phrase disgraceful and
immoral conduct for which a government employee may be held administratively liable. The line is not easy to
draw for it is like a line that divides land and sea, a coastline of irregularities and indentations. [445] But the case
at bar does not require us to comprehensively delineate between those immoral acts for which one may be
held administratively liable and those to which administrative liability does not attach. We need not concern
ourselves in this case therefore whether laziness, gluttony, vanity, selfishness, avarice and cowardice are
immoral acts which constitute grounds for administrative liability. Nor need we expend too much energy
grappling with the propositions that not all immoral acts are illegal or not all illegal acts are immoral, or different
jurisdictions have different standards of morality as discussed by the dissents and separate opinions, although
these observations and propositions are true and correct. It is certainly a fallacious argument that because
there are exceptions to the general rule that the law is the witness and deposit of our moral life, then the rule is
not true; in fact, that there are exceptions only affirms the truth of the rule. Likewise, the observation that
morality is relative in different jurisdictions only affirms the truth that there is morality in a particular jurisdiction;
without, however, discounting the truth that underneath the moral relativism are certain moral absolutes such
as respect for life and truth-telling, without which no society will survive. Only one conduct is in question before
this Court, i.e., the conjugal arrangement of a government employee whose partner is legally married to
another which Philippine law and jurisprudence consider both immoral and illegal.Lest the Court
inappropriately engage in the impossible task of prescribing comprehensively how one ought to live, the Court
must focus its attention upon the sole conduct in question before us.
In interpreting disgraceful and immoral conduct, the dissenting opinion of Mme. Justice Ynares-Santiago
groped for standards of morality and stated that the ascertainment of what is moral or immoral calls for the
discovery of contemporary community standards but did not articulate how these standards are to be
ascertained. Instead, it held that, (f)or those in the service of the Government, provisions of law and court
precedents . . . have to be considered. It identified the Civil Service Law and the laws on adultery and
concubinage as laws which respondents conduct has offended and cited a string of precedents where a
government employee was found guilty of committing a disgraceful and immoral conduct for maintaining illicit
relations and was thereby penalized. As stated above, there is no dispute that under settled jurisprudence,
respondents conduct constitutes disgraceful and immoral conduct. However, the cases cited by the dissent do
not involve the defense of religious freedom which respondent in the case at bar invokes. Those cited cases
cannot therefore serve as precedents in settling the issue in the case at bar.
Mme. Justice Ynares-Santiagos dissent also cites Cleveland v. United States[446] in laying down the
standard of morality, viz: (w)hether an act is immoral within the meaning of the statute is not to be determined
by respondents concept of morality. The law provides the standard; the offense is complete if respondent
intended to perform, and did in fact perform, the act which it condemns. The Mann Act under consideration in
the Cleveland case declares as an offense the transportation in interstate commerce of any woman or girl for
the purpose of prostitution or debauchery, or for any other immoral purpose. [447] The resolution of that case
hinged on the interpretation of the phrase immoral purpose. The U.S. Supreme Court held that the petitioner
Mormons act of transporting at least one plural wife whether for the purpose of cohabiting with her, or for the
purpose of aiding another member of their Mormon church in such a project, was covered by the phrase
immoral purpose. In so ruling, the Court relied on Reynolds which held that the Mormons practice of
polygamy, in spite of their defense of religious freedom, was odious among the northern and western nations of
Europe,[448] a return to barbarism,[449] contrary to the spirit of Christianity and of the civilization which Christianity
has produced in the Western world,[450] and thus punishable by law.
The Cleveland standard, however, does not throw light to the issue in the case at bar. The
pronouncements of the U.S. Supreme Court that polygamy is intrinsically odious or barbaric do not apply in the
Philippines where Muslims, by law, are allowed to practice polygamy. Unlike in Cleveland, there is no
jurisprudence in Philippine jurisdiction holding that the defense of religious freedom of a member of the
Jehovahs Witnesses under the same circumstances as respondent will not prevail over the laws on adultery,
concubinage or some other law. We cannot summarily conclude therefore that her conduct is likewise so
odious and barbaric as to be immoral and punishable by law.
While positing the view that the resolution of the case at bar lies more on determining the applicable moral
standards and less on religious freedom, Mme. Justice Ynares-Santiagos dissent nevertheless discussed
respondents plea of religious freedom and disposed of this defense by stating that (a) clear and present
danger of a substantive evil, destructive to public morals, is a ground for the reasonable regulation of the free
exercise and enjoyment of religious profession. (American Bible Society v. City of Manila, 101 Phil. 386
[1957]). In addition to the destruction of public morals, the substantive evil in this case is the tearing down of
morality, good order, and discipline in the judiciary. However, the foregoing discussion has shown that the clear
and present danger test that is usually employed in cases involving freedom of expression is not appropriate to
the case at bar which involves purely religious conduct. The dissent also cites Reynolds in supporting its
conclusion that respondent is guilty of disgraceful and immoral conduct. The Reynolds ruling, however, was
reached with a strict neutrality approach, which is not the approach contemplated by the Philippine
constitution. As discussed above, Philippine jurisdiction adopts benevolent neutrality in interpreting the
religion clauses.
In the same vein, Mr. Justice Carpios dissent which employs strict neutrality does not reflect the
constitutional intent of employing benevolent neutrality in interpreting the Philippine religion clauses. His
dissent avers that respondent should be held administratively liable not for disgraceful and immoral conduct
but conduct prejudicial to the best interest of the service as she is a necessary co-accused of her partner in
concubinage. The dissent stresses that being a court employee, her open violation of the law is prejudicial to
the administration of justice. Firstly, the dissent offends due process as respondent was not given an
opportunity to defend herself against the charge of conduct prejudicial to the best interest of the service. In
addition, there is no evidence of the alleged prejudice to the best interest of the service. Most importantly, the
dissent concludes that respondents plea of religious freedom cannot prevail without so much as employing a
test that would balance respondents religious freedom and the states interest at stake in the case at bar. The
foregoing discussion on the doctrine of religious freedom, however, shows that with benevolent neutrality as
a framework, the Court cannot simply reject respondents plea of religious freedom without even subjecting it to
the compelling state interest test that would balance her freedom with the paramount interests of the state. The
strict neutrality employed in the cases the dissent cites -Reynolds, Smith and People v. Bitdu decided
before the 1935 Constitution which unmistakably shows adherence to benevolent neutrality - is not
contemplated by our constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik [451] cited in Mr.
Justice Carpios dissent decisive of the immorality issue in the case at bar. In that case, the Court dismissed the
charge of immorality against a Tausug judge for engaging in an adulterous relationship with another woman
with whom he had three children because it (was) not immoral by Muslim standards for Judge Malik to marry a
second time while his first marriage (existed). Putting the quoted portion in its proper context would readily
show that the Sulu Islamic case does not provide a precedent to the case at bar. Immediately prior to the
portion quoted by the dissent, the Court stressed, viz: (s)ince Art. 180 of P.D. No. 1083, otherwise known as
the Code of Muslim Personal Laws of the Philippines, provides that the penal laws relative to the crime of
bigamy shall not apply to a person married x x x under Muslim Law, it is not immoral by Muslim standards for
Judge Malik to marry a second time while his first marriage exists. [452] It was by law, therefore, that the Muslim
conduct in question was classified as an exception to the crime of bigamy and thus an exception to the general
standards of morality. The constitutionality of P.D. No. 1083 when measured against the Establishment Clause
was not raised as an issue in the Sulu Islamic case. Thus, the Court did not determine whether P.D. No. 1083
suffered from a constitutional infirmity and instead relied on the provision excepting the challenged Muslim
conduct from the crime of bigamy in holding that the challenged act is not immoral by Muslim standards. In
contradistinction, in the case at bar, there is no similar law which the Court can apply as basis for treating
respondents conduct as an exception to the prevailing jurisprudence on illicit relations of civil servants. Instead,
the Free Exercise Clause is being invoked to justify exemption.

B. Application of Benevolent Neutrality and the

Compelling State Interest Test to the Case at Bar

The case at bar being one of first impression, we now subject the respondents claim of religious freedom
to the compelling state interest test from a benevolent neutrality stance - i.e. entertaining the possibility
that respondents claim to religious freedom would warrant carving out an exception from the Civil Service Law;
necessarily, her defense of religious freedom will be unavailing should the government succeed in
demonstrating a more compelling state interest.
In applying the test, the first inquiry is whether respondents right to religious freedom has been
burdened. There is no doubt that choosing between keeping her employment and abandoning her religious
belief and practice and family on the one hand, and giving up her employment and keeping her religious
practice and family on the other hand, puts a burden on her free exercise of religion. In Sherbert, the Court
found that Sherberts religious exercise was burdened as the denial of unemployment benefits forces her to
choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning
one of the precepts of her religion in order to accept work, on the other hand. The burden on respondent in the
case at bar is even greater as the price she has to pay for her employment is not only her religious precept but
also her family which, by the Declaration Pledging Faithfulness, stands honorable before God and men.
The second step is to ascertain respondents sincerity in her religious belief. Respondent appears to
be sincere in her religious belief and practice and is not merely using the Declaration of Pledging Faithfulness
to avoid punishment for immorality. She did not secure the Declaration only after entering the judiciary where
the moral standards are strict and defined, much less only after an administrative case for immorality was filed
against her. The Declaration was issued to her by her congregation after ten years of living together with her
partner, Quilapio, and ten years before she entered the judiciary. Ministers from her congregation testified on
the authenticity of the Jehovahs Witnesses practice of securing a Declaration and their doctrinal or scriptural
basis for such a practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal
punishment for illicit conduct but to make the union of their members under respondents circumstances
honorable before God and men. It is also worthy of notice that the Report and Recommendation of the
investigating judge annexed letters[453] of the OCA to the respondent regarding her request to be exempt from
attending the flag ceremony after Circular No. 62-2001 was issued requiring attendance in the flag
ceremony. The OCAs letters were not submitted by respondent as evidence but annexed by the investigating
judge in explaining that he was caught in a dilemma whether to find respondent guilty of immorality because
the Court Administrator and Deputy Court Administrator had different positions regarding respondents request
for exemption from the flag ceremony on the ground of the Jehovahs Witnesses contrary belief and
practice. Respondents request for exemption from the flag ceremony shows her sincerity in practicing the
Jehovahs Witnesses beliefs and not using them merely to escape punishment. She is a practicing member of
the Jehovahs Witnesses and the Jehovah ministers testified that she is a member in good
standing. Nevertheless, should the government, thru the Solicitor General, want to further question the
respondents sincerity and the centrality of her practice in her faith, it should be given the opportunity to do
so. The government has not been represented in the case at bar from its incipience until this point.
In any event, even if the Court deems sufficient respondents evidence on the sincerity of her
religious belief and its centrality in her faith, the case at bar cannot still be decided using the
compelling state interest test. The case at bar is one of first impression, thus the parties were not aware of
the burdens of proof they should discharge in the Courts use of the compelling state interest test. We note that
the OCA found respondents defense of religious freedom unavailing in the face of the Courts ruling
in Dicdican v. Fernan, et al., viz:

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

It is apparent from the OCAs reliance upon this ruling that the state interest it upholds is the preservation
of the integrity of the judiciary by maintaining among its ranks a high standard of morality and
decency. However, there is nothing in the OCAs memorandum to the Court that demonstrates how this interest
is so compelling that it should override respondents plea of religious freedom nor is it shown that the means
employed by the government in pursuing its interest is the least restrictive to respondents religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to present evidence on the compelling
interest of the state. The burden of evidence should be discharged by the proper agency of the government
which is the Office of the Solicitor General. To properly settle the issue in the case at bar, the government
should be given the opportunity to demonstrate the compelling state interest it seeks to uphold in opposing the
respondents stance that her conjugal arrangement is not immoral and punishable as it comes within the scope
of free exercise protection.Should the Court prohibit and punish her conduct where it is protected by the
Free Exercise Clause, the Courts action would be an unconstitutional encroachment of her right to
religious freedom.[454] We cannot therefore simply take a passing look at respondents claim of religious
freedom, but must instead apply the compelling state interest test. The government must be heard on the issue
as it has not been given an opportunity to discharge its burden of demonstrating the states compelling interest
which can override respondents religious belief and practice. To repeat, this is a case of first impression where
we are applying the compelling state interest test in a case involving purely religious conduct. The careful
application of the test is indispensable as how we will decide the case will make a decisive difference in the life
of the respondent who stands not only before the Court but before her Jehovah God.
IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The Solicitor
General is ordered to intervene in the case where it will be given the opportunity (a) to examine the sincerity
and centrality of respondents claimed religious belief and practice; (b) to present evidence on the states
compelling interest to override respondents religious belief and practice; and (c) to show that the means the
state adopts in pursuing its interest is the least restrictive to respondents religious freedom. The rehearing
should be concluded thirty (30) days from the Office of the Court Administrators receipt of this Decision.
SO ORDERED.
DIGEST

Estrada vs. Escritor , 492 SCRA 1 ; 22 JUN 2006

FACTS: Escritor is a court interpreter since 1999 in the RTC of Las Pinas City. She has been living with
Quilapio, a man who is not her husband, for more than twenty five years and had a son with him as well.
Respondents husband died a year before she entered into the judiciary while Quilapio is still legally married to
another woman.

Complainant Estrada requested the Judge of said RTC to investigate respondent. According to complainant,
respondent should not be allowed to remain employed therein for it will appear as if the court allows such act.

Respondent claims that their conjugal arrangement is permitted by her religionthe Jehovahs Witnesses and
the Watch Tower and the Bible Trace Society. They allegedly have a Declaration of Pledging Faithfulness
under the approval of their congregation. Such a declaration is effective when legal impediments render it
impossible for a couple to legalize their union.

ISSUE: Whether or Not the State could penalize respondent for such conjugal arrangement.

RULING: No. The State could not penalize respondent for she is exercising her right to freedom of religion.
The free exercise of religion is specifically articulated as one of the fundamental rights in our Constitution. As
Jefferson put it, it is the most inalienable and sacred of human rights. The States interest in enforcing its
prohibition cannot be merely abstract or symbolic in order to be sufficiently compelling to outweigh a free
exercise claim. 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. Thus the States interest only amounts to the symbolic
preservation of an unenforced prohibition.

Furthermore, a distinction between public and secular morality and religious morality should be kept in mind.
The jurisdiction of the Court extends only to public and secular morality.

The Court further states that our Constitution adheres the benevolent neutrality approach that gives room for
accommodation of religious exercises as required by the Free Exercise Clause. This benevolent neutrality
could allow for accommodation of morality based on religion, provided it does not offend compelling state
interests. Assuming arguendo 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. Thus the conjugal arrangement cannot be
penalized for it constitutes an exemption to the law based on her right to freedom of religion.

.R. Nos. 115132-34 August 9, 1995

IMELDA R. MARCOS, petitioner,

vs.
THE HONORABLE SANDIGANBAYAN (First Division) and the PEOPLE OF THE PHILIPPINES, respondents.

MENDOZA, J.:

This is a petition for certiorari to set aside as arbitrary and in grave abuse of discretion resolutions of the
Sandiganbayan's First Division denying petitioner's motion for leave to travel abroad for medical treatment.

Petitioner, former First Lady and widow of former President Ferdinand E. Marcos, is the defendant in several
criminal cases for violations of the Anti Graft and Corrupt Practices Act (R.A. No. 3019) now pending in the
Sandiganbayan and in the regular courts. In two of these cases, i.e., Criminal Case Nos. 17450 and 17453,
petitioner was found guilty by the First Division of the Sandiganbayan of violating 3(g) of the Anti Graft and Corrupt
Practices Act (R.A. No. 3019) and was sentenced to suffer in each case imprisonment for an indeterminate period of
9 years and 1 day as minimum to 12 years and 10 days as maximum, with perpetual disqualification from public
office. Petitioner filed a motion for reconsideration, which is pending resolution in the Sandiganbayan.

After her conviction in the two cases petitioner filed on December 24, 1993 a "Motion for Leave to Travel Abroad" to
seek diagnostic tests and treatment by practitioners of oriental medicine in the People's Republic of China allegedly
because of "a serious and life threatening medical condition" requiring facilities not available in the Philippines.
Petitioner's motion was denied by the Sandiganbayan for failure of petitioner to give notice to the prosecution and
because the time asked (December 29, 1993) was too close for the court to inform itself of the basis of the motion.

On December 29, 1993, petitioner filed in another case (Criminal Case No. 18742) 1 an "Urgent Ex-Parte Motion for
Permission to Travel Abroad" to undergo diagnosis and treatment in China. The motion was supported by Ambulatory BP
Reports, Nuclear Medicine Reports and Computed Tomography Scan Results prepared by her physician and cardiologist,
Dr. Roberto V. Anastacio, and other doctors at the Makati Medical Center.

On January 4, 1994, petitioner filed In Criminal Case Nos. 17450 and 17453 another "Motion for Leave to Travel
Abroad," to places including the United States and Europe, "if necessary," for treatment of "hypertensive heart
disease, uncontrolled angina pectoris, and anterior myocardial infarction." It was alleged that the tests needed were
not available in the Philippines.

The Chairman of respondent court's First Division, Presiding Justice Francis E. Garchitorena, contacted Dr.
Gregorio B. Patacsil, Officer-in-Charge of the Philippine Heart Center, and later wrote him a letter, 2 asking for "expert
opinion on coronary medicine," particularly on the following questions:

1. Is [petitioner's] condition life-threatening?

2. What are the "sophisticated biochemical tests" necessary (not merely desirable), if any are needed at all,
to ascertain and remedy her condition?

3. Are these tests available here?

4. Is the present level of expertise in the Philippines adequate to respond to her condition?

The Presidential Commission on Good Government filed a manifestation interposing no objection to petitioner's
motions "primarily on humanitarian grounds provided that the accused comply with the terms and conditions for
travel as may be imposed" by respondent court. The Office of the Special Prosecutor, 3 on the other hand, opposed
the motions, contending that:

1. the absolute necessity to go abroad was not demonstrated;

2. no statement was made by the accused that medical equipment and facilities here were "sorrily"
inadequate for the needs of the movant;

3. the conviction of the accused in Criminal Cases No. 17450 and No. 17453 might motivate her not to
return if she were to be authorized to leave the country.

On January 7, 1994 hearing was held on petitioner's motion, during which petitioner presented Dr. Roberto V.
Anastacio. After the hearing, the Sandiganbayan informed the parties that a copy of petitioner's first motion and its
supporting documents had been sent to Dr. Patacsil for study and comment by a committee of cardiologists.

After consulting Dr. Anastacio, petitioner's counsel asked the court to include among the questions to the committee
the following: "Without the Biochemical test, may proper treatment be administered to Mrs. Marcos?" Petitioner's
counsel also asked the court to include the list of medicine being taken by petitioner as part of the study. These
requests were granted by the court.

Thereafter, a "Supplement to the Motion for Leave Abroad" was filed on January 17, 1994 together with additional
documents, consisting of the following:

(a) a faxed letter from Dr. Denton A. Cooley of the Texas Heart Institute dated January 11, 1994;

(b) a letter dated May 9, 1990 from David B. Case, M.D. addressed to lawyer Gerry Spence;

(c) a letter dated May 23, 1990 from Dr. Vincent De Quattro of the University of Southern California
Hypertension Diagnostic Laboratory;

(d) two letters, both dated January 3, 1994 from China, one from the Tranjin Medical College, and another
without letterhead from one F.S. Tsui, both letters offering their facilities for diagnosis and treatment of
hypertension and related illness through the "Classic Art of Chinese Medical Technology."

On January 20, 1994, the Sandiganbayan received by FAX machine the report of the committee, 4 containing findings
which were contrary to the conclusions of petitioner's physicians. The Presiding Justice immediately informed by phone
petitioner's counsel, Attorneys Vicente D. Millora and Manuel M. Lazaro, of the committee's report. Atty. Lazaro requested
that a copy of the report be sent to him by FAX machine, while Atty. Millora got his copy personally from the court.

On January 26, 1994, Dr. Ramon F. Abarquez, Jr. was heard by the court on his committee's report. Present at the
hearing were the two lawyers of petitioner and Dr. Anastacio.

On February 11, 1994, the court accepted petitioner's "Supplemental Motion to Travel Abroad" and heard the
rebuttal testimony of Dr. Roberto V. Anastacio, as well as the testimony of Dr. Jorge Garcia, heart surgeon from
Washington, D.C., in support of petitioner's motion to travel abroad.

On February 18, 1994 the court denied petitioner's motions. The dispositive portion of its resolution reads:

IN VIEW OF THE FOREGOING, it is the judgment of this Court that the imperative necessity of the accused
to undertake a trip abroad for diagnosis and treatment has not been established and for this reason DENIES
the various motions of accused Imelda R. Marcos to leave for abroad.

SO ORDERED.

Petitioner filed a motion for reconsideration and a "Motion to Admit Clinical Summary and to Resolve Motion for
Reconsideration." The Clinical Summary was a recent medical report on petitioner's condition after she had
undergone another medical examination at the Philippine Heart Center 5 Petitioner also filed a "Motion to Admit
Recognizance in Support of, and to Resolve Soonest, the Motion for Reconsideration to Travel Abroad." Attached to the
motion were letters of Vice President Joseph E. Estrada offering to be guarantor for the return of petitioner and those of
twenty four members of the House of Representatives 6 requesting the court to allow petitioner to travel abroad.

In a resolution dated April 19, 1994, respondent court denied petitioner's motion for reconsideration for lack of merit
even as it expressed disapproval of the intervention of the Vice President and the twenty four congressmen and
warned them and petitioner's counsel, Atty. Rodolfo U. Jimenez, that "repetition of any attempt to influence the
resolutions, decisions or orders or any judicial action of [respondent court] will be responded to appropriately."

Hence, this petition for certiorari to set aside the resolutions dated February 18, 1994 and April 19, 1994 of the First
Division of the Sandiganbayan on the ground that they were issued with grave abuse of discretion, amounting to
lack or in excess of jurisdiction. Petitioner claims that

1. [The Sandiganbayan] arbitrarily disregarded or misinterpreted the testimonies, medical findings and
recommendations of petitioner's attending physicians and relied on or substituted them with the academic
views of Dr. Abarquez and the Committee, who never examined or treated personally the petitioner, and
erroneously concluded "that the necessity for trip abroad by the accused for diagnosis and treatment has not
been established";

2. It adopted an unusual and unorthodox conduct of trial as demonstrated by the following: (a) it motu
propiocontacted a third party asking the latter to give an opinion on petitioner's motion and medical findings;
(b) it unusually participated in the examination of petitioner's witnesses; (c) thru its PJ, it presented as own
witness; (d) it requested the formation of a committee to study the evidence presented; (e) it did not decide
the case on the basis of the evidence presented; (f) it decided on the basis of evidence (academic) it sought;

3. It failed to resolve that, in the clash between basic constitutional rights of the petitioner and the authority
of the court over the petitioner, the basic constitutional rights must prevail;

4(a). It considered the conviction of petitioner in two (2) criminal cases which are pending reconsideration as
factors in denying the rights of petitioner to life, health and liberty and depriving the penumbras of such right
to give life and substance;

4(b). Respondent court violated the cluster of rights of "personhood", "privacy" or "personal liberty".

5. It perceived that there is no "imperative necessity" for petitioner to avail of medical examination and
treatment abroad not withstanding that such perception/conclusion cannot constitute a cause to deny or
deprive petitioner of her constitutional rights, nor can it refute the medical findings of petitioner's attending
physicians.

Called upon to comment, the Solicitor General, in representation of the prosecution in the criminal cases, contends
that respondent court acted properly in seeking the advice of medical experts in regard to petitioner's motion to
travel; that in any event petitioner is estopped from questioning the referral of her medical condition to other experts
by agreeing to submit additional questions for their consideration; and that the right to life is not absolute but must
be balanced by the State's right to prosecute and enforce the judgments of its courts, and that petitioner's conviction
in two cases is relevant along with "humanitarian and equity" considerations.

The question for decision is whether the Sandiganbayan gravely abused its discretion in denying petitioner's request
to travel abroad for medical treatment. After due consideration of the parties' arguments, we find that it did not.

Respondent court had to seek expert opinion because petitioner's motion was based on the advice of her physician.
The court could not be expected to just accept the opinion of petitioner's physician in resolving her request for
permission to travel. The subject lay beyond its competence and since the grant of the request depended on the
verification of the claim that petitioner was suffering from a medical condition that was alleged to be serious and life
threatening, the respondent court, we think, followed the only prudent course available of seeking the opinion of
other specialists in the field.
Indeed, when even in their own field of expertise (law) courts are allowed to invite amici curiae to shed light on
recondite points of law, there is no reason for denying them assistance on other subjects. Presiding Justice
Garchitorena's letter to Dr. Patacsil is notable in this regard for its sedulous concern for "greater need for information
and expert advise" to the end that respondent court may be able to determine "whether or not it is necessary and
urgent for petitioner to travel abroad."

What would be objectionable would be if respondent court obtained information without disclosing its source to the
parties and used it in deciding a case against them. Then the parties could justifiably complain that their right to due
process has been violated. But, in this case, everything was on the level, with the parties taking part in the
proceedings of the court.

At all events if petitioner did not agree to the procedure adopted by the court, her counsel should have objected
when informed by the court on January 7, 1994 that it had referred Dr. Anastacio's report to the Philippine Heart
Center for advice and opinion. Counsel did not object. Instead, after consulting Dr. Anastacio, he requested the
court to submit additional questions for referral to the Philippine Heart Center and later took part in cross examining
Dr. Abarquez, Jr. when the latter testified. Petitioner is thus estopped from questioning what she now calls the
"unusual and unorthodox" manner of resolving her request for permission to travel abroad.

Now, if the respondent court disregarded the findings and recommendations of petitioner's physician, it was because
in light of the report of the panel of experts which reviewed the findings and recommendations of petitioner's
physicians, petitioner failed to prove the necessity for a trip abroad. It should be emphasized that considering the
fact that she is facing charges before the courts in several cases, in two of which she was convicted although the
decision is still pending reconsideration, petitioner did not have an absolute right to leave the country and the
burden was on her to prove that because of danger to health if not to her life there was necessity to seek medical
treatment in foreign countries. 7

Nor is there warrant for the claim that respondent court acted arbitrarily in disregarding the findings of petitioner's
physicians and relying on the opinion of specialists from the Philippine Heart Center because the latter did not
personally examine her and for that reason their opinion is allegedly "academic." The question raised by petitioner's
motion was not whether petitioner was suffering from a serious and life threatening medical condition. Rather the
question before the Sandiganbayan was whether on the basis of reports attached to the motions for travel there was
evidence to show that she was suffering from such ailments (i.e., coronary artery disease and labile hypertension)
and there was need for diagnostic tests which could only be performed abroad. Consequently, it was unnecessary
for the Philippine Heart Center's specialists to examine the petitioner personally. Given the findings of petitioner's
own physicians, they found that petitioner had not been shown to be suffering from coronary artery disease and
uncontrolled high blood pressure (labile hypertension).

The claim that petitioner is suffering from a life threatening medical condition is based on a letter dated November 4,
1993 of Dr. Roberto V. Anastacio, cardiologist at the Makati Medical Center, to Dr. Jorge M. Garcia, heart surgeon of
the Washington Heart Institute at Washington D.C., recommending diagnostic tests abroad for petitioner. In his letter
(marked Annex B of petitioner's first "Motion for Leave to Travel Abroad") Dr. Anastacio claimed that petitioner
complained of chest pains; that she had an uncontrolled high blood pressure with "a spread of 200/100-100/70;" that
the ambulatory blood pressure monitoring device showed her highest systolic BP to be from 184 to 204 mmHg at 6
P.M., 1:35 A.M. and 3 A.M., and her highest diastolic pressure to be 120 mmHg; that an Electrocardiogram indicated
a myocardial infarction; that an Exercise-HexaMibi Tc-99m myocardial perfusion imaging showed an "abnormal
myorcardial injury in the anterior region." Dr. Anastacio concluded:

Definitely, we have established that Mrs. Marcos is suffering from a dangerous level of rises in blood
pressure provoked by high level of emotional stress and now complicated with a strong evidence of
myocardial injury.

Her significant family history of hypertension in her father and siblings (eldest sister and brother) and that
indeed two of them have experienced sudden cardiac death as complicating manifestations of uncontrolled
high blood pressure of this type place this patient in the high risk category of sudden cardiac death.
(Emphasis added)

He recommended:
 Definitely, Mrs. Marcos should undergo immediate studies [abroad] to define the following:

1. To investigate invasively (Coronary Arteriogram) to correlate the severity of coronary obstruction and the
recent development of myocardial infarction in relation to sudden cardiac death.

2. To do biochemical studies at the same time e.g. Continuous-Serial Vasopressine-Arginine and

Catecholamine level determination in relation with her uncontrolled high, dangerous level of high blood
pressure not only in the stratification of her "Sudden Death" risk staging but likewise, equally important is the
control of her uncontrolled high blood pressure.

3. The observed sensitiveness to the drugs administered, makes drug therapy risky without a concomittant
close monitoring of the hemodynamic and biochemical parameters which will help avert a possible
iatrogenic, fatal cardiovascular event.

Based on these findings, Dr. Roman F. Abarquez, Jr., Dr. Homobono B. Calleja and Dr. Romeo A. Divinagracia,
however, found the diagnosis of "definite coronary artery disease" to be "questionable" for the following reasons:

1) The location and character of the chest pain (sharp pain lasting for a few seconds left mid axillary and not
related to effort) is not the common presentation of pain due to coronary artery disease (angina pectoris).

2) The Stress Test done during the Thallium Scan was adequate (maximum predicted heart rate of
106%)and yet was negative for ischemia.

3) The Thallium Myocardial imaging (Nuclear scan) showed only a small questionable perfusion defect on
the anterior wall. It can also be considered as a false positive finding due to soft tissue artifacts as
mentioned in the report. (Emphasis added)

In fact the finding that petitioner did not have ischemia 8 and that there was only a small perfusion defect on the anterior
wall which could be considered a "false positive finding" is based on petitioner's own nuclear medical report. 9 prepared by
the Makati Medical Center, which contains the following conclusions:

CONCLUSIONS: ABNORMAL MYOCARDIAL PERFUSION IMAGING. EVIDENCE FOR PRIOR

MYOCARDIAL INJURY IN THE ANTERIOR REGION. THERE WAS NO EVIDENCE FOR STRESS
INDUCED MYOCARDIAL ISCHEMIA.

ALTHOUGH THESE FINDINGS ARE SUGGESTIVE OF CORONARY ARTERY DISEASE, PHOTON

ATTENUATION SECONDARY TO SOFT TISSUE ARTIFACTS CAN BE EXCLUDED.

As to the ambulatory blood pressure monitor reports, the Abarquez panel noted:

The diagnosis of hypertensive heart disease is questionable. Mrs. Marcos has transient (labile)
hypertension. In the ambulatory BP monitoring records there were only 2 transient rises of elevated
systolic pressure and 3 episodes of elevated diastolic pressure. 5 episodes of transient systolic BP elevation
and 5 episodes of transient elevated diastolic pressure occurred in the 2nd ambulatory recording. The
patient did not submit a diary during both occasions when her ambulatory BP recording was performed.

A patient is considered to have sustained hypertension if 30% or more of the recorded blood pressures on
ambulatory monitoring are hypertensive levels. The term hypertensive heart disease is used to denote heart
involvement due to effects of long standing (chronic) hypertension. There is no evidence in the medical brief
to show that there is left ventricular hypertrophy or left ventricular dysfunction. In fact, the previous
echocardiogram was reported to be normal.

For this reason the committee questioned the need for petitioner to have biochemical tests abroad. Even without
these tests, it noted, Dr. Anastacio had "already been treating her with medicines that are used for hypertension and
coronary heart disease."
With respect to Dr. Anastacio's claim that petitioner is in the high risk group of sudden cardiac death, the committee
stated that a history of sudden death in the family alone will not support such a conclusion:

The known direct determinants for sudden cardiac death are: (1) ventricular electrical instability (ventricular
arrhytmias), (2) extensive coronary artery narrowing, (3) abnormal left ventricular function, (4)
electrocardiographic conduction and repolarization abnormalities.

In the absence of the above factors for sudden cardiac death, the presence of a family history of sudden
cardiac death alone cannot stand as a strong argument for a high risk of sudden cardiac death. Even the
family history of sudden cardiac death in this case is still questionable since we are not furnished with
definite evidence that the said members of the family actually died of sudden death.

In summary, the evidence submitted do not confirm the allegation that Mrs. Marcos is in the high risk group
for sudden cardiac death. (Emphases added)

The group made the following conclusions and recommendations:

RECOMMENDED TESTS:

1) Coronary Angiography to definitely establish the presence or absence of coronary artery obstruction
and severity of the disease.

2) 2-D Echo Doppler Echocardlography to demonstrate the presence of ventricular dysfunction or

hypertrophy.

3) Ambulatory Holter Monitoring to find out whether serious arrhythmias (irregularities of heart beat) are
present or not.

CONCLUSIONS:

1) The diagnosis or significant coronary heart disease is not confirmed from the brief presented.

2) Marcos has transient elevation of blood pressure" which be reactive to situations but there is no evidence
to indicate the presence of hypertensive heart disease.

3) The tests we have recommended are available in the Philippines. Proper treatment can be given to Mrs.
Marcos even in the absence of the suggested biochemical tests. (Emphasis added)

4) The present facilities and expertise in the Philippines are more than adequate to diagnose and treat
patients with hypertension and/or coronary heart disease. (Emphasis added)

Dr. Abarquez, Jr. testified on January 26, 1994 on the report of his committee. Dr. Anastacio was present at that
hearing, but he did not refute Dr. Abarquez, Jr.'s conclusions. Instead it appears that he performed the tests
recommended by the committee, namely:

1) Coronary Angiography to definitely establish the presence or absence of coronary artery obstruction
and severity of the disease.

2) 2-D Echo Doppler Echocardiography to demonstrate the presence of ventricular dysfunction or

hypertrophy.

3) Ambulatory Holter Monitoring to find out whether serious arrhythmias (irregularities of heart beat) are
present or not.

The results, as the Sandiganbayan said in its resolution, were:

 Dr. Roberto Anastacio, accused Marcos' attending physician, appears to have subsequently subjected
accused Marcos to another set of tests during her latest confinement at the Makati Medical Center,
principally the Echo Doppler Test and the Holter 24-hour monitoring test.

The 2-D Echo Doppler test, which the Committee of Cardiologists recommended was administered on
February 1, 1994 (Exhibit "D-Supplemental") and all findings read normal.

Dr. Anastacio said that the handwritten notes of Drs. Dy and Lapitan who had read the results of the
Ambulatory Hotter Monitor, i.e., an ambulant electrocardiogram, and the readings did not show that there
was anything wrong with accused Marcos. In fact, the readings themselves said that the average pulse rate
was at 68 beats per minute (from 50 to 134) no blockages, no PVCs, no PACs, no indication of arrythmia.

It would appear that earlier on January 31, 1994, petitioner had also undergone electrocardiogram tests at the
Makati Medical Center in which cardiologists are rotated to do the readings. Dr. Esperanza Cabral found the
electrocardiogram results to be "Normal." The results of the echocardiogram were read by another cardiologist, Dr.
Adoracion Nambuyan-Abad, and her finding was approved by Dr. Benjamin N. Alimurong. The results were also
"Normal."

Although Dr. Anastacio subsequently conducted another electrocardiogram test on petitioner and found the
existence of myocardial infarction, as the Sandiganbayan noted, Dr. Anastacio's finding was not read or concurred in
by another cardiologist, contrary to the procedure followed at the Makati Medical Center. 10 It is, therefore, also
questionable.

The evidence submitted to it, according to the Abarquez committee, "[did] not confirm the allegation that Mrs.
Marcos is in the high risk group of sudden cardiac death." Perhaps the best proof that she is not in the group is the
fact that she ran in the last election for a seat in the House of Representative and won. It may be assumed that she
waged an arduous political campaign but apparently is none the worse for it.

Considering the foregoing we cannot say that respondent court trifled with petitioner's constitutionally guaranteed
right to life, health and liberty. What petitioner denounces as the "unusual and unorthodox conduct of the trial" by the
court's Presiding Justice owed more, it would seem, from the latter's robust and rather active personality rather than
to any ill motive or hostility he entertained toward petitioner, the latter's counsel or her witnesses. It is matter of
record that on three different occasions, petitioner had been permitted to travel abroad. But her later conviction in
two cases dictated the need for greater caution. To be sure, conviction is not yet final view of a motion for
reconsideration filed by petitioner. But a person's right to travel is subject to the usual contraints imposed by the very
necessity of safeguarding the system of justice. In such cases, whether the accused should be permitted to leave
the jurisdiction for humanitarian reason is a matter of the court's sound discretion.

The active intervention of respondent Presiding Justice in the trial the case was justified by the fact that the subject
with which the court was dealing was a highly technical one and he wanted to clarify for himself a number of medical
question. That a judge has the power if not indeed a duty to do this teaching of People v.Obngayan; 11

There are obviously certain rights to the trier of facts due to the nature of (a judge's) function. Among these is the
right to question a witness with a view to satisfying his mind upon a material point which present itself during the
trial as to the credibility of such witness.

This Court quoted the following from Justice Labrador's opinion Ventura v. Judge Yatco: 12

While judges should as much as possible refrain from showing partiality to one party and hostility to another, it
does not mean that a trial judge should keep mum throughout the trial and allow parties to ask the questions that
they desire, on issues which they think are the important issues, when the former are improper and the latter,
immaterial. If trials are to be expedited, judges must take a leading part therein, by directing counsel to submit the
evidence on the facts in the dispute by asking clarifying questions, and by showing an interest in a fast and fair
trial. Judges are not mere referees like those of a boxing bout, only to watch and decide the result of a game; they
should have as much interest as counsel in the orderly and expeditious presentation of evidence, calling attention
of counsel to point at issue that are overlooked, directing them to ask the question that would elicit the fact on the
issues involved, clarifying ambiguous remarks by witnesses, etc. Unless they take an active part in trials in the
above form and manner, and allow counsel to ask questions whether pertinent or impertinent, material or
 immaterial, the speedy administration of justice which is the aim of the Government and of the people cannot be
attained. Counsel should, therefore, not resent any interest that the judge takes in the conduct of the trial, they
should be glad that a trial judge takes such interest and help in the determination of truth.

The active participation of respondent court in examining petitioner's witnesses in the case merely indicated the
court's deep concern with the truth of petitioner's medical condition.

What perhaps should have been done was for petitioner to request an examination of her medical condition by a
joint team of cardiologist and other medical experts instead of having the findings of her physician reviewed by the
other specialists. A joint investigation will have the advantage of not being unduly adversarial since the purpose is
the common objective of arriving at a consensus among the experts.

It is not late for the petitioner to ask for this. She can file another motion before the Sandiganbayan. This
observation is made because after the petitioner in the case had been filed, petitioner filed a motion for leave to
travel, this time on the ground that she is suffering from a difficult type of glaucoma which threatens to make her
blind. Her motion is supported by a medical certificate of Dr. Manuel B. Agulto, opthalmologist and glaucoma expert,
who recommends that petitioner see Dr. Richard J. Simmons of Boston, Massachusetts, and avail herself of his
"internationally renowned expertise and recognized authority in this particularly difficult glaucoma type." 13 Dr.
Agulto's certificate states:

This certifies that above patient has been treated by the undersigned by since 1980 for Low Tension
Glaucoma which was initially diagnosed by Richard J. Simmons, M.D. of Harvad Medical School and New
England Glaucoma Research Foundation of Boston, Massachussetts.

Since then the patient has been monitored closely to prevent irreversible visual field and acuity loss. Lately
we have noted a progression of her visual field changes.

Latest pertinent clinical findings (as of April 19, 1994) include the following:

Corrected Vision: 20/20, Jaeger 1

Automated Visual field: positive paracentral depression, both eyes (April 11, 1994, copies of result
appended)
Tensions: (Diurnal Range) 13-15mm Hg, right eye
13-16mm Hg, left eye
Disc: Cupping of 0.6-0.7, both eyes

Remarks:

We suggest that the patient see her primary eye physician in Boston so as to avail herself of his
internationally renowned expertise and recognized authority in this particularly difficult glaucoma type.

Considering the irreversible nature of glaucoma blindness and the documented progression of her field
changes plus additional and strong clinical evidence of the unrelenting course of visual loss as was recently
documented in a younger brother and patient, Alfredo T. Romualdez, who was recently declared legally blind
from the same familial glaucoma, we urge Mrs. Marcos who is much older and therefore at greater risk, to
consult immediate Dr. Simmons so as to delay if not prevent the onset of very real and absolute blindness.

This motion should be addressed to the Sandiganbayan not only because whether petitioner should be allowed to
leave the country is its primary concern but also because the determination of petitioner's eye condition is question
of fact to be made in the first instance by the Sandiganbayan. The court should order a joint examination of
petitioner's eye condition and resolve her motion accordingly.

WHEREFORE, the petitioner is DISMISSED without prejudice to the filling of another motion for leave to travel
abroad, should petitioner still desire, based on her heart condition. In such an event the determination of her
medical condition should be made by joint panel of medical specialists recommended by both the accused and the
prosecution.
Petitioner's motion for leave to travel for medical treatment of her alleged failing eyesight is hereby referred to the
Sandiganbayan with directive to the latter to appoint a joint panel of eye specialists as outlined above.

SO ORDERED.

G.R. No. 133250 July 9, 2002

FRANCISCO I. CHAVEZ, petitioner,

vs.
PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY DEVELOPMENT CORPORATION, respondents.

CARPIO, J.:

This is an original Petition for Mandamus with prayer for a writ of preliminary injunction and a temporary restraining
order. The petition seeks to compel the Public Estates Authority ("PEA" for brevity) to disclose all facts on PEA's
then on-going renegotiations with Amari Coastal Bay and Development Corporation ("AMARI" for brevity) to reclaim
portions of Manila Bay. The petition further seeks to enjoin PEA from signing a new agreement with AMARI involving
such reclamation.

The Facts

On November 20, 1973, the government, through the Commissioner of Public Highways, signed a contract with the
Construction and Development Corporation of the Philippines ("CDCP" for brevity) to reclaim certain foreshore and
offshore areas of Manila Bay. The contract also included the construction of Phases I and II of the Manila-Cavite
Coastal Road. CDCP obligated itself to carry out all the works in consideration of fifty percent of the total reclaimed
land.

On February 4, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1084 creating PEA. PD
No. 1084 tasked PEA "to reclaim land, including foreshore and submerged areas," and "to develop, improve,
acquire, x x x lease and sell any and all kinds of lands." 1 On the same date, then President Marcos issued
Presidential Decree No. 1085 transferring to PEA the "lands reclaimed in the foreshore and offshore of the Manila
Bay"2 under the Manila-Cavite Coastal Road and Reclamation Project (MCCRRP).

On December 29, 1981, then President Marcos issued a memorandum directing PEA to amend its contract with
CDCP, so that "[A]ll future works in MCCRRP x x x shall be funded and owned by PEA." Accordingly, PEA and
CDCP executed a Memorandum of Agreement dated December 29, 1981, which stated:

"(i) CDCP shall undertake all reclamation, construction, and such other works in the MCCRRP as may be
agreed upon by the parties, to be paid according to progress of works on a unit price/lump sum basis for
items of work to be agreed upon, subject to price escalation, retention and other terms and conditions
provided for in Presidential Decree No. 1594. All the financing required for such works shall be provided by
PEA.

xxx

(iii) x x x CDCP shall give up all its development rights and hereby agrees to cede and transfer in favor of
PEA, all of the rights, title, interest and participation of CDCP in and to all the areas of land reclaimed by
CDCP in the MCCRRP as of December 30, 1981 which have not yet been sold, transferred or otherwise
disposed of by CDCP as of said date, which areas consist of approximately Ninety-Nine Thousand Four
Hundred Seventy Three (99,473) square meters in the Financial Center Area covered by land pledge No. 5
and approximately Three Million Three Hundred Eighty Two Thousand Eight Hundred Eighty Eight
(3,382,888) square meters of reclaimed areas at varying elevations above Mean Low Water Level located
outside the Financial Center Area and the First Neighborhood Unit." 3
On January 19, 1988, then President Corazon C. Aquino issued Special Patent No. 3517, granting and transferring
to PEA "the parcels of land so reclaimed under the Manila-Cavite Coastal Road and Reclamation Project
(MCCRRP) containing a total area of one million nine hundred fifteen thousand eight hundred ninety four
(1,915,894) square meters." Subsequently, on April 9, 1988, the Register of Deeds of the Municipality of Paraaque
issued Transfer Certificates of Title Nos. 7309, 7311, and 7312, in the name of PEA, covering the three reclaimed
islands known as the "Freedom Islands" located at the southern portion of the Manila-Cavite Coastal Road,
Paraaque City. The Freedom Islands have a total land area of One Million Five Hundred Seventy Eight Thousand
Four Hundred and Forty One (1,578,441) square meters or 157.841 hectares.

On April 25, 1995, PEA entered into a Joint Venture Agreement ("JVA" for brevity) with AMARI, a private corporation,
to develop the Freedom Islands. The JVA also required the reclamation of an additional 250 hectares of submerged
areas surrounding these islands to complete the configuration in the Master Development Plan of the Southern
Reclamation Project-MCCRRP. PEA and AMARI entered into the JVA through negotiation without public
bidding.4 On April 28, 1995, the Board of Directors of PEA, in its Resolution No. 1245, confirmed the JVA. 5On June
8, 1995, then President Fidel V. Ramos, through then Executive Secretary Ruben Torres, approved the JVA. 6

On November 29, 1996, then Senate President Ernesto Maceda delivered a privilege speech in the Senate and
denounced the JVA as the "grandmother of all scams." As a result, the Senate Committee on Government
Corporations and Public Enterprises, and the Committee on Accountability of Public Officers and Investigations,
conducted a joint investigation. The Senate Committees reported the results of their investigation in Senate
Committee Report No. 560 dated September 16, 1997. 7 Among the conclusions of their report are: (1) the reclaimed
lands PEA seeks to transfer to AMARI under the JVA are lands of the public domain which the government has not
classified as alienable lands and therefore PEA cannot alienate these lands; (2) the certificates of title covering the
Freedom Islands are thus void, and (3) the JVA itself is illegal.

On December 5, 1997, then President Fidel V. Ramos issued Presidential Administrative Order No. 365 creating a
Legal Task Force to conduct a study on the legality of the JVA in view of Senate Committee Report No. 560. The
members of the Legal Task Force were the Secretary of Justice, 8 the Chief Presidential Legal Counsel, 9 and the
Government Corporate Counsel.10 The Legal Task Force upheld the legality of the JVA, contrary to the conclusions
reached by the Senate Committees.11

On April 4 and 5, 1998, the Philippine Daily Inquirer and Today published reports that there were on-going
renegotiations between PEA and AMARI under an order issued by then President Fidel V. Ramos. According to
these reports, PEA Director Nestor Kalaw, PEA Chairman Arsenio Yulo and retired Navy Officer Sergio Cruz
composed the negotiating panel of PEA.

On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition for Prohibition with Application for the
Issuance of a Temporary Restraining Order and Preliminary Injunction docketed as G.R. No. 132994 seeking to
nullify the JVA. The Court dismissed the petition "for unwarranted disregard of judicial hierarchy, without prejudice to
the refiling of the case before the proper court."12

On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity) as a taxpayer, filed the instant Petition for
Mandamus with Prayer for the Issuance of a Writ of Preliminary Injunction and Temporary Restraining Order.
Petitioner contends the government stands to lose billions of pesos in the sale by PEA of the reclaimed lands to
AMARI. Petitioner prays that PEA publicly disclose the terms of any renegotiation of the JVA, invoking Section 28,
Article II, and Section 7, Article III, of the 1987 Constitution on the right of the people to information on matters of
public concern. Petitioner assails the sale to AMARI of lands of the public domain as a blatant violation of Section 3,
Article XII of the 1987 Constitution prohibiting the sale of alienable lands of the public domain to private
corporations. Finally, petitioner asserts that he seeks to enjoin the loss of billions of pesos in properties of the State
that are of public dominion.

After several motions for extension of time, 13 PEA and AMARI filed their Comments on October 19, 1998 and June
25, 1998, respectively. Meanwhile, on December 28, 1998, petitioner filed an Omnibus Motion: (a) to require PEA to
submit the terms of the renegotiated PEA-AMARI contract; (b) for issuance of a temporary restraining order; and (c)
to set the case for hearing on oral argument. Petitioner filed a Reiterative Motion for Issuance of a TRO dated May
26, 1999, which the Court denied in a Resolution dated June 22, 1999.
In a Resolution dated March 23, 1999, the Court gave due course to the petition and required the parties to file their
respective memoranda.

On March 30, 1999, PEA and AMARI signed the Amended Joint Venture Agreement ("Amended JVA," for brevity).
On May 28, 1999, the Office of the President under the administration of then President Joseph E. Estrada
approved the Amended JVA.

Due to the approval of the Amended JVA by the Office of the President, petitioner now prays that on "constitutional
and statutory grounds the renegotiated contract be declared null and void." 14

The Issues

The issues raised by petitioner, PEA15 and AMARI16 are as follows:

I. WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN THE PETITION ARE MOOT AND ACADEMIC
BECAUSE OF SUBSEQUENT EVENTS;

II. WHETHER THE PETITION MERITS DISMISSAL FOR FAILING TO OBSERVE THE PRINCIPLE
GOVERNING THE HIERARCHY OF COURTS;

III. WHETHER THE PETITION MERITS DISMISSAL FOR NON-EXHAUSTION OF ADMINISTRATIVE

REMEDIES;

IV. WHETHER PETITIONER HAS LOCUS STANDI TO BRING THIS SUIT;

V. WHETHER THE CONSTITUTIONAL RIGHT TO INFORMATION INCLUDES OFFICIAL INFORMATION

ON ON-GOING NEGOTIATIONS BEFORE A FINAL AGREEMENT;

VI. WHETHER THE STIPULATIONS IN THE AMENDED JOINT VENTURE AGREEMENT FOR THE
TRANSFER TO AMARI OF CERTAIN LANDS, RECLAIMED AND STILL TO BE RECLAIMED, VIOLATE
THE 1987 CONSTITUTION; AND

VII. WHETHER THE COURT IS THE PROPER FORUM FOR RAISING THE ISSUE OF WHETHER THE
AMENDED JOINT VENTURE AGREEMENT IS GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT.

The Court's Ruling

First issue: whether the principal reliefs prayed for in the petition are moot and academic because of
subsequent events.

The petition prays that PEA publicly disclose the "terms and conditions of the on-going negotiations for a new
agreement." The petition also prays that the Court enjoin PEA from "privately entering into, perfecting and/or
executing any new agreement with AMARI."

PEA and AMARI claim the petition is now moot and academic because AMARI furnished petitioner on June 21, 1999
a copy of the signed Amended JVA containing the terms and conditions agreed upon in the renegotiations. Thus,
PEA has satisfied petitioner's prayer for a public disclosure of the renegotiations. Likewise, petitioner's prayer to
enjoin the signing of the Amended JVA is now moot because PEA and AMARI have already signed the Amended
JVA on March 30, 1999. Moreover, the Office of the President has approved the Amended JVA on May 28, 1999.

Petitioner counters that PEA and AMARI cannot avoid the constitutional issue by simply fast-tracking the signing and
approval of the Amended JVA before the Court could act on the issue. Presidential approval does not resolve the
constitutional issue or remove it from the ambit of judicial review.

We rule that the signing of the Amended JVA by PEA and AMARI and its approval by the President cannot operate
to moot the petition and divest the Court of its jurisdiction. PEA and AMARI have still to implement the Amended
JVA. The prayer to enjoin the signing of the Amended JVA on constitutional grounds necessarily includes preventing
its implementation if in the meantime PEA and AMARI have signed one in violation of the Constitution. Petitioner's
principal basis in assailing the renegotiation of the JVA is its violation of Section 3, Article XII of the Constitution,
which prohibits the government from alienating lands of the public domain to private corporations. If the Amended
JVA indeed violates the Constitution, it is the duty of the Court to enjoin its implementation, and if already
implemented, to annul the effects of such unconstitutional contract.

The Amended JVA is not an ordinary commercial contract but one which seeks to transfer title and ownership to
367.5 hectares of reclaimed lands and submerged areas of Manila Bay to a single private corporation. It now
becomes more compelling for the Court to resolve the issue to insure the government itself does not violate a
provision of the Constitution intended to safeguard the national patrimony. Supervening events, whether intended or
accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution. In the
instant case, if the Amended JVA runs counter to the Constitution, the Court can still prevent the transfer of title and
ownership of alienable lands of the public domain in the name of AMARI. Even in cases where supervening events
had made the cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to formulate
controlling principles to guide the bench, bar, and the public. 17

Also, the instant petition is a case of first impression. All previous decisions of the Court involving Section 3, Article
XII of the 1987 Constitution, or its counterpart provision in the 1973 Constitution, 18 covered agricultural landssold to
private corporations which acquired the lands from private parties. The transferors of the private corporations
claimed or could claim the right to judicial confirmation of their imperfect titles19 under Title II of Commonwealth
Act. 141 ("CA No. 141" for brevity). In the instant case, AMARI seeks to acquire from PEA, a public corporation,
reclaimed lands and submerged areas for non-agricultural purposes by purchase under PD No. 1084 (charter of
PEA) and Title III of CA No. 141. Certain undertakings by AMARI under the Amended JVA constitute the
consideration for the purchase. Neither AMARI nor PEA can claim judicial confirmation of their titles because the
lands covered by the Amended JVA are newly reclaimed or still to be reclaimed. Judicial confirmation of imperfect
title requires open, continuous, exclusive and notorious occupation of agricultural lands of the public domain for at
least thirty years since June 12, 1945 or earlier. Besides, the deadline for filing applications for judicial confirmation
of imperfect title expired on December 31, 1987.20

Lastly, there is a need to resolve immediately the constitutional issue raised in this petition because of the possible
transfer at any time by PEA to AMARI of title and ownership to portions of the reclaimed lands. Under the Amended
JVA, PEA is obligated to transfer to AMARI the latter's seventy percent proportionate share in the reclaimed areas
as the reclamation progresses. The Amended JVA even allows AMARI to mortgage at any time the entirereclaimed
area to raise financing for the reclamation project.21

Second issue: whether the petition merits dismissal for failing to observe the principle governing the
hierarchy of courts.

PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the Court. The principle
of hierarchy of courts applies generally to cases involving factual questions. As it is not a trier of facts, the Court
cannot entertain cases involving factual issues. The instant case, however, raises constitutional issues of
transcendental importance to the public.22 The Court can resolve this case without determining any factual issue
related to the case. Also, the instant case is a petition for mandamus which falls under the original jurisdiction of the
Court under Section 5, Article VIII of the Constitution. We resolve to exercise primary jurisdiction over the instant
case.

Third issue: whether the petition merits dismissal for non-exhaustion of administrative remedies.

PEA faults petitioner for seeking judicial intervention in compelling PEA to disclose publicly certain information
without first asking PEA the needed information. PEA claims petitioner's direct resort to the Court violates the
principle of exhaustion of administrative remedies. It also violates the rule that mandamus may issue only if there is
no other plain, speedy and adequate remedy in the ordinary course of law.

PEA distinguishes the instant case from Taada v. Tuvera23 where the Court granted the petition for mandamus even
if the petitioners there did not initially demand from the Office of the President the publication of the presidential
decrees. PEA points out that in Taada, the Executive Department had an affirmative statutory duty under Article 2
of the Civil Code24 and Section 1 of Commonwealth Act No. 63825 to publish the presidential decrees. There was,
therefore, no need for the petitioners in Taada to make an initial demand from the Office of the President. In the
instant case, PEA claims it has no affirmative statutory duty to disclose publicly information about its renegotiation of
the JVA. Thus, PEA asserts that the Court must apply the principle of exhaustion of administrative remedies to the
instant case in view of the failure of petitioner here to demand initially from PEA the needed information.

The original JVA sought to dispose to AMARI public lands held by PEA, a government corporation. Under Section 79
of the Government Auditing Code, 26 the disposition of government lands to private parties requires public
bidding. PEA was under a positive legal duty to disclose to the public the terms and conditions for the sale
of its lands. The law obligated PEA to make this public disclosure even without demand from petitioner or from
anyone. PEA failed to make this public disclosure because the original JVA, like the Amended JVA, was the result of
a negotiated contract, not of a public bidding. Considering that PEA had an affirmative statutory duty to make the
public disclosure, and was even in breach of this legal duty, petitioner had the right to seek direct judicial
intervention.

Moreover, and this alone is determinative of this issue, the principle of exhaustion of administrative remedies does
not apply when the issue involved is a purely legal or constitutional question. 27 The principal issue in the instant case
is the capacity of AMARI to acquire lands held by PEA in view of the constitutional ban prohibiting the alienation of
lands of the public domain to private corporations. We rule that the principle of exhaustion of administrative
remedies does not apply in the instant case.

Fourth issue: whether petitioner has locus standi to bring this suit

PEA argues that petitioner has no standing to institute mandamus proceedings to enforce his constitutional right to
information without a showing that PEA refused to perform an affirmative duty imposed on PEA by the Constitution.
PEA also claims that petitioner has not shown that he will suffer any concrete injury because of the signing or
implementation of the Amended JVA. Thus, there is no actual controversy requiring the exercise of the power of
judicial review.

The petitioner has standing to bring this taxpayer's suit because the petition seeks to compel PEA to comply with its
constitutional duties. There are two constitutional issues involved here. First is the right of citizens to information on
matters of public concern. Second is the application of a constitutional provision intended to insure the equitable
distribution of alienable lands of the public domain among Filipino citizens. The thrust of the first issue is to compel
PEA to disclose publicly information on the sale of government lands worth billions of pesos, information which the
Constitution and statutory law mandate PEA to disclose. The thrust of the second issue is to prevent PEA from
alienating hundreds of hectares of alienable lands of the public domain in violation of the Constitution, compelling
PEA to comply with a constitutional duty to the nation.

Moreover, the petition raises matters of transcendental importance to the public. In Chavez v. PCGG,28 the Court
upheld the right of a citizen to bring a taxpayer's suit on matters of transcendental importance to the public, thus -

"Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the Marcoses is an issue of
'transcendental importance to the public.' He asserts that ordinary taxpayers have a right to initiate and
prosecute actions questioning the validity of acts or orders of government agencies or instrumentalities, if
the issues raised are of 'paramount public interest,' and if they 'immediately affect the social, economic and
moral well being of the people.'

Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the
proceeding involves the assertion of a public right, such as in this case. He invokes several decisions of this
Court which have set aside the procedural matter of locus standi, when the subject of the case involved
public interest.

xxx

In Taada v. Tuvera, the Court asserted that when the issue concerns a public right and the object of
mandamus is to obtain the enforcement of a public duty, the people are regarded as the real parties in
interest; and because it is sufficient that petitioner is a citizen and as such is interested in the execution of
the laws, he need not show that he has any legal or special interest in the result of the action. In the
 aforesaid case, the petitioners sought to enforce their right to be informed on matters of public concern, a
right then recognized in Section 6, Article IV of the 1973 Constitution, in connection with the rule that laws in
order to be valid and enforceable must be published in the Official Gazette or otherwise effectively
promulgated. In ruling for the petitioners' legal standing, the Court declared that the right they sought to be
enforced 'is a public right recognized by no less than the fundamental law of the land.'

Legaspi v. Civil Service Commission, while reiterating Taada, further declared that 'when a mandamus
proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the
mere fact that petitioner is a citizen and, therefore, part of the general 'public' which possesses the right.'

Further, in Albano v. Reyes, we said that while expenditure of public funds may not have been involved
under the questioned contract for the development, management and operation of the Manila International
Container Terminal, 'public interest [was] definitely involved considering the important role [of the subject
contract] . . . in the economic development of the country and the magnitude of the financial consideration
involved.' We concluded that, as a consequence, the disclosure provision in the Constitution would
constitute sufficient authority for upholding the petitioner's standing.

Similarly, the instant petition is anchored on the right of the people to information and access to official
records, documents and papers a right guaranteed under Section 7, Article III of the 1987 Constitution.
Petitioner, a former solicitor general, is a Filipino citizen. Because of the satisfaction of the two basic
requisites laid down by decisional law to sustain petitioner's legal standing, i.e. (1) the enforcement of a
public right (2) espoused by a Filipino citizen, we rule that the petition at bar should be allowed."

We rule that since the instant petition, brought by a citizen, involves the enforcement of constitutional rights - to
information and to the equitable diffusion of natural resources - matters of transcendental public importance, the
petitioner has the requisite locus standi.

Fifth issue: whether the constitutional right to information includes official information on on-going
negotiations before a final agreement.

Section 7, Article III of the Constitution explains the people's right to information on matters of public concern in this
manner:

"Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to official acts, transactions, or decisions,
as well as to government research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law." (Emphasis supplied)

The State policy of full transparency in all transactions involving public interest reinforces the people's right to
information on matters of public concern. This State policy is expressed in Section 28, Article II of the Constitution,
thus:

"Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of
full public disclosure of all its transactions involving public interest." (Emphasis supplied)

These twin provisions of the Constitution seek to promote transparency in policy-making and in the operations of the
government, as well as provide the people sufficient information to exercise effectively other constitutional rights.
These twin provisions are essential to the exercise of freedom of expression. If the government does not disclose its
official acts, transactions and decisions to citizens, whatever citizens say, even if expressed without any restraint,
will be speculative and amount to nothing. These twin provisions are also essential to hold public officials "at all
times x x x accountable to the people,"29 for unless citizens have the proper information, they cannot hold public
officials accountable for anything. Armed with the right information, citizens can participate in public discussions
leading to the formulation of government policies and their effective implementation. An informed citizenry is
essential to the existence and proper functioning of any democracy. As explained by the Court inValmonte v.
Belmonte, Jr.30
 "An essential element of these freedoms is to keep open a continuing dialogue or process of communication
between the government and the people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive and be responsive to the people's
will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to
formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have
access to information relating thereto can such bear fruit."

PEA asserts, citing Chavez v. PCGG,31 that in cases of on-going negotiations the right to information is limited to
"definite propositions of the government." PEA maintains the right does not include access to "intra-agency or inter-
agency recommendations or communications during the stage when common assertions are still in the process of
being formulated or are in the 'exploratory stage'."

Also, AMARI contends that petitioner cannot invoke the right at the pre-decisional stage or before the closing of the
transaction. To support its contention, AMARI cites the following discussion in the 1986 Constitutional Commission:

"Mr. Suarez. And when we say 'transactions' which should be distinguished from contracts, agreements, or
treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or
does he refer to the contract itself?

Mr. Ople: The 'transactions' used here, I suppose is generic and therefore, it can cover both steps
leading to a contract and already a consummated contract, Mr. Presiding Officer.

Mr. Suarez: This contemplates inclusion of negotiations leading to the consummation of the
transaction.

Mr. Ople: Yes, subject only to reasonable safeguards on the national interest.

Mr. Suarez: Thank you."32 (Emphasis supplied)

AMARI argues there must first be a consummated contract before petitioner can invoke the right. Requiring
government officials to reveal their deliberations at the pre-decisional stage will degrade the quality of decision-
making in government agencies. Government officials will hesitate to express their real sentiments during
deliberations if there is immediate public dissemination of their discussions, putting them under all kinds of pressure
before they decide.

We must first distinguish between information the law on public bidding requires PEA to disclose publicly, and
information the constitutional right to information requires PEA to release to the public. Before the consummation of
the contract, PEA must, on its own and without demand from anyone, disclose to the public matters relating to the
disposition of its property. These include the size, location, technical description and nature of the property being
disposed of, the terms and conditions of the disposition, the parties qualified to bid, the minimum price and similar
information. PEA must prepare all these data and disclose them to the public at the start of the disposition process,
long before the consummation of the contract, because the Government Auditing Code requires public bidding. If
PEA fails to make this disclosure, any citizen can demand from PEA this information at any time during the bidding
process.

Information, however, on on-going evaluation or review of bids or proposals being undertaken by the bidding or
review committee is not immediately accessible under the right to information. While the evaluation or review is still
on-going, there are no "official acts, transactions, or decisions" on the bids or proposals. However, once the
committee makes its official recommendation, there arises a "definite proposition" on the part of the
government. From this moment, the public's right to information attaches, and any citizen can access all the non-
proprietary information leading to such definite proposition. In Chavez v. PCGG,33 the Court ruled as follows:

"Considering the intent of the framers of the Constitution, we believe that it is incumbent upon the PCGG
and its officers, as well as other government representatives, to disclose sufficient public information on any
proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten
wealth. Such information, though, must pertain to definite propositions of the government, not
necessarily to intra-agency or inter-agency recommendations or communications during the stage when
 common assertions are still in the process of being formulated or are in the "exploratory" stage. There is
need, of course, to observe the same restrictions on disclosure of information in general, as discussed
earlier such as on matters involving national security, diplomatic or foreign relations, intelligence and other
classified information." (Emphasis supplied)

Contrary to AMARI's contention, the commissioners of the 1986 Constitutional Commission understood that the right
to information "contemplates inclusion of negotiations leading to the consummation of the
transaction." Certainly, a consummated contract is not a requirement for the exercise of the right to information.
Otherwise, the people can never exercise the right if no contract is consummated, and if one is consummated, it
may be too late for the public to expose its defects.1wphi1.nt

Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly
disadvantageous to the government or even illegal, becomes a fait accompli. This negates the State policy of full
transparency on matters of public concern, a situation which the framers of the Constitution could not have
intended. Such a requirement will prevent the citizenry from participating in the public discussion of
any proposedcontract, effectively truncating a basic right enshrined in the Bill of Rights. We can allow neither an
emasculation of a constitutional right, nor a retreat by the State of its avowed "policy of full disclosure of all its
transactions involving public interest."

The right covers three categories of information which are "matters of public concern," namely: (1) official records;
(2) documents and papers pertaining to official acts, transactions and decisions; and (3) government research data
used in formulating policies. The first category refers to any document that is part of the public records in the
custody of government agencies or officials. The second category refers to documents and papers recording,
evidencing, establishing, confirming, supporting, justifying or explaining official acts, transactions or decisions of
government agencies or officials. The third category refers to research data, whether raw, collated or processed,
owned by the government and used in formulating government policies.

The information that petitioner may access on the renegotiation of the JVA includes evaluation reports,
recommendations, legal and expert opinions, minutes of meetings, terms of reference and other documents
attached to such reports or minutes, all relating to the JVA. However, the right to information does not compel PEA
to prepare lists, abstracts, summaries and the like relating to the renegotiation of the JVA. 34 The right only affords
access to records, documents and papers, which means the opportunity to inspect and copy them. One who
exercises the right must copy the records, documents and papers at his expense. The exercise of the right is also
subject to reasonable regulations to protect the integrity of the public records and to minimize disruption to
government operations, like rules specifying when and how to conduct the inspection and copying. 35

The right to information, however, does not extend to matters recognized as privileged information under the
separation of powers.36 The right does not also apply to information on military and diplomatic secrets, information
affecting national security, and information on investigations of crimes by law enforcement agencies before the
prosecution of the accused, which courts have long recognized as confidential. 37 The right may also be subject to
other limitations that Congress may impose by law.

There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the
separation of powers. The information does not cover Presidential conversations, correspondences, or discussions
during closed-door Cabinet meetings which, like internal deliberations of the Supreme Court and other collegiate
courts, or executive sessions of either house of Congress, 38 are recognized as confidential. This kind of information
cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments,
free from the glare of publicity and pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and Judicial power.39 This is not the situation in
the instant case.

We rule, therefore, that the constitutional right to information includes official information on on-going
negotiations before a final contract. The information, however, must constitute definite propositions by the
government and should not cover recognized exceptions like privileged information, military and diplomatic secrets
and similar matters affecting national security and public order.40 Congress has also prescribed other limitations on
the right to information in several legislations.41
Sixth issue: whether stipulations in the Amended JVA for the transfer to AMARI of lands, reclaimed or to be
reclaimed, violate the Constitution.

The Regalian Doctrine

The ownership of lands reclaimed from foreshore and submerged areas is rooted in the Regalian doctrine which
holds that the State owns all lands and waters of the public domain. Upon the Spanish conquest of the Philippines,
ownership of all "lands, territories and possessions" in the Philippines passed to the Spanish Crown. 42 The King, as
the sovereign ruler and representative of the people, acquired and owned all lands and territories in the Philippines
except those he disposed of by grant or sale to private individuals.

The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine substituting, however, the State, in lieu of the
King, as the owner of all lands and waters of the public domain. The Regalian doctrine is the foundation of the time-
honored principle of land ownership that "all lands that were not acquired from the Government, either by purchase
or by grant, belong to the public domain." 43 Article 339 of the Civil Code of 1889, which is now Article 420 of the Civil
Code of 1950, incorporated the Regalian doctrine.

Ownership and Disposition of Reclaimed Lands

The Spanish Law of Waters of 1866 was the first statutory law governing the ownership and disposition of reclaimed
lands in the Philippines. On May 18, 1907, the Philippine Commission enacted Act No. 1654 which provided for the
lease, but not the sale, of reclaimed lands of the government to corporations and individuals. Later, on
November 29, 1919, the Philippine Legislature approved Act No. 2874, the Public Land Act, which authorized the
lease, but not the sale, of reclaimed lands of the government to corporations and individuals. On November
7, 1936, the National Assembly passed Commonwealth Act No. 141, also known as the Public Land Act,
which authorized the lease, but not the sale, of reclaimed lands of the government to corporations and
individuals. CA No. 141 continues to this day as the general law governing the classification and disposition of
lands of the public domain.

The Spanish Law of Waters of 1866 and the Civil Code of 1889

Under the Spanish Law of Waters of 1866, the shores, bays, coves, inlets and all waters within the maritime zone of
the Spanish territory belonged to the public domain for public use. 44 The Spanish Law of Waters of 1866 allowed the
reclamation of the sea under Article 5, which provided as follows:

"Article 5. Lands reclaimed from the sea in consequence of works constructed by the State, or by the
provinces, pueblos or private persons, with proper permission, shall become the property of the party
constructing such works, unless otherwise provided by the terms of the grant of authority."

Under the Spanish Law of Waters, land reclaimed from the sea belonged to the party undertaking the reclamation,
provided the government issued the necessary permit and did not reserve ownership of the reclaimed land to the
State.

Article 339 of the Civil Code of 1889 defined property of public dominion as follows:

"Art. 339. Property of public dominion is

1. That devoted to public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the
State, riverbanks, shores, roadsteads, and that of a similar character;

2. That belonging exclusively to the State which, without being of general public use, is employed in some
public service, or in the development of the national wealth, such as walls, fortresses, and other works for
the defense of the territory, and mines, until granted to private individuals."

Property devoted to public use referred to property open for use by the public. In contrast, property devoted to public
service referred to property used for some specific public service and open only to those authorized to use the
property.
Property of public dominion referred not only to property devoted to public use, but also to property not so used but
employed to develop the national wealth. This class of property constituted property of public dominion although
employed for some economic or commercial activity to increase the national wealth.

Article 341 of the Civil Code of 1889 governed the re-classification of property of public dominion into private
property, to wit:

"Art. 341. Property of public dominion, when no longer devoted to public use or to the defense of the
territory, shall become a part of the private property of the State."

This provision, however, was not self-executing. The legislature, or the executive department pursuant to law, must
declare the property no longer needed for public use or territorial defense before the government could lease or
alienate the property to private parties.45

Act No. 1654 of the Philippine Commission

On May 8, 1907, the Philippine Commission enacted Act No. 1654 which regulated the lease of reclaimed and
foreshore lands. The salient provisions of this law were as follows:

"Section 1. The control and disposition of the foreshore as defined in existing law, and the title to all
Government or public lands made or reclaimed by the Government by dredging or filling or otherwise
throughout the Philippine Islands, shall be retained by the Government without prejudice to vested rights
and without prejudice to rights conceded to the City of Manila in the Luneta Extension.

Section 2. (a) The Secretary of the Interior shall cause all Government or public lands made or reclaimed by
the Government by dredging or filling or otherwise to be divided into lots or blocks, with the necessary
streets and alleyways located thereon, and shall cause plats and plans of such surveys to be prepared and
filed with the Bureau of Lands.

(b) Upon completion of such plats and plans the Governor-General shall give notice to the public that
such parts of the lands so made or reclaimed as are not needed for public purposes will be leased
for commercial and business purposes, x x x.

xxx

(e) The leases above provided for shall be disposed of to the highest and best bidder therefore,
subject to such regulations and safeguards as the Governor-General may by executive order prescribe."
(Emphasis supplied)

Act No. 1654 mandated that the government should retain title to all lands reclaimed by the government. The
Act also vested in the government control and disposition of foreshore lands. Private parties could lease lands
reclaimed by the government only if these lands were no longer needed for public purpose. Act No. 1654
mandated public bidding in the lease of government reclaimed lands. Act No. 1654 made government reclaimed
lands sui generis in that unlike other public lands which the government could sell to private parties, these
reclaimed lands were available only for lease to private parties.

Act No. 1654, however, did not repeal Section 5 of the Spanish Law of Waters of 1866. Act No. 1654 did not prohibit
private parties from reclaiming parts of the sea under Section 5 of the Spanish Law of Waters. Lands reclaimed from
the sea by private parties with government permission remained private lands.

Act No. 2874 of the Philippine Legislature

On November 29, 1919, the Philippine Legislature enacted Act No. 2874, the Public Land Act. 46 The salient
provisions of Act No. 2874, on reclaimed lands, were as follows:

"Sec. 6. The Governor-General, upon the recommendation of the Secretary of Agriculture and Natural
Resources, shall from time to time classify the lands of the public domain into
 (a) Alienable or disposable,

(b) Timber, and

(c) Mineral lands, x x x.

Sec. 7. For the purposes of the government and disposition of alienable or disposable public lands, the
Governor-General, upon recommendation by the Secretary of Agriculture and Natural Resources,
shall from time to time declare what lands are open to disposition or concession under this Act."

Sec. 8. Only those lands shall be declared open to disposition or concession which have been
officially delimited or classified x x x.

xxx

Sec. 55. Any tract of land of the public domain which, being neither timber nor mineral land, shall be
classified as suitable for residential purposes or for commercial, industrial, or other productive
purposes other than agricultural purposes, and shall be open to disposition or concession, shall be
disposed of under the provisions of this chapter, and not otherwise.

Sec. 56. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the Government by dredging, filling, or other means;

(b) Foreshore;

(c) Marshy lands or lands covered with water bordering upon the shores or banks of navigable
lakes or rivers;

(d) Lands not included in any of the foregoing classes.

x x x.

Sec. 58. The lands comprised in classes (a), (b), and (c) of section fifty-six shall be disposed of to
private parties by lease only and not otherwise, as soon as the Governor-General, upon
recommendation by the Secretary of Agriculture and Natural Resources, shall declare that the same
are not necessary for the public service and are open to disposition under this chapter. The lands
included in class (d) may be disposed of by sale or lease under the provisions of this Act." (Emphasis
supplied)

Section 6 of Act No. 2874 authorized the Governor-General to "classify lands of the public domain into x x x
alienable or disposable"47 lands. Section 7 of the Act empowered the Governor-General to "declare what lands are
open to disposition or concession." Section 8 of the Act limited alienable or disposable lands only to those lands
which have been "officially delimited and classified."

Section 56 of Act No. 2874 stated that lands "disposable under this title 48 shall be classified" as government
reclaimed, foreshore and marshy lands, as well as other lands. All these lands, however, must be suitable for
residential, commercial, industrial or other productive non-agricultural purposes. These provisions vested upon the
Governor-General the power to classify inalienable lands of the public domain into disposable lands of the public
domain. These provisions also empowered the Governor-General to classify further such disposable lands of the
public domain into government reclaimed, foreshore or marshy lands of the public domain, as well as other non-
agricultural lands.

Section 58 of Act No. 2874 categorically mandated that disposable lands of the public domain classified as
government reclaimed, foreshore and marshy lands "shall be disposed of to private parties by lease only and
not otherwise." The Governor-General, before allowing the lease of these lands to private parties, must formally
declare that the lands were "not necessary for the public service." Act No. 2874 reiterated the State policy to lease
and not to sell government reclaimed, foreshore and marshy lands of the public domain, a policy first enunciated in
1907 in Act No. 1654. Government reclaimed, foreshore and marshy lands remained sui generis, as the only
alienable or disposable lands of the public domain that the government could not sell to private parties.

The rationale behind this State policy is obvious. Government reclaimed, foreshore and marshy public lands for non-
agricultural purposes retain their inherent potential as areas for public service. This is the reason the government
prohibited the sale, and only allowed the lease, of these lands to private parties. The State always reserved these
lands for some future public service.

Act No. 2874 did not authorize the reclassification of government reclaimed, foreshore and marshy lands into other
non-agricultural lands under Section 56 (d). Lands falling under Section 56 (d) were the only lands for non-
agricultural purposes the government could sell to private parties. Thus, under Act No. 2874, the government could
not sell government reclaimed, foreshore and marshy lands to private parties, unless the legislature passed a law
allowing their sale.49

Act No. 2874 did not prohibit private parties from reclaiming parts of the sea pursuant to Section 5 of the Spanish
Law of Waters of 1866. Lands reclaimed from the sea by private parties with government permission remained
private lands.

Dispositions under the 1935 Constitution

On May 14, 1935, the 1935 Constitution took effect upon its ratification by the Filipino people. The 1935
Constitution, in adopting the Regalian doctrine, declared in Section 1, Article XIII, that

"Section 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum,
and other mineral oils, all forces of potential energy and other natural resources of the Philippines belong to
the State, and their disposition, exploitation, development, or utilization shall be limited to citizens of the
Philippines or to corporations or associations at least sixty per centum of the capital of which is owned by
such citizens, subject to any existing right, grant, lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural resources, with the exception of public
agricultural land, shall not be alienated, and no license, concession, or lease for the exploitation,
development, or utilization of any of the natural resources shall be granted for a period exceeding twenty-
five years, renewable for another twenty-five years, except as to water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water power, in which cases beneficial use may
be the measure and limit of the grant." (Emphasis supplied)

The 1935 Constitution barred the alienation of all natural resources except public agricultural lands, which were the
only natural resources the State could alienate. Thus, foreshore lands, considered part of the State's natural
resources, became inalienable by constitutional fiat, available only for lease for 25 years, renewable for another 25
years. The government could alienate foreshore lands only after these lands were reclaimed and classified as
alienable agricultural lands of the public domain. Government reclaimed and marshy lands of the public domain,
being neither timber nor mineral lands, fell under the classification of public agricultural lands. 50 However,
government reclaimed and marshy lands, although subject to classification as disposable public agricultural lands,
could only be leased and not sold to private parties because of Act No. 2874.

The prohibition on private parties from acquiring ownership of government reclaimed and marshy lands of the public
domain was only a statutory prohibition and the legislature could therefore remove such prohibition. The 1935
Constitution did not prohibit individuals and corporations from acquiring government reclaimed and marshy lands of
the public domain that were classified as agricultural lands under existing public land laws. Section 2, Article XIII of
the 1935 Constitution provided as follows:

"Section 2. No private corporation or association may acquire, lease, or hold public agricultural lands
in excess of one thousand and twenty four hectares, nor may any individual acquire such lands by
purchase in excess of one hundred and forty hectares, or by lease in excess of one thousand and
twenty-four hectares, or by homestead in excess of twenty-four hectares. Lands adapted to grazing, not
exceeding two thousand hectares, may be leased to an individual, private corporation, or association."
(Emphasis supplied)
Still, after the effectivity of the 1935 Constitution, the legislature did not repeal Section 58 of Act No. 2874 to open for
sale to private parties government reclaimed and marshy lands of the public domain. On the contrary, the legislature
continued the long established State policy of retaining for the government title and ownership of government
reclaimed and marshy lands of the public domain.

Commonwealth Act No. 141 of the Philippine National Assembly

On November 7, 1936, the National Assembly approved Commonwealth Act No. 141, also known as the Public
Land Act, which compiled the then existing laws on lands of the public domain. CA No. 141, as amended, remains to
this day the existing general law governing the classification and disposition of lands of the public domain other
than timber and mineral lands.51

Section 6 of CA No. 141 empowers the President to classify lands of the public domain into "alienable or
disposable"52 lands of the public domain, which prior to such classification are inalienable and outside the commerce
of man. Section 7 of CA No. 141 authorizes the President to "declare what lands are open to disposition or
concession." Section 8 of CA No. 141 states that the government can declare open for disposition or concession
only lands that are "officially delimited and classified." Sections 6, 7 and 8 of CA No. 141 read as follows:

"Sec. 6. The President, upon the recommendation of the Secretary of Agriculture and Commerce,
shall from time to time classify the lands of the public domain into

(a) Alienable or disposable,

(b) Timber, and

(c) Mineral lands,

and may at any time and in like manner transfer such lands from one class to another,53 for the purpose of
their administration and disposition.

Sec. 7. For the purposes of the administration and disposition of alienable or disposable public lands, the
President, upon recommendation by the Secretary of Agriculture and Commerce, shall from time to
time declare what lands are open to disposition or concession under this Act.

Sec. 8. Only those lands shall be declared open to disposition or concession which have been
officially delimited and classified and, when practicable, surveyed, and which have not been reserved
for public or quasi-public uses, nor appropriated by the Government, nor in any manner become private
property, nor those on which a private right authorized and recognized by this Act or any other valid law may
be claimed, or which, having been reserved or appropriated, have ceased to be so. x x x."

Thus, before the government could alienate or dispose of lands of the public domain, the President must first
officially classify these lands as alienable or disposable, and then declare them open to disposition or concession.
There must be no law reserving these lands for public or quasi-public uses.

The salient provisions of CA No. 141, on government reclaimed, foreshore and marshy lands of the public domain,
are as follows:

"Sec. 58. Any tract of land of the public domain which, being neither timber nor mineral land, is
intended to be used for residential purposes or for commercial, industrial, or other productive
purposes other than agricultural, and is open to disposition or concession, shall be disposed of
under the provisions of this chapter and not otherwise.

Sec. 59. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the Government by dredging, filling, or other means;

 (b) Foreshore;

(c) Marshy lands or lands covered with water bordering upon the shores or banks of navigable
lakes or rivers;

(d) Lands not included in any of the foregoing classes.

Sec. 60. Any tract of land comprised under this title may be leased or sold, as the case may be, to any
person, corporation, or association authorized to purchase or lease public lands for agricultural purposes. x
x x.

Sec. 61. The lands comprised in classes (a), (b), and (c) of section fifty-nine shall be disposed of to
private parties by lease only and not otherwise, as soon as the President, upon recommendation by the
Secretary of Agriculture, shall declare that the same are not necessary for the public service and are
open to disposition under this chapter. The lands included in class (d) may be disposed of by sale or
lease under the provisions of this Act." (Emphasis supplied)

Section 61 of CA No. 141 readopted, after the effectivity of the 1935 Constitution, Section 58 of Act No. 2874
prohibiting the sale of government reclaimed, foreshore and marshy disposable lands of the public domain. All these
lands are intended for residential, commercial, industrial or other non-agricultural purposes. As before, Section 61
allowed only the lease of such lands to private parties. The government could sell to private parties only lands falling
under Section 59 (d) of CA No. 141, or those lands for non-agricultural purposes not classified as government
reclaimed, foreshore and marshy disposable lands of the public domain. Foreshore lands, however, became
inalienable under the 1935 Constitution which only allowed the lease of these lands to qualified private parties.

Section 58 of CA No. 141 expressly states that disposable lands of the public domain intended for residential,
commercial, industrial or other productive purposes other than agricultural "shall be disposed of under the
provisions of this chapter and not otherwise." Under Section 10 of CA No. 141, the term "disposition" includes
lease of the land. Any disposition of government reclaimed, foreshore and marshy disposable lands for non-
agricultural purposes must comply with Chapter IX, Title III of CA No. 141, 54 unless a subsequent law amended or
repealed these provisions.

In his concurring opinion in the landmark case of Republic Real Estate Corporation v. Court of Appeals,55Justice
Reynato S. Puno summarized succinctly the law on this matter, as follows:

"Foreshore lands are lands of public dominion intended for public use. So too are lands reclaimed by the
government by dredging, filling, or other means. Act 1654 mandated that the control and disposition of the
foreshore and lands under water remained in the national government. Said law allowed only the 'leasing' of
reclaimed land. The Public Land Acts of 1919 and 1936 also declared that the foreshore and lands
reclaimed by the government were to be "disposed of to private parties by lease only and not otherwise."
Before leasing, however, the Governor-General, upon recommendation of the Secretary of Agriculture and
Natural Resources, had first to determine that the land reclaimed was not necessary for the public service.
This requisite must have been met before the land could be disposed of. But even then, the foreshore and
lands under water were not to be alienated and sold to private parties. The disposition of the
reclaimed land was only by lease. The land remained property of the State." (Emphasis supplied)

As observed by Justice Puno in his concurring opinion, "Commonwealth Act No. 141 has remained in effect at
present."

The State policy prohibiting the sale to private parties of government reclaimed, foreshore and marshy alienable
lands of the public domain, first implemented in 1907 was thus reaffirmed in CA No. 141 after the 1935 Constitution
took effect. The prohibition on the sale of foreshore lands, however, became a constitutional edict under the 1935
Constitution. Foreshore lands became inalienable as natural resources of the State, unless reclaimed by the
government and classified as agricultural lands of the public domain, in which case they would fall under the
classification of government reclaimed lands.
After the effectivity of the 1935 Constitution, government reclaimed and marshy disposable lands of the public
domain continued to be only leased and not sold to private parties. 56 These lands remained sui generis, as the only
alienable or disposable lands of the public domain the government could not sell to private parties.

Since then and until now, the only way the government can sell to private parties government reclaimed and marshy
disposable lands of the public domain is for the legislature to pass a law authorizing such sale. CA No. 141 does not
authorize the President to reclassify government reclaimed and marshy lands into other non-agricultural lands under
Section 59 (d). Lands classified under Section 59 (d) are the only alienable or disposable lands for non-agricultural
purposes that the government could sell to private parties.

Moreover, Section 60 of CA No. 141 expressly requires congressional authority before lands under Section 59 that
the government previously transferred to government units or entities could be sold to private parties. Section 60 of
CA No. 141 declares that

"Sec. 60. x x x The area so leased or sold shall be such as shall, in the judgment of the Secretary of
Agriculture and Natural Resources, be reasonably necessary for the purposes for which such sale or lease
is requested, and shall not exceed one hundred and forty-four hectares: Provided, however, That this
limitation shall not apply to grants, donations, or transfers made to a province, municipality or branch or
subdivision of the Government for the purposes deemed by said entities conducive to the public interest;but
the land so granted, donated, or transferred to a province, municipality or branch or subdivision of
the Government shall not be alienated, encumbered, or otherwise disposed of in a manner affecting
its title, except when authorized by Congress: x x x." (Emphasis supplied)

The congressional authority required in Section 60 of CA No. 141 mirrors the legislative authority required in Section
56 of Act No. 2874.

One reason for the congressional authority is that Section 60 of CA No. 141 exempted government units and entities
from the maximum area of public lands that could be acquired from the State. These government units and entities
should not just turn around and sell these lands to private parties in violation of constitutional or statutory limitations.
Otherwise, the transfer of lands for non-agricultural purposes to government units and entities could be used to
circumvent constitutional limitations on ownership of alienable or disposable lands of the public domain. In the same
manner, such transfers could also be used to evade the statutory prohibition in CA No. 141 on the sale of
government reclaimed and marshy lands of the public domain to private parties. Section 60 of CA No. 141
constitutes by operation of law a lien on these lands. 57

In case of sale or lease of disposable lands of the public domain falling under Section 59 of CA No. 141, Sections
63 and 67 require a public bidding. Sections 63 and 67 of CA No. 141 provide as follows:

"Sec. 63. Whenever it is decided that lands covered by this chapter are not needed for public purposes, the
Director of Lands shall ask the Secretary of Agriculture and Commerce (now the Secretary of Natural
Resources) for authority to dispose of the same. Upon receipt of such authority, the Director of Lands shall
give notice by public advertisement in the same manner as in the case of leases or sales of agricultural
public land, x x x.

Sec. 67. The lease or sale shall be made by oral bidding; and adjudication shall be made to the
highest bidder. x x x." (Emphasis supplied)

Thus, CA No. 141 mandates the Government to put to public auction all leases or sales of alienable or disposable
lands of the public domain.58

Like Act No. 1654 and Act No. 2874 before it, CA No. 141 did not repeal Section 5 of the Spanish Law of Waters of
1866. Private parties could still reclaim portions of the sea with government permission. However, the reclaimed
land could become private land only if classified as alienable agricultural land of the public domain open to
disposition under CA No. 141. The 1935 Constitution prohibited the alienation of all natural resources except public
agricultural lands.

The Civil Code of 1950

The Civil Code of 1950 readopted substantially the definition of property of public dominion found in the Civil Code
of 1889. Articles 420 and 422 of the Civil Code of 1950 state that

"Art. 420. The following things are property of public dominion:

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges constructed by
the State, banks, shores, roadsteads, and others of similar character;

(2) Those which belong to the State, without being for public use, and are intended for some public service
or for the development of the national wealth.

x x x.

Art. 422. Property of public dominion, when no longer intended for public use or for public service, shall form
part of the patrimonial property of the State."

Again, the government must formally declare that the property of public dominion is no longer needed for public use
or public service, before the same could be classified as patrimonial property of the State. 59 In the case of
government reclaimed and marshy lands of the public domain, the declaration of their being disposable, as well as
the manner of their disposition, is governed by the applicable provisions of CA No. 141.

Like the Civil Code of 1889, the Civil Code of 1950 included as property of public dominion those properties of the
State which, without being for public use, are intended for public service or the "development of the national
wealth." Thus, government reclaimed and marshy lands of the State, even if not employed for public use or public
service, if developed to enhance the national wealth, are classified as property of public dominion.

Dispositions under the 1973 Constitution

The 1973 Constitution, which took effect on January 17, 1973, likewise adopted the Regalian doctrine. Section 8,
Article XIV of the 1973 Constitution stated that

"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to the State. With
the exception of agricultural, industrial or commercial, residential, and resettlement lands of the
public domain, natural resources shall not be alienated, and no license, concession, or lease for the
exploration, development, exploitation, or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for not more than twenty-five years, except as to water rights
for irrigation, water supply, fisheries, or industrial uses other than the development of water power, in which
cases, beneficial use may be the measure and the limit of the grant." (Emphasis supplied)

The 1973 Constitution prohibited the alienation of all natural resources with the exception of "agricultural, industrial
or commercial, residential, and resettlement lands of the public domain." In contrast, the 1935 Constitution barred
the alienation of all natural resources except "public agricultural lands." However, the term "public agricultural lands"
in the 1935 Constitution encompassed industrial, commercial, residential and resettlement lands of the public
domain.60 If the land of public domain were neither timber nor mineral land, it would fall under the classification of
agricultural land of the public domain. Both the 1935 and 1973 Constitutions, therefore, prohibited the
alienation of all natural resources except agricultural lands of the public domain.

The 1973 Constitution, however, limited the alienation of lands of the public domain to individuals who were citizens
of the Philippines. Private corporations, even if wholly owned by Philippine citizens, were no longer allowed to
acquire alienable lands of the public domain unlike in the 1935 Constitution. Section 11, Article XIV of the 1973
Constitution declared that

"Sec. 11. The Batasang Pambansa, taking into account conservation, ecological, and development
requirements of the natural resources, shall determine by law the size of land of the public domain which
may be developed, held or acquired by, or leased to, any qualified individual, corporation, or association,
and the conditions therefor. No private corporation or association may hold alienable lands of the
 public domain except by lease not to exceed one thousand hectares in area nor may any citizen hold such
lands by lease in excess of five hundred hectares or acquire by purchase, homestead or grant, in excess of
twenty-four hectares. No private corporation or association may hold by lease, concession, license or permit,
timber or forest lands and other timber or forest resources in excess of one hundred thousand hectares.
However, such area may be increased by the Batasang Pambansa upon recommendation of the National
Economic and Development Authority." (Emphasis supplied)

Thus, under the 1973 Constitution, private corporations could hold alienable lands of the public domain only through
lease. Only individuals could now acquire alienable lands of the public domain, and private corporations became
absolutely barred from acquiring any kind of alienable land of the public domain. The constitutional ban
extended to all kinds of alienable lands of the public domain, while the statutory ban under CA No. 141 applied only
to government reclaimed, foreshore and marshy alienable lands of the public domain.

PD No. 1084 Creating the Public Estates Authority

On February 4, 1977, then President Ferdinand Marcos issued Presidential Decree No. 1084 creating PEA, a wholly
government owned and controlled corporation with a special charter. Sections 4 and 8 of PD No. 1084, vests PEA
with the following purposes and powers:

"Sec. 4. Purpose. The Authority is hereby created for the following purposes:

(a) To reclaim land, including foreshore and submerged areas, by dredging, filling or other means, or
to acquire reclaimed land;

(b) To develop, improve, acquire, administer, deal in, subdivide, dispose, lease and sell any and all kinds
of lands, buildings, estates and other forms of real property, owned, managed, controlled and/or operated
by the government;

(c) To provide for, operate or administer such service as may be necessary for the efficient, economical and
beneficial utilization of the above properties.

Sec. 5. Powers and functions of the Authority. The Authority shall, in carrying out the purposes for which it is
created, have the following powers and functions:

(a)To prescribe its by-laws.

xxx

(i) To hold lands of the public domain in excess of the area permitted to private corporations by statute.

(j) To reclaim lands and to construct work across, or otherwise, any stream, watercourse, canal, ditch,
flume x x x.

xxx

(o) To perform such acts and exercise such functions as may be necessary for the attainment of the
purposes and objectives herein specified." (Emphasis supplied)

PD No. 1084 authorizes PEA to reclaim both foreshore and submerged areas of the public domain. Foreshore areas
are those covered and uncovered by the ebb and flow of the tide. 61 Submerged areas are those permanently under
water regardless of the ebb and flow of the tide. 62 Foreshore and submerged areas indisputably belong to the public
domain63 and are inalienable unless reclaimed, classified as alienable lands open to disposition, and further
declared no longer needed for public service.

The ban in the 1973 Constitution on private corporations from acquiring alienable lands of the public domain did not
apply to PEA since it was then, and until today, a fully owned government corporation. The constitutional ban
applied then, as it still applies now, only to "private corporations and associations." PD No. 1084 expressly
empowers PEA "to hold lands of the public domain" even "in excess of the area permitted to private corporations
by statute." Thus, PEA can hold title to private lands, as well as title to lands of the public domain.

In order for PEA to sell its reclaimed foreshore and submerged alienable lands of the public domain, there must be
legislative authority empowering PEA to sell these lands. This legislative authority is necessary in view of Section 60
of CA No.141, which states

"Sec. 60. x x x; but the land so granted, donated or transferred to a province, municipality, or branch or
subdivision of the Government shall not be alienated, encumbered or otherwise disposed of in a manner
affecting its title, except when authorized by Congress; x x x." (Emphasis supplied)

Without such legislative authority, PEA could not sell but only lease its reclaimed foreshore and submerged
alienable lands of the public domain. Nevertheless, any legislative authority granted to PEA to sell its reclaimed
alienable lands of the public domain would be subject to the constitutional ban on private corporations from
acquiring alienable lands of the public domain. Hence, such legislative authority could only benefit private
individuals.

Dispositions under the 1987 Constitution

The 1987 Constitution, like the 1935 and 1973 Constitutions before it, has adopted the Regalian doctrine. The 1987
Constitution declares that all natural resources are "owned by the State," and except for alienable agricultural lands
of the public domain, natural resources cannot be alienated. Sections 2 and 3, Article XII of the 1987 Constitution
state that

"Section 2. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces
of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are
owned by the State. With the exception of agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural resources shall be under the full control
and supervision of the State. x x x.

Section 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and
national parks. Agricultural lands of the public domain may be further classified by law according to the uses
which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands.
Private corporations or associations may not hold such alienable lands of the public domain except
by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five
years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more
than five hundred hectares, or acquire not more than twelve hectares thereof by purchase, homestead, or
grant.

Taking into account the requirements of conservation, ecology, and development, and subject to the
requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain
which may be acquired, developed, held, or leased and the conditions therefor." (Emphasis supplied)

The 1987 Constitution continues the State policy in the 1973 Constitution banning private corporations
fromacquiring any kind of alienable land of the public domain. Like the 1973 Constitution, the 1987 Constitution
allows private corporations to hold alienable lands of the public domain only through lease. As in the 1935 and
1973 Constitutions, the general law governing the lease to private corporations of reclaimed, foreshore and marshy
alienable lands of the public domain is still CA No. 141.

The Rationale behind the Constitutional Ban

The rationale behind the constitutional ban on corporations from acquiring, except through lease, alienable lands of
the public domain is not well understood. During the deliberations of the 1986 Constitutional Commission, the
commissioners probed the rationale behind this ban, thus:

"FR. BERNAS: Mr. Vice-President, my questions have reference to page 3, line 5 which says:
 `No private corporation or association may hold alienable lands of the public domain except by lease, not to
exceed one thousand hectares in area.'

If we recall, this provision did not exist under the 1935 Constitution, but this was introduced in the 1973
Constitution. In effect, it prohibits private corporations from acquiring alienable public lands. But it has not
been very clear in jurisprudence what the reason for this is. In some of the cases decided in 1982 and
1983, it was indicated that the purpose of this is to prevent large landholdings. Is that the intent of this
provision?

MR. VILLEGAS: I think that is the spirit of the provision.

FR. BERNAS: In existing decisions involving the Iglesia ni Cristo, there were instances where the Iglesia ni
Cristo was not allowed to acquire a mere 313-square meter land where a chapel stood because the
Supreme Court said it would be in violation of this." (Emphasis supplied)

In Ayog v. Cusi,64 the Court explained the rationale behind this constitutional ban in this way:

"Indeed, one purpose of the constitutional prohibition against purchases of public agricultural lands by
private corporations is to equitably diffuse land ownership or to encourage 'owner-cultivatorship and the
economic family-size farm' and to prevent a recurrence of cases like the instant case. Huge landholdings by
corporations or private persons had spawned social unrest."

However, if the constitutional intent is to prevent huge landholdings, the Constitution could have simply limited the
size of alienable lands of the public domain that corporations could acquire. The Constitution could have followed
the limitations on individuals, who could acquire not more than 24 hectares of alienable lands of the public domain
under the 1973 Constitution, and not more than 12 hectares under the 1987 Constitution.

If the constitutional intent is to encourage economic family-size farms, placing the land in the name of a corporation
would be more effective in preventing the break-up of farmlands. If the farmland is registered in the name of a
corporation, upon the death of the owner, his heirs would inherit shares in the corporation instead of subdivided
parcels of the farmland. This would prevent the continuing break-up of farmlands into smaller and smaller plots from
one generation to the next.

In actual practice, the constitutional ban strengthens the constitutional limitation on individuals from acquiring more
than the allowed area of alienable lands of the public domain. Without the constitutional ban, individuals who
already acquired the maximum area of alienable lands of the public domain could easily set up corporations to
acquire more alienable public lands. An individual could own as many corporations as his means would allow him.
An individual could even hide his ownership of a corporation by putting his nominees as stockholders of the
corporation. The corporation is a convenient vehicle to circumvent the constitutional limitation on acquisition by
individuals of alienable lands of the public domain.

The constitutional intent, under the 1973 and 1987 Constitutions, is to transfer ownership of only a limited area of
alienable land of the public domain to a qualified individual. This constitutional intent is safeguarded by the provision
prohibiting corporations from acquiring alienable lands of the public domain, since the vehicle to circumvent the
constitutional intent is removed. The available alienable public lands are gradually decreasing in the face of an ever-
growing population. The most effective way to insure faithful adherence to this constitutional intent is to grant or sell
alienable lands of the public domain only to individuals. This, it would seem, is the practical benefit arising from the
constitutional ban.

The Amended Joint Venture Agreement

The subject matter of the Amended JVA, as stated in its second Whereas clause, consists of three properties,
namely:

1. "[T]hree partially reclaimed and substantially eroded islands along Emilio Aguinaldo Boulevard in
Paranaque and Las Pinas, Metro Manila, with a combined titled area of 1,578,441 square meters;"
 2. "[A]nother area of 2,421,559 square meters contiguous to the three islands;" and

3. "[A]t AMARI's option as approved by PEA, an additional 350 hectares more or less to regularize the
configuration of the reclaimed area."65

PEA confirms that the Amended JVA involves "the development of the Freedom Islands and further reclamation of
about 250 hectares x x x," plus an option "granted to AMARI to subsequently reclaim another 350 hectares x x x." 66

In short, the Amended JVA covers a reclamation area of 750 hectares. Only 157.84 hectares of the 750-hectare
reclamation project have been reclaimed, and the rest of the 592.15 hectares are still submerged areas
forming part of Manila Bay.

Under the Amended JVA, AMARI will reimburse PEA the sum of P1,894,129,200.00 for PEA's "actual cost" in
partially reclaiming the Freedom Islands. AMARI will also complete, at its own expense, the reclamation of the
Freedom Islands. AMARI will further shoulder all the reclamation costs of all the other areas, totaling 592.15
hectares, still to be reclaimed. AMARI and PEA will share, in the proportion of 70 percent and 30 percent,
respectively, the total net usable area which is defined in the Amended JVA as the total reclaimed area less 30
percent earmarked for common areas. Title to AMARI's share in the net usable area, totaling 367.5 hectares, will be
issued in the name of AMARI. Section 5.2 (c) of the Amended JVA provides that

"x x x, PEA shall have the duty to execute without delay the necessary deed of transfer or conveyance of the
title pertaining to AMARI's Land share based on the Land Allocation Plan. PEA, when requested in writing
by AMARI, shall then cause the issuance and delivery of the proper certificates of title covering
AMARI's Land Share in the name of AMARI, x x x; provided, that if more than seventy percent (70%) of
the titled area at any given time pertains to AMARI, PEA shall deliver to AMARI only seventy percent (70%)
of the titles pertaining to AMARI, until such time when a corresponding proportionate area of additional land
pertaining to PEA has been titled." (Emphasis supplied)

Indisputably, under the Amended JVA AMARI will acquire and own a maximum of 367.5 hectares of
reclaimed land which will be titled in its name.

To implement the Amended JVA, PEA delegated to the unincorporated PEA-AMARI joint venture PEA's statutory
authority, rights and privileges to reclaim foreshore and submerged areas in Manila Bay. Section 3.2.a of the
Amended JVA states that

"PEA hereby contributes to the joint venture its rights and privileges to perform Rawland Reclamation and
Horizontal Development as well as own the Reclamation Area, thereby granting the Joint Venture the full
and exclusive right, authority and privilege to undertake the Project in accordance with the Master
Development Plan."

The Amended JVA is the product of a renegotiation of the original JVA dated April 25, 1995 and its supplemental
agreement dated August 9, 1995.

The Threshold Issue

The threshold issue is whether AMARI, a private corporation, can acquire and own under the Amended JVA 367.5
hectares of reclaimed foreshore and submerged areas in Manila Bay in view of Sections 2 and 3, Article XII of the
1987 Constitution which state that:

"Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces
of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are
owned by the State. With the exception of agricultural lands, all other natural resources shall not be
alienated. x x x.

xxx
 Section 3. x x x Alienable lands of the public domain shall be limited to agricultural lands. Private
corporations or associations may not hold such alienable lands of the public domain except by
lease, x x x."(Emphasis supplied)

Classification of Reclaimed Foreshore and Submerged Areas

PEA readily concedes that lands reclaimed from foreshore or submerged areas of Manila Bay are alienable or
disposable lands of the public domain. In its Memorandum, 67 PEA admits that

"Under the Public Land Act (CA 141, as amended), reclaimed lands are classified as alienable and
disposable lands of the public domain:

'Sec. 59. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the government by dredging, filling, or other means;

x x x.'" (Emphasis supplied)

Likewise, the Legal Task Force68 constituted under Presidential Administrative Order No. 365 admitted in its Report
and Recommendation to then President Fidel V. Ramos, "[R]eclaimed lands are classified as alienable and
disposable lands of the public domain."69 The Legal Task Force concluded that

"D. Conclusion

Reclaimed lands are lands of the public domain. However, by statutory authority, the rights of ownership and
disposition over reclaimed lands have been transferred to PEA, by virtue of which PEA, as owner, may
validly convey the same to any qualified person without violating the Constitution or any statute.

The constitutional provision prohibiting private corporations from holding public land, except by lease (Sec.
3, Art. XVII,70 1987 Constitution), does not apply to reclaimed lands whose ownership has passed on to PEA
by statutory grant."

Under Section 2, Article XII of the 1987 Constitution, the foreshore and submerged areas of Manila Bay are part of
the "lands of the public domain, waters x x x and other natural resources" and consequently "owned by the State."
As such, foreshore and submerged areas "shall not be alienated," unless they are classified as "agricultural lands"
of the public domain. The mere reclamation of these areas by PEA does not convert these inalienable natural
resources of the State into alienable or disposable lands of the public domain. There must be a law or presidential
proclamation officially classifying these reclaimed lands as alienable or disposable and open to disposition or
concession. Moreover, these reclaimed lands cannot be classified as alienable or disposable if the law has reserved
them for some public or quasi-public use.71

Section 8 of CA No. 141 provides that "only those lands shall be declared open to disposition or concession which
have been officially delimited and classified."72 The President has the authority to classify inalienable lands of the
public domain into alienable or disposable lands of the public domain, pursuant to Section 6 of CA No. 141. In
Laurel vs. Garcia,73 the Executive Department attempted to sell the Roppongi property in Tokyo, Japan, which was
acquired by the Philippine Government for use as the Chancery of the Philippine Embassy. Although the Chancery
had transferred to another location thirteen years earlier, the Court still ruled that, under Article 422 74of the Civil
Code, a property of public dominion retains such character until formally declared otherwise. The Court ruled that

"The fact that the Roppongi site has not been used for a long time for actual Embassy service does not
automatically convert it to patrimonial property. Any such conversion happens only if the property is
withdrawn from public use (Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481 [1975]. A property
continues to be part of the public domain, not available for private appropriation or ownership 'until
there is a formal declaration on the part of the government to withdraw it from being such' (Ignacio v.
Director of Lands, 108 Phil. 335 [1960]." (Emphasis supplied)
PD No. 1085, issued on February 4, 1977, authorized the issuance of special land patents for lands reclaimed by
PEA from the foreshore or submerged areas of Manila Bay. On January 19, 1988 then President Corazon C. Aquino
issued Special Patent No. 3517 in the name of PEA for the 157.84 hectares comprising the partially reclaimed
Freedom Islands. Subsequently, on April 9, 1999 the Register of Deeds of the Municipality of Paranaque issued TCT
Nos. 7309, 7311 and 7312 in the name of PEA pursuant to Section 103 of PD No. 1529 authorizing the issuance of
certificates of title corresponding to land patents. To this day, these certificates of title are still in the name of PEA.

PD No. 1085, coupled with President Aquino's actual issuance of a special patent covering the Freedom Islands, is
equivalent to an official proclamation classifying the Freedom Islands as alienable or disposable lands of the public
domain. PD No. 1085 and President Aquino's issuance of a land patent also constitute a declaration that the
Freedom Islands are no longer needed for public service. The Freedom Islands are thus alienable or disposable
lands of the public domain, open to disposition or concession to qualified parties.

At the time then President Aquino issued Special Patent No. 3517, PEA had already reclaimed the Freedom Islands
although subsequently there were partial erosions on some areas. The government had also completed the
necessary surveys on these islands. Thus, the Freedom Islands were no longer part of Manila Bay but part of the
land mass. Section 3, Article XII of the 1987 Constitution classifies lands of the public domain into "agricultural,
forest or timber, mineral lands, and national parks." Being neither timber, mineral, nor national park lands, the
reclaimed Freedom Islands necessarily fall under the classification of agricultural lands of the public domain. Under
the 1987 Constitution, agricultural lands of the public domain are the only natural resources that the State may
alienate to qualified private parties. All other natural resources, such as the seas or bays, are "waters x x x owned
by the State" forming part of the public domain, and are inalienable pursuant to Section 2, Article XII of the 1987
Constitution.

AMARI claims that the Freedom Islands are private lands because CDCP, then a private corporation, reclaimed the
islands under a contract dated November 20, 1973 with the Commissioner of Public Highways. AMARI, citing Article
5 of the Spanish Law of Waters of 1866, argues that "if the ownership of reclaimed lands may be given to the party
constructing the works, then it cannot be said that reclaimed lands are lands of the public domain which the State
may not alienate."75 Article 5 of the Spanish Law of Waters reads as follows:

"Article 5. Lands reclaimed from the sea in consequence of works constructed by the State, or by the
provinces, pueblos or private persons, with proper permission, shall become the property of the party
constructing such works, unless otherwise provided by the terms of the grant of authority." (Emphasis
supplied)

Under Article 5 of the Spanish Law of Waters of 1866, private parties could reclaim from the sea only with "proper
permission" from the State. Private parties could own the reclaimed land only if not "otherwise provided by the terms
of the grant of authority." This clearly meant that no one could reclaim from the sea without permission from the
State because the sea is property of public dominion. It also meant that the State could grant or withhold ownership
of the reclaimed land because any reclaimed land, like the sea from which it emerged, belonged to the State. Thus,
a private person reclaiming from the sea without permission from the State could not acquire ownership of the
reclaimed land which would remain property of public dominion like the sea it replaced. 76 Article 5 of the Spanish
Law of Waters of 1866 adopted the time-honored principle of land ownership that "all lands that were not acquired
from the government, either by purchase or by grant, belong to the public domain." 77

Article 5 of the Spanish Law of Waters must be read together with laws subsequently enacted on the disposition of
public lands. In particular, CA No. 141 requires that lands of the public domain must first be classified as alienable or
disposable before the government can alienate them. These lands must not be reserved for public or quasi-public
purposes.78 Moreover, the contract between CDCP and the government was executed after the effectivity of the
1973 Constitution which barred private corporations from acquiring any kind of alienable land of the public domain.
This contract could not have converted the Freedom Islands into private lands of a private corporation.

Presidential Decree No. 3-A, issued on January 11, 1973, revoked all laws authorizing the reclamation of areas
under water and revested solely in the National Government the power to reclaim lands. Section 1 of PD No. 3-A
declared that
 "The provisions of any law to the contrary notwithstanding, the reclamation of areas under water,
whether foreshore or inland, shall be limited to the National Government or any person authorized by it
under a proper contract. (Emphasis supplied)

x x x."

PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866 because reclamation of areas under water
could now be undertaken only by the National Government or by a person contracted by the National Government.
Private parties may reclaim from the sea only under a contract with the National Government, and no longer by
grant or permission as provided in Section 5 of the Spanish Law of Waters of 1866.

Executive Order No. 525, issued on February 14, 1979, designated PEA as the National Government's
implementing arm to undertake "all reclamation projects of the government," which "shall be undertaken by the
PEA or through a proper contract executed by it with any person or entity." Under such contract, a private
party receives compensation for reclamation services rendered to PEA. Payment to the contractor may be in cash,
or in kind consisting of portions of the reclaimed land, subject to the constitutional ban on private corporations from
acquiring alienable lands of the public domain. The reclaimed land can be used as payment in kind only if the
reclaimed land is first classified as alienable or disposable land open to disposition, and then declared no longer
needed for public service.

The Amended JVA covers not only the Freedom Islands, but also an additional 592.15 hectares which are still
submerged and forming part of Manila Bay. There is no legislative or Presidential act classifying these
submerged areas as alienable or disposable lands of the public domain open to disposition. These
submerged areas are not covered by any patent or certificate of title. There can be no dispute that these submerged
areas form part of the public domain, and in their present state are inalienable and outside the commerce of
man. Until reclaimed from the sea, these submerged areas are, under the Constitution, "waters x x x owned by the
State," forming part of the public domain and consequently inalienable. Only when actually reclaimed from the sea
can these submerged areas be classified as public agricultural lands, which under the Constitution are the only
natural resources that the State may alienate. Once reclaimed and transformed into public agricultural lands, the
government may then officially classify these lands as alienable or disposable lands open to disposition. Thereafter,
the government may declare these lands no longer needed for public service. Only then can these reclaimed lands
be considered alienable or disposable lands of the public domain and within the commerce of man.

The classification of PEA's reclaimed foreshore and submerged lands into alienable or disposable lands open to
disposition is necessary because PEA is tasked under its charter to undertake public services that require the use of
lands of the public domain. Under Section 5 of PD No. 1084, the functions of PEA include the following: "[T]o own or
operate railroads, tramways and other kinds of land transportation, x x x; [T]o construct, maintain and operate such
systems of sanitary sewers as may be necessary; [T]o construct, maintain and operate such storm drains as may be
necessary." PEA is empowered to issue "rules and regulations as may be necessary for the proper use by private
parties of any or all of the highways, roads, utilities, buildings and/or any of its properties and to impose or
collect fees or tolls for their use." Thus, part of the reclaimed foreshore and submerged lands held by the PEA would
actually be needed for public use or service since many of the functions imposed on PEA by its charter constitute
essential public services.

Moreover, Section 1 of Executive Order No. 525 provides that PEA "shall be primarily responsible for integrating,
directing, and coordinating all reclamation projects for and on behalf of the National Government." The same section
also states that "[A]ll reclamation projects shall be approved by the President upon recommendation of the PEA,
and shall be undertaken by the PEA or through a proper contract executed by it with any person or entity; x x x."
Thus, under EO No. 525, in relation to PD No. 3-A and PD No.1084, PEA became the primary implementing agency
of the National Government to reclaim foreshore and submerged lands of the public domain. EO No. 525
recognized PEA as the government entity "to undertake the reclamation of lands and ensure their maximum
utilization in promoting public welfare and interests."79 Since large portions of these reclaimed lands would
obviously be needed for public service, there must be a formal declaration segregating reclaimed lands no longer
needed for public service from those still needed for public service.1wphi1.nt

Section 3 of EO No. 525, by declaring that all lands reclaimed by PEA "shall belong to or be owned by the PEA,"
could not automatically operate to classify inalienable lands into alienable or disposable lands of the public domain.
Otherwise, reclaimed foreshore and submerged lands of the public domain would automatically become alienable
once reclaimed by PEA, whether or not classified as alienable or disposable.

The Revised Administrative Code of 1987, a later law than either PD No. 1084 or EO No. 525, vests in the
Department of Environment and Natural Resources ("DENR" for brevity) the following powers and functions:

"Sec. 4. Powers and Functions. The Department shall:

(1) x x x

xxx

(4) Exercise supervision and control over forest lands, alienable and disposable public lands, mineral
resources and, in the process of exercising such control, impose appropriate taxes, fees, charges, rentals
and any such form of levy and collect such revenues for the exploration, development, utilization or
gathering of such resources;

xxx

(14) Promulgate rules, regulations and guidelines on the issuance of licenses, permits, concessions,
lease agreements and such other privileges concerning the development, exploration and utilization
of the country's marine, freshwater, and brackish water and over all aquatic resources of the country
and shall continue to oversee, supervise and police our natural resources; cancel or cause to cancel
such privileges upon failure, non-compliance or violations of any regulation, order, and for all other causes
which are in furtherance of the conservation of natural resources and supportive of the national interest;

(15) Exercise exclusive jurisdiction on the management and disposition of all lands of the public
domain and serve as the sole agency responsible for classification, sub-classification, surveying and
titling of lands in consultation with appropriate agencies." 80 (Emphasis supplied)

As manager, conservator and overseer of the natural resources of the State, DENR exercises "supervision and
control over alienable and disposable public lands." DENR also exercises "exclusive jurisdiction on the management
and disposition of all lands of the public domain." Thus, DENR decides whether areas under water, like foreshore or
submerged areas of Manila Bay, should be reclaimed or not. This means that PEA needs authorization from DENR
before PEA can undertake reclamation projects in Manila Bay, or in any part of the country.

DENR also exercises exclusive jurisdiction over the disposition of all lands of the public domain. Hence, DENR
decides whether reclaimed lands of PEA should be classified as alienable under Sections 6 81 and 782 of CA No. 141.
Once DENR decides that the reclaimed lands should be so classified, it then recommends to the President the
issuance of a proclamation classifying the lands as alienable or disposable lands of the public domain open to
disposition. We note that then DENR Secretary Fulgencio S. Factoran, Jr. countersigned Special Patent No. 3517 in
compliance with the Revised Administrative Code and Sections 6 and 7 of CA No. 141.

In short, DENR is vested with the power to authorize the reclamation of areas under water, while PEA is vested with
the power to undertake the physical reclamation of areas under water, whether directly or through private
contractors. DENR is also empowered to classify lands of the public domain into alienable or disposable lands
subject to the approval of the President. On the other hand, PEA is tasked to develop, sell or lease the reclaimed
alienable lands of the public domain.

Clearly, the mere physical act of reclamation by PEA of foreshore or submerged areas does not make the reclaimed
lands alienable or disposable lands of the public domain, much less patrimonial lands of PEA. Likewise, the mere
transfer by the National Government of lands of the public domain to PEA does not make the lands alienable or
disposable lands of the public domain, much less patrimonial lands of PEA.

Absent two official acts a classification that these lands are alienable or disposable and open to disposition and a
declaration that these lands are not needed for public service, lands reclaimed by PEA remain inalienable lands of
the public domain. Only such an official classification and formal declaration can convert reclaimed lands into
alienable or disposable lands of the public domain, open to disposition under the Constitution, Title I and Title III 83of
CA No. 141 and other applicable laws.84

PEA's Authority to Sell Reclaimed Lands

PEA, like the Legal Task Force, argues that as alienable or disposable lands of the public domain, the reclaimed
lands shall be disposed of in accordance with CA No. 141, the Public Land Act. PEA, citing Section 60 of CA No.
141, admits that reclaimed lands transferred to a branch or subdivision of the government "shall not be alienated,
encumbered, or otherwise disposed of in a manner affecting its title, except when authorized by Congress: x x
x."85 (Emphasis by PEA)

In Laurel vs. Garcia,86 the Court cited Section 48 of the Revised Administrative Code of 1987, which states that

"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the Government is
authorized by law to be conveyed, the deed of conveyance shall be executed in behalf of the government
by the following: x x x."

Thus, the Court concluded that a law is needed to convey any real property belonging to the Government. The Court
declared that -

"It is not for the President to convey real property of the government on his or her own sole will. Any such
conveyance must be authorized and approved by a law enacted by the Congress. It requires executive
and legislative concurrence." (Emphasis supplied)

PEA contends that PD No. 1085 and EO No. 525 constitute the legislative authority allowing PEA to sell its
reclaimed lands. PD No. 1085, issued on February 4, 1977, provides that

"The land reclaimed in the foreshore and offshore area of Manila Bay pursuant to the contract for the
reclamation and construction of the Manila-Cavite Coastal Road Project between the Republic of the
Philippines and the Construction and Development Corporation of the Philippines dated November 20, 1973
and/or any other contract or reclamation covering the same area is hereby transferred, conveyed and
assigned to the ownership and administration of the Public Estates Authority established pursuant to
PD No. 1084; Provided, however, That the rights and interests of the Construction and Development
Corporation of the Philippines pursuant to the aforesaid contract shall be recognized and respected.

Henceforth, the Public Estates Authority shall exercise the rights and assume the obligations of the Republic
of the Philippines (Department of Public Highways) arising from, or incident to, the aforesaid contract
between the Republic of the Philippines and the Construction and Development Corporation of the
Philippines.

In consideration of the foregoing transfer and assignment, the Public Estates Authority shall issue in favor of
the Republic of the Philippines the corresponding shares of stock in said entity with an issued value of said
shares of stock (which) shall be deemed fully paid and non-assessable.

The Secretary of Public Highways and the General Manager of the Public Estates Authority shall execute
such contracts or agreements, including appropriate agreements with the Construction and Development
Corporation of the Philippines, as may be necessary to implement the above.

Special land patent/patents shall be issued by the Secretary of Natural Resources in favor of the
Public Estates Authority without prejudice to the subsequent transfer to the contractor or his
assignees of such portion or portions of the land reclaimed or to be reclaimed as provided for in the
above-mentioned contract. On the basis of such patents, the Land Registration Commission shall
issue the corresponding certificate of title." (Emphasis supplied)

On the other hand, Section 3 of EO No. 525, issued on February 14, 1979, provides that -
 "Sec. 3. All lands reclaimed by PEA shall belong to or be owned by the PEA which shall be responsible
for its administration, development, utilization or disposition in accordance with the provisions of Presidential
Decree No. 1084. Any and all income that the PEA may derive from the sale, lease or use of reclaimed lands
shall be used in accordance with the provisions of Presidential Decree No. 1084."

There is no express authority under either PD No. 1085 or EO No. 525 for PEA to sell its reclaimed lands. PD No.
1085 merely transferred "ownership and administration" of lands reclaimed from Manila Bay to PEA, while EO No.
525 declared that lands reclaimed by PEA "shall belong to or be owned by PEA." EO No. 525 expressly states that
PEA should dispose of its reclaimed lands "in accordance with the provisions of Presidential Decree No. 1084," the
charter of PEA.

PEA's charter, however, expressly tasks PEA "to develop, improve, acquire, administer, deal in, subdivide, dispose,
lease and sell any and all kinds of lands x x x owned, managed, controlled and/or operated by the
government."87 (Emphasis supplied) There is, therefore, legislative authority granted to PEA to sell its lands,
whether patrimonial or alienable lands of the public domain. PEA may sell to private parties its patrimonial
properties in accordance with the PEA charter free from constitutional limitations. The constitutional ban on private
corporations from acquiring alienable lands of the public domain does not apply to the sale of PEA's patrimonial
lands.

PEA may also sell its alienable or disposable lands of the public domain to private individuals since, with the
legislative authority, there is no longer any statutory prohibition against such sales and the constitutional ban does
not apply to individuals. PEA, however, cannot sell any of its alienable or disposable lands of the public domain to
private corporations since Section 3, Article XII of the 1987 Constitution expressly prohibits such sales. The
legislative authority benefits only individuals. Private corporations remain barred from acquiring any kind of alienable
land of the public domain, including government reclaimed lands.

The provision in PD No. 1085 stating that portions of the reclaimed lands could be transferred by PEA to the
"contractor or his assignees" (Emphasis supplied) would not apply to private corporations but only to individuals
because of the constitutional ban. Otherwise, the provisions of PD No. 1085 would violate both the 1973 and 1987
Constitutions.

The requirement of public auction in the sale of reclaimed lands

Assuming the reclaimed lands of PEA are classified as alienable or disposable lands open to disposition, and further
declared no longer needed for public service, PEA would have to conduct a public bidding in selling or leasing these
lands. PEA must observe the provisions of Sections 63 and 67 of CA No. 141 requiring public auction, in the
absence of a law exempting PEA from holding a public auction. 88 Special Patent No. 3517 expressly states that the
patent is issued by authority of the Constitution and PD No. 1084, "supplemented by Commonwealth Act No. 141,
as amended." This is an acknowledgment that the provisions of CA No. 141 apply to the disposition of reclaimed
alienable lands of the public domain unless otherwise provided by law. Executive Order No. 654, 89 which authorizes
PEA "to determine the kind and manner of payment for the transfer" of its assets and properties, does not exempt
PEA from the requirement of public auction. EO No. 654 merely authorizes PEA to decide the mode of payment,
whether in kind and in installment, but does not authorize PEA to dispense with public auction.

Moreover, under Section 79 of PD No. 1445, otherwise known as the Government Auditing Code, the government is
required to sell valuable government property through public bidding. Section 79 of PD No. 1445 mandates that

"Section 79. When government property has become unserviceable for any cause, or is no longer needed,
it shall, upon application of the officer accountable therefor, be inspected by the head of the agency or his
duly authorized representative in the presence of the auditor concerned and, if found to be valueless or
unsaleable, it may be destroyed in their presence. If found to be valuable, it may be sold at public
auction to the highest bidder under the supervision of the proper committee on award or similar body in
the presence of the auditor concerned or other authorized representative of the Commission, after
advertising by printed notice in the Official Gazette, or for not less than three consecutive days in
any newspaper of general circulation, or where the value of the property does not warrant the expense of
publication, by notices posted for a like period in at least three public places in the locality where the
property is to be sold. In the event that the public auction fails, the property may be sold at a private
 sale at such price as may be fixed by the same committee or body concerned and approved by the
Commission."

It is only when the public auction fails that a negotiated sale is allowed, in which case the Commission on Audit must
approve the selling price.90 The Commission on Audit implements Section 79 of the Government Auditing Code
through Circular No. 89-29691 dated January 27, 1989. This circular emphasizes that government assets must be
disposed of only through public auction, and a negotiated sale can be resorted to only in case of "failure of public
auction."

At the public auction sale, only Philippine citizens are qualified to bid for PEA's reclaimed foreshore and submerged
alienable lands of the public domain. Private corporations are barred from bidding at the auction sale of any kind of
alienable land of the public domain.

PEA originally scheduled a public bidding for the Freedom Islands on December 10, 1991. PEA imposed a condition
that the winning bidder should reclaim another 250 hectares of submerged areas to regularize the shape of the
Freedom Islands, under a 60-40 sharing of the additional reclaimed areas in favor of the winning bidder.92No one,
however, submitted a bid. On December 23, 1994, the Government Corporate Counsel advised PEA it could sell the
Freedom Islands through negotiation, without need of another public bidding, because of the failure of the public
bidding on December 10, 1991. 93

However, the original JVA dated April 25, 1995 covered not only the Freedom Islands and the additional 250
hectares still to be reclaimed, it also granted an option to AMARI to reclaim another 350 hectares. The original JVA,
a negotiated contract, enlarged the reclamation area to 750 hectares.94 The failure of public bidding on December
10, 1991, involving only 407.84 hectares,95 is not a valid justification for a negotiated sale of 750 hectares, almost
double the area publicly auctioned. Besides, the failure of public bidding happened on December 10, 1991, more
than three years before the signing of the original JVA on April 25, 1995. The economic situation in the country had
greatly improved during the intervening period.

Reclamation under the BOT Law and the Local Government Code

The constitutional prohibition in Section 3, Article XII of the 1987 Constitution is absolute and clear: "Private
corporations or associations may not hold such alienable lands of the public domain except by lease, x x x." Even
Republic Act No. 6957 ("BOT Law," for brevity), cited by PEA and AMARI as legislative authority to sell reclaimed
lands to private parties, recognizes the constitutional ban. Section 6 of RA No. 6957 states

"Sec. 6. Repayment Scheme. - For the financing, construction, operation and maintenance of any
infrastructure projects undertaken through the build-operate-and-transfer arrangement or any of its
variations pursuant to the provisions of this Act, the project proponent x x x may likewise be repaid in the
form of a share in the revenue of the project or other non-monetary payments, such as, but not limited to,
the grant of a portion or percentage of the reclaimed land, subject to the constitutional requirements
with respect to the ownership of the land: x x x." (Emphasis supplied)

A private corporation, even one that undertakes the physical reclamation of a government BOT project, cannot
acquire reclaimed alienable lands of the public domain in view of the constitutional ban.

Section 302 of the Local Government Code, also mentioned by PEA and AMARI, authorizes local governments in
land reclamation projects to pay the contractor or developer in kind consisting of a percentage of the reclaimed land,
to wit:

"Section 302. Financing, Construction, Maintenance, Operation, and Management of Infrastructure Projects
by the Private Sector. x x x

xxx

In case of land reclamation or construction of industrial estates, the repayment plan may consist of the grant
of a portion or percentage of the reclaimed land or the industrial estate constructed."
Although Section 302 of the Local Government Code does not contain a proviso similar to that of the BOT Law, the
constitutional restrictions on land ownership automatically apply even though not expressly mentioned in the Local
Government Code.

Thus, under either the BOT Law or the Local Government Code, the contractor or developer, if a corporate entity,
can only be paid with leaseholds on portions of the reclaimed land. If the contractor or developer is an individual,
portions of the reclaimed land, not exceeding 12 hectares 96 of non-agricultural lands, may be conveyed to him in
ownership in view of the legislative authority allowing such conveyance. This is the only way these provisions of the
BOT Law and the Local Government Code can avoid a direct collision with Section 3, Article XII of the 1987
Constitution.

Registration of lands of the public domain

Finally, PEA theorizes that the "act of conveying the ownership of the reclaimed lands to public respondent PEA
transformed such lands of the public domain to private lands." This theory is echoed by AMARI which maintains that
the "issuance of the special patent leading to the eventual issuance of title takes the subject land away from the land
of public domain and converts the property into patrimonial or private property." In short, PEA and AMARI contend
that with the issuance of Special Patent No. 3517 and the corresponding certificates of titles, the 157.84 hectares
comprising the Freedom Islands have become private lands of PEA. In support of their theory, PEA and AMARI cite
the following rulings of the Court:

1. Sumail v. Judge of CFI of Cotabato,97 where the Court held

"Once the patent was granted and the corresponding certificate of title was issued, the land ceased to be
part of the public domain and became private property over which the Director of Lands has neither control
nor jurisdiction."

2. Lee Hong Hok v. David,98 where the Court declared -

"After the registration and issuance of the certificate and duplicate certificate of title based on a public land
patent, the land covered thereby automatically comes under the operation of Republic Act 496 subject to all
the safeguards provided therein."3. Heirs of Gregorio Tengco v. Heirs of Jose Aliwalas,99 where the Court
ruled -

"While the Director of Lands has the power to review homestead patents, he may do so only so long as the
land remains part of the public domain and continues to be under his exclusive control; but once the patent
is registered and a certificate of title is issued, the land ceases to be part of the public domain and becomes
private property over which the Director of Lands has neither control nor jurisdiction."

4. Manalo v. Intermediate Appellate Court,100 where the Court held

"When the lots in dispute were certified as disposable on May 19, 1971, and free patents were issued
covering the same in favor of the private respondents, the said lots ceased to be part of the public domain
and, therefore, the Director of Lands lost jurisdiction over the same."

5.Republic v. Court of Appeals,101 where the Court stated

"Proclamation No. 350, dated October 9, 1956, of President Magsaysay legally effected a land grant to the
Mindanao Medical Center, Bureau of Medical Services, Department of Health, of the whole lot, validly
sufficient for initial registration under the Land Registration Act. Such land grant is constitutive of a 'fee
simple' title or absolute title in favor of petitioner Mindanao Medical Center. Thus, Section 122 of the Act,
which governs the registration of grants or patents involving public lands, provides that 'Whenever public
lands in the Philippine Islands belonging to the Government of the United States or to the Government of the
Philippines are alienated, granted or conveyed to persons or to public or private corporations, the same shall
be brought forthwith under the operation of this Act (Land Registration Act, Act 496) and shall become
registered lands.'"
The first four cases cited involve petitions to cancel the land patents and the corresponding certificates of
titlesissued to private parties. These four cases uniformly hold that the Director of Lands has no jurisdiction over
private lands or that upon issuance of the certificate of title the land automatically comes under the Torrens System.
The fifth case cited involves the registration under the Torrens System of a 12.8-hectare public land granted by the
National Government to Mindanao Medical Center, a government unit under the Department of Health. The National
Government transferred the 12.8-hectare public land to serve as the site for the hospital buildings and other facilities
of Mindanao Medical Center, which performed a public service. The Court affirmed the registration of the 12.8-
hectare public land in the name of Mindanao Medical Center under Section 122 of Act No. 496. This fifth case is an
example of a public land being registered under Act No. 496 without the land losing its character as a property of
public dominion.

In the instant case, the only patent and certificates of title issued are those in the name of PEA, a wholly
government owned corporation performing public as well as proprietary functions. No patent or certificate of title has
been issued to any private party. No one is asking the Director of Lands to cancel PEA's patent or certificates of title.
In fact, the thrust of the instant petition is that PEA's certificates of title should remain with PEA, and the land
covered by these certificates, being alienable lands of the public domain, should not be sold to a private corporation.

Registration of land under Act No. 496 or PD No. 1529 does not vest in the registrant private or public ownership of
the land. Registration is not a mode of acquiring ownership but is merely evidence of ownership previously
conferred by any of the recognized modes of acquiring ownership. Registration does not give the registrant a better
right than what the registrant had prior to the registration. 102 The registration of lands of the public domain under the
Torrens system, by itself, cannot convert public lands into private lands. 103

Jurisprudence holding that upon the grant of the patent or issuance of the certificate of title the alienable land of the
public domain automatically becomes private land cannot apply to government units and entities like PEA. The
transfer of the Freedom Islands to PEA was made subject to the provisions of CA No. 141 as expressly stated in
Special Patent No. 3517 issued by then President Aquino, to wit:

"NOW, THEREFORE, KNOW YE, that by authority of the Constitution of the Philippines and in conformity
with the provisions of Presidential Decree No. 1084, supplemented by Commonwealth Act No. 141, as
amended, there are hereby granted and conveyed unto the Public Estates Authority the aforesaid tracts of
land containing a total area of one million nine hundred fifteen thousand eight hundred ninety four
(1,915,894) square meters; the technical description of which are hereto attached and made an integral part
hereof." (Emphasis supplied)

Thus, the provisions of CA No. 141 apply to the Freedom Islands on matters not covered by PD No. 1084. Section
60 of CA No. 141 prohibits, "except when authorized by Congress," the sale of alienable lands of the public domain
that are transferred to government units or entities. Section 60 of CA No. 141 constitutes, under Section 44 of PD
No. 1529, a "statutory lien affecting title" of the registered land even if not annotated on the certificate of
title.104Alienable lands of the public domain held by government entities under Section 60 of CA No. 141 remain
public lands because they cannot be alienated or encumbered unless Congress passes a law authorizing their
disposition. Congress, however, cannot authorize the sale to private corporations of reclaimed alienable lands of the
public domain because of the constitutional ban. Only individuals can benefit from such law.

The grant of legislative authority to sell public lands in accordance with Section 60 of CA No. 141 does not
automatically convert alienable lands of the public domain into private or patrimonial lands. The alienable lands of
the public domain must be transferred to qualified private parties, or to government entities not tasked to dispose of
public lands, before these lands can become private or patrimonial lands. Otherwise, the constitutional ban will
become illusory if Congress can declare lands of the public domain as private or patrimonial lands in the hands of a
government agency tasked to dispose of public lands. This will allow private corporations to acquire directly from
government agencies limitless areas of lands which, prior to such law, are concededly public lands.

Under EO No. 525, PEA became the central implementing agency of the National Government to reclaim
foreshore and submerged areas of the public domain. Thus, EO No. 525 declares that

"EXECUTIVE ORDER NO. 525

Designating the Public Estates Authority as the Agency Primarily Responsible for all Reclamation Projects
 Whereas, there are several reclamation projects which are ongoing or being proposed to be undertaken in
various parts of the country which need to be evaluated for consistency with national programs;

Whereas, there is a need to give further institutional support to the Government's declared policy to provide
for a coordinated, economical and efficient reclamation of lands;

Whereas, Presidential Decree No. 3-A requires that all reclamation of areas shall be limited to the National
Government or any person authorized by it under proper contract;

Whereas, a central authority is needed to act on behalf of the National Government which shall
ensure a coordinated and integrated approach in the reclamation of lands;

Whereas, Presidential Decree No. 1084 creates the Public Estates Authority as a government
corporation to undertake reclamation of lands and ensure their maximum utilization in promoting
public welfare and interests; and

Whereas, Presidential Decree No. 1416 provides the President with continuing authority to reorganize the
national government including the transfer, abolition, or merger of functions and offices.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers
vested in me by the Constitution and pursuant to Presidential Decree No. 1416, do hereby order and direct
the following:

Section 1. The Public Estates Authority (PEA) shall be primarily responsible for integrating, directing,
and coordinating all reclamation projects for and on behalf of the National Government. All
reclamation projects shall be approved by the President upon recommendation of the PEA, and shall be
undertaken by the PEA or through a proper contract executed by it with any person or entity; Provided, that,
reclamation projects of any national government agency or entity authorized under its charter shall be
undertaken in consultation with the PEA upon approval of the President.

x x x ."

As the central implementing agency tasked to undertake reclamation projects nationwide, with authority to sell
reclaimed lands, PEA took the place of DENR as the government agency charged with leasing or selling reclaimed
lands of the public domain. The reclaimed lands being leased or sold by PEA are not private lands, in the same
manner that DENR, when it disposes of other alienable lands, does not dispose of private lands but alienable lands
of the public domain. Only when qualified private parties acquire these lands will the lands become private lands. In
the hands of the government agency tasked and authorized to dispose of alienable of disposable lands of
the public domain, these lands are still public, not private lands.

Furthermore, PEA's charter expressly states that PEA "shall hold lands of the public domain" as well as "any and
all kinds of lands." PEA can hold both lands of the public domain and private lands. Thus, the mere fact that
alienable lands of the public domain like the Freedom Islands are transferred to PEA and issued land patents or
certificates of title in PEA's name does not automatically make such lands private.

To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as private lands will sanction a
gross violation of the constitutional ban on private corporations from acquiring any kind of alienable land of the
public domain. PEA will simply turn around, as PEA has now done under the Amended JVA, and transfer several
hundreds of hectares of these reclaimed and still to be reclaimed lands to a single private corporation in only one
transaction. This scheme will effectively nullify the constitutional ban in Section 3, Article XII of the 1987 Constitution
which was intended to diffuse equitably the ownership of alienable lands of the public domain among Filipinos, now
numbering over 80 million strong.

This scheme, if allowed, can even be applied to alienable agricultural lands of the public domain since PEA can
"acquire x x x any and all kinds of lands." This will open the floodgates to corporations and even individuals
acquiring hundreds of hectares of alienable lands of the public domain under the guise that in the hands of PEA
these lands are private lands. This will result in corporations amassing huge landholdings never before seen in this
country - creating the very evil that the constitutional ban was designed to prevent. This will completely reverse the
clear direction of constitutional development in this country. The 1935 Constitution allowed private corporations to
acquire not more than 1,024 hectares of public lands. 105 The 1973 Constitution prohibited private corporations from
acquiring any kind of public land, and the 1987 Constitution has unequivocally reiterated this prohibition.

The contention of PEA and AMARI that public lands, once registered under Act No. 496 or PD No. 1529,
automatically become private lands is contrary to existing laws. Several laws authorize lands of the public domain to
be registered under the Torrens System or Act No. 496, now PD No. 1529, without losing their character as public
lands. Section 122 of Act No. 496, and Section 103 of PD No. 1529, respectively, provide as follows:

Act No. 496

"Sec. 122. Whenever public lands in the Philippine Islands belonging to the x x x Government of the
Philippine Islands are alienated, granted, or conveyed to persons or the public or private corporations, the
same shall be brought forthwith under the operation of this Act and shall become registered lands."

PD No. 1529

"Sec. 103. Certificate of Title to Patents. Whenever public land is by the Government alienated, granted or
conveyed to any person, the same shall be brought forthwith under the operation of this Decree."
(Emphasis supplied)

Based on its legislative history, the phrase "conveyed to any person" in Section 103 of PD No. 1529 includes
conveyances of public lands to public corporations.

Alienable lands of the public domain "granted, donated, or transferred to a province, municipality, or branch or
subdivision of the Government," as provided in Section 60 of CA No. 141, may be registered under the Torrens
System pursuant to Section 103 of PD No. 1529. Such registration, however, is expressly subject to the condition in
Section 60 of CA No. 141 that the land "shall not be alienated, encumbered or otherwise disposed of in a manner
affecting its title, except when authorized by Congress." This provision refers to government reclaimed,
foreshore and marshy lands of the public domain that have been titled but still cannot be alienated or encumbered
unless expressly authorized by Congress. The need for legislative authority prevents the registered land of the
public domain from becoming private land that can be disposed of to qualified private parties.

The Revised Administrative Code of 1987 also recognizes that lands of the public domain may be registered under
the Torrens System. Section 48, Chapter 12, Book I of the Code states

"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the Government is
authorized by law to be conveyed, the deed of conveyance shall be executed in behalf of the government by
the following:

(1) x x x

(2) For property belonging to the Republic of the Philippines, but titled in the name of any political
subdivision or of any corporate agency or instrumentality, by the executive head of the agency or
instrumentality." (Emphasis supplied)

Thus, private property purchased by the National Government for expansion of a public wharf may be titled in the
name of a government corporation regulating port operations in the country. Private property purchased by the
National Government for expansion of an airport may also be titled in the name of the government agency tasked to
administer the airport. Private property donated to a municipality for use as a town plaza or public school site may
likewise be titled in the name of the municipality.106 All these properties become properties of the public domain, and
if already registered under Act No. 496 or PD No. 1529, remain registered land. There is no requirement or provision
in any existing law for the de-registration of land from the Torrens System.

Private lands taken by the Government for public use under its power of eminent domain become unquestionably
part of the public domain. Nevertheless, Section 85 of PD No. 1529 authorizes the Register of Deeds to issue in the
name of the National Government new certificates of title covering such expropriated lands. Section 85 of PD No.
1529 states

"Sec. 85. Land taken by eminent domain. Whenever any registered land, or interest therein, is expropriated
or taken by eminent domain, the National Government, province, city or municipality, or any other agency or
instrumentality exercising such right shall file for registration in the proper Registry a certified copy of the
judgment which shall state definitely by an adequate description, the particular property or interest
expropriated, the number of the certificate of title, and the nature of the public use. A memorandum of the
right or interest taken shall be made on each certificate of title by the Register of Deeds, and where the fee
simple is taken, a new certificate shall be issued in favor of the National Government, province, city,
municipality, or any other agency or instrumentality exercising such right for the land so taken. The legal
expenses incident to the memorandum of registration or issuance of a new certificate of title shall be for the
account of the authority taking the land or interest therein." (Emphasis supplied)

Consequently, lands registered under Act No. 496 or PD No. 1529 are not exclusively private or patrimonial lands.
Lands of the public domain may also be registered pursuant to existing laws.

AMARI makes a parting shot that the Amended JVA is not a sale to AMARI of the Freedom Islands or of the lands to
be reclaimed from submerged areas of Manila Bay. In the words of AMARI, the Amended JVA "is not a sale but a
joint venture with a stipulation for reimbursement of the original cost incurred by PEA for the earlier reclamation and
construction works performed by the CDCP under its 1973 contract with the Republic." Whether the Amended JVA is
a sale or a joint venture, the fact remains that the Amended JVA requires PEA to "cause the issuance and delivery of
the certificates of title conveying AMARI's Land Share in the name of AMARI." 107

This stipulation still contravenes Section 3, Article XII of the 1987 Constitution which provides that private
corporations "shall not hold such alienable lands of the public domain except by lease." The transfer of title and
ownership to AMARI clearly means that AMARI will "hold" the reclaimed lands other than by lease. The transfer of
title and ownership is a "disposition" of the reclaimed lands, a transaction considered a sale or alienation under CA
No. 141,108 the Government Auditing Code,109 and Section 3, Article XII of the 1987 Constitution.

The Regalian doctrine is deeply implanted in our legal system. Foreshore and submerged areas form part of the
public domain and are inalienable. Lands reclaimed from foreshore and submerged areas also form part of the
public domain and are also inalienable, unless converted pursuant to law into alienable or disposable lands of the
public domain. Historically, lands reclaimed by the government are sui generis, not available for sale to private
parties unlike other alienable public lands. Reclaimed lands retain their inherent potential as areas for public use or
public service. Alienable lands of the public domain, increasingly becoming scarce natural resources, are to be
distributed equitably among our ever-growing population. To insure such equitable distribution, the 1973 and 1987
Constitutions have barred private corporations from acquiring any kind of alienable land of the public domain. Those
who attempt to dispose of inalienable natural resources of the State, or seek to circumvent the constitutional ban on
alienation of lands of the public domain to private corporations, do so at their own risk.

We can now summarize our conclusions as follows:

1. The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by certificates of
title in the name of PEA, are alienable lands of the public domain. PEA may lease these lands to private
corporations but may not sell or transfer ownership of these lands to private corporations. PEA may only sell
these lands to Philippine citizens, subject to the ownership limitations in the 1987 Constitution and existing
laws.

2. The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural resources of the public
domain until classified as alienable or disposable lands open to disposition and declared no longer needed
for public service. The government can make such classification and declaration only after PEA has
reclaimed these submerged areas. Only then can these lands qualify as agricultural lands of the public
domain, which are the only natural resources the government can alienate. In their present state, the 592.15
hectares of submerged areas are inalienable and outside the commerce of man.

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

4. Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156 hectares 111 of still
submerged areas of Manila Bay, such transfer is void for being contrary to Section 2, Article XII of the 1987
Constitution which prohibits the alienation of natural resources other than agricultural lands of the public
domain. PEA may reclaim these submerged areas. Thereafter, the government can classify the reclaimed
lands as alienable or disposable, and further declare them no longer needed for public service. Still, the
transfer of such reclaimed alienable lands of the public domain to AMARI will be void in view of Section 3,
Article XII of the 1987 Constitution which prohibits private corporations from acquiring any kind of alienable
land of the public domain.

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

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

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

WHEREFORE, the petition is GRANTED. The Public Estates Authority and Amari Coastal Bay Development
Corporation are PERMANENTLY ENJOINED from implementing the Amended Joint Venture Agreement which is
hereby declared NULL and VOID ab initio.

SO ORDERED.
G.R. No. 177271 May 4, 2007

BANTAY REPUBLIC ACT OR BA-RA 7941, represented by MR. AMEURFINO E. CINCO, Chairman, AND
URBAN POOR FOR LEGAL REFORMS (UP-LR), represented by MRS. MYRNA P. PORCARE, Secretary-
General, Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondents.

x--------------------------------------------------x

G.R. No. 177314 May 4, 2007

REP. LORETTA ANN P. ROSALES, KILOSBAYAN FOUNDATION, BANTAY KATARUNGAN

FOUNDATION,Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.

DECISION

GARCIA, J.:

Before the Court are these two consolidated petitions for certiorari and mandamus to nullify and set aside certain
issuances of the Commission on Elections (Comelec) respecting party-list groups which have manifested their
intention to participate in the party-list elections on May 14, 2007.

In the first petition, docketed as G.R. No. 177271, petitioners Bantay Republic Act (BA-RA 7941, for short) and the
Urban Poor for Legal Reforms (UP-LR, for short) assail the various Comelec resolutions accrediting private
respondents Biyaheng Pinoy et al., to participate in the forthcoming party-list elections on May 14, 2007 without
simultaneously determining whether or not their respective nominees possess the requisite qualifications defined in
Republic Act (R.A.) No. 7941, or the "Party-List System Act" and belong to the marginalized and underrepresented
sector each seeks to represent. In the second, docketed as G.R. No. 177314, petitioners Loreta Ann P. Rosales,
Kilosbayan Foundation and Bantay Katarungan Foundation impugn Comelec Resolution 07-0724 dated April 3,
2007 effectively denying their request for the release or disclosure of the names of the nominees of the fourteen (14)
accredited participating party-list groups mentioned in petitioner Rosales previous letter-request.

While both petitions commonly seek to compel the Comelec to disclose or publish the names of the nominees of the
various party-list groups named in the petitions,1 the petitioners in G.R. No. 177271 have the following additional
prayers: 1) that the 33 private respondents named therein be "declare[d] as unqualified to participate in the party-list
elections as sectoral organizations, parties or coalition for failure to comply with the guidelines prescribed by the
[Court] in [Ang Bagong Bayani v. Comelec 2]" and, 2) correspondingly, that the Comelec be enjoined from allowing
respondent groups from participating in the May 2007 elections.

In separate resolutions both dated April 24, 2007, the Court en banc required the public and private respondents to
file their respective comments on the petitions within a non-extendible period of five (5) days from notice. Apart from
respondent Comelec, seven (7) private respondents 3 in G.R. No. 177271 and one party-list group 4mentioned in G.R.
No. 177314 submitted their separate comments. In the main, the separate comments of the private respondents
focused on the untenability and prematurity of the plea of petitioners BA-RA 7941 and UP-LR to nullify their
accreditation as party-list groups and thus disqualify them and their respective nominees from participating in the
May 14, 2007 party-list elections.

The facts:

On January 12, 2007, the Comelec issued Resolution No. 7804 prescribing rules and regulations to govern the filing
of manifestation of intent to participate and submission of names of nominees under the party-list system of
representation in connection with the May 14, 2007 elections. Pursuant thereto, a number of organized groups filed
the necessary manifestations. Among these and ostensibly subsequently accredited by the Comelec to participate
in the 2007 elections - are 14 party-list groups, namely: (1) BABAE KA; (2) ANG KASANGGA; (3)AKBAY PINOY;
(4) AKSA; (5) KAKUSA; (6) AHON PINOY; (7) OFW PARTY; (8) BIYAHENG PINOY; (9) ANAD; (10) AANGAT ANG
KABUHAYAN; (11) AGBIAG; (12) BANAT; (13) BANTAY LIPAD; (14) AGING PINOY. Petitioners BA-RA 7941 and
UP-LR presented a longer, albeit an overlapping, list.

Subsequent events saw BA-RA 7941 and UP-LR filing with the Comelec an Urgent Petition to Disqualify, thereunder
seeking to disqualify the nominees of certain party-list organizations. Both petitioners appear not to have the names
of the nominees sought to be disqualified since they still asked for a copy of the list of nominees. Docketed in the
Comelec as SPA Case No 07-026, this urgent petition has yet to be resolved.

Meanwhile, reacting to the emerging public perception that the individuals behind the aforementioned 14 party-list
groups do not, as they should, actually represent the poor and marginalized sectors, petitioner Rosales, in G.R. No.
177314, addressed a letter 5 dated March 29, 2007 to Director Alioden Dalaig of the Comelecs Law Department
requesting a list of that groups nominees. Another letter 6 of the same tenor dated March 31, 2007 followed, this time
petitioner Rosales impressing upon Atty. Dalaig the particular urgency of the subject request.

Neither the Comelec Proper nor its Law Department officially responded to petitioner Rosales requests. The April
13, 2007 issue of the Manila Bulletin, however, carried the front-page banner headline "COMELEC WONT BARE
PARTY-LIST NOMINEES",7 with the following sub-heading: "Abalos says party-list polls not personality oriented."

On April 16, 2007, Atty. Emilio Capulong, Jr. and ex-Senator Jovito R. Salonga, in their own behalves and as
counsels of petitioner Rosales, forwarded a letter 8 to the Comelec formally requesting action and definitive decision
on Rosales earlier plea for information regarding the names of several party-list nominees. Invoking their
constitutionally-guaranteed right to information, Messrs. Capulong and Salonga at the same time drew attention to
the banner headline adverted to earlier, with a request for the Comelec, "collectively or individually, to issue a formal
clarification, either confirming or denying the banner headline and the alleged statement of Chairman Benjamin
Abalos, Sr. xxx" Evidently unbeknownst then to Ms. Rosales, et al., was the issuance of Comelec en
bancResolution 07-07249 under date April 3, 2007 virtually declaring the nominees names confidential and in net
effect denying petitioner Rosales basic disclosure request. In its relevant part, Resolution 07-0724 reads as follows:

RESOLVED, moreover, that the Commission will disclose/publicize the names of party-list nominees in connection
with the May 14, 2007 Elections only after 3:00 p.m. on election day.

Let the Law Department implement this resolution and reply to all letters addressed to the Commission inquiring on
the party-list nominees. (Emphasis added.)

According to petitioner Rosales, she was able to obtain a copy of the April 3, 2007 Resolution only on April 21, 2007.
She would later state the observation that the last part of the "Order empowering the Law Department to implement
this resolution and reply to all letters inquiring on the party-list nominees is apparently a fool-proof bureaucratic
way to distort and mangle the truth and give the impression that the antedated Resolution of April 3, 2007 is the
final answer to the two formal requests of Petitioners". 10

The herein consolidated petitions are cast against the foregoing factual setting, albeit petitioners BA-RA 7941 and
UP-LR appear not to be aware, when they filed their petition on April 18, 2007, of the April 3, 2007 Comelec
Resolution 07-0724.
To start off, petitioners BA-RA 7941 and UP-LR would have the Court cancel the accreditation accorded by the
Comelec to the respondent party-list groups named in their petition on the ground that these groups and their
respective nominees do not appear to be qualified. In the words of petitioners BA-RA 7941 and UP-LR, Comelec -

xxx committed grave abuse of discretion when it granted the assailed accreditations even
withoutsimultaneously determining whether the nominees of herein private respondents are qualified or not, or
whether or not the nominees are likewise belonging to the marginalized and underrepresented sector they claim to
represent in Congress, in accordance with No. 7 of the eight-point guidelines prescribed by the Honorable Supreme
in the Ang Bagong Bayani11 case which states that, "not only the candidate party or organization must represent
marginalized and underrepresented sectors; so also must its nominees." In the case of private respondents, public
respondent Comelec granted accreditations without the required simultaneous determination of the qualification of
the nominees as part of the accreditation process of the party-list organization itself. (Words in bracket added;
italization in the original)12

The Court is unable to grant the desired plea of petitioners BA-RA 7941 and UP-LR for cancellation of accreditation
on the grounds thus advanced in their petition. For, such course of action would entail going over and evaluating the
qualities of the sectoral groups or parties in question, particularly whether or not they indeed represent
marginalized/underrepresented groups. The exercise would require the Court to make a factual determination, a
matter which is outside the office of judicial review by way of special civil action for certiorari. In certiorari
proceedings, the Court is not called upon to decide factual issues and the case must be decided on the undisputed
facts on record.13 The sole function of a writ of certiorari is to address issues of want of jurisdiction or grave abuse of
discretion and does not include a review of the tribunals evaluation of the evidence. 14

Not lost on the Court of course is the pendency before the Comelec of SPA Case No. 07-026 in which petitioners
BA-RA 7941 and UP-LR themselves seek to disqualify the nominees of the respondent party-list groups named in
their petition.

Petitioners BA-RA 7941s and UP-LRs posture that the Comelec committed grave abuse of discretion when it
granted the assailed accreditations without simultaneously determining the qualifications of their nominees is
without basis. Nowhere in R.A. No. 7941 is there a requirement that the qualification of a party-list nominee be
determined simultaneously with the accreditation of an organization. And as aptly pointed out by private respondent
Babae Para sa Kaunlaran (Babae Ka), Section 4 of R.A. No. 7941 requires a petition for registration of a party-list
organization to be filed with the Comelec "not later than ninety (90) days before the election" whereas the
succeeding Section 8 requires the submission "not later than forty-five (45) days before the election" of the list of
names whence party-list representatives shall be chosen.

Now to the other but core issues of the case. The petition in G.R. No. 177314 formulates and captures the main
issues tendered by the petitioners in these consolidated cases and they may be summarized as follows:

1. Whether respondent Comelec, by refusing to reveal the names of the nominees of the various party-list
groups, has violated the right to information and free access to documents as guaranteed by the
Constitution; and

2. Whether respondent Comelec is mandated by the Constitution to disclose to the public the names of said
nominees.

While the Comelec did not explicitly say so, it based its refusal to disclose the names of the nominees of subject
party-list groups on Section 7 of R.A. 7941. This provision, while commanding the publication and the posting in
polling places of a certified list of party-list system participating groups, nonetheless tells the Comelec not to show or
include the names of the party-list nominees in said certified list. Thus:

SEC. 7. Certified List of Registered Parties.- The COMELEC shall, not later than sixty (60) days before election,
prepare a certified list of national, regional, or sectoral parties, organizations or coalitions which have applied or who
have manifested their desire to participate under the party-list system and distribute copies thereof to all precincts
for posting in the polling places on election day. The names of the party-list nominees shall not be shown on
the certified list. (Emphasis added.)
And doubtless part of Comelecs reason for keeping the names of the party list nominees away from the public is
deducible from the following excerpts of the news report appearing in the adverted April 13, 2007 issue of theManila
Bulletin:

The Commission on Elections (COMELEC) firmed up yesterday its decision not to release the names of nominees
of sectoral parties, organizations, or coalitions accredited to participate in the party-list election which will be held
simultaneously with the May 14 mid-term polls.

COMELEC Chairman Benjamin S. Abalos, Sr. said he and [the other five COMELEC] Commissioners --- believe
that the party list elections must not be personality oriented.

Abalos said under [R.A.] 7941 , the people are to vote for sectoral parties, organizations, or coalitions, not for
their nominees.

He said there is nothing in R.A. 7941 that requires the Comelec to disclose the names of nominees. xxx (Words in
brackets and emphasis added)

Insofar as the disclosure issue is concerned, the petitions are impressed with merit.

Assayed against the non-disclosure stance of the Comelec and the given rationale therefor is the right to information
enshrined in the self-executory15 Section 7, Article III of the Constitution, viz:

Sec.7. The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well to government
research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may
be provided by law.

Complementing and going hand in hand with the right to information is another constitutional provision enunciating
the policy of full disclosure and transparency in Government. We refer to Section 28, Article II of the Constitution
reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.

The right to information is a public right where the real parties in interest are the public, or the citizens to be precise.
And for every right of the people recognized as fundamental lies a corresponding duty on the part of those who
govern to respect and protect that right. This is the essence of the Bill of Rights in a constitutional regime. 16 Without
a governments acceptance of the limitations upon it by the Constitution in order to uphold individual liberties,
without an acknowledgment on its part of those duties exacted by the rights pertaining to the citizens, the Bill of
Rights becomes a sophistry.

By weight of jurisprudence, any citizen can challenge any attempt to obstruct the exercise of his right to information
and may seek its enforcement by mandamus.17 And since every citizen by the simple fact of his citizenship
possesses the right to be informed, objections on ground of locus standi are ordinarily unavailing.18

Like all constitutional guarantees, however, the right to information and its companion right of access to official
records are not absolute. As articulated in Legaspi, supra, the peoples right to know is limited to "matters of public
concern" and is further subject to such limitation as may be provided by law. Similarly, the policy of full disclosure is
confined to transactions involving "public interest" and is subject to reasonable conditions prescribed by law. Too,
there is also the need of preserving a measure of confidentiality on some matters, such as military, trade, banking
and diplomatic secrets or those affecting national security.19

The terms "public concerns" and "public interest" have eluded precise definition. But both terms embrace, to borrow
from Legaspi, a broad spectrum of subjects which the public may want to know, either because these directly affect
their lives, or simply because such matters naturally whet the interest of an ordinary citizen. At the end of the day, it
is for the courts to determine, on a case to case basis, whether or not at issue is of interest or importance to the
public.
If, as in Legaspi, it was the legitimate concern of a citizen to know if certain persons employed as sanitarians of a
health department of a city are civil service eligibles, surely the identity of candidates for a lofty elective public office
should be a matter of highest public concern and interest.

As may be noted, no national security or like concerns is involved in the disclosure of the names of the nominees of
the party-list groups in question. Doubtless, the Comelec committed grave abuse of discretion in refusing the
legitimate demands of the petitioners for a list of the nominees of the party-list groups subject of their respective
petitions. Mandamus, therefore, lies.

The last sentence of Section 7 of R.A. 7941 reading: "[T]he names of the party-list nominees shall not be shown on
the certified list" is certainly not a justifying card for the Comelec to deny the requested disclosure. To us, the
prohibition imposed on the Comelec under said Section 7 is limited in scope and duration, meaning, that it extends
only to the certified list which the same provision requires to be posted in the polling places on election day. To
stretch the coverage of the prohibition to the absolute is to read into the law something that is not intended. As it
were, there is absolutely nothing in R.A. No. 7941 that prohibits the Comelec from disclosing or even publishing
through mediums other than the "Certified List" the names of the party-list nominees. The Comelec obviously
misread the limited non-disclosure aspect of the provision as an absolute bar to public disclosure before the May
2007 elections. The interpretation thus given by the Comelec virtually tacks an unconstitutional dimension on the
last sentence of Section 7 of R.A. No. 7941.

The Comelecs reasoning that a party-list election is not an election of personalities is valid to a point. It cannot be
taken, however, to justify its assailed non-disclosure stance which comes, as it were, with a weighty presumption of
invalidity, impinging, as it does, on a fundamental right to information. 20 While the vote cast in a party-list elections is
a vote for a party, such vote, in the end, would be a vote for its nominees, who, in appropriate cases, would
eventually sit in the House of Representatives.

The Court is very much aware of newspaper reports detailing the purported reasons behind the Comelecs
disinclination to release the names of party-list nominees. It is to be stressed, however, that the Court is in the
business of dispensing justice on the basis of hard facts and applicable statutory and decisional laws. And lest it be
overlooked, the Court always assumes, at the first instance, the presumptive validity and regularity of official acts of
government officials and offices.

It has been repeatedly said in various contexts that the people have the right to elect their representatives on the
basis of an informed judgment. Hence the need for voters to be informed about matters that have a bearing on their
choice. The ideal cannot be achieved in a system of blind voting, as veritably advocated in the assailed resolution of
the Comelec. The Court, since the 1914 case of Gardiner v. Romulo, 21 has consistently made it clear that it frowns
upon any interpretation of the law or rules that would hinder in any way the free and intelligent casting of the votes in
an election.22 So it must be here for still other reasons articulated earlier.

In all, we agree with the petitioners that respondent Comelec has a constitutional duty to disclose and release the
names of the nominees of the party-list groups named in the herein petitions.

WHEREFORE, the petition in G.R. No. 177271 is partly DENIED insofar as it seeks to nullify the accreditation of the
respondents named therein. However, insofar as it seeks to compel the Comelec to disclose or publish the names of
the nominees of party-list groups, sectors or organizations accredited to participate in the May 14, 2007 elections,
the same petition and the petition in G.R. No. 177314 are GRANTED. Accordingly, the Comelec is hereby
ORDERED to immediately disclose and release the names of the nominees of the party-list groups, sectors or
organizations accredited to participate in the May 14, 2007 party-list elections. The Comelec is further DIRECTED to
submit to the Court its compliance herewith within five (5) days from notice hereof.

This Decision is declared immediately executory upon its receipt by the Comelec.

No pronouncement as to cost.

SO ORDERED.
 [G.R. No. 143076. June 10, 2003]

PHILIPPINE RURAL ELECTRIC COOPERATIVES ASSOCIATION, INC.

(PHILRECA); AGUSAN DEL NORTE ELECTRIC COOPERATIVE, INC.
(ANECO); ILOILO I ELECTRIC COOPERATIVE, INC. (ILECO I); and ISABELA
I ELECTRIC COOPERATIVE, INC. (ISELCO I), petitioners, vs. THE
SECRETARY, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, and
THE SECRETARY, DEPARTMENT OF FINANCE, respondents.

DECISION
PUNO, J.:

This is a petition for Prohibition under Rule 65 of the Rules of Court with prayer for the
issuance of a temporary restraining order seeking to annul as unconstitutional sections
193 and 234 of R.A. No. 7160 otherwise known as the Local Government Code.
On May 23, 2000, a class suit was filed by petitioners in their own behalf and in behalf
of other electric cooperatives organized and existing under P.D. No. 269 who are
members of petitioner Philippine Rural Electric Cooperatives Association, Inc.
(PHILRECA). Petitioner PHILRECA is an association of 119 electric cooperatives
throughout the country. Petitioners Agusan del Norte Electric Cooperative, Inc. (ANECO),
Iloilo I Electric Cooperative, Inc. (ILECO I) and Isabela I Electric Cooperative, Inc.
(ISELCO I) are non-stock, non-profit electric cooperatives organized and existing under
P.D. No. 269, as amended, and registered with the National Electrification Administration
(NEA).
Under P.D. No. 269, as amended, or the National Electrification Administration Decree,
it is the declared policy of the State to provide the total electrification of the Philippines on
an area coverage basis the same being vital to the people and the sound development of
the nation. Pursuant to this policy, P.D. No. 269 aims to promote, encourage and assist all
[1]

public service entities engaged in supplying electric service, particularly electric

cooperatives by giving every tenable support and assistance to the electric cooperatives
coming within the purview of the law. Accordingly, Section 39 of P.D. No. 269 provides for
[2]

the following tax incentives to electric cooperatives:

SECTION 39. Assistance to Cooperatives; Exemption from Taxes, Imposts, Duties, Fees;
Assistance from the National Power Corporation. Pursuant to the national policy declared in
Section 2, the Congress hereby finds and declares that the following assistance to cooperative is
necessary and appropriate:

(a) Provided that it operates in conformity with the purposes and provisions of this
Decree, cooperatives (1) shall be permanently exempt from paying income taxes, and (2) for a
period ending on December 31 of the thirtieth full calendar year after the date of a cooperative's
organization or conversion hereunder, or until it shall become completely free of indebtedness
incurred by borrowing, whichever event first occurs, shall be exempt from the payment (a) of all
National Government, local government and municipal taxes and fees, including franchise,
filing, recordation, license or permit fees or taxes and any fees, charges, or costs involved in
any court or administrative proceeding in which it may be a party, and (b) of all duties or
imposts on foreign goods acquired for its operations, the period of such exemption for a new
cooperative formed by consolidation, as provided for in Section 29, to begin from as of the date of
the beginning of such period for the constituent consolidating cooperative which was most recently
organized or converted under this Decree: Provided, That the Board of Administrators shall, after
consultation with the Bureau of Internal Revenue, promulgate rules and regulations for the proper
implementation of the tax exemptions provided for in this Decree.

. [3]

From 1971 to 1978, in order to finance the electrification projects envisioned by P.D.
No. 269, as amended, the Philippine Government, acting through the National Economic
Council (now National Economic Development Authority) and the NEA, entered into six (6)
loan agreements with the government of the United States of America through the United
States Agency for International Development (USAID) with electric cooperatives, including
petitioners ANECO, ILECO I and ISELCO I, as beneficiaries. The six (6) loan agreements
involved a total amount of approximately US$86,000,000.00. These loan agreements are
existing until today.
The loan agreements contain similarly worded provisions on the tax application of the
loan and any property or commodity acquired through the proceeds of the loan. Thus,
Section 6.5 of A.I.D. Loan No. 492-H-027 dated November 15, 1971 provides:

Section 6.5. Taxes and Duties. The Borrower covenants and agrees that this Loan Agreement and
the Loan provided for herein shall be free from, and the Principal and interest shall be paid to
A.I.D. without deduction for and free from, any taxation or fees imposed under any laws or decrees
in effect within the Republic of the Philippines or any such taxes or fees so imposed or payable
shall be reimbursed by the Borrower with funds other than those provided under the Loan. To the
extent that (a) any contractor, including any consulting firm, any personnel of such contractor
financed hereunder, and any property or transactions relating to such contracts and (b) any
commodity procurement transactions financed hereunder, are not exempt from identifiable taxes,
tariffs, duties and other levies imposed under laws in effect in the country of the Borrower, the
Borrower and/or Beneficiary shall pay or reimburse the same with funds other than those provided
under the Loan.[4]
 Petitioners contend that pursuant to the provisions of P.D. No. 269, as amended, and
the above-mentioned provision in the loan agreements, they are exempt from payment of
local taxes, including payment of real property tax. With the passage of the Local
Government Code, however, they allege that their tax exemptions have been invalidly
withdrawn. In particular, petitioners assail Sections 193 and 234 of the Local Government
Code on the ground that the said provisions discriminate against them, in violation of the
equal protection clause. Further, they submit that the said provisions are unconstitutional
because they impair the obligation of contracts between the Philippine Government and
the United States Government.
On July 25, 2000 we issued a Temporary Restraining Order. [5]

We note that the instant action was filed directly to this Court, in disregard of the rule
on hierarchy of courts. However, we opt to take primary jurisdiction over the present
petition and decide the same on its merits in view of the significant constitutional issues
raised by the parties dealing with the tax treatment of cooperatives under existing laws
and in the interest of speedy justice and prompt disposition of the matter.
I

There is No Violation of the Equal Protection Clause

The pertinent parts of Sections 193 and 234 of the Local Government Code provide:

Section 193. Withdrawal of Tax Exemption Privileges.Unless otherwise provided in this Code, tax
exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or
juridical, including government-owned and controlled corporations, except local water
districts, cooperatives duly registered under R.A. No. 6938, non-stock and non-profit hospitals
and educational institutions, are hereby withdrawn upon the effectivity of this Code.

Section 234. Exemptions from real property tax.The following are exempted from payment of the
real property tax:

(d) All real property owned by duly registered cooperatives as provided for under R.A. No.
6938; and

Except as provided herein, any exemption from payment of real property tax previously granted to,
or presently enjoyed by, all persons whether natural or juridical, including all government-owned
and controlled corporations are hereby withdrawn upon effectivity of this Code.
[6]

Petitioners argue that the above provisions of the Local Government Code are
unconstitutional for violating the equal protection clause. Allegedly, said provisions unduly
discriminate against petitioners who are duly registered cooperatives under P.D. No. 269,
as amended, and not under R.A. No. 6938 or the Cooperative Code of the Philippines.
They stress that cooperatives registered under R.A. No. 6938 are singled out for tax
exemption privileges under the Local Government Code. They maintain that electric
cooperatives registered with the NEA under P.D. No. 269, as amended, and electric
cooperatives registered with the Cooperative Development Authority (CDA) under R.A.
No. 6938 are similarly situated for the following reasons: a) petitioners are registered with
the NEA which is a government agency like the CDA; b) petitioners, like CDA-registered
cooperatives, operate for service to their member-consumers; and c) prior to the
enactment of the Local Government Code, petitioners, like CDA-registered cooperatives,
were already tax-exempt. Thus, petitioners contend that to grant tax exemptions from
[7]

local government taxes, including real property tax under Sections 193 and 234 of the
Local Government Code only to registered cooperatives under R.A. No. 6938 is a violation
of the equal protection clause.
We are not persuaded. The equal protection clause under the Constitution means that
no person or class of persons shall be deprived of the same protection of laws which is
enjoyed by other persons or other classes in the same place and in like circumstances.
Thus, the guaranty of the equal protection of the laws is not violated by a law based on
[8]

reasonable classification. Classification, to be reasonable, must (1) rest on substantial

distinctions; (2) be germane to the purposes of the law; (3) not be limited to existing
conditions only; and (4) apply equally to all members of the same class. [9]

We hold that there is reasonable classification under the Local Government Code to
justify the different tax treatment between electric cooperatives covered by P.D. No. 269,
as amended, and electric cooperatives under R.A. No. 6938.
First, substantial distinctions exist between cooperatives under P.D. No. 269, as
amended, and cooperatives under R.A. No. 6938. These distinctions are manifest in at
least two material respects which go into the nature of cooperatives envisioned by R.A.
No. 6938 and which characteristics are not present in the type of cooperative associations
created under P.D. No. 269, as amended.

a. Capital Contributions by Members

A cooperative under R.A. No. 6938 is defined as:

[A] duly registered association of persons with a common bond of interest, who have
voluntarily joined together to achieve a lawful common or social economic end, making
equitable contributions to the capital required and accepting a fair share of the risks and
benefits of the undertaking in accordance with universally accepted cooperative principles.
[10]

The above definition provides for the following elements of a cooperative: a)

association of persons; b) common bond of interest; c) voluntary association; d) lawful
common social or economic end; e) capital contributions; f) fair share of risks and benefits;
g) adherence to cooperative values; and g) registration with the appropriate government
authority. [11]

The importance of capital contributions by members of a cooperative under R.A. No.

6938 was emphasized during the Senate deliberations as one of the key factors which
distinguished electric cooperatives under P.D. No. 269, as amended, from electric
cooperatives under the Cooperative Code. Thus:

Senator Osmea. Will this Code, Mr. President, cover electric cooperatives as they exist in the
country today and are administered by the National Electrification Administration?

Senator Aquino. That cannot be answered with a simple yes or no, Mr. President. The answer will
depend on what provisions we will eventually come up with. Electric cooperatives as they exist
today would not fall under the term cooperative as used in this bill because the concept of a
cooperative is that which adheres and practices certain cooperative principles. .

Senator Aquino. To begin with, one of the most important requirements, Mr. President, is the
principle where members bind themselves to help themselves. It is because of their collectivity
that they can have some economic benefits. In this particular case [cooperatives under P.D. No.
269], the government is the one that funds these so-called electric cooperatives.

Senator Aquino. That is why in Article III we have the following definition:

A cooperative is an association of persons with a common bond of interest who have voluntarily
joined together to achieve a common social or economic end, making equitable contributions to the
capital required.

In this particular case [cooperatives under P.D. No. 269], Mr. President, the members do not
make substantial contribution to the capital required. It is the government that puts in the
capital, in most cases.

Senator Osmea. Under line 6, Mr. President, making equitable contributions to the capital required
would exclude electric cooperatives [under P.D. No. 269]. Because the membership does not make
equitable contributions.

Senator Aquino. Yes, Mr. President. This is precisely what I mean, that electric cooperatives
[under P.D. No. 269] do not qualify in the spirit of cooperatives. That is the reason why they should
be eventually assessed whether they intend to comply with the cooperatives or not. Because, if after
giving them a second time, they do not comply, then, they should not be classified as cooperatives.

Senator Osmea. Mr. President, the measure of their qualifying as a cooperative would be the
requirement that a member of the electric cooperative must contribute a pro rata share of the
capital of the cooperative in cash to be a cooperative. [12]

Nowhere in P.D. No. 269, as amended, does it require cooperatives to make equitable
contributions to capital. Petitioners themselves admit that to qualify as a member of an
electric cooperative under P.D. No. 269, only the payment of a P5.00 membership fee is
required which is even refundable the moment the member is no longer interested in
getting electric service from the cooperative or will transfer to another place outside the
area covered by the cooperative. However, under the Cooperative Code, the articles of
[13]

cooperation of a cooperative applying for registration must be accompanied with the

bonds of the accountable officers and a sworn statement of the treasurer elected by the
subscribers showing that at least twenty-five per cent (25%) of the authorized share
capital has been subscribed and at least twenty-five per cent (25%) of the total
subscription has been paid and in no case shall the paid-up share capital be less than
Two thousand pesos (P2,000.00). [14]

b. Extent of Government Control over Cooperatives

Another principle adhered to by the Cooperative Code is the principle of
subsidiarity. Pursuant to this principle, the government may only engage in development
activities where cooperatives do not posses the capability nor the resources to do so and
only upon the request of such cooperatives. Thus, Article 2 of the Cooperative Code
[15]

provides:

Art. 2. Declaration of Policy. It is the declared policy of the State to foster the creation and growth
of cooperatives as a practical vehicle for prompting self-reliance and harnessing people power
towards the attainment of economic development and social justice. The State shall encourage the
private sector to undertake the actual formation and organization to cooperatives and shall create an
atmosphere that is conducive to the growth and development of these cooperatives.

Towards this end, the Government and all its branches, subdivisions, instrumentalities and agencies
shall ensure the provision of technical guidance, financial assistance and other services to enable
said cooperatives to develop into viable and responsive economic enterprises and thereby bring
about a strong cooperative movement that is free from any conditions that might infringe upon the
autonomy or organizational integrity of cooperatives.

Further, the State recognizes the principle of subsidiarity under which the cooperative sector
will initiate and regulate within its own ranks the promotion and organization, training and
research, audit and support services relating to cooperatives with government assistance
where necessary. [16]

Accordingly, under the charter of the CDA, or the primary government agency tasked
to promote and regulate the institutional development of cooperatives, it is the declared
policy of the State that:

[g]overnment assistance to cooperatives shall be free from any restriction and

conditionality that may in any manner infringe upon the objectives and character of cooperatives
as provided in this Act. The State shall, except as provided in this Act, maintain the policy of
noninterference in the management and operation of cooperatives. [17]

In contrast, P.D. No. 269, as amended by P.D. No. 1645, is replete with provisions
which grant the NEA, upon the happening of certain events, the power to control and take
over the management and operations of cooperatives registered under it. Thus:
 a) the NEA Administrator has the power to designate, subject to the confirmation of
the Board of Administrators, an Acting General Manager and/or Project Supervisor
for a cooperative where vacancies in the said positions occur and/or when the
interest of the cooperative or the program so requires, and to prescribe the
functions of the said Acting General Manager and/or Project Supervisor, which
powers shall not be nullified, altered or diminished by any policy or resolution
of the Board of Directors of the cooperative concerned; [18]

b) the NEA is given the power of supervision and control over electric cooperatives
and pursuant to such powers, NEA may issue orders, rules and regulations motu
propio or upon petition of third parties to conduct referenda and other similar
actions in all matters affecting electric cooperatives;
[19]

c) No cooperative shall borrow money from any source without the approval of the
Board of Administrators of the NEA; and
[20]

d) The management of a cooperative shall be vested in its Board, subject to the

supervision and control of NEA which shall have the right to be represented and
to participate in all Board meetings and deliberations and to approve all policies and
resolutions.
[21]

The extent of government control over electric cooperatives covered by P.D. No. 269,
as amended, is largely a function of the role of the NEA as a primary source of funds of
these electric cooperatives. It is crystal clear that NEA incurred loans from various
sources to finance the development and operations of the electric
cooperatives. Consequently, amendments to P.D. No. 269 were primarily geared to
expand the powers of the NEA over the electric cooperatives to ensure that loans granted
to them would be repaid to the government. In contrast, cooperatives under R.A. No. 6938
are envisioned to be self-sufficient and independent organizations with minimal
government intervention or regulation.
To be sure, the transitory provisions of R.A. No. 6938 are indicative of the recognition
by Congress of the fundamental distinctions between electric cooperatives organized
under P.D No. 269, as amended, and cooperatives under the new Cooperative Code.
Article 128 of the Cooperative Code provides that all cooperatives registered under
previous laws shall be deemed registered with the CDA upon submission of certain
requirements within one year. However, cooperatives created under P.D. No. 269, as
amended, are given three years within which to qualify and register with the CDA, after
which, provisions of P.D. No. 1645 which expand the powers of the NEA over electric
cooperatives, would no longer apply. [22]

Second, the classification of tax-exempt entities in the Local Government Code is

germane to the purpose of the law. The Constitutional mandate that every local
government unit shall enjoy local autonomy, does not mean that the exercise of power by
local governments is beyond regulation by Congress. Thus, while each government unit is
granted the power to create its own sources of revenue, Congress, in light of its broad
power to tax, has the discretion to determine the extent of the taxing powers of local
government units consistent with the policy of local autonomy. [23]
 Section 193 of the Local Government Code is indicative of the legislative intent to vest
broad taxing powers upon local government units and to limit exemptions from local
taxation to entities specifically provided therein. Section 193 provides:

Section 193. Withdrawal of Tax Exemption Privileges.Unless otherwise provided in this Code, tax
exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or
juridical, including government-owned and controlled corporations, except local water
districts, cooperatives duly registered under R.A. No. 6938, non-stock and non-profit hospitals
and educational institutions, are hereby withdrawn upon the effectivity of this Code. [24]

The above provision effectively withdraws exemptions from local taxation enjoyed by
various entities and organizations upon effectivity of the Local Government Code except
for a) local water districts; b) cooperatives duly registered under R.A. No. 6938; and
c) non-stock and non-profit hospitals and educational institutions. Further, with
respect to real property taxes, the Local Government Code again specifically enumerates
entities which are exempt therefrom and withdraws exemptions enjoyed by all other
entities upon the effectivity of the code. Thus, Section 234 provides:

SEC. 234. Exemptions from Real Property Tax. The following are exempted from payment of the
real property tax:

(a) Real property owned by the Republic of the Philippines or any of its political subdivisions
except when the beneficial use thereof had been granted for consideration or otherwise, to a taxable
person;

(b) Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques,

nonprofit or religious cemeteries and all lands, buildings and improvements actually, directly, and
exclusively used for religious, charitable or educational purposes;

(c) All machineries and equipment that are actually, directly and exclusively used by local water
districts and government-owned or controlled corporations engaged in the supply and distribution
of water and/or generation and transmission of electric power;

(d) All real property owned by duly registered cooperatives as provided for under R.A. No.
6938; and

(e) Machinery and equipment used for pollution control and environmental protection.

Except as provided herein, any exemption from payment of real property tax previously granted to,
or presently enjoyed by, all persons, whether natural or juridical, including all government-owned
or controlled corporations are hereby withdrawn upon the effectivity of this Code. [25]

In Mactan Cebu International Airport Authority v. Marcos, this Court held that the
[26]

limited and restrictive nature of the tax exemption privileges under the Local Government
Code is consistent with the State policy to ensure autonomy of local governments and the
objective of the Local Government Code to grant genuine and meaningful autonomy to
enable local government units to attain their fullest development as self-reliant
communities and make them effective partners in the attainment of national goals. The
obvious intention of the law is to broaden the tax base of local government units to assure
them of substantial sources of revenue.
While we understand petitioners predicament brought about by the withdrawal of their
local tax exemption privileges under the Local Government Code, it is not the province of
this Court to go into the wisdom of legislative enactments. Courts can only interpret laws.
The principle of separation of powers prevents them from re-inventing the laws.
Finally, Sections 193 and 234 of the Local Government Code permit reasonable
classification as these exemptions are not limited to existing conditions and apply equally
to all members of the same class. Exemptions from local taxation, including real property
tax, are granted to all cooperatives covered by R.A. No. 6938 and such exemptions exist
for as long as the Local Government Code and the provisions therein on local taxation
remain good law.
II

There is No Violation of the Non-Impairment Clause

It is ingrained in jurisprudence that the constitutional prohibition on the impairment of
the obligation of contracts does not prohibit every change in existing laws. To fall within
the prohibition, the change must not only impair the obligation of the existing contract, but
the impairment must be substantial. What constitutes substantial impairment was
[27]

explained by this Court in Clemons v. Nolting: [28]

A law which changes the terms of a legal contract between parties, either in the time or mode of
performance, or imposes new conditions, or dispenses with those expressed, or authorizes for its
satisfaction something different from that provided in its terms, is law which impairs the obligation
of a contract and is therefore null and void.

Moreover, to constitute impairment, the law must affect a change in the rights of the
parties with reference to each other and not with respect to non-parties. [29]

Petitioners insist that Sections 193 and 234 of the Local Government Code impair the
obligations imposed under the six (6) loan agreements executed by the NEA as borrower
and USAID as lender. All six agreements contain similarly worded provisions on the tax
treatment of the proceeds of the loan and properties and commodities acquired through
the loan. Thus:

Section 6.5. Taxes and Duties. The Borrower covenants and agrees that this Loan Agreement and
the Loan provided for herein shall be free from, and the Principal and interest shall be paid to
A.I.D. without deduction for and free from, any taxation or fees imposed under any laws or
decrees in effect within the Republic of the Philippines or any such taxes or fees so imposed or
payable shall be reimbursed by the Borrower with funds other than those provided under the
Loan. To the extent that (a) any contractor, including any consulting firm, any personnel of
such contractor financed hereunder, and any property or transactions relating to such
contracts and (b) any commodity procurement transactions financed hereunder, are not
exempt from identifiable taxes, tariffs, duties and other levies imposed under laws in effect in
the country of the Borrower, the Borrower and/or Beneficiary shall pay or reimburse the
same with funds other than those provided under the Loan. [30]

Petitioners contend that the withdrawal by the Local Government Code of the tax
exemptions of cooperatives under P.D. No. 269, as amended, is an impairment of the tax
exemptions provided under the loan agreements. Petitioners argue that as beneficiaries of
the loan proceeds, pursuant to the above provision, [a]ll the assets of petitioners, such as
lands, buildings, distribution lines acquired through the proceeds of the Loan Agreements
are tax exempt. [31]

We hold otherwise.
A plain reading of the provision quoted above readily shows that it does not grant any
tax exemption in favor of the borrower or the beneficiary either on the proceeds of the loan
itself or the properties acquired through the said loan. It simply states that the loan
proceeds and the principal and interest of the loan, upon repayment by the borrower, shall
be without deduction of any tax or fee that may be payable under Philippine law as
such tax or fee will be absorbed by the borrower with funds other than the loan
proceeds. Further, the provision states that with respect to any payment made by the
borrower to (1) any contractor or any personnel of such contractor or any property
transaction and (2) any commodity transaction using the proceeds of the loan, the tax to
be paid, if any, on such transactions shall be absorbed by the borrower and/or
beneficiary through funds other than the loan proceeds.
Beyond doubt, the import of the tax provision in the loan agreements cited by
petitioners is twofold: (1) the borrower is entitled to receive from and is obliged to pay the
lender the principal amount of the loan and the interest thereon in full, without any
deduction of the tax component thereof imposed under applicable Philippine law
and any tax imposed shall be paid by the borrower with funds other than the loan
proceeds and (2) with respect to payments made to any contractor, its personnel or any
property or commodity transaction entered into pursuant to the loan agreement and with
the use of the proceeds thereof, taxes payable under the said transactions shall be paid
by the borrower and/or beneficiary with the use of funds other than the loan
proceeds. The quoted provision does not purport to grant any tax exemption in favor of
any party to the contract, including the beneficiaries thereof. The provisions simply shift
the tax burden, if any, on the transactions under the loan agreements to the borrower
and/or beneficiary of the loan. Thus, the withdrawal by the Local Government Code under
Sections 193 and 234 of the tax exemptions previously enjoyed by petitioners does not
impair the obligation of the borrower, the lender or the beneficiary under the loan
agreements as in fact, no tax exemption is granted therein.
III

Conclusion

Petitioners lament the difficulties they face in complying with the implementing rules
and regulations issued by the CDA for the conversion of electric cooperatives under P.D.
No. 269, as amended, to cooperatives under R.A. No. 6938. They allege that because of
the cumbersome legal and technical requirements imposed by the Omnibus Rules and
Regulations on the Registration of Electric Cooperatives under R.A. No. 6938, petitioners
cannot register and convert as stock cooperatives under the Cooperative Code. [32]

The Court understands the plight of the petitioners. Their remedy, however, is not
judicial. Striking down Sections 193 and 234 of the Local Government Code as
unconstitutional or declaring them inapplicable to petitioners is not the proper course of
action for them to obtain their previous tax exemptions. The language of the law and the
intention of its framers are clear and unequivocal and courts have no other duty except to
uphold the law. The task to re-examine the rules and guidelines on the conversion of
electric cooperatives to cooperatives under R.A. No. 6938 and provide every assistance
available to them should be addressed by the proper authorities of government. This is
necessary to encourage the growth and viability of cooperatives as instruments of social
justice and economic development.
WHEREFORE, the instant petition is DENIED and the temporary restraining order
heretofore issued is LIFTED.
SO ORDERED.
G.R. No. 162243 December 3, 2009

HON. HEHERSON ALVAREZ substituted by HON. ELISEA G. GOZUN, in her capacity as Secretary of the
Department of Environment and Natural Resources, Petitioner,
vs.
PICOP RESOURCES, INC., Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 164516

PICOP RESOURCES, INC., Petitioner,

vs.
HON. HEHERSON ALVAREZ substituted by HON. ELISEA G. GOZUN, in her capacity as Secretary of the
Department of Environment and Natural Resources Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 171875

THE HON. ANGELO T. REYES (formerly Hon. Elisea G. Gozun), in his capacity as Secretary of the
Department of Environment and Natural Resources (DENR), Petitioner,
vs.
PAPER INDUSTRIES CORP. OF THE PHILIPPINES (PICOP), Respondent.

RESOLUTION

CHICO-NAZARIO, J.:

The cause of action of PICOP Resources, Inc. (PICOP) in its Petition for Mandamus with the trial court is clear: the
government is bound by contract, a 1969 Document signed by then President Ferdinand Marcos, to enter into an
Integrated Forest Management Agreement (IFMA) with PICOP. Since the remedy of mandamus lies only to compel
an officer to perform a ministerial duty, and since the 1969 Document itself has a proviso requiring compliance with
the laws and the Constitution, the issues in this Motion for Reconsideration are the following: (1) firstly, is the 1969
Document a contract enforceable under the Non-Impairment Clause of the Constitution, so as to make the signing
of the IFMA a ministerial duty? (2) secondly, did PICOP comply with all the legal and constitutional requirements for
the issuance of an IFMA?

To recall, PICOP filed with the Department of Environment and Natural Resources (DENR) an application to have its
Timber License Agreement (TLA) No. 43 converted into an IFMA. In the middle of the processing of PICOPs
application, however, PICOP refused to attend further meetings with the DENR. Instead, on 2 September 2002,
PICOP filed before the Regional Trial Court (RTC) of Quezon City a Petition for Mandamus 1 against then DENR
Secretary Heherson T. Alvarez. PICOP seeks the issuance of a privileged writ of mandamus to compel the DENR
Secretary to sign, execute and deliver an IFMA to PICOP, as well as to

[I]ssue the corresponding IFMA assignment number on the area covered by the IFMA, formerly TLA No. 43, as
amended; b) to issue the necessary permit allowing petitioner to act and harvest timber from the said area of TLA
No. 43, sufficient to meet the raw material requirements of petitioners pulp and paper mills in accordance with the
warranty and agreement of July 29, 1969 between the government and PICOPs predecessor-in-interest; and c) to
honor and respect the Government Warranties and contractual obligations to PICOP strictly in accordance with the
warranty and agreement dated July 29, [1969] between the government and PICOPs predecessor-in-interest. x x x. 2

On 11 October 2002, the RTC rendered a Decision granting PICOPs Petition for Mandamus, thus:

WHEREFORE, premises considered, the Petition for Mandamus is hereby GRANTED.

The Respondent DENR Secretary Hon. Heherson Alvarez is hereby ordered:

1. to sign, execute and deliver the IFMA contract and/or documents to PICOP and issue the corresponding
IFMA assignment number on the area covered by the IFMA, formerly TLA No. 43, as amended;

2. to issue the necessary permit allowing petitioner to act and harvest timber from the said area of TLA No.
43, sufficient to meet the raw material requirements of petitioners pulp and paper mills in accordance with
the warranty and agreement of July 29, 1969 between the government and PICOPs predecessor-in-interest;
and

3. to honor and respect the Government Warranties and contractual obligations to PICOP strictly in
accordance with the warranty and agreement dated July 29, 1999 (sic) between the government and
PICOPs predecessor-in-interest (Exhibits "H", "H-1" to "H-5", particularly the following:

a) the area coverage of TLA No. 43, which forms part and parcel of the government warranties;

b) PICOP tenure over the said area of TLA No. 43 and exclusive right to cut, collect and remove
sawtimber and pulpwood for the period ending on April 26, 1977; and said period to be renewable for
[an]other 25 years subject to compliance with constitutional and statutory requirements as well as
with existing policy on timber concessions; and

c) The peaceful and adequate enjoyment by PICOP of the area as described and specified in the
aforesaid amended Timber License Agreement No. 43.

The Respondent Secretary Alvarez is likewise ordered to pay petitioner the sum of P10 million a month beginning
May 2002 until the conversion of TLA No. 43, as amended, to IFMA is formally effected and the harvesting from the
said area is granted.3

On 25 October 2002, the DENR Secretary filed a Motion for Reconsideration. 4 In a 10 February 2003 Order, the
RTC denied the DENR Secretarys Motion for Reconsideration and granted PICOPs Motion for the Issuance of Writ
of Mandamus and/or Writ of Mandatory Injunction.5 The fallo of the 11 October 2002 Decision was practically copied
in the 10 February 2003 Order, although there was no mention of the damages imposed against then DENR
Secretary Alvarez.6 The DENR Secretary filed a Notice of Appeal7 from the 11 October 2002 Decision and the 10
February 2003 Order.

On 19 February 2004, the Seventh Division of the Court of Appeals affirmed 8 the Decision of the RTC, to wit:

WHEREFORE, the appealed Decision is hereby AFFIRMED with modification that the order directing then DENR
Secretary Alvarez "to pay petitioner-appellee the sum of P10 million a month beginning May, 2002 until the
conversion to IFMA of TLA No. 43, as amended, is formally effected and the harvesting from the said area is
granted" is hereby deleted. 9
Challenging the deletion of the damages awarded to it, PICOP filed a Motion for Partial Reconsideration 10 of this
Decision, which was denied by the Court of Appeals in a 20 July 2004 Resolution. 11

The DENR Secretary and PICOP filed with this Court separate Petitions for Review of the 19 February 2004 Court
of Appeals Decision. These Petitions were docketed as G.R. No. 162243 and No. 164516, respectively. These
cases were consolidated with G.R. No. 171875, which relates to the lifting of a Writ of Preliminary Injunction
enjoining the execution pending appeal of the foregoing Decision.

On 29 November 2006, this Court rendered the assailed Decision on the Consolidated Petitions:

WHEREFORE, the Petition in G.R. No. 162243 is GRANTED. The Decision of the Court of Appeals insofar as it
affirmed the RTC Decision granting the Petition for Mandamus filed by Paper Industries Corp. of the Philippines
(PICOP) is hereby REVERSED and SET ASIDE. The Petition in G.R. No. 164516 seeking the reversal of the same
Decision insofar as it nullified the award of damages in favor of PICOP is DENIED for lack of merit. The Petition in
G.R. No. 171875, assailing the lifting of the Preliminary Mandatory Injunction in favor of the Secretary of
Environment and Natural Resources is DISMISSED on the ground of mootness. 12

On 18 January 2006, PICOP filed the instant Motion for Reconsideration, based on the following grounds:

I.

THE HONORABLE COURT ERRED IN HOLDING THAT THE CONTRACT WITH PRESIDENTIAL WARRANTY
SIGNED BY THE PRESIDENT OF THE REPUBLIC ON 29 JUNE 1969 ISSUED TO PICOP IS A MERE PERMIT
OR LICENSE AND IS NOT A CONTRACT, PROPERTY OR PROPERTY RIGHT PROTECTED BY THE DUE
PROCESS CLAUSE OF THE CONSTITUTION

II.

THE EVALUATION OF PICOPS MANAGEMENT OF THE TLA 43 NATURAL FOREST CLEARLY SHOWED
SATISFACTORY PERFORMANCE FOR KEEPING THE NATURAL FOREST GENERALLY INTACT AFTER 50
YEARS OF FOREST OPERATIONS. THIS COMPLETES THE REQUIREMENT FOR AUTOMATIC CONVERSION
UNDER SECTION 9 OF DAO 99-53.

III.

WITH DUE RESPECT, THE HONORABLE COURT, IN REVERSING THE FINDINGS OF FACTS OF THE TRIAL
COURT AND THE COURT OF APPEALS, MISAPPRECIATED THE EVIDENCE, TESTIMONIAL AND
DOCUMENTARY, WHEN IT RULED THAT:

i.

PICOP FAILED TO SUBMIT A FIVE-YEAR FOREST PROTECTION PLAN AND A SEVEN-YEAR REFORESTATION
PLAN FOR THE YEARS UNDER REVIEW.

ii.

PICOP FAILED TO COMPLY WITH THE PAYMENT OF FOREST CHARGES.

iii.

PICOP DID NOT COMPLY WITH THE REQUIREMENT FOR A CERTIFICATION FROM THE NCIP THAT THE
AREA OF TLA 43 DOES NOT OVERLAP WITH ANY ANCESTRAL DOMAIN.

iv.
PICOP FAILED TO HAVE PRIOR CONSULTATION WITH AND APPROVAL FROM THE SANGUNIAN
CONCERNED, AS REQUIRED BY SECTION 27 OF THE REPUBLIC ACT NO. 7160, OTHERWISE KNOWN AS
THE LOCAL GOVERNMENT CODE OF 1991.

v.

PCIOP FAILED TO SECURE SOCIAL ACCEPTABILITY UNDER PRESIDENTIAL DECREE NO. 1586.

IV

THE MOTIVATION OF ALVAREZ IN RECALLING THE CLEARANCE FOR AUTOMATIC CONVERSION HE

ISSUED ON 25 OCTOBER 2001 WAS NOT DUE TO ANY SHORTCOMING FROM PICOP BUT DUE TO HIS
DETERMINATION TO EXCLUDE 28,125 HECTARES FROM THE CONVERSION AND OTHER THINGS.

On 15 December 2008, on Motion by PICOP, the Third Division of this Court resolved to refer the consolidated
cases at bar to the Court en banc. On 16 December 2008, this Court sitting en banc resolved to accept the said
cases and set them for oral arguments. Oral arguments were conducted on 10 February 2009.

PICOPs Cause of Action: Matters PICOP Should Have Proven to Be Entitled to a Writ of Mandamus

In seeking a writ of mandamus to compel the issuance of an IFMA in its favor, PICOP relied on a 29 July 1969
Document, the so-called Presidential Warranty approved by then President Ferdinand E. Marcos in favor of PICOPs
predecessor-in-interest, Bislig Bay Lumber Company, Inc. (BBLCI). PICOPs cause of action is summarized in
paragraphs 1.6 and 4.19 of its Petition for Mandamus:

1.6 Respondent Secretary impaired the obligation of contract under the said Warranty and Agreement of 29 July
1969 by refusing to respect the tenure; and its renewal for another twenty five (25) years, of PICOP over the area
covered by the said Agreement which consists of permanent forest lands with an aggregate area of 121,587
hectares and alienable and disposable lands with an aggregate area of approximately 21,580 hectares, and
petitioners exclusive right to cut, collect and remove sawtimber and pulpwood therein and the peaceful and
adequate enjoyment of the said area as described and specified in petitioners Timber License Agreement (TLA) No.
43 guaranteed by the Government, under the Warranty and Agreement of 29 July 1969. 13

4.19 Respondent is in violation of the Constitution and has impaired the obligation of contract by his refusal to
respect: a) the tenurial rights of PICOP over the forest area covered by TLA No. 43, as amended and its renewal for
another twenty five (25) years; b) the exclusive right of PICOP to cut, collect and remove sawtimber and pulpwood
therein; and c) PICOPs peaceful and adequate enjoyment of the said area which the government guaranteed under
the Warranty and Agreement of 29 July 1969. 14

The grounds submitted by PICOP in its Petition for Mandamus are as follows:

Respondent secretary has unlawfully refused and/or neglected to sign and execute the IFMA contract of PICOP
even as the latter has complied with all the legal requirements for the automatic conversion of TLA No. 43, as
amended, into an IFMA.

II

Respondent Secretary acted with grave abuse of discretion and/or in excess of jurisdiction in refusing to sign and
execute PICOPs IFMA contract, notwithstanding that PICOP had complied with all the requirements for Automatic
Conversion under DAO 99-53, as in fact Automatic Conversion was already cleared in October, 2001, and was a
completed process.

III
Respondent Secretary has impaired the obligation of contract under a valid and binding warranty and agreement of
29 July 1969 between the government and PICOPs predecessor-in-interest, by refusing to respect: a) the tenure of
PICOP, and its renewal for another twenty five (25) years, over the TLA No.43 area covered by said agreement; b)
the exclusive right to cut, collect and remove sawtimber and pulpwood timber; and c) the peaceful and adequate
enjoyment of the said area.

IV

As a result of respondent Secretarys unlawful refusal and/or neglect to sign and deliver the IFMA contract, and
violation of the constitutional rights of PICOP against non-impairment of the obligation of contract (Sec. 10, Art. III,
1997 [sic] Constitution), PICOP suffered grave and irreparable damages. 15

Petitions for Mandamus are governed by Rule 65 of the Rules of Court, Section 3 of which provides:

SEC. 3. Petition for mandamus.When any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there
is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file
a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered
commanding the respondent, immediately or at some other time to be specified by the court, to do the act required
to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the
wrongful acts of the respondent. (Emphasis supplied.)

PICOP is thus asking this Court to conclude that the DENR Secretary is specifically enjoined by law to issue an
IFMA in its favor. An IFMA, as defined by DENR Administrative Order (DAO) No. 99-53, 16 is -

[A] production-sharing contract entered into by and between the DENR and a qualified applicant wherein the DENR
grants to the latter the exclusive right to develop, manage, protect and utilize a specified area of forestland and
forest resource therein for a period of 25 years and may be renewed for another 25-year period, consistent with the
principle of sustainable development and in accordance with an approved CDMP, and under which both parties
share in its produce.17

PICOP stresses the word "automatic" in Section 9 of this DAO No. 99-53:

Sec. 9. Qualifications of Applicants. The applicants for IFMA shall be:

(a) A Filipino citizen of legal age; or,

(b) Partnership, cooperative or corporation whether public or private, duly registered under Philippine laws.

However, in the case of application for conversion of TLA into IFMA, an automatic conversion after proper evaluation
shall be allowed, provided the TLA holder shall have signified such intention prior to the expiry of the TLA,
PROVIDED further, that the TLA holder has showed satisfactory performance and have complied in the terms of
condition of the TLA and pertinent rules and regulations. (Emphasis supplied.) 18

This administrative regulation provision allowing automatic conversion after proper evaluation can hardly qualify as
a law, much less a law specifically enjoining the execution of a contract. To enjoin is "to order or direct with urgency;
to instruct with authority; to command."19 "Enjoin is a mandatory word, in legal parlance, always; in common
parlance, usually."20 The word "allow," on the other hand, is not equivalent to the word "must," and is in no sense a
command.21

As an extraordinary writ, the remedy of mandamus lies only to compel an officer to perform a ministerial duty, not a
discretionary one; mandamus will not issue to control the exercise of discretion of a public officer where the law
imposes upon him the duty to exercise his judgment in reference to any manner in which he is required to act,
because it is his judgment that is to be exercised and not that of the court. 22
The execution of agreements, in itself, involves the exercise of discretion. Agreements are products of negotiations
and mutual concessions, necessitating evaluation of their provisions on the part of both parties. In the case of the
IFMA, the evaluation on the part of the government is specifically mandated in the afore-quoted Section 3 of DAO
No. 99-53. This evaluation necessarily involves the exercise of discretion and judgment on the part of the DENR
Secretary, who is tasked not only to negotiate the sharing of the profit arising from the IFMA, but also to evaluate the
compliance with the requirements on the part of the applicant.

Furthermore, as shall be discussed later, the period of an IFMA that was merely automatically converted from a TLA
in accordance with Section 9, paragraph 2 of DAO No. 99-53 would only be for the remaining period of the TLA.
Since the TLA of PICOP expired on 26 April 2002, the IFMA that could have been granted to PICOP via the
automatic conversion provision in DAO No. 99-53 would have expired on the same date, 26 April 2002, and the
PICOPs Petition for Mandamus would have become moot.

This is where the 1969 Document, the purported Presidential Warranty, comes into play. When PICOPs application
was brought to a standstill upon the evaluation that PICOP had yet to comply with the requirements for such
conversion, PICOP refused to attend further meetings with the DENR and instead filed a Petition for Mandamus,
insisting that the DENR Secretary had impaired the obligation of contract by his refusal to respect: a) the tenurial
rights of PICOP over the forest area covered by TLA No. 43, as amended, and its renewal for another twenty-five
(25) years; b) the exclusive right of PICOP to cut, collect and remove sawtimber and pulpwood therein; and c)
PICOPs peaceful and adequate enjoyment of the said area which the government guaranteed under the Warranty
and Agreement of 29 July 1969. 23

PICOP is, thus, insisting that the government is obligated by contract to issue an IFMA in its favor because of the
1969 Document.

A contract, being the law between the parties, can indeed, with respect to the State when it is a party to such
contract, qualify as a law specifically enjoining the performance of an act. Hence, it is possible that a writ of
mandamus may be issued to PICOP, but only if it proves both of the following:

1) That the 1969 Document is a contract recognized under the non-impairment clause; and

2) That the 1969 Document specifically enjoins the government to issue the IFMA.

If PICOP fails to prove any of these two matters, the grant of a privileged writ of mandamus is not warranted. This
was why we pronounced in the assailed Decision that the overriding controversy involved in the Petition was one of
law.24 If PICOP fails to prove any of these two matters, more significantly its assertion that the 1969 Document is a
contract, PICOP fails to prove its cause of action.25 Not even the satisfactory compliance with all legal and
administrative requirements for an IFMA would save PICOPs Petition for Mandamus.

The reverse, however, is not true. The 1969 Document expressly states that the warranty as to the tenure of PICOP
is "subject to compliance with constitutional and statutory requirements as well as with existing policy on timber
concessions." Thus, if PICOP proves the two above-mentioned matters, it still has to prove compliance with
statutory and administrative requirements for the conversion of its TLA into an IFMA.

Exhaustion of Administrative Remedies

PICOP uses the same argument that the government is bound by contract to issue the IFMA in its refusal to
exhaust all administrative remedies by not appealing the alleged illegal non-issuance of the IFMA to the Office of the
President. PICOP claimed in its Petition for Mandamus with the trial court that:

1.10 This petition falls as an exception to the exhaustion of administrative remedies. The acts of respondent DENR
Secretary complained of in this petition are patently illegal; in derogation of the constitutional rights of petitioner
against non-impairment of the obligation of contracts; without jurisdiction, or in excess of jurisdiction or so
capriciously as to constitute an abuse of discretion amounting to excess or lack of jurisdiction; and moreover, the
failure or refusal of a high government official such as a Department head from whom relief is brought to act on the
matter was considered equivalent to exhaustion of administrative remedies (Sanoy v. Tantuico, 50 SCRA 455
[1973]), and there are compelling and urgent reasons for judicial intervention (Bagatsing v. Ramirez, 74 SCRA 306
[1976]).

Thus, if there has been no impairment of the obligation of contracts in the DENR Secretarys non-issuance of the
IFMA, the proper remedy of PICOP in claiming that it has complied with all statutory and administrative
requirements for the issuance of the IFMA should have been with the Office of the President. This makes the issue
of the enforceability of the 1969 Document as a contract even more significant.

The Nature and Effects of the Purported 29 July 1969 Presidential Warranty

Base Metals Case

PICOP challenges our ruling that the 1969 Document is not a contract. Before we review this finding, however, it
must be pointed out that one week after the assailed Decision, another division of this Court promulgated a Decision
concerning the very same 1969 Document. Thus, in PICOP Resources, Inc. v. Base Metals Mineral Resources
Corporation,26 five other Justices who were still unaware of this Divisions Decision, 27 came up with the same
conclusion as regards the same issue of whether former President Marcoss Presidential Warranty is a contract:

Finally, we do not subscribe to PICOPs argument that the Presidential Warranty dated September 25, 1968 is a
contract protected by the non-impairment clause of the 1987 Constitution.

An examination of the Presidential Warranty at once reveals that it simply reassures PICOP of the governments
commitment to uphold the terms and conditions of its timber license and guarantees PICOPs peaceful and
adequate possession and enjoyment of the areas which are the basic sources of raw materials for its wood
processing complex. The warranty covers only the right to cut, collect, and remove timber in its concession area,
and does not extend to the utilization of other resources, such as mineral resources, occurring within the
concession.

The Presidential Warranty cannot be considered a contract distinct from PTLA No. 47 and FMA No. 35. We agree
with the OSGs position that it is merely a collateral undertaking which cannot amplify PICOPs rights under its
timber license. Our definitive ruling in Oposa v. Factoran that a timber license is not a contract within the purview of
the non-impairment clause is edifying. We declared:

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a
property right protected by the due process clause of the Constitution. In Tan vs. Director of Forestry, this Court
held:

"x x x A timber license is an instrument by which the State regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. A timber license is not a contract within the purview of the due
process clause; it is only a license or a privilege, which can be validly withdrawn whenever dictated by public
interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the
authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it a property or a
property right, nor does it create a vested right; nor is it taxation' (C.J. 168). Thus, this Court held that the granting of
license does not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G.
7576). x x x"

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary:

"x x x Timber licenses, permits and license agreements are the principal instruments by which the State regulates
the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be
gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter
a permanent or irrevocable right to the particular concession area and the forest products therein. They may be
validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus,
they are not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of
Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125
SCRA 302]."

Since timber licenses are not contracts, the non-impairment clause, which reads:

"SEC. 10. No law impairing the obligation of contracts shall be passed."

cannot be invoked.

The Presidential Warranty cannot, in any manner, be construed as a contractual undertaking assuring PICOP of
exclusive possession and enjoyment of its concession areas. Such an interpretation would result in the complete
abdication by the State in favor of PICOP of the sovereign power to control and supervise the exploration,
development and utilization of the natural resources in the area. 28

The Motion for Reconsideration was denied with finality on 14 February 2007. A Second Motion for Reconsideration
filed by PICOP was denied on 23 May 2007.

PICOP insists that the pronouncement in Base Metals is a mere obiter dictum, which would not bind this Court in
resolving this Motion for Reconsideration. In the oral arguments, however, upon questioning from the ponente
himself of Base Metals, it was agreed that the issue of whether the 1969 Document is a contract was necessary in
the resolution of Base Metals:

JUSTICE TINGA:

And do you confirm that one of the very issues raised by PICOP in that case [PICOP Resources Inc. v. Base Metal
Mineral Resources Corporation] revolves around its claim that a Presidential Warranty is protected by the non-
impairment c[l]ause of the Constitution.

ATTY. AGABIN:

Yes, I believe that statement was made by the Court, your Honor.

JUSTICE TINGA:

Yes. And that claim on the part of PICOP necessarily implies that the Presidential Warranty according to PICOP is a
contract protected by the non-impairment clause.

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE TINGA:

Essentially, the PICOP raised the issue of whether the Presidential Warranty is a contract or not.

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE TINGA:

And therefore any ruling on the part of the Court on that issue could not be an obiter dictum.

ATTY. AGABIN:
Your Honor, actually we believe that the basic issue in that case was whether or not Base Metals could conduct
mining activities underneath the forest reserve allotted to PICOP and the Honorable Court ruled that the Mining Act
of 1995 as well as the Department Order of DENR does not disallow mining activity under a forest reserve.

JUSTICE TINGA:

But it was PICOP itself which raised the claim that a Presidential Warranty is a contract. And therefore be, should be
protected on the under the non-impairment clause of the Constitution.

ATTY. AGABIN:

Yes, Your Honor. Except that

JUSTICE TINGA:

So, how can you say now that the Court merely uttered, declared, laid down an obiter dictum in saying that the
Presidential Warranty is not a contract, and it is not being a contract, it is not prohibited by the non-impairment
clause.

ATTY. AGABIN:

This Honorable Court could have just ruled, held that the mining law allows mining activities under a forest reserve
without deciding on that issue that was raised by PICOP, your Honor, and therefore we believe.

JUSTICE TINGA:

It could have been better if PICOP has not raised that issue and had not claimed that the Presidential Warranty is
not a contract.

ATTY. AGABIN:

Well, that is correct, your Honor except that the Court could have just avoided that question. Because

JUSTICE TINGA:

Why[?]

ATTY. AGABIN:

It already settled the issue, the basic issue.

JUSTICE TINGA:

Yes, because the Court in saying that merely reiterated a number of rulings to the effect that the Presidential
Warranty, a Timber License for that matter is not a contract protected by the non-impairment laws.

ATTY. AGABIN:

Well, it is our submission, your Honor, that it is obiter because, that issue even a phrase by PICOP was not really
fully argued by the parties for the Honorable Court and it seems from my reading at least it was just an aside given
by the Honorable Court to decide on that issue raised by PICOP but it was not necessary to the decision of the
court.

JUSTICE TINGA:

It was not necessary[?]

ATTY. AGABIN:

To the decision of the Court.

JUSTICE TINGA:

It was.

ATTY. AGABIN:

It was not necessary.

JUSTICE TINGA:

It was.

ATTY. AGABIN:

Yes.

JUSTICE TINGA:

And PICOP devoted quite a number of pages in [its] memorandum to that issue and so did the Court [in its
Decision].

ATTY. AGABIN:

Anyway, your Honor, we beg the Court to revisit, not to 29

Interpretation of the 1969 Document That Would Be in Harmony with the Constitution

To remove any doubts as to the contents of the 1969 Document, the purported Presidential Warranty, below is a
complete text thereof:

Republic of the Philippines

Department of Agriculture and Natural Resources
OFFICE OF THE SECRETARY
Diliman, Quezon City

D-53, Licenses (T.L.A. No. 43)

Bislig Bay Lumber Co., Inc.
(Bislig, Surigao)

July 29, 1969

Bislig Bay Lumber Co., Inc.

[unreadable word] Bldg.
Makati, Rizal

S i r s:

This has reference to the request of the Board of Investments through its Chairman in a letter dated July 16, 1969
for a warranty on the boundaries of your concession area under Timber License Agreement No. 43, as amended.

We are made to understand that your company is committed to support the first large scale integrated wood
processing complex hereinafter called: "The Project") and that such support will be provided not only in the form of
the supply of pulpwood and other wood materials from your concession but also by making available funds
generated out of your own operations, to supplement PICOPs operational sources of funds and other financial
arrangements made by him. In order that your company may provide such support effectively, it is understood that
you will call upon your stockholders to take such steps as may be necessary to effect a unification of managerial,
technical, economic and manpower resources between your company and PICOP.

It is in the public interest to promote industries that will enhance the proper conservation of our forest resources as
well as insure the maximum utilization thereof to the benefit of the national economy. The administration feels that
the PICOP project is one such industry which should enjoy priority over the usual logging operations hitherto
practiced by ordinary timber licensees: For this reason, we are pleased to consider favorably the request.

We confirm that your Timber License Agreement No. 43, as amended (copy of which is attached as Annex "A"
hereof which shall form part and parcel of this warranty) definitely establishes the boundary lines of your concession
area which consists of permanent forest lands with an aggregate area of 121,587 hectares and alienable or
disposable lands with an aggregate area of approximately 21,580 hectares.

We further confirm that your tenure over the area and exclusive right to cut, collect and remove sawtimber and
pulpwood shall be for the period ending on April 26, 1977; said period to be renewable for other 25 years subject to
compliance with constitutional and statutory requirements as well as with existing policy on timber concessions.

The peaceful and adequate enjoyment by you of your area as described and specified in your aforesaid amended
Timber License Agreement No. 43 is hereby warranted provided that pertinent laws, regulations and the terms and
conditions of your license agreement are observed.

Very truly yours,

(Sgd.) FERNANDO LOPEZ

Secretary of Agriculture
and Natural Resources

Encl.:

RECOMMENDED BY:

(Sgd.) JOSE VIADO

Acting Director of Forestry

APPROVED:

(Sgd.) FERDINAND E. MARCOS

President of the Philippines

ACCEPTED:

BISLIG BAY LBR. CO., INC.

By:

(Sgd.) JOSE E. SORIANO

President

PICOP interprets this document in the following manner:

6.1 It is clear that the thrust of the government warranty is to establish a particular area defined by boundary lines of
TLA No. 43 for the PICOP Project. In consideration for PICOPs commitment to pursue and establish the project
requiring huge investment/funding from stockholders and lending institutions, the government provided a warranty
that ensures the continued and exclusive right of PICOP to source its raw materials needs from the forest and
renewable trees within the areas established.

6.2 As a long-term support, the warranty covers the initial twenty five (25) year period and is renewable for periods
of twenty five (25) years provided the project continues to exist and operate. Very notably, the wording of the
Presidential Warranty connotes that for as long as the holder complies with all the legal requirements, the term of
the warranty is not limited to fifty (50) years but other twenty five (25) years.

6.3 Note must be made that the government warranted that PICOPs tenure over the area and exclusive right to cut,
collect and remove saw timber and pulpwood shall be for the period ending on 26 April 1977 and said period to be
renewable for other 25 years subject to "compliance with constitutional and statutory requirements as well as
existing policy on timber requirements". It is clear that the renewal for other 25 years, not necessarily for another 25
years is guaranteed. This explains why on 07 October 1977, TLA No. 43, as amended, was automatically renewed
for another period of twenty five (25) years to expire on 26 April 2002. 30

PICOPs interpretation of the 1969 Document cannot be sustained. PICOPs claim that the term of the warranty is
not limited to fifty years, but that it extends to other fifty years, perpetually, violates Section 2, Article XII of the
Constitution which provides:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full control and supervision of the State. The
State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more
than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for
irrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial use may
be the measure and limit of the grant.

Mr. Justice Dante O. Tingas interpretation of the 1969 Document is much more in accord with the laws and the
Constitution. What one cannot do directly, he cannot do indirectly. Forest lands cannot be alienated in favor of
private entities. Granting to private entities, via a contract, a permanent, irrevocable, and exclusive possession of
and right over forest lands is tantamount to granting ownership thereof. PICOP, it should be noted, claims nothing
less than having exclusive, continuous and uninterrupted possession of its concession areas, 31 where all other
entrants are illegal,32 and where so-called "illegal settlers and squatters" are apprehended. 33

IFMAs are production-sharing agreements concerning the development and utilization of natural resources. As
such, these agreements "may be for a period not exceeding twenty-five years, renewable for not more than twenty-
five years, and under such terms and conditions as may be provided by law." Any superior "contract" requiring the
State to issue TLAs and IFMAs whenever they expire clearly circumvents Section 2, Article XII of the Constitution,
which provides for the only permissible schemes wherein the full control and supervision of the State are not
derogated: co-production, joint venture, or production-sharing agreements within the time limit of twenty-five years,
renewable for another twenty-five years.

On its face, the 1969 Document was meant to expire on 26 April 2002, upon the expiration of the expected
extension of the original TLA period ending on 26 April 1977:

We further confirm that your tenure over the area and exclusive right to cut, collect and remove sawtimber and
pulpwood shall be for the period ending on April 26, 1977; said period to be renewable for other 25 years subject to
compliance with constitutional and statutory requirements as well as with existing policy on timber concessions. 1avvphi1

Any interpretation extending the application of the 1969 Document beyond 26 April 2002 and any concession that
may be granted to PICOP beyond the said date would violate the Constitution, and no amount of legal hermeneutics
can change that. Attempts of PICOP to explain its way out of this Constitutional provision only led to absurdities, as
exemplified in the following excerpt from the oral arguments:
JUSTICE CARPIO:

The maximum trend of agreement to develop and utilize natural resources like forest products is 25 years plus
another 25 years or a total of 50 years correct?

ATTY. AGABIN

Yes, Your Honor.

JUSTICE CARPIO:

That is true for the 1987, 1973, 1935 Constitution, correct?

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE CARPIO:

The TLA here, TLA 43, expired, the first 25 years expired in 1977, correct?

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE CARPIO:

And it was renewed for another 25 years until 2002, the 50th year?

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE CARPIO:

Now, could PICOP before the end of the 50th year lets say in 2001, one year before the expiration, could it have
asked for an extension of another 25 years of its TLA agreement[?]

ATTY. AGABIN:

I believe so, Your Honor.

JUSTICE CARPIO:

But the Constitution says, maximum of fifty years. How could you ask for another 25 years of its TLA.

ATTY. AGABIN:

Well, your Honor, we believe on a question like this, this Honorable Court should balance the interest.

JUSTICE CARPIO:

The Constitution is very clear, you have only a maximum of 50 years, 25 plus another 25. PICOP could never have
applied for an extension, for a third 25-year term whether under the 1935 Constitution, the 1973 Constitution and the
1987 Constitution, correct?
ATTY. AGABIN:

Your Honor, except that we are invoking the warranty, the terms of the warranty.

JUSTICE CARPIO:

Can the warranty prevail over the Constitution?

ATTY. AGABIN:

Well, it is a vested right, your Honor.

JUSTICE CARPIO:

Yes, but whatever it is, can it prevail over the Constitution?

ATTY. AGABIN:

The Constitution itself provides that vested rights should be .

JUSTICE CARPIO:

If it is not in violation of specific provision of the Constitution. The Constitution says, 25 years plus another 25 years,
thats the end of it. You mean to say that a President of the Philippines can give somebody 1,000 years license?

ATTY. AGABIN:

Well, that is not our position, Your Honor. Because our position is that .

JUSTICE CARPIO:

My question is, what is the maximum term, you said 50 years. So, my next question is, can PICOP apply for an
extension of another 25 years after 2002, the 50th year?

ATTY. AGABIN:

Yes, based on the contract of warranty, Your Honor, because the contract of warranty.

JUSTICE CARPIO:

But in the PICOP license it is very clear, it says here, provision 28, it says the license agreement is for a total of 50
years. I mean it is very simple, the President or even Congress cannot pass a law extending the license, whatever
kind of license to utilize natural resources for more than fifty year[s]. I mean even the law cannot do that. It cannot
prevail over the Constitution. Is that correct, Counsel?

ATTY. AGABIN:

It is correct, Your Honor, except that in this case, what is actually our application is that the law provides for the
conversion of existing TLA into IFMA.

JUSTICE CARPIO:

So, they file the petition for conversion before the end of the 50th year for IFMA.

ATTY. AGABIN:
Yes, Your Honor.

JUSTICE CARPIO:

But IFMA is the same, it is based on Section 2, Article 12 of the Constitution, develop and utilize natural resources
because as you said when the new constitution took effect we did away with the old licensing regime, we have now
co-production, a production sharing, joint venture, direct undertaking but still the same developing and utilizing the
natural resources, still comes from section 2, Art. 12 of the Constitution. It is still a license but different format now.

ATTY. AGABIN:

It is correct, Your Honor, except that the regimes of joint venture, co-production and production sharing are what is
referred to in the constitution, Your Honor, and still covered

JUSTICE CARPIO:

Yes, but it is covered by same 25 year[s], you mean to say people now can circumvent the 50 year maximum term
by calling their TLA as IFMA and after fifty years calling it ISMA, after another 50 years call it MAMA.

ATTY. AGABIN:

Yes, Your Honor. Because

JUSTICE CARPIO:

It can be done.

ATTY. AGABIN:

That is provided for by the department itself. 34

PICOP is, in effect, arguing that the DENR issued DAO No. 99-53 in order to provide a way to circumvent the
provisions of the Constitution limiting agreements for the utilization of natural resources to a maximum period of fifty
years. Official duties are, however, disputably considered to be regularly performed, 35 and good faith is always
presumed.

DAO No. 99-53 was issued to change the means by which the government enters into an agreement with private
entities for the utilization of forest products. DAO No. 99-53 is a late response to the change in the constitutional
provisions on natural resources from the 1973 Constitution, which allowed the granting of licenses to private
entities,36 to the present Constitution, which provides for co-production, joint venture, or production-sharing
agreements as the permissible schemes wherein private entities may participate in the utilization of forest products.
Since the granting of timber licenses ceased to be a permissible scheme for the participation of private entities
under the present Constitution, their operations should have ceased upon the issuance of DAO No. 99-53, the rule
regulating the schemes under the present Constitution. This would be iniquitous to those with existing TLAs that
would not have expired yet as of the issuance of DAO No. 99-53, especially those with new TLAs that were
originally set to expire after 10 or even 20 or more years. The DENR thus inserted a provision in DAO No. 99-53
allowing these TLA holders to finish the period of their TLAs, but this time as IFMAs, without the rigors of going
through a new application, which they have probably just gone through a few years ago.

Such an interpretation would not only make DAO No. 99-53 consistent with the provisions of the Constitution, but
would also prevent possible discrimination against new IFMA applicants:

ASSOCIATE JUSTICE DE CASTRO:

I ask this question because of your interpretation that the period of the IFMA, if your TLA is converted into IFMA,
would cover a new a fresh period of twenty-five years renewable by another period of twenty-five years.
DEAN AGABIN:

Yes, Your Honor.

ASSOCIATE JUSTICE DE CASTRO:

Dont you think that will, in effect, be invidious discrimination with respect to other applicants if you are granted a
fresh period of twenty-five years extendible to another twenty-five years?

DEAN AGABIN:

I dont think it would be, Your Honor, considering that the IFMA is different regime from the TLA. And not only that,
there are considerations of public health and ecology which should come into play in this case, and which we had
explained in our opening statement and, therefore the provision of the Constitution on the twenty-five limits for
renewal of co-production, joint venture and production sharing agreements, should be balanced with other values
stated in the Constitution, like the value of balanced ecology, which should be in harmony with the rhythm of nature,
or the policy of forest preservation in Article XII, Section 14 of the Constitution. These are all important policy
considerations which should be balanced against the term limits in Article II of the Constitution.

ASSOCIATE JUSTICE DE CASTRO:

The provision of this Administrative Order regarding automatic conversion may be reasonable, if, I want to know if
you agree with me, if we limit this automatic conversion to the remaining period of the TLA, because in that case
there will be a valid ground to make a distinction between those with existing TLA and those who are applying for
the first time for IFMA?

DEAN AGABIN:

Well, Your Honor, we beg to disagree, because as I said TLAs are completely different from IFMA. The TLA has no
production sharing or co-production agreement or condition. All that the licensee has to do is, to pay forest charges,
taxes and other impositions from the local and national government. On the other hand, the IFMAs contained terms
and conditions which are completely different, and that they either impose co-production, production sharing or joint
venture terms. So its a completely different regime, Your Honor.

ASSOCIATE JUSTICE DE CASTRO:

Precisely, that is the reason why there should be an evaluation of what you mentioned earlier of the development
plan.

DEAN AGABIN:

Yes, Your Honor.

ASSOCIATE JUSTICE DE CASTRO:

So it will be reasonable to convert a TLA into an IFMA without considering the development plan submitted by other
applicants or the development plan itself of one seeking conversion into IFMA if it will only be limited to the period,
the original period of the TLA. But once you go beyond the period of the TLA, then you will be, the DENR is I think
should evaluate the different proposals of the applicants if we are thinking of a fresh period of twenty-five years, and
which is renewable under the Constitution by another twenty-five years. So the development plan will be important
in this case, the submission of the development plan of the different applicants must be considered. So I dont
understand why you mentioned earlier that the development plan will later on be a subject matter of negotiation
between the IFMA grantee and the government. So it seems that it will be too late in the day to discuss that if you
have already converted the TLA into IFMA or if the government has already granted the IFMA, and then it will later
on study the development plan, whether it is viable or not, or it is sustainable or not, and whether the development
plan of the different applicants are, are, which of the development plan of the different applicants is better or more
advantageous to the government.37
PICOP insists that the alleged Presidential Warranty, having been signed on 29 July 1969, could not have possibly
considered the limitations yet to be imposed by future issuances, such as the 1987 Constitution. However, Section
3, Article XVIII of said Constitution, provides:

Section 3. All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive
issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked.

In the recent case Sabio v. Gordon, 38 we ruled that "(t)he clear import of this provision is that all existing laws,
executive orders, proclamations, letters of instructions and other executive issuances inconsistent or repugnant to
the Constitution are repealed."

When a provision is susceptible of two interpretations, "the one that will render them operative and effective and
harmonious with other provisions of law" 39 should be adopted. As the interpretations in the assailed Decision and in
Mr. Justice Tingas ponencia are the ones that would not make the subject Presidential Warranty unconstitutional,
these are what we shall adopt.

Purpose of the 1969 Document: Assurance That the Boundaries of Its Concession Area Would Not Be Altered
Despite the Provision in the TLA that the DENR Secretary Can Amend Said Boundaries

In the assailed Decision, we ruled that the 1969 Document cannot be considered a contract that would bind the
government regardless of changes in policy and the demands of public interest and social welfare. PICOP claims
this conclusion "did not take into consideration that PICOP already had a valid and current TLA before the contract
with warranty was signed in 1969." 40 PICOP goes on: "The TLA is a license that equips any TLA holder in the
country for harvesting of timber. A TLA is signed by the Secretary of the DANR now DENR. The Court ignored the
significance of the need for another contract with the Secretary of the DANR but this time with the approval of the
President of the Republic."41 PICOP then asks us: "If PICOP/BBLCI was only an ordinary TLA holder, why will it go
through the extra step of securing another contract just to harvest timber when the same can be served by the TLA
signed only by the Secretary and not requiring the approval of the President of the Republic(?)" 42

The answer to this query is found in TLA No. 43 itself wherein, immediately after the boundary lines of TLA No. 43
were established, the following conditions were given:

This license is granted to the said party of the second part upon the following express conditions:

I. That authority is granted hereunder to the party of the second part 43 to cut, collect or remove firewood or
other minor forest products from the area embraced in this license agreement except as hereinafter
provided.

II. That the party of the first part44 may amend or alter the description of the boundaries of the area covered
by this license agreement to conform with official surveys and that the decision of the party of the first part
as to the exact location of the said boundaries shall be final.

III. That if the party of the first part deems it necessary to establish on the ground the boundary lines of the
area granted under this license agreement, the party of the second part shall furnish to the party of the first
part or its representatives as many laborers as it needs and all the expenses to be incurred on the work
including the wages of such laborers shall be paid by the party of the second part. 45

Thus, BBLCI needed an assurance that the boundaries of its concession area, as established in TLA No. 43, as
amended, would not be altered despite this provision. Hence, BBLCI endeavored to obtain the 1969 Document,
which provides:

We confirm that your Timber License Agreement No. 43, as amended (copy of which is attached as Annex "A"
hereof which shall form part and parcel of this warranty) definitely establishes the boundary lines of your concession
area which consists of permanent forest lands with an aggregate area of 121,587 hectares and alienable or
disposable lands with an aggregate area of approximately 21,580 hectares.
We further confirm that your tenure over the area and exclusive right to cut, collect and remove sawtimber and
pulpwood shall be for the period ending on April 26, 1977; said period to be renewable for other 25 years subject to
compliance with constitutional and statutory requirements as well as with existing policy on timber concessions.

The peaceful and adequate enjoyment by you of your area as described and specified in your aforesaid amended
Timber License Agreement No. 43 is hereby warranted provided that pertinent laws, regulations and the terms and
conditions of your license agreement are observed. 46

In Koa v. Court of Appeals,47 we ruled that a warranty is a collateral undertaking and is merely part of a contract. As
a collateral undertaking, it follows the principal wherever it goes. When this was pointed out by the Solicitor General,
PICOP changed its designation of the 1969 Document from "Presidential Warranty" or "government warranty" in all
its pleadings prior to our Decision, to "contract with warranty" in its Motion for Reconsideration. This, however, is
belied by the statements in the 29 July 1969 Document, which refers to itself as "this warranty."

Re: Allegation That There Were Mutual Contract Considerations

Had the 29 July 1969 Document been intended as a contract, it could have easily said so. More importantly, it could
have clearly defined the mutual considerations of the parties thereto. It could have also easily provided for the
sanctions for the breach of the mutual considerations specified therein. PICOP had vigorously argued that the 1969
Document was a contract because of these mutual considerations, apparently referring to the following paragraph of
the 1969 Document:

We are made to understand that your company is committed to support the first large scale integrated wood
processing complex hereinafter called: "The Project") and that such support will be provided not only in the form of
the supply of pulpwood and other wood materials from your concession but also by making available funds
generated out of your own operations, to supplement PICOPs operational surces (sic) of funds and other financial
arrangements made by him. In order that your company may provide such support effectively, it is understood that
you will call upon your stockholders to take such steps as may be necessary to effect a unification of managerial,
technical, economic and manpower resources between your company and PICOP. 1avvphi1

This provision hardly evinces a contract consideration (which, in PICOPs interpretation, is in exchange for the
exclusive and perpetual tenure over 121,587 hectares of forest land and 21,580 hectares of alienable and
disposable lands). As elucidated by PICOP itself in bringing up the Investment Incentives Act which we shall discuss
later, and as shown by the tenor of the 1969 Document, the latter document was more of a conferment of an
incentive for BBLCIs investment rather than a contract creating mutual obligations on the part of the government, on
one hand, and BBLCI, on the other. There was no stipulation providing for sanctions for breach if BBLCIs being
"committed to support the first large scale integrated wood processing complex" remains a commitment. Neither did
the 1969 Document give BBLCI a period within which to pursue this commitment.

According to Article 1350 of the Civil Code, "(i)n onerous contracts the cause is understood to be, for each
contracting party, the prestation or promise of a thing or service by the other." 48 Private investments for ones
businesses, while indeed eventually beneficial to the country and deserving to be given incentives, are still
principally and predominantly for the benefit of the investors. Thus, the "mutual" contract considerations by both
parties to this alleged contract would be both for the benefit of one of the parties thereto, BBLCI, which is not
obligated by the 1969 Document to surrender a share in its proceeds any more than it is already required by its TLA
and by the tax laws.

PICOPs argument that its investments can be considered as contract consideration derogates the rule that "a
license or a permit is not a contract between the sovereignty and the licensee or permittee, and is not a property in
the constitutional sense, as to which the constitutional proscription against the impairment of contracts may extend."
All licensees obviously put up investments, whether they are as small as a tricycle unit or as big as those put up by
multi-billion-peso corporations. To construe these investments as contract considerations would be to abandon the
foregoing rule, which would mean that the State would be bound to all licensees, and lose its power to revoke or
amend these licenses when public interest so dictates.

The power to issue licenses springs from the States police power, known as "the most essential, insistent and least
limitable of powers, extending as it does to all the great public needs." 49 Businesses affecting the public interest,
such as the operation of public utilities and those involving the exploitation of natural resources, are mandated by
law to acquire licenses. This is so in order that the State can regulate their operations and thereby protect the public
interest. Thus, while these licenses come in the form of "agreements," e.g., "Timber License Agreements," they
cannot be considered contracts under the non-impairment clause. 50

PICOP found this argument "lame," arguing, thus:

43. It is respectfully submitted that the aforesaid pronouncement in the Decision is an egregious and monumental
error.

44. The Decision could not dismiss as "preposterous" the mutual covenants in the Presidential Warranty which calls
for a huge investment of Php500 million at that time in 1969 out of which Php268,440,000 raised from domestic
foreign lending institution to establish the first large scale integrated wood processing complex in the Philippines.

45. The Decision puts up a lame explanation that "all licensees put up investments in pursuing their business"

46. Now there are about a hundred timber licenses issued by the Government thru the DENR, but these are
ordinary timber licenses which involve the mere cutting of timber in the concession area, and nothing else. Records
in the DENR shows that no timber licensee has put up an integrated large wood processing complex in the
Philippines except PICOP.51

PICOP thus argues on the basis of quantity, and wants us to distinguish between the investment of the tricycle
driver and that of the multi-billion corporation. However, not even billions of pesos in investment can change the fact
that natural resources and, therefore, public interest are involved in PICOPs venture, consequently necessitating
the full control and supervision by the State as mandated by the Constitution. Not even billions of pesos in
investment can buy forest lands, which is practically what PICOP is asking for by interpreting the 1969 Document as
a contract giving it perpetual and exclusive possession over such lands. Among all TLA holders in the Philippines,
PICOP has, by far, the largest concession area at 143,167 hectares, a land area more than the size of two Metro
Manilas.52 How can it not expect to also have the largest investment?

Investment Incentives Act

PICOP then claims that the contractual nature of the 1969 Document was brought about by its issuance in
accordance with and pursuant to the Investment Incentives Act. According to PICOP:

The conclusion in the Decision that to construe PICOPs investments as a consideration in a contract would be to
stealthily render ineffective the principle that a license is not a contract between the sovereignty and the licensee is
so flawed since the contract with the warranty dated 29 July 1969 was issued by the Government in accordance
with and pursuant to Republic Act No. 5186, otherwise known as "The Investment Incentives Act." 53

PICOP then proceeds to cite Sections 2 and 4(d) and (e) of said act:

Section 2. Declaration of Policy To accelerate the sound development of the national economy in consonance with
the principles and objectives of economic nationalism, and in pursuance of a planned, economically feasible and
practicable dispersal of industries, under conditions which will encourage competition and discharge monopolies, it
is hereby declared to be the policy of the state to encourage Filipino and foreign investments, as hereinafter set out,
in projects to develop agricultural, mining and manufacturing industries which increase national income most at the
least cost, increase exports, bring about greater economic stability, provide more opportunities for employment,
raise the standards of living of the people, and provide for an equitable distribution of wealth. It is further declared to
be the policy of the state to welcome and encourage foreign capital to establish pioneer enterprises that are capital
intensive and would utilize a substantial amount of domestic raw materials, in joint venture with substantial Filipino
capital, whenever available.

Section 4. Basic Rights and Guarantees. All investors and enterprises are entitled to the basic rights and
guarantees provided in the constitution. Among other rights recognized by the Government of the Philippines are the
following:

xxxx
d) Freedom from Expropriation. There shall be no expropriation by the government of the property represented by
investments or of the property of enterprises except for public use or in the interest of national welfare and defense
and upon payment of just compensation. x x x.

e) Requisition of Investment. There shall be no requisition of the property represented by the investment or of the
property of enterprises, except in the event of war or national emergency and only for the duration thereof. Just
compensation shall be determined and paid either at the time of requisition or immediately after cessation of the
state of war or national emergency. Payments received as compensation for the requisitioned property may be
remitted in the currency in which the investment was originally made and at the exchange rate prevailing at the time
of remittance, subject to the provisions of Section seventy-four of republic Act Numbered Two hundred sixty-five.

Section 2 speaks of the policy of the State to encourage Filipino and foreign investments. It does not speak of how
this policy can be implemented. Implementation of this policy is tackled in Sections 5 to 12 of the same law,54which
PICOP failed to mention, and for a good reason. None of the 24 incentives enumerated therein relates to, or even
remotely suggests that, PICOPs proposition that the 1969 Document is a contract.

PICOP could indeed argue that the enumeration is not exclusive. Certainly, granting incentives to investors, whether
included in the enumeration or not, would be an implementation of this policy. However, it is presumed that whatever
incentives may be given to investors should be within the bounds of the laws and the Constitution. The declaration
of policy in Section 2 cannot, by any stretch of the imagination, be read to provide an exception to either the laws or,
heaven forbid, the Constitution. Exceptions are never presumed and should be convincingly proven. Section 2 of the
Investment Incentives Act cannot be read as exempting investors from the Constitutional provisions (1) prohibiting
private ownership of forest lands; (2) providing for the complete control and supervision by the State of exploitation
activities; or (3) limiting exploitation agreements to twenty-five years, renewable for another twenty-five years.

Section 4(d) and (e), on the other hand, is a recognition of rights already guaranteed under the Constitution.
Freedom from expropriation is granted under Section 9 of Article III55 of the Constitution, while the provision on
requisition is a negative restatement of Section 6, Article XII. 56

Refusal to grant perpetual and exclusive possession to PICOP of its concession area would not result in the
expropriation or requisition of PICOPs property, as these forest lands belong to the State, and not to PICOP. This is
not changed by PICOPs allegation that:

Since it takes 35 years before the company can go back and harvest their residuals in a logged-over area, it must
be assured of tenure in order to provide an inducement for the company to manage and preserve the residuals
during their growth period. This is a commitment of resources over a span of 35 years for each plot for each cycle.
No company will undertake the responsibility and cost involved in policing, preserving and managing residual forest
areas until it were sure that it had firm title to the timber.57

The requirement for logging companies to preserve and maintain forest areas, including the reforestation thereof, is
one of the prices a logging company must pay for the exploitation thereof. Forest lands are meant to be enjoyed by
countless future generations of Filipinos, and not just by one logging company. The requirements of reforestation
and preservation of the concession areas are meant to protect them, the future generations, and not
PICOP. Reforestation and preservation of the concession areas are not required of logging companies so that they
would have something to cut again, but so that the forest would remain intact after their operations. That PICOP
would not accept the responsibility to preserve its concession area if it is not assured of tenure thereto does not
speak well of its corporate policies.

Conclusion

In sum, PICOP was not able to prove either of the two things it needed to prove to be entitled to a Writ of Mandamus
against the DENR Secretary. The 1969 Document is not a contract recognized under the non-impairment clause
and, even if we assume for the sake of argument that it is, it did not enjoin the government to issue an IFMA in 2002
either. These are the essential elements in PICOPs cause of action, and the failure to prove the same warrants a
dismissal of PICOPs Petition for Mandamus, as not even PICOPs compliance with all the administrative and
statutory requirements can save its Petition now.
Whether PICOP Has Complied with the Statutory and Administrative Requirements for the Conversion of the TLA to
an IFMA

In the assailed Decision, our ruling was based on two distinct grounds, each one being sufficient in itself for us to
rule that PICOP was not entitled to a Writ of Mandamus: (1) the 1969 Document, on which PICOP hinges its right to
compel the issuance of an IFMA, is not a contract; and (2) PICOP has not complied with all administrative and
statutory requirements for the issuance of an IFMA.

When a court bases its decision on two or more grounds, each is as authoritative as the other and neither is obiter
dictum.58 Thus, both grounds on which we based our ruling in the assailed Decision would become judicial dictum,
and would affect the rights and interests of the parties to this case unless corrected in this Resolution on PICOPs
Motion for Reconsideration. Therefore, although PICOP would not be entitled to a Writ of Mandamus even if the
second issue is resolved in its favor, we should nonetheless resolve the same and determine whether PICOP has
indeed complied with all administrative and statutory requirements for the issuance of an IFMA.

While the first issue (on the nature of the 1969 Document) is entirely legal, this second issue (on PICOPs
compliance with administrative and statutory requirements for the issuance of an IFMA) has both legal and factual
sub-issues. Legal sub-issues include whether PICOP is legally required to (1) consult with and acquire an approval
from the Sanggunian concerned under Sections 26 and 27 of the Local Government Code; and (2) acquire a
Certification from the National Commission on Indigenous Peoples (NCIP) that the concession area does not
overlap with any ancestral domain. Factual sub-issues include whether, at the time it filed its Petition for Mandamus,
PICOP had submitted the required Five-Year Forest Protection Plan and Seven-Year Reforestation Plan and
whether PICOP had paid all forest charges.

For the factual sub-issues, PICOP invokes the doctrine that factual findings of the trial court, especially when upheld
by the Court of Appeals, deserve great weight. However, deserving of even greater weight are the factual findings of
administrative agencies that have the expertise in the area of concern. The contentious facts in this case relate to
the licensing, regulation and management of forest resources, the determination of which belongs exclusively to the
DENR:

SECTION 4. Mandate. The Department shall be the primary government agency responsible for the conservation,
management, development and proper use of the countrys environment and natural resources, specifically forest
and grazing lands, mineral resources, including those in reservation and watershed areas, and lands of the public
domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to
ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of
Filipinos.59

When parties file a Petition for Certiorari against judgments of administrative agencies tasked with overseeing the
implementation of laws, the findings of such administrative agencies are entitled to great weight. In the case at bar,
PICOP could not have filed a Petition for Certiorari, as the DENR Secretary had not yet even determined whether
PICOP should be issued an IFMA. As previously mentioned, when PICOPs application was brought to a standstill
upon the evaluation that PICOP had yet to comply with the requirements for the issuance of an IFMA, PICOP
refused to attend further meetings with the DENR and instead filed a Petition for Mandamus against the latter. By
jumping the gun, PICOP did not diminish the weight of the DENR Secretarys initial determination.

Forest Protection and Reforestation Plans

The Performance Evaluation Team tasked to appraise PICOPs performance on its TLA No. 43 found that PICOP
had not submitted its Five-Year Forest Protection Plan and its Seven-Year Reforestation Plan. 60

In its Motion for Reconsideration, PICOP asserts that, in its Letter of Intent dated 28 August 2000 and marked as
Exhibit L in the trial court, there was a reference to a Ten-Year Sustainable Forest Management Plan (SFMP), in
which a Five-Year Forest Protection Plan and a Seven-Year Reforestation Plan were allegedly incorporated. PICOP
submitted a machine copy of a certified photocopy of pages 50-67 and 104-110 of this SFMP in its Motion for
Reconsideration. PICOP claims that the existence of this SFMP was repeatedly asserted during the IFMA
application process.61
Upon examination of the portions of the SFMP submitted to us, we cannot help but notice that PICOPs concept of
forest protection is the security of the area against "illegal" entrants and settlers. There is no mention of the
protection of the wildlife therein, as the focus of the discussion of the silvicultural treatments and the SFMP itself is
on the protection and generation of future timber harvests. We are particularly disturbed by the portions stating that
trees of undesirable quality shall be removed.

However, when we required the DENR Secretary to comment on PICOPs Motion for Reconsideration, the DENR
Secretary did not dispute the existence of this SFMP, or question PICOPs assertion that a Ten-Year Forest
Protection Plan and a Ten-Year Reforestation Plan are already incorporated therein. Hence, since the agency
tasked to determine compliance with IFMA administrative requirements chose to remain silent in the face of
allegations of compliance, we are constrained to withdraw our pronouncement in the assailed Decision that PICOP
had not submitted a Five-Year Forest Protection Plan and a Seven-Year Reforestation Plan for its TLA No. 43. As
previously mentioned, the licensing, regulation and management of forest resources are the primary responsibilities
of the DENR.62

The compliance discussed above is, of course, only for the purpose of determining PICOPs satisfactory
performance as a TLA holder, and covers a period within the subsistence of PICOPs TLA No. 43. This
determination, therefore, cannot prohibit the DENR from requiring PICOP, in the future, to submit proper forest
protection and reforestation plans covering the period of the proposed IFMA.

Forest Charges

In determining that PICOP did not have unpaid forest charges, the Court of Appeals relied on the assumption that if
it were true that PICOP had unpaid forest charges, it should not have been issued an approved Integrated Annual
Operation Plan (IAOP) for the year 2001-2002 by Secretary Alvarez himself. 63

In the assailed Decision, we held that the Court of Appeals had been selective in its evaluation of the IAOP, as it
disregarded the part thereof that shows that the IAOP was approved subject to several conditions, not the least of
which was the submission of proof of the updated payment of forest charges from April 2001 to June 2001. 64 We
also held that even if we considered for the sake of argument that the IAOP should not have been issued if PICOP
had existing forestry accounts, the issuance of the IAOP could not be considered proof that PICOP had paid the
same. Firstly, the best evidence of payment is the receipt thereof. PICOP has not presented any evidence that such
receipts were lost or destroyed or could not be produced in court.65 Secondly, the government cannot be estopped
by the acts of its officers. If PICOP has been issued an IAOP in violation of the law, allegedly because it may not be
issued if PICOP had existing forestry accounts, the government cannot be estopped from collecting such amounts
and providing the necessary sanctions therefor, including the withholding of the IFMA until such amounts are paid.

We therefore found that, as opposed to the Court of Appeals findings, which were based merely on estoppel of
government officers, the positive and categorical evidence presented by the DENR Secretary was more convincing
with respect to the issue of payment of forestry charges:

1. Forest Management Bureau (FMB) Senior Forest Management Specialist (SFMS) Ignacio M. Evangelista
testified that PICOP had failed to pay its regular forest charges covering the period from 22 September 2001
to 26 April 2002 in the total amount of P15,056,054.0566 PICOP also allegedly paid late most of its forest
charges from 1996 onwards, by reason of which, PICOP is liable for a surcharge of 25% per annum on the
tax due and interest of 20% per annum which now amounts to P150,169,485.02.67 Likewise, PICOP
allegedly had overdue and unpaid silvicultural fees in the amount of P2,366,901.00 as of 30 August
2002.68Summing up the testimony, therefore, it was alleged that PICOP had unpaid and overdue forest
charges in the sum of P167,592,440.90 as of 10 August 2002.69

2. Collection letters were sent to PICOP, but no official receipts are extant in the DENR record in Bislig City
evidencing payment of the overdue amount stated in the said collection letters. 70 There were no official
receipts for the period covering 22 September 2001 to 26 April 2002.

We also considered these pieces of evidence more convincing than the other ones presented by PICOP:
 1. PICOP presented the certification of Community Environment and Natural Resources Office (CENRO)
Officer Philip A. Calunsag, which refers only to PICOPs alleged payment of regular forest charges covering
the period from 14 September 2001 to 15 May 2002. 71 We noted that it does not mention similar payment of
the penalties, surcharges and interests that PICOP incurred in paying late several forest charges, which fact
was not rebutted by PICOP.

2. The 27 May 2002 Certification by CENRO Calunsag specified only the period covering 14 September
2001 to 15 May 2002 and the amount of P53,603,719.85 paid by PICOP without indicating the
corresponding volume and date of production of the logs. This is in contrast to the findings of SFMS
Evangelista, which cover the period from CY 1996 to 30 August 2002 and includes penalties, interests, and
surcharges for late payment pursuant to DAO 80, series of 1987.

3. The 21 August 2002 PICOP-requested certification issued by Bill Collector Amelia D. Arayan, and attested
to by CENRO Calunsag himself, shows that PICOP paid only regular forest charges for its log production
covering 1 July 2001 to 21 September 2001. However, there were log productions after 21 September 2001,
the regular forest charges for which have not been paid, amounting to P15,056,054.05.72The same
certification shows delayed payment of forest charges, thereby corroborating the testimony of SFMS
Evangelista and substantiating the imposition of penalties and surcharges.

In its Motion for Reconsideration, PICOP claims that SFMS Evangelista is assigned to an office that has nothing to
do with the collection of forest charges, and that he based his testimony on the Memoranda of Forest Management
Specialist II (FMS II) Teofila Orlanes and DENR, Bislig City Bill Collector Amelia D. Arayan, neither of whom was
presented to testify on his or her Memorandum. PICOP also submitted an Addendum to Motion for Reconsideration,
wherein it appended certified true copies of CENRO Summaries with attached Official Receipts tending to show that
PICOP had paid a total of P81,184,747.70 in forest charges for 10 January 2001 to 20 December 2002, including
the period during which SFMS Evangelista claims PICOP did not pay forest charges (22 September 2001 to 26 April
2002).

Before proceeding any further, it is necessary for us to point out that, as with our ruling on the forest protection and
reforestation plans, this determination of compliance with the payment of forest charges is exclusively for the
purpose of determining PICOPs satisfactory performance on its TLA No. 43. This cannot bind either party in a
possible collection case that may ensue.

An evaluation of the DENR Secretarys position on this matter shows a heavy reliance on the testimony of SFMS
Evangelista, making it imperative for us to strictly scrutinize the same with respect to its contents and admissibility.

PICOP claims that SFMS Evangelistas office has nothing to do with the collection of forest charges. According to
PICOP, the entity having administrative jurisdiction over it is CENRO, Bislig City by virtue of DENR Administrative
Order No. 96-36, dated 20 November 1996, which states:

1. In order for the DENR to be able to exercise closer and more effective supervision, management and control over
the forest resources within the areas covered by TLA No. 43, PTLA No. 47 and IFMA No. 35 of the PICOP
Resources, Inc., (PRI) and, at the same time, provide greater facility in the delivery of DENR services to various
publics, the aforesaid forest holdings of PRI are hereby placed under the exclusive jurisdiction of DENR Region No.
XIII with the CENR Office at Bislig, Surigao del Sur, as directly responsible thereto. x x x.

We disagree. Evangelista is an SFMS assigned at the Natural Forest Management Division of the FMB, DENR. In
Evangelistas aforementioned affidavit submitted as part of his direct examination, Evangelista enumerated his
duties and functions as SFMS:

1. As SFMS, I have the following duties and functions:

a) To evaluate and act on cases pertaining to forest management referred to in the Natural forest
Management Division;

b) To monitor, verify and validate forest management and related activities by timber licences as to
their compliance to approved plans and programs;
 c) To conduct investigation and verification of compliance by timber licenses/permittees to existing
DENR rules and regulations;

d) To gather field data and information to be used in the formulation of forest policies and
regulations; and

e) To perform other duties and responsibilities as may be directed by superiors. 73

PICOP also alleges that the testimony of SFMS Evangelista was based on the aforementioned Memoranda
of Orlanes and Arayan and that, since neither Orlanes nor Arayan was presented as a witness, SFMS
Evangelistas testimony should be deemed hearsay. SFMS Evangelistas 1 October 2002 Affidavit, 74 which
was offered as part of his testimony, provides:

2. Sometime in September, 2001 the DENR Secretary was furnished a copy of forest Management
Specialist II (FMS II) Teofila L. Orlanes Memorandum dated September 24, 2001 concerning unopaid forest
charges of PICOP. Attached to the said Memorandum was a Memorandum dated September 19, 2001 of
Amelia D. Arayan, Bill collector of the DENR R13-14, Bislig City. Copies of the said Memoranda are attached
as Annexes 1 and 2, respectively.

3. The said Memoranda were referred to the FMB Director for appropriate action.

4. Thus, on August 5, 2002, I was directed by the FMB Director to proceed to Region 13 to gather forestry-
related data and validate the report contained in the Memoranda of Ms. Orlanes and Arayan.

5. On August 6, 2002, I proceeded to DENR Region 13 in Bislig City. A copy of my Travel Order is attached
as Annex 3.

6. Upon my arrival at CENRO, Bislig, surigao del Sur, I coordinated with CENRO Officer Philip A. Calunsag
and requested him to make available to me the records regarding the forest products assessments of
PICOP.

7. After I was provided with the requested records, I evaluated and collected the data.

8. After the evaluation, I found that the unpaid forest charges adverted to in the Memoranda of Mr. Orlanes
and Arayan covering the period from May 8, 2001 to July 7, 2001 had already been paid but late. I further
found out that PICOP had not paid its forest charges covering the period from September 22, 2001 to April
26, 2002 in the total amount of P15,056,054.05.

9. I also discovered that from 1996 up to august 30, 2002, PICOP paid late some of its forest charges in
1996 and consistently failed to pay late its forest charges from 1997 up to the present time.

10. Under Section 7.4 of DAO No. 80 Series of 197\87 and Paragraph (4a), Section 10 of BIR revenue
Regulations No. 2-81 dated November 18, 1980, PICOP is mandated to pay a surcharge of 25% per annum
of the tax due and interest of 20% per annum for late payment of forest charges.

11. The overdue unpaid forest charges of PICOP as shown in the attached tabulation marked as Annex 4
hereof is P150,169,485.02. Likewise, PICOP has overdue and unpaid silvicultural fees in the amount
ofP2,366,901.00 from 1996 to the present.

12. In all, PICOP has an outstanding and overdue total obligation of P167,592,440.90 as of August 30, 2002
based on the attached tabulation which is marked as Annex 5 hereof. 75

Clearly, SFMS Evangelista had not relied on the Memoranda of Orlanes and Arayan. On the contrary, he traveled to
Surigao del Sur in order to verify the contents of these Memoranda. SFMS Evangelista, in fact, revised the findings
therein, as he discovered that certain forest charges adverted to as unpaid had already been paid.
This does not mean, however, that SFMS Evangelistas testimony was not hearsay. A witness may testify only on
facts of which he has personal knowledge; that is, those derived from his perception, except in certain
circumstances allowed by the Rules.76 Otherwise, such testimony is considered hearsay and, hence, inadmissible in
evidence.77

SFMS Evangelista, while not relying on the Memoranda of Orlanes and Arayan, nevertheless relied on records, the
preparation of which he did not participate in.78 These records and the persons who prepared them were not
presented in court, either. As such, SFMS Evangelistas testimony, insofar as he relied on these records, was on
matters not derived from his own perception, and was, therefore, hearsay.

Section 44, Rule 130 of the Rules of Court, which speaks of entries in official records as an exception to the hearsay
rule, cannot excuse the testimony of SFMS Evangelista. Section 44 provides:

SEC. 44. Entries in official records. Entries in official records made in the performance of his duty by a public
officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie
evidence of the facts therein stated.

In Africa v. Caltex,79 we enumerated the following requisites for the admission of entries in official records as an
exception to the hearsay rule: (1) the entries were made by a public officer or a private person in the performance of
a duty; (2) the performance of the duty is especially enjoined by law; (3) the public officer or the private person had
sufficient knowledge of the facts stated by him, which must have been acquired by him personally or through official
information.

The presentation of the records themselves would, therefore, have been admissible as an exception to the hearsay
rule even if the public officer/s who prepared them was/were not presented in court, provided the above requisites
could be adequately proven. In the case at bar, however, neither the records nor the persons who prepared them
were presented in court. Thus, the above requisites cannot be sufficiently proven. Also, since SFMS Evangelista
merely testified based on what those records contained, his testimony was hearsay evidence twice removed, which
was one step too many to be covered by the official-records exception to the hearsay rule.

SFMS Evangelistas testimony of nonpayment of forest charges was, furthermore, based on his failure to find official
receipts corresponding to billings sent to PICOP. As stated above, PICOP attached official receipts in its Addendum
to Motion for Reconsideration to this Court. While this course of action is normally irregular in judicial proceedings,
we merely stated in the assailed Decision that "the DENR Secretary has adequately proven that PICOP has, at this
time, failed to comply with administrative and statutory requirements for the conversion of TLA No. 43 into an
IFMA,"80 and that "this disposition confers another chance to comply with the foregoing requirements." 81

In view of the foregoing, we withdraw our pronouncement that PICOP has unpaid forestry charges, at least for the
purpose of determining compliance with the IFMA requirements.

NCIP Certification

The Court of Appeals held that PICOP need not comply with Section 59 of Republic Act No. 8371, which requires
prior certification from the NCIP that the areas affected do not overlap with any ancestral domain before any IFMA
can be entered into by the government. According to the Court of Appeals, Section 59 should be interpreted to refer
to ancestral domains that have been duly established as such by the continuous possession and occupation of the
area concerned by indigenous peoples since time immemorial up to the present. The Court of Appeals held that
PICOP had acquired property rights over TLA No. 43 areas, being in exclusive, continuous and uninterrupted
possession and occupation of these areas since 1952 up to the present.

In the assailed Decision, we reversed the findings of the Court of Appeals. Firstly, the Court of Appeals ruling defies
the settled jurisprudence we have mentioned earlier, that a TLA is neither a property nor a property right, and that it
does not create a vested right.82

Secondly, the Court of Appeals resort to statutory construction is misplaced, as Section 59 of Republic Act No. 8379
is clear and unambiguous:
SEC. 59. Certification Precondition. All departments and other governmental agencies shall henceforth be strictly
enjoined from issuing, renewing or granting any concession, license or lease, or entering into any production-
sharing agreement, without prior certification from the NCIP that the area affected does not overlap with any
ancestral domain. Such certification shall only be issued after a field-based investigation is conducted by the
Ancestral Domains Office of the area concerned: Provided, That no certification shall be issued by the NCIP without
the free and prior informed and written consent of the ICCs/IPs concerned: Provided, further, That no department,
government agency or government-owned or controlled corporation may issue new concession, license, lease, or
production sharing agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs
shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the
requirement of this consultation process.

PICOP had tried to put a cloud of ambiguity over Section 59 of Republic Act No. 8371 by invoking the definition of
Ancestral Domains in Section 3(a) thereof, wherein the possesssion by Indigenous Cultural
Communities/Indigenous Peoples (ICCs/IPs) must have been continuous to the present. However, we noted the
exception found in the very same sentence invoked by PICOP:

a) Ancestral domains Subject to Section 56 hereof, refers to all areas generally belonging to ICCs/IPs comprising
lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or
possessed by ICCs/IPs, by themselves or through their ancestors, communally or individually since time
immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force,
deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by
government and private individuals/corporations, and which are necessary to ensure their economic, social and
cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually
owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of
water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but
from which they traditionally had access to for their subsistence and traditional activities, particularly the home
ranges of ICCs/IPs who are still nomadic and/or shifting cultivators;

Ancestral domains, therefore, remain as such even when possession or occupation of these areas has been
interrupted by causes provided under the law, such as voluntary dealings entered into by the government and
private individuals/corporations. Consequently, the issuance of TLA No. 43 in 1952 did not cause the ICCs/IPs to
lose their possession or occupation over the area covered by TLA No. 43.

Thirdly, we held that it was manifestly absurd to claim that the subject lands must first be proven to be part of
ancestral domains before a certification that the lands are not part of ancestral domains can be required, and
invoked the separate opinion of now Chief Justice Reynato Puno in Cruz v. Secretary of DENR 83:

As its subtitle suggests, [Section 59 of R.A. No. 8371] requires as a precondition for the issuance of any concession,
license or agreement over natural resources, that a certification be issued by the NCIP that the area subject of the
agreement does not lie within any ancestral domain. The provision does not vest the NCIP with power over the other
agencies of the State as to determine whether to grant or deny any concession or license or agreement. It merely
gives the NCIP the authority to ensure that the ICCs/IPs have been informed of the agreement and that their
consent thereto has been obtained. Note that the certification applies to agreements over natural resources that do
not necessarily lie within the ancestral domains. For those that are found within the said domains, Sections 7(b) and
57 of the IPRA apply.

PICOP rejects the entire disposition of this Court on the matter, relying on the following theory:

84. It is quite clear that Section 59 of R.A. 8371 does not apply to the automatic conversion of TLA 43 to IFMA.

First, the automatic conversion of TLA 43 to an IFMA is not a new project. It is a mere continuation of the harvesting
process in an area that PICOP had been managing, conserving and reforesting for the last 50 years since 1952.
Hence any pending application for a CADT within the area, cannot affect much less hold back the automatic
conversion. That the government now wishes to change the tenurial system to an IFMA could not change the
PICOP project, in existence and operating for the last 30 (sic) years, into a new one. 84

PICOPs position is anything but clear. What is clearly provided for in Section 59 is that it covers "issuing, renewing
or granting (of) any concession, license or lease, or entering into any production sharing agreement." PICOP is
implying that, when the government changed the tenurial system to an IFMA, PICOPs existing TLA would just be
upgraded or modified, but would be the very same agreement, hence, dodging the inclusion in the word "renewing."
However, PICOP is conveniently leaving out the fact that its TLA expired in 2002. If PICOP really intends to pursue
the argument that the conversion of the TLA into an IFMA would not create a new agreement, but would only be a
modification of the old one, then it should be willing to concede that the IFMA expired as well in 2002. An automatic
modification would not alter the terms and conditions of the TLA except when they are inconsistent with the terms
and conditions of an IFMA. Consequently, PICOPs concession period under the renewed TLA No. 43, which is from
the year 1977 to 2002, would remain the same.

PICOP cannot rely on a theory of the case whenever such theory is beneficial to it, but refute the same whenever
the theory is damaging to it. In the same way, PICOP cannot claim that the alleged Presidential Warranty is
"renewable for other 25 years" and later on claim that what it is asking for is not a renewal. Extensions of
agreements must necessarily be included in the term renewal. Otherwise, the inclusion of "renewing" in Section 59
would be rendered inoperative.

PICOP further claims:

85. Verily, in interpreting the term "held under claim of ownership," the Supreme Court could not have meant to
include claims that had just been filed and not yet recognized under the provisions of DENR Administrative Order
No. 2 Series of 1993, nor to any other community / ancestral domain program prior to R.A. 8371.

xxxx

87. One can not imagine the terrible damage and chaos to the country, its economy, its people and its future if a
mere claim filed for the issuance of a CADC or CADT will already provide those who filed the application, the
authority or right to stop the renewal or issuance of any concession, license or lease or any production-sharing
agreement. The same interpretation will give such applicants through a mere application the right to stop or suspend
any project that they can cite for not satisfying the requirements of the consultation process of R.A. 8371. If such
interpretation gets enshrined in the statures of the land, the unscrupulous and the extortionists can put any ongoing
or future project or activity to a stop in any part of the country citing their right from having filed an application for
issuance of a CADC or CADT claim and the legal doctrine established by the Supreme Court in this PICOP case. 85

We are not sure whether PICOPs counsels are deliberately trying to mislead us, or are just plainly ignorant of basic
precepts of law. The term "claim" in the phrase "claim of ownership" is not a document of any sort. It is an attitude
towards something. The phrase "claim of ownership" means "the possession of a piece of property with the intention
of claiming it in hostility to the true owner."86 It is also defined as "a partys manifest intention to take over land,
regardless of title or right."87 Other than in Republic Act No. 8371, the phrase "claim of ownership" is thoroughly
discussed in issues relating to acquisitive prescription in Civil Law.

Before PICOPs counsels could attribute to us an assertion that a mere attitude or intention would stop the renewal
or issuance of any concession, license or lease or any production-sharing agreement, we should stress beforehand
that this attitude or intention must be clearly shown by overt acts and, as required by Section 3(a), should have been
in existence "since time immemorial, continuously to the present except when interrupted by war, force majeure or
displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings
entered into by government and private individuals/corporations."

Another argument of PICOP involves the claim itself that there was no overlapping:

Second, there could be no overlapping with any Ancestral Domain as proven by the evidence presented and
testimonies rendered during the hearings in the Regional Trial Court. x x x.

x x x x.

88. The DENR issued a total of 73 CADCs as of December 11, 1996. The DENR Undersecretary for Field
Operations had recommended another 11 applications for issuance of CADCs. None of the CADCs overlap the TLA
43 area.
89. However former DENR Secretary Alvarez, in a memorandum dated 13 September, 2002 addressed to PGMA,
insisted that PICOP had to comply with the requirement to secure a Free and Prior Informed Concent because
CADC 095 was issued covering 17,112 hectares of TLA 43.

90. This CADC 095 is a fake CADC and was not validly released by the DENR. While the Legal Department of the
DENR was still in the process of receiving the filings for applicants and the oppositors to the CADC application,
PICOP came across filed copies of a CADC 095 with the PENRO of Davao Oriental as part of their application for a
Community Based Forest Management Agreement (CBFMA). Further research came across the same group filing
copies of the alleged CADC 095 with the Mines and Geosciences Bureau in Davao City for a mining agreement
application. The two applications had two different versions of the CADCs second page. One had Mr. Romeo T.
Acosta signing as the Social reform Agenda Technical Action Officer, while the other had him signing as the Head,
Community-Based Forest Management Office. One had the word "Eight" crossed out and "Seven" written to make it
appear that the CADC was issued on September 25, 1997, the other made it appear that there were no alterations
and the date was supposed to be originally 25 September 1997.

What is required in Section 59 of Republic Act No. 8379 is a Certification from the NCIP that there was no
overlapping with any Ancestral Domain. PICOP cannot claim that the DENR gravely abused its discretion for
requiring this Certification, on the ground that there was no overlapping. We reiterate that it is manifestly absurd to
claim that the subject lands must first be proven to be part of ancestral domains before a certification that they are
not can be required. As discussed in the assailed Decision, PICOP did not even seek any certification from the NCIP
that the area covered by TLA No. 43, subject of its IFMA conversion, did not overlap with any ancestral domain. 88

Sanggunian Consultation and Approval

While PICOP did not seek any certification from the NCIP that the formers concession area did not overlap with any
ancestral domain, PICOP initially sought to comply with the requirement under Sections 26 and 27 of the Local
Government Code to procure prior approval of the Sanggunians concerned. However, only one of the many
provinces affected approved the issuance of an IFMA to PICOP. Undaunted, PICOP nevertheless submitted to the
DENR the purported resolution89 of the Province of Surigao del Sur indorsing the approval of PICOPs application for
IFMA conversion, apparently hoping either that the disapproval of the other provinces would go unnoticed, or that
the Surigao del Sur approval would be treated as sufficient compliance.

Surprisingly, the disapproval by the other provinces did go unnoticed before the RTC and the Court of Appeals,
despite the repeated assertions thereof by the Solicitor General. When we pointed out in the assailed Decision that
the approval must be by all the Sanggunians concerned and not by only one of them, PICOP changed its theory of
the case in its Motion for Reconsideration, this time claiming that they are not required at all to procure Sanggunian
approval.

Sections 2(c), 26 and 27 of the Local Government Code provide:

SEC. 2. x x x.

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations
with appropriate local government units, nongovernmental and peoples organizations, and other concerned sectors
of the community before any project or program is implemented in their respective jurisdictions.

SEC. 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. It shall be the duty of
every national agency or government-owned or controlled corporation authorizing or involved in the planning and
implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable
resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species, to consult with the
local government units, nongovernmental organizations, and other sectors concerned and explain the goals and
objectives of the project or program, its impact upon the people and the community in terms of environmental or
ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.
SEC. 27. Prior Consultations Required. No project or program shall be implemented by government authorities
unless the consultations mentioned in Sections 2(c) and 26 hereof are complied with, and prior approval of the
sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented
shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the
Constitution.

As stated in the assailed Decision, the common evidence of the DENR Secretary and PICOP, namely, the 31 July
2001 Memorandum of Regional Executive Director (RED) Elias D. Seraspi, Jr., enumerated the local government
units and other groups which had expressed their opposition to PICOPs application for IFMA conversion:

7. During the conduct of the performance evaluation of TLA No. 43 issues complaints against PRI were submitted
thru Resolutions and letters. It is important that these are included in this report for assessment of what are their
worth, viz:

xxxx

7.2 Joint Resolution (unnumbered), dated March 19, 2001 of the Barangay Council and Barangay Tribal Council of
Simulao, Boston, Davao Oriental (ANNEX F) opposing the conversion of TLA No. 43 into IFMA over the 17,112
hectares allegedly covered with CADC No. 095.

7.3 Resolution Nos. 10, s-2001 and 05, s-2001 (ANNEXES G & H) of the Bunawan Tribal Council of Elders
(BBMTCE) strongly demanding none renewal of PICOP TLA. They claim to be the rightful owner of the area it being
their alleged ancestral land.

7.4 Resolution No. 4, S-2001 of Sitio Linao, San Jose, Bislig City (ANNEX I) requesting not to renew TLA 43 over
the 900 hectares occupied by them.

7.5 Resolution No. 22, S-2001 (ANNEX J) of the Sanguniang Bayan, Lingig, Surigao del Sur not to grant the
conversion of TLA 43 citing the plight of former employees of PRI who were forced to enter and farm portion of TLA
No. 43, after they were laid off.

7.6 SP Resolution No. 2001-113 and CDC Resolution Nos. 09-2001 of the Sanguniang Panglungsod of Bislig City
(ANNEXES K & L) requesting to exclude the area of TLA No. 43 for watershed purposes.

7.7 Resolution No. 2001-164, dated June 01, 2001 (ANNEX M) Sanguniang Panglungsod of Bislig City opposing
the conversion of TLA 43 to IFMA for the reason that IFMA do not give revenue benefits to the City.90

PICOP had claimed that it complied with the Local Government Code requirement of obtaining prior approval of the
Sanggunian concerned by submitting a purported resolution 91 of the Province of Surigao del Sur indorsing the
approval of PICOPs application for IFMA conversion. We ruled that this cannot be deemed sufficient compliance
with the foregoing provision. Surigao del Sur is not the only province affected by the area covered by the proposed
IFMA. As even the Court of Appeals found, PICOPs TLA No. 43 traverses the length and breadth not only of
Surigao del Sur but also of Agusan del Sur, Compostela Valley and Davao Oriental. 92

On Motion for Reconsideration, PICOP now argues that the requirement under Sections 26 and 27 does not apply
to it:

97. PICOP is not a national agency. Neither is PICOP government owned or controlled. Thus Section 26 does not
apply to PICOP.

98. It is very clear that Section 27 refers to projects or programs to be implemented by government authorities or
government-owned and controlled corporations. PICOPs project or the automatic conversion is a purely private
endevour. First the PICOP project has been implemented since 1969. Second, the project was being implemented
by private investors and financial institutions.

99. The primary government participation is to warrant and ensure that the PICOP project shall have peaceful
tenure in the permanent forest allocated to provide raw materials for the project. To rule now that a project whose
foundations were commenced as early as 1969 shall now be subjected to a 1991 law is to apply the law
retrospectively in violation of Article 4 of the Civil Code that laws shall not be applied retroactively.

100. In addition, under DAO 30, Series of 1992, TLA and IFMA operations were not among those devolved function
from the National Government / DENR to the local government unit. Under its Section 03, the devolved function
cover only:

a) Community Based forestry projects.

b) Communal forests of less than 5000 hectares

c) Small watershed areas which are sources of local water supply.93

We have to remind PICOP again of the contents of Section 2, Article XII of the Constitution:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full control and supervision of the State. The
State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more
than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may
be the measure and limit of the grant.

All projects relating to the exploration, development and utilization of natural resources are projects of the State.
While the State may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens,
or corporations or associations at least sixty per centum of whose capital is owned by these citizens, such as
PICOP, the projects nevertheless remain as State projects and can never be purely private endeavors.

Also, despite entering into co-production, joint venture, or production-sharing agreements, the State remains in full
control and supervision over such projects. PICOP, thus, cannot limit government participation in the project to being
merely its bouncer, whose primary participation is only to "warrant and ensure that the PICOP project shall have
peaceful tenure in the permanent forest allocated to provide raw materials for the project."

PICOP is indeed neither a national agency nor a government-owned or controlled corporation. The DENR, however,
is a national agency and is the national agency prohibited by Section 27 from issuing an IFMA without the prior
approval of the Sanggunian concerned. As previously discussed, PICOPs Petition for Mandamus can only be
granted if the DENR Secretary is required by law to issue an IFMA. We, however, see here the exact opposite: the
DENR Secretary was actually prohibited by law from issuing an IFMA, as there had been no prior approval by all the
other Sanggunians concerned.

As regards PICOPs assertion that the application to them of a 1991 law is in violation of the prohibition against the
non-retroactivity provision in Article 4 of the Civil Code, we have to remind PICOP that it is applying for an IFMA with
a term of 2002 to 2027. Section 2, Article XII of the Constitution allows exploitation agreements to last only "for a
period not exceeding twenty-five years, renewable for not more than twenty-five years." PICOP, thus, cannot legally
claim that the projects term started in 1952 and extends all the way to the present.

Finally, the devolution of the project to local government units is not required before Sections 26 and 27 would be
applicable. Neither Section 26 nor 27 mentions such a requirement. Moreover, it is not only the letter, but more
importantly the spirit of Sections 26 and 27, that shows that the devolution of the project is not required. The
approval of the Sanggunian concerned is required by law, not because the local government has control over such
project, but because the local government has the duty to protect its constituents and their stake in the
implementation of the project. Again, Section 26 states that it applies to projects that "may cause pollution, climatic
change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal
or plant species." The local government should thus represent the communities in such area, the very people who
will be affected by flooding, landslides or even climatic change if the project is not properly regulated, and who
likewise have a stake in the resources in the area, and deserve to be adequately compensated when these
resources are exploited.

Indeed, it would be absurd to claim that the project must first be devolved to the local government before the
requirement of the national government seeking approval from the local government can be applied. If a project has
been devolved to the local government, the local government itself would be implementing the project. That the local
government would need its own approval before implementing its own project is patently silly.

EPILOGUE AND DISPOSITION

PICOPc cause of action consists in the allegation that the DENR Secretary, in not issuing an IFMA, violated its
constitutional right against non-impairment of contracts. We have ruled, however, that the 1969 Document is not a
contract recognized under the non-impairment clause, much less a contract specifically enjoining the DENR
Secretary to issue the IFMA. The conclusion that the 1969 Document is not a contract recognized under the non-
impairment clause has even been disposed of in another case decided by another division of this Court, PICOP
Resources, Inc. v. Base Metals Mineral Resources Corporation, 94 the Decision in which case has become final and
executory. PICOPs Petition for Mandamus should, therefore, fail.

Furthermore, even if we assume for the sake of argument that the 1969 Document is a contract recognized under
the non-impairment clause, and even if we assume for the sake of argument that the same is a contract specifically
enjoining the DENR Secretary to issue an IFMA, PICOPs Petition for Mandamus must still fail. The 1969 Document
expressly states that the warranty as to the tenure of PICOP is "subject to compliance with constitutional and
statutory requirements as well as with existing policy on timber concessions." Thus, if PICOP proves the two above-
mentioned matters, it still has to prove compliance with statutory and administrative requirements for the conversion
of its TLA into an IFMA.

While we have withdrawn our pronouncements in the assailed Decision that (1) PICOP had not submitted the
required forest protection and reforestation plans, and that (2) PICOP had unpaid forestry charges, thus effectively
ruling in favor of PICOP on all factual issues in this case, PICOP still insists that the requirements of an NCIP
certification and Sanggunian consultation and approval do not apply to it. To affirm PICOPs position on these
matters would entail nothing less than rewriting the Indigenous Peoples Rights Act and the Local Government
Code, an act simply beyond our jurisdiction.

WHEREFORE, the Motion for Reconsideration of PICOP Resources, Inc. is DENIED.

SO ORDERED.
A.M. No. 01-4-03-SC September 13, 2001

RE: REQUEST FOR LIVE RADIO-TV COVERAGE OF THE TRIAL IN THE SANDIGANBAYAN OF THE
PLUNDER CASES AGAINST FORMER PRESIDENT JOSEPH E. ESTRADA

SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG PILIPINAS, CESAR

SARINO, RENATO CAYETANO, and ATTY. RICARDO ROMULO, petitioners,
vs.
JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES,oppositors.

RESOLUTION

MENDOZA, J.:

This is a motion for reconsideration of the decision denying petitioners' request for permission to televise and
broadcast live the trial of former President Estrada before the Sandiganbayan. The motion was filed by the
Secretary of Justice, as one of the petitioners, who argues that there is really no conflict between the right of the
people to public information and the freedom of the press, on the one hand, and, on the other, the right of the
accused to a fair trial; that if there is a clash between these rights, it must be resolved in favor of the right of the
people and the press because the people, as the repository of sovereignty, are entitled to information; and that live
media coverage is a safeguard against attempts by any party to use the courts as instruments for the pursuit of
selfish interests.

On the other hand, former President Joseph E. Estrada reiterates his objection to the live TV and radio coverage of
his trial on the ground that its allowance will violate the sub judice rule and that, based on his experience with the
impeachment trial, live media coverage will only pave the way for so-called "expert commentary" which can trigger
massive demonstrations aimed at pressuring the Sandiganbayan to render a decision one way or the other. Mr.
Estrada contends that the right of the people to information may be served through other means less distracting,
degrading, and prejudicial than live TV and radio coverage. 1wphi1.nt

The Court has considered the arguments of the parties on this important issue and, after due deliberation, finds no
reason to alter or in any way modify its decision prohibiting live or real time broadcast by radio or television of the
trial of the former president. By a vote of nine (9) to six (6) of its members, 1 the Court denies the motion for
reconsideration of the Secretary of Justice.

In lieu of live TV and radio coverage of the trial, the Court, by the vote of eight (8) Justices, 2 has resolved to order
the audio-visual recording of the trial.

What follows is the opinion of the majority. lawphil.net

Considering the significance of the trial before the Sandiganbayan of former President Estrada and the importance
of preserving the records thereof, the Court believes that there should be an audio-visual recording of the
proceedings. The recordings will not be for live or real time broadcast but for documentary purposes. Only later will
they be available for public showing, after the Sandiganbayan shall have promulgated its decision in every case to
which the recording pertains. The master film shall be deposited in the National Museum and the Records
Management and Archives Office for historical preservation and exhibition pursuant to law.4

For the purpose of recording the proceedings, cameras will be inconspicuously installed in the courtroom and the
movement of TV crews will be regulated, consistent with the dignity and solemnity of the proceedings. The trial shall
be recorded in its entirety, except such portions thereof as the Sandiganbayan may decide should not be held public
pursuant to Rule 119, 21 of the Revised Rules of Criminal Procedure. No comment shall be included in the
documentary except annotations which may be necessary to explain certain scenes which are depicted. The audio-
visual recordings shall be made under the supervision and control of the Sandiganbayan or its Division as the case
may be.

There are several reasons for such televised recording. First, the hearings are of historic significance. They are an
1awphil.net

affirmation of our commitment to the rule that "the King is under no man, but he is under God and the law." (Quod
Rex non debet esse sub homine, sed sub Deo et Lege.) Second, the Estrada cases involve matters of vital concern
to our people who have a fundamental right to know how their government is conducted. This right can be enhanced
by audio visual presentation. Third, audio-visual presentation is essential for the education and civic training of the
people.

Above all, there is the need to keep audio-visual records of the hearings for documentary purposes. The recordings
will be useful in preserving the essence of the proceedings in a way that the cold print cannot quite do because it
cannot capture the sights and sounds of events. They will be primarily for the use of appellate courts in the event a
review of the proceedings, rulings, or decisions of the Sandiganbayan is sought or becomes necessary. The
accuracy of the transcripts of stenographic notes taken during the trial can be checked by reference to the tapes.

On the other hand, by delaying the release of the tapes for broadcast, concerns that those taking part in the
proceedings will be playing to the cameras and will thus be distracted from the proper performance of their roles --
whether as counsel, witnesses, court personnel, or judges -- will be allayed. The possibility that parallel trials before
the bar of justice and the bar of public opinion may jeopardize, or even prevent, the just determination of the cases
can be minimized. The possibility that judgment will be rendered by the popular tribunal before the court of justice
can render its own will be avoided.

At the same time, concerns about the regularity and fairness of the trial -- which, it may be assumed, is the concern
of those opposed to, as much as of those in favor of, televised trials - will be addressed since the tapes will not be
released for public showing until after the decision of the cases by the Sandiganbayan. By delaying the release of
the tapes, much of the problem posed by real time TV and radio broadcast will be avoided.

Thus, many important purposes for preserving the record of the trial can be served by audio-visual recordings
without impairing the right of the accused to a fair trial.

Nor is the right of privacy of the accused a bar to the production of such documentary. In Ayer Productions Pty. Ltd.
V. Capulong,5 this Court set aside a lower court's injunction restraining the filming of "Four Day Revolution," a
documentary film depicting, among other things, the role of then Minister of National Defense Juan Ponce Enrile in
the 1986 EDSA people power. This Court held: "A limited intrusion into a person's privacy has long been regarded
as permissible where that person is a public figure and the information sought to be elicited from him or to be
published about him constitute matters of a public character." 6
No one can prevent the making of a movie based on the trial. But, at least, if a documentary record is made of the
proceedings, any movie that may later be produced can be checked for its accuracy against such documentary and
any attempt to distort the truth can thus be averted.

Indeed, a somewhat similar proposal for documentary recording of celebrated cases or causes clbres was made
was made way back in 1971 by Paul Freund of the Harvard Law School. As he explained:

In fairness let me refer to an American experience many of my lay friends found similarly moving. An
educational television network filmed a trial in Denver of a Black Panther leader on charges of resisting
arrest, and broadcast the document in full, in four installments, several months after the case was concluded
-- concluded incidentally, with a verdict of acquittal.

No one could witness the trial without a feeling of profound respect for the painstaking way in which the truth
was searched for, for the ways whereby law copes with uncertainties and ambiguities through presumptions
and burden of proof, and the sense of gravity with which judge and jury carried out their responsibilities.

I agree in general with the exclusion of television from the courtroom, for the familiar good reasons. And yet
the use of television at a trial for documentary purposes, not for the broadcast of live news, and with the
safeguards of completeness and consent, is an educational experiment that I would be prepared to
welcome. Properly safeguarded and with suitable commentary, the depiction of an actual trial is an agency
of enlightenment that could have few equals in its impact on the public understanding.

Understanding of our legal process, so rarely provided by our educational system, is now a desperate need. 7

Professor Freund's observation is as valid today as when it was made thirty years ago. It is perceptive for its
recognition of the serious risks posed to the fair administration of justice by live TV and radio broadcasts, especially
when emotions are running high on the issues stirred by a case, while at the same time acknowledging the
necessity of keeping audio-visual recordings of the proceedings of celebrated cases, for public information and
exhibition, after passions have subsided.

WHEREFORE, an audio-visual recording of the trial of former President Estrada before the Sandiganbayan is
hereby ordered to be made, for the account of the Sandiganbayan, under the following conditions: (a) the trial shall
be recorded in its entirety, excepting such portions thereof as the Sandiganbayan may determine should not be held
public under Rule 119, 21 of the Rules of Criminal Procedure; (b) cameras shall be installed inconspicuously inside
the courtroom and the movement of TV crews shall be regulated consistent with the dignity and solemnity of the
proceedings; (c) the audio-visual recordings shall be made for documentary purposes only and shall be made
without comment except such annotations of scenes depicted therein as may be necessary to explain them; (d) the
live broadcast of the recordings before the Sandiganbayan shall have rendered its decision in all the cases against
the former President shall be prohibited under pain of contempt of court and other sanctions in case of violations of
the prohibition; (e) to ensure that the conditions are observed, the audio-visual recording of the proceedings shall be
made under the supervision and control of the Sandiganbayan or its Division concerned and shall be made pursuant
to rules promulgated by it; and (f) simultaneously with the release of the audio-visual recordings for public
broadcast, the original thereof shall be deposited in the National Museum and the Records Management and
Archives Office for preservation and exhibition in accordance with law.

SO ORDERED.
G.R. No. L-68828 March 27, 1985

RELI GERMAN, RAMON PEDROSA, TIRSO SANTILLAN, JR., MA. LUISA ANDAL, NIEVA MALINIS, RICARDO
LAVIA, CESAR CORTES, DANILO REYES, JOSE REYES, JOSEFINA MATE, LOURDES CALMA, MILDRED
JUAN, OLIVE GUANZON, FERNANDO COCHICO, SHERMAN CID, NAZARENO BENTULAN, ROSLINA
DONAIRE, MARIO MARTINEZ, BEATRIZ TEYLAN, ANGELINA LAPID, ROSEMARIE FLORES, DANIEL VAN
SOTO, EDGARDO MERCADER, NELLY AGUSTIN, MARILY MAGCALAS, DAVID CHAN, ARSENIO
SALANSANG, NELSON DE GUZMAN, MARCIANO ARANETA, CESAR MENESES, DIONISIO RELLOSA,
MARIO SANTIAGO, SEVERINO SANTOS, LEONORA SANTOS, NIMFA DORONILLA, FLORENCE GUINTO,
ROSALINA MANANSALA, PERCIVAL OSTONAL, TOMMY MACARANAS, ROGER NICANDRO, petitioners,
vs.
GEN. SANTIAGO BARANGAN and MA. JOR ISABELO LARIOSA, respondents.

ESCOLIN, * J.:

Invoking their constitutional freedom to religious worship and locomotion, petitioners seek the issuance of [1] a writ
of mandamus to compel respondents to allow them to enter and pray inside St. Jude Chapel located at J.P. Laurel
Street, Manila; and [2] a writ of injunction to enjoin respondents from preventing them from getting into and praying
in said church.

The facts to be considered are the following:

At about 5:00 in the afternoon of October 2, 1984, petitioners, composed of about 50 businessmen, students and
office employees converged at J.P. Laurel Street, Manila, for the ostensible purpose of hearing Mass at the St. Jude
Chapel which adjoins the Malacaang grounds located in the same street. Wearing the now familiar inscribed yellow
T-shirts, they started to march down said street with raised clenched fists 1 and shouts of anti-government invectives.
Along the way, however, they were barred by respondent Major lsabelo Lariosa, upon orders of his superior and co-
respondent Gen. Santiago Barangan, from proceeding any further, on the ground that St. Jude Chapel was located within
the Malacaang security area. When petitioners' protestations and pleas to allow them to get inside the church proved
unavailing, they decided to leave. However, because of the alleged warning given them by respondent Major Lariosa that
any similar attempt by petitioners to enter the church in the future would likewise be prevented, petitioners took this
present recourse.
Petitioners' alleged purpose in converging at J.P. Laurel Street was to pray and hear mass at St. Jude church. At the
hearing of this petition, respondents assured petitioners and the Court that they have never restricted, and will never
restrict, any person or persons from entering and worshipping at said church. They maintain, however, that
petitioners' intention was not really to perform an act of religious worship, but to conduct an anti-government
demonstration at a place close to the very residence and offices of the President of the Republic. Respondents
further lament petitioners' attempt to disguise their true motive with a ritual as sacred and solemn as the Holy
Sacrifice of the Mass. Undoubtedly, the yellow T-shirts worn by some of the marchers, their raised clenched fists,
and chants of anti-government slogans strongly tend to substantiate respondents allegation. Thus, J.P. Fenix,
commenting on the motive of petitioners' mass action of October 2, 1984, wrote the following in his article entitled
"Mission Impossible", published in the October 12-18, 1984 issue of the "Mr. & Mrs." magazine:

They couldn't go through Mendiola Bridge, and so they dared to get even closer to the heart of the
matter. But as in Mendiola , the barbed wire barricades and the array of sheet metal shields got in
the way of the members of the August Twenty-One Movement (ATOM) as they tried last October 2 to
get to the pearly gates of power via the St. Jude Chapel on Laurel St. St. Jude happens to be a
neighbor of President Marcos, his (sic) chapel being adjacent to Malacaang. ...

The foregoing cannot but cast serious doubts on the sincerity and good faith of petitioners in invoking the
constitutional guarantee of freedom of religious worship and of locomotion. While it is beyond debate that every
citizen has the undeniable and inviolable right to religious freedom, the exercise thereof, and of all fundamental
rights for that matter, must be done in good faith. As Article 19 of the Civil Code admonishes: "Every person must in
the exercise of his rights and in the performance of his duties ... observe honesty and good faith."

Even assuming that petitioners' claim to the free exercise of religion is genuine and valid, still respondents reaction
to the October 2, 1984 mass action may not be characterized as violative of the freedom of religious worship. Since
1972, when mobs of demonstrators crashed through the Malacaang gates and scaled its perimeter fence, the use
by the public of J.P. Laurel Street and the streets approaching it have been restricted. While travel to and from the
affected thoroughfares has not been absolutely prohibited, passers-by have been subjected to courteous,
unobtrusive security checks. The reasonableness of this restriction is readily perceived and appreciated if it is
considered that the same is designed to protect the lives of the President and his family, as well as other
government officials, diplomats and foreign guests transacting business with Malacaang. The need to secure the
safety of heads of state and other government officials cannot be overemphasized. The threat to their lives and
safety is constant, real and felt throughout the world. Vivid illustrations of this grave and serious problem are the
gruesome assassinations, kidnappings and other acts of violence and terrorism that have been perpetrated against
heads of state and other public officers of foreign nations.

Said restriction is moreover intended to secure the several executive offices within the Malacaang grounds from
possible external attacks and disturbances. These offices include communications facilities that link the central
government to all places in the land. Unquestionably, the restriction imposed is necessary to maintain the smooth
functioning of the executive branch of the government, which petitioners' mass action would certainly disrupt.

Freedom of religious worship is guaranteed under Section 8, Article IV of the 1973 Constitution, thus:

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

Elucidating on the meaning and scope of freedom of religion, the U.S. Supreme Court in Cantwell v.
Connecticut 2said:

The constitutional inhibition on legislation on the subject of religion has a double aspect. On the one
hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of
worship. Freedom of conscience and freedom to adhere to such religious organization or form of
worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards
the free exercise of the chosen form of religion. Thus the amendment embraces two concepts-
freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second
cannot be.
In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but
only in the manner by which they had attempted to translate the same into action. This curtailment is in accord with
the pronouncement of this Court in Gerona v. Secretary of Education, 3 thus:

The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought.
So is the freedom of belief, including religious belief, limitless and without bounds. One may believe
in most anything, however strange, bizarre and unreasonable the same may appear to others, even
heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom
of belief and the exercise of said belief, there is quite a stretch of road to travel. If the exercise of
said religious belief clashes with the established institutions of society and with the law, then the
former must yield and give way to the latter. The government steps in and either restrains said
exercise or even prosecutes the one exercising it. (Emphasis supplied)

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

The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or
when necessary in the interest of national security, public safety, or public health.

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

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

SO ORDERED.